Allstate Vehicle and Property Insurance Company et al v. Rodger W., individually and as the Administrator of the Estate of Hyrum W. et al

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ALLSTATE VEHICLE AND
PROPERTY INSURANCE COMPANY and
ALLSTATE INDEMNITY COMPANY,
Plaintiffs,
v. 	CIVIL NO. 1:24-CV-06
(KLEEH)
RODGER W., individually and as
the Administrator of the Estate of
Hyrum W., and CARLEY S.,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT [ECF NO. 61] AND DENYING
DEFENDANT RODGER W.’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 62]
Pending 	are 	cross-motions 	for 	summary 	judgment. 	For 	the
reasons discussed herein, the Court GRANTS Plaintiffs’ motion and
DENIES Rodger W.’s motion.
I. 	BACKGROUND
On 	July 	15, 	2022, 	four-month-old 	Hyrum W. 	(“Hyrum”) 	died
while 	in 	the 	care 	of 	his 	foster 	mother, 	Defendant 	Carley S.
(“Carley”). 	Compl., 	ECF 	No. 	1, 	at 	¶ 	7. 	According 	to 	the 	West
Virginia Department of Health and Human Resources (“DHHR”), 1 Hyrum
died 	of 	asphyxia. 	Id. 	¶ 	9. 	DHHR 	concluded 	that 	child 	neglect
occurred. 	Id. 	On 	or 	about 	August 	3, 	2023, 	Plaintiffs 	Allstate
Vehicle 	and 	Property 	Insurance 	Company 	and 	Allstate 	Indemnity
1 On January 1, 2024, DHHR was reorganized into three separate departments.
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ALLSTATE V. ESTATE OF HYRUM W. 	1:24-CV-06
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT [ECF NO. 61] AND DENYING
DEFENDANT RODGER W.’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 62]
2
Company 	(together, 	“Plaintiffs”) 	were 	notified 	of 	claims 	being
asserted 	by 	Defendant 	Rodger 	W. 	(“Rodger”), 	the 	paternal
grandfather 	of 	Hyrum, 	against 	Carley 	in 	connection 	with 	Hyrum’s
death. 	Id. 	¶ 	8. 	On 	December 	20, 	2023, 	Plaintiffs 	sent 	a 	letter
denying coverage for the incident. 	See Def. Exh. 1, ECF No. 65.
On 	January 	5, 	2024, 	Plaintiffs 	filed 	this 	action 	against
Rodger 	(individually 	and 	as 	the 	Administrator 	of 	the 	Estate 	of
Hyrum) and Carley. 	See ECF No. 1. 	Specifically, Plaintiffs seek
a 	declaratory 	judgment 	on 	the 	issue 	of 	liability 	insurance
coverage. 	Now 	pending 	are 	cross-motions 	for 	summary 	judgment,
which are fully briefed and ripe for review. 	See ECF Nos. 61, 62.
The facts are largely undisputed.
A. 	General Background
Carley is an only child who has a close relationship with her
parents, Jerry S. (“Jerry”) and Antoinette S. (“Antoinette”). 	Def.
Exh. 7, ECF No. 65-6, at 9:1-6. 	Shortly after she started college,
Carley 	moved 	from 	her 	childhood 	home, 	1078 	Windsor 	Avenue 	(the
“Windsor Property”), to a condominium purchased by her parents in
Suncrest (the “Suncrest Condo”). 	Id. at 11:2–16; Def. Exh. 8, ECF
No. 	65-7, 	at 	20:8-16. 	After 	living 	in 	the 	Suncrest 	Condo 	for
almost a decade, Carley moved into her current home at 1082 Koontz
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ALLSTATE V. ESTATE OF HYRUM W. 	1:24-CV-06
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT [ECF NO. 61] AND DENYING
DEFENDANT RODGER W.’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 62]
3
Avenue 	(the 	“Koontz 	Property”). 2 	Def. 	Exh. 	8, 	ECF 	No. 	65-7, 	at
16:12-22. 	Jerry and Antoinette own 99% of the Koontz Property but
have 	never 	lived 	there. 	Def. 	Exh. 	6, 	ECF 	No. 	65-5, 	at 	10:12–19;
Def. 	Exh. 	7, 	ECF 	No. 	65-6, 	at 	48:21–22. 	They 	still 	live 	at 	the
Windsor 	Property. 	Def. 	Exh. 	7, 	ECF 	No. 	65-6, 	at 	8:5–16. 	The
Koontz 	Property 	and 	the 	Windsor 	Property 	are 	one 	block 	away 	from
each 	other. 	Id. 	at 	29:15–18. 	The 	properties’ 	proximity 	allows
Carley to visit her parents often. 	She stays at her parents’ house
when they are out of town, has dinner with her parents regularly,
and visits her dog, which stays at the Windsor Property because it
has 	a 	fenced-in 	yard. 	Id. 	at 	35:16–36:13; 	Def. 	Exh. 	8, 	ECF 	No.
