United States District Court, E.D. Virginia, Alexandria Division
M. HILTON, UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Plaintiff and
Defendants' Motions for Summary Judgment.
December 1, 2016, Karin Sheire was driving her son James
Sheire's car when she struck a pedestrian, Rosemarie
Cruz. Cruz unfortunately succumbed to her injuries, leaving
behind two young daughters. Aftqr the accident, the Estate of
Rosemarie Cruz sued Karin Sheire in Alexandria Circuit Court
alleging wrongful death (the ``Underlying Lawsuit") .
The Plaintiff subsequently filed this declaratory judgment
action seeking a declaration that there is no insurance
coverage for Karin Sheire and the Underlying Lawsuit under an
umbrella liability insurance policy that Plaintiff issued to
Karin Sheire's son and daughter-in-law.
time of the accident, Karin Sheire was staying with her son
and his wife and children in their Arlington, Virginia home
for a two-week visit. For most of the year, Karin Sheire
resides with her husband in Great Falls, Montana, but with
some regularity, visits her son's family in Arlington.
Since 2012, Karin Sheire has visited her son. two or three
times per year, staying on average two weeks each visit.
evidence shows that Karin Sheire keeps some of her clothes
and personal belongings at her son and daughter-in-law's
Arlington home, where she also has her own bedroom and
bathroom. While visiting, Karin Sheire regularly supports her
son's family by cooking breakfast for her grandchildren,
taking her grandchildren to school, grocery shopping, and
2002, Karin Sheire immigrated from Germany to the United
States and immediately moved in with her husband in the Great
Falls, Montana home, which they own jointly. She keeps all of
her business, financial, banking, tax, and medical affairs in
Montana. She also keeps personal belongings, furniture, and
family heirlooms in her Montana home.
Sheire also uses her Great Falls, Montana address in
connection with her bank accounts, car registration, car
insurance, pension, credit cards, doctors, health insurance,
life insurance, cellphone account, and utilities. She also
uses her Montana address as her official address with the
United States for immigration purposes and for filing state
and federal taxes. Karin Sheire has a Montana issued
driver's license, and after the accident, she returned to
Montana and retained a Montana attorney in connection with
time of the accident, James Sheire and his wife Heather
Sheire were the named insureds under two insurance policies
issued by Plaintiff: a Personal Auto Liability Policy (the
``Primary Policy") and a Personal Liability Umbrella
Policy (the "Umbrella Policy''). After
Cruz's estate brought the Underlying Lawsuit, Karin
Sheire sought coverage under both policies.
Primary Policy provides $250, 000 in coverage per person for,
in relevant part, "`bodily injury' or `property
damage' for which any `insured' becomes legally
responsible because of an auto accident." Under the
Primary Policy, "insured" means "any person
using `your covered auto.'" Plaintiff did not
contest coverage for the Underlying Lawsuit under the Primary
Policy and has tendered its $250, 000 applicable limit.
Umbrella Policy provides up to $1 million in additional
insurance coverage in excess of the Primary Policy's
applicable limit, "if a claim is made or suit is brought
against an insured for damages because of a loss for which
the insured is legally liable and to which this policy
applies[.]" Significantly, the Umbrella Policy defines
"insured" differently than the Primary Policy. The
Umbrella Policy defines "insured" to mean, in
relevant part, "you and your relatives whose primary
residence is your household." "You" is defined
to mean the Named Insureds, James and Heather Sheire. In this
declaratory judgment action, Plaintiff argues that there is
no coverage for Karin Sheire or the Underlying Lawsuit under
the Umbrella Policy because Karin Sheire does not qualify as
an "insured" under the Umbrella Policy. In
particular, Plaintiff argues that Karin Sheire is not an
"insured" because her "primary residence"
was not, at the time of the accident, James and Heather
Sheire's household. The parties agree that the sole issue
on their cross-motions for summary judgment is whether Karin
Sheire qualifies as an "insured" under the Umbrella
Federal Rule of Civil Procedure 56, a court should grant
summary judgment if the pleadings and evidence show that
there is no genuine dispute as to any material fact and that
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56; see Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). In reviewing a motion for summary
judgment, the court views the facts in the light most
favorable to the non-moving party. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Once a
motion for summary judgment is properly made, the opposing
party has the burden to show that a genuine dispute of
material fact exists. See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) . This
Court finds this case is ripe for summary judgment.
the Umbrella Policy was "issued or delivered" to
James and Heather Sheire in Virginia, the parties agree that
Virginia law governs its interpretation. Buchanan v.
Doe, 431 S.E.2d 289, 291 (Va. 1993) (``the law of the
place where an insurance contract is written and delivered
controls issues as to its coverage."). The parties
disagree, however, as to whether Defendants have the burden
of establishing that coverage exists under the Umbrella
Policy. The parties agree that the burden is normally on a
policyholder to bring himself within the terms of the policy,
but Defendants argue that because the party seeking coverage
here is the claimant and not the policyholder, the
claimant's burden is only "technical."
third-party tort claimant seeks coverage from an insurer, it
must stand in the shoes of the policyholder. Erie Ins.
Exch. V. Meeks, 288 S.E.2d 454, 456-57(Va. 1982).
Virginia law is also clear that the party seeking
coverage bears the initial burden of proving that it is
entitled to coverage. Bohreer v. Erie Ins. Grp., 475
F.Supp.2d 578, 585 (E.D. Va. 2007) (emphasis added). This
threshold burden does not shift to an insurer because it
filed a declaratory judgment action. TRAVCO Ins. Co. v.
Ward, 715 F.Supp.2d 699, 706-07 (E.D. Va. 2010). Based
on these well-settled principles, the Defendants have the
initial burden of bringing themselves "within the
terms7' of the Umbrella Policy.
dispositive issue in this case is whether Karin Sheire is an
"insured" under the Umbrella Policy, and the answer
turns on whether her "primary residence" was her
son's "household." Defendants advance two
primary arguments as to why Karin Sheire's "primary
residence" was her son's household on the date of
the accident. First, Defendants argue that the phrase
"primary residence" is not to be confused with a
"permanent" residence, and because
"primary" may mean "most important," the
evidence shows that Karin's "most important"
residence was her son's Arlington home. Second,
Defendants alternatively argue that the phrase "primary
residence" is ambiguous and should be construed against
Plaintiff and in favor of coverage. Va. Farm Bureau Mut.
Ins. Co. v. Hodges, 385 ...