65–7, 	at 	28:22–29:5, 	50:11–51:1. 	Carley 	helps 	take 	care 	of 	her
mother, 	who 	has 	inflammatory 	bowel 	disease, 	and 	her 	grandmother,
who lives nearby. 	Def. Exh. 7, ECF No. 65–6, at 31:16–20, 36:24–
37:1; 	Def. 	Exh. 	8, 	ECF 	No. 	65–7, 	at 	29:3–5. 	Carley’s 	parents
maintain 	her 	childhood 	bedroom 	in 	the 	exact 	condition 	as 	it 	was
when she first moved to the Suncrest Condo. 	Def. Exh. 7, ECF No.
65–6, at 13:18–14:1.
Growing up, Carley received a lot of support from her parents,
and the support continues today. 	Carley has never paid her parents
2 Of the three properties where Carley lived, she has a legal interest in only
two: a one-third interest in the Suncrest Condo and a one percent interest in
the Koontz Property. 	Def. Exh. 6, ECF No. 65–5, at 10:12–19.
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ALLSTATE V. ESTATE OF HYRUM W. 	1:24-CV-06
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT [ECF NO. 61] AND DENYING
DEFENDANT RODGER W.’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 62]
4
rent, 	does 	not 	pay 	for 	home 	insurance, 	and 	does 	not 	pay 	for
automobile insurance. 	Id. at 17:15–21:5. 	Carley pays the utility
bills 	at 	the 	Koontz 	Property 	and 	pays 	for 	her 	daily 	living
expenses. 	Def. Exh. 8, ECF No. 65-7, at 23:13–21. 	She is employed
at West Virginia University Hospitals and has maintained full-time
employment there for over seven years. 	Id. at 13:8–22. 	Over the
past 	seven 	years, 	Carley 	took 	one 	year 	off 	work 	to 	go 	back 	to
school. 	Id. 	at 	13:19–22. 	During 	her 	year 	off, 	her 	parents
provided her with a living stipend so that she could focus on her
studies. 	Id. 	at 	27:21–28:9; 	Def. 	Exh. 	7, 	ECF 	No. 	65–6, 	at 	30:7–
16.
Hyrum 	died 	on 	the 	Koontz 	Property. 	See 	Pl. 	Memo., 	ECF 	No.
61-1, 	at 	12. 	At 	the 	time 	of 	Hyrum’s 	death, 	Carley 	was 	30 	years
old, 	had 	one 	adopted 	daughter, 	and 	was 	fostering 	Hyrum 	and 	two
other 	children. 	Def. 	Exh. 	8, 	ECF 	No. 	65-7, 	at 	57:22–58:6. 	She
was 	a 	full-time 	employee 	at 	West 	Virginia 	University 	Hospitals.
Carley 	was 	living 	at 	the 	Koontz 	Property 	with 	her 	adopted 	child,
foster 	children, 	and 	romantic 	partner. 	She 	never 	stayed 	at 	the
Windsor 	Property 	with 	her 	foster 	children 	because 	the 	foster
children were not legally allowed to stay the night anywhere other
than the Koontz Property. 	Id. at 31:2–21.
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ALLSTATE V. ESTATE OF HYRUM W. 	1:24-CV-06
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT [ECF NO. 61] AND DENYING
DEFENDANT RODGER W.’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 62]
5
B. 	The Insurance Policies
At 	issue 	are 	two 	home 	insurance 	policies 	and 	a 	personal
umbrella 	policy 	issued 	by 	Plaintiffs. 	The 	first 	home 	insurance
policy covers the Windsor Property (the “Windsor Policy”), Policy
No. 	977 	213 	793. 	See 	Def. 	Exh. 	4, 	ECF 	No. 	65-3. 	The 	Windsor
Policy 	was 	issued 	only 	to 	Jerry 	and 	Antoinette. 	Id. 	at 	6. 	It
includes family liability protection and guest medical protection.
Id. at 7, 24. 	The other home insurance policy at issue covers the
Koontz 	Property 	(the 	“Koontz 	Policy”), 	Policy 	No. 	801 	656 	142.
See 	Def. 	Exh. 	2, 	ECF 	No. 	65-1. 	The 	Koontz 	Policy 	was 	issued 	to
Jerry, 	Antoinette, 	and 	Carley. 	Id. 	at 	6. 	Family 	liability
protection 	and 	guest 	medical 	protection 	were 	not 	purchased 	under
the Koontz Policy. 	Id. at 7. 	The Koontz Policy, however, contains
a 	Secondary 	Residence 	Endorsement. 	Id. 	at 	8. 	The 	Secondary
Residence Endorsement states,
Your 	policy 	provides 	Family 	Liability
Protection — Coverage 	X 	and 	Guest 	Medical
Protection – Coverage 	Y 	under 	Section 	II 	of
the policy for the insured premises. 	However,
if 	this 	policy 	providing 	Family 	Liability
Protection – Coverage 	X 	and 	Guest 	Medical
Protection – Coverage Y is no longer in force,
whether 	canceled 	of 	otherwise 	terminated, 	no
coverage 	for 	Family 	Liability
Protection – Coverage 	X 	or 	Guest 	Medical
Protection – Coverage Y shall apply.
Id.
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ALLSTATE V. ESTATE OF HYRUM W. 	1:24-CV-06
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT [ECF NO. 61] AND DENYING
DEFENDANT RODGER W.’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 62]
6
The third policy at issue is a Personal Umbrella Policy (the
“PUP 	Policy”), 	Policy 	No. 	977 	511 	879. 	See 	Def. 	Exh. 	5, 	ECF 	No.
65-4. 	The 	PUP 	Policy 	was 	issued 	to 	Jerry 	and 	Antoinette, 	with
Carley 	identified 	as 	a 	vehicle 	operator. 	See 	id. 	All 	three
policies were in effect at the time of Hyrum’s death.
On 	December 	20, 	2023, 	following 	Hyrum’s 	death, 	Plaintiffs
denied 	coverage 	for 	the 	incident. 	See 	Def. 	Exh. 	1, 	ECF 	No. 	65.
Their 	denial 	letter 	stated 	that 	nothing 	contained 	within 	it 	was
“intended 	to 	waive 	any 	of 	the 	terms, 	conditions, 	limitations 	or
exclusions” of the relevant policies. 	Id. at 19. 	Plaintiffs then
filed 	this 	action 	seeking 	declaratory 	judgment 	with 	respect 	to
coverage, 	and 	now 	cross-motions 	for 	summary 	judgment 	are 	pending
on the question.
II. 	STANDARD OF REVIEW
Summary 	judgment 	is 	appropriate 	if 	“there 	is 	no 	genuine
dispute 	as 	to 	any 	material 	fact 	and 	the 	movant 	is 	entitled 	to
judgment as a matter of law.” 	Fed. R. Civ. P. 56(a). 	The movant
“bears the initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and admissions
on 	file, 	together 	with 	the 	affidavits, 	if 	any, 	which 	it 	believes
demonstrate 	the 	absence 	of 	a 	genuine 	issue 	of 	material 	fact.”
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ALLSTATE V. ESTATE OF HYRUM W. 	1:24-CV-06
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT [ECF NO. 61] AND DENYING
DEFENDANT RODGER W.’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 62]
7
Celotex 	Corp. 	v. 	Catrett, 	477 	U.S. 	317, 	323 	(1986) 	(internal
quotation marks omitted). 	“Where the record taken as a whole could
not lead a rational trier of fact to find for the non-moving party,
there 	is 	no 	genuine 	issue 	for 	trial.” 	Matsushita 	Elec. 	Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation
and internal quotation marks omitted).
“When 	faced 	with 	cross-motions 	for 	summary 	judgment, 	the
court 	must 	review 	each 	motion 	on 	its 	own 	merits 	to 	determine
whether 	either 	of 	the 	parties 	deserves 	judgment 	as 	a 	matter 	of
law.” 	Rossignol 	v. 	Voorhaar, 	316 	F.3d 	516, 	523 	(4th 	Cir. 	2003)
(citation 	and 	internal 	quotation 	marks 	omitted). 	The 	same
standards 	of 	review 	apply 	when 	both 	parties 	file 	motions 	for
summary judgment. 	See ITCO Corp. v. Michelin Tire Corp., 722 F.2d
42, 45 n. 3 (4th Cir. 1983) (“The court is not permitted to resolve
genuine 	issues 	of 	material 	fact 	on 	a 	motion 	for 	summary
judgment — even where . . . both parties have filed cross motions
for summary judgment.”).
III. DISCUSSION
Rodger 	concedes 	that 	the 	Koontz 	Policy 	does 	not 	provide
coverage for claims arising from Hyrum’s death. 	Accordingly, the
only policies at issue are the Windsor Policy and the PUP Policy.
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ALLSTATE V. ESTATE OF HYRUM W. 	1:24-CV-06
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT [ECF NO. 61] AND DENYING
DEFENDANT RODGER W.’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 62]
8
For 	the 	reasons 	discussed 	below, 	the 	Court 	finds 	that 	neither
provides coverage. 3
A. 	The Windsor Policy does not provide coverage.
The 	Windsor 	Policy 	does 	not 	provide 	coverage 	for 	claims
arising from Hyrum’s death because Carley is not a resident of her
parents’ 	household. 	Even 	if 	she 	were, 	coverage 	is 	otherwise
excluded 	because 	the 	Koontz 	Property 	is 	not 	an 	insured 	premises
under the Windsor Policy.
1. 	Carley is not a resident of her parents’ household
under the Windsor Policy.
The 	Windsor 	Policy 	provides 	coverage 	for 	Jerry 	and
Antoinette, 	as 	insured 	persons, 	as 	well 	as 	“any 	relative” 	if 	the
relative is a “resident” of their “household[.]” 	See Def. Exh. 4,
ECF 	No. 	65-3, 	at 	32. 	If 	the 	phrase 	“resident 	of 	your 	household”
is 	not 	otherwise 	defined 	in 	a 	homeowners’ 	insurance 	policy, 	“the
phrase means a person who dwells — though not necessarily under a
common 	roof — with 	other 	individuals 	who 	are 	named 	insureds 	in 	a
manner 	and 	for 	a 	sufficient 	length 	of 	time 	that 	they 	could 	be
considered 	to 	be 	a 	family 	living 	together.” 	Syl. 	Pt. 	3, 	Farmers
Mut. 	Ins. 	Co. 	v. 	Tucker, 	576 	S.E.2d 	261 	(W. Va. 	2002). 	To
3 Plaintiffs raise an alternative argument in their motion for summary judgment:
that Carley S.’s claim was untimely. 	Because the Court finds no coverage under
any of the policies, it need not analyze this argument.
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ALLSTATE V. ESTATE OF HYRUM W. 	1:24-CV-06
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT [ECF NO. 61] AND DENYING
DEFENDANT RODGER W.’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 62]
9
determine 	whether 	this 	standard 	is 	met, 	courts 	consider 	a 	number
of 	factors, 	including 	but 	not 	limited 	to 	(1) 	“the 	intent 	of 	the
parties”; (2) “the formality of the relationship between the person
in 	question 	and 	the 	other 	members 	of 	the 	named 	insureds’
household”; 	(3) 	“the 	permanence 	or 	transient 	nature 	of 	that
person’s 	residence 	therein”; 	(4) 	“the 	absence 	or 	existence 	of
another 	place 	of 	lodging 	for 	that 	person”; 	and 	(5) 	“the 	age 	and
self-sufficiency of that person.” 	Id.
In 	Tucker, 	the 	Supreme 	Court 	of 	Appeals 	surveyed 	case 	law
from other jurisdictions before concluding that an individual need
not live under the same roof as the named insured to be considered
a resident of the named insured’s household. 	Id. at 267–68. 	The
cases 	upon 	which 	the 	Supreme 	Court 	relied 	involved 	children
temporarily 	living 	away 	from 	home 	to 	pursue 	education, 	extensive
medical 	treatment, 	or 	military 	service; 	children 	of 	divorced 	or
separated 	parents; 	and 	relatives 	dependent 	on 	the 	insured 	person
for basic needs. 	See id. 	Ultimately, the Supreme Court held that
a 38-year-old, unemployed, chronic alcoholic was a resident of his
father’s 	household 	because 	he 	lived 	in 	a 	trailer 	situated 	50 	to
100 yards from his father’s home on the same piece of property and
because, despite his age, the man was dependent on his father for
his 	basic 	needs. 	Id. 	at 	264. 	In 	Spangler 	v. 	Armstrong, 	the
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ALLSTATE V. ESTATE OF HYRUM W. 	1:24-CV-06
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT [ECF NO. 61] AND DENYING
DEFENDANT RODGER W.’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 62]
10
Supreme 	Court 	held 	that 	certain 	relatives 	were 	not 	covered 	as
members of the insured’s household because the relatives lived in
a 	house 	on 	a 	separate 	piece 	of 	property, 	where 	they 	paid 	the
mortgage and paid for the utilities. 	499 S.E.2d 865, 869 (W. Va.
1997).
Plaintiffs 	argue 	that 	Carley 	was 	not 	a 	resident 	of 	her
parents’ household at the Windsor Property because she was a self-
sufficient 	adult 	living 	primarily 	at 	the 	Koontz 	Property.
Plaintiffs 	further 	contend 	that 	because 	Carley 	was 	a 	registered
foster 	parent, 	was 	actively 	fostering 	children, 	and 	was 	required
by DHHR to reside with her foster children at the Koontz Property,
Carley 	could 	not 	be 	a 	resident 	of 	her 	parents’ 	household 	at 	the
Windsor Property.
Rodger 	argues 	that 	the 	supportive 	nature 	of 	Carley’s
relationship with her parents made her a resident of her parents’
household 	at 	the 	Windsor 	Property. 	Rodger 	contends 	that 	Carley
was 	a 	resident 	of 	her 	parents’ 	household 	because 	her 	parents
maintain 	her 	childhood 	bedroom, 	in 	which 	she 	sleeps 	when 	she
visits; 	because 	she 	shares 	meals 	with 	her 	parents 	occasionally;
and because her parents offer her some financial support. 	He also
argues 	that 	Plaintiffs’ 	own 	underwriting 	file 	for 	the 	Windsor
Property lists Carley as a member of the household.
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ALLSTATE V. ESTATE OF HYRUM W. 	1:24-CV-06
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT [ECF NO. 61] AND DENYING
DEFENDANT RODGER W.’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 62]
11
Here, 	after 	weighing 	all 	of 	the 	Tucker 	factors, 	the 	Court
finds 	that 	Carley 	was 	not 	a 	resident 	of 	her 	parents’ 	household.
The 	first 	two 	factors 	weigh 	in 	favor 	of 	finding 	that 	she 	was.
Carley 	and 	her 	parents 	did 	not 	have 	a 	formal 	landlord-tenant
relationship. 	She never paid rent to her parents and was free to
come 	and 	go 	from 	the 	Windsor 	Property 	as 	she 	pleased. 	The
remaining factors, however, weigh against such a finding. 	At the
time 	of 	Hyrum’s 	death, 	Carley 	was 	living 	at 	the 	Koontz 	Property.
She 	had 	not 	lived 	primarily 	at 	the 	Windsor 	Property 	for 	over 	a
decade. 	She 	had 	a 	full-time 	job. 	While 	her 	parents 	helped 	her
financially, 	she 	paid 	for 	her 	utilities 	and 	was 	generally
responsible for not only her basic needs but the needs of children
in her care.
Unlike 	the 	38-year-old 	in 	Tucker, 	Carley 	was 	a 	self-
sufficient 	adult 	permanently 	residing 	with 	her 	own 	family 	in 	a
separately 	insured 	house 	away 	from 	her 	parents. 	Carley 	was 	not
dependent 	on 	her 	parents’ 	support 	for 	her 	basic 	needs. 	She 	was
not 	living 	at 	the 	Windsor 	Property 	part-time. 	Rather, 	she 	was
staying occasionally, when it was convenient, after taking care of
her grandmother or to house-sit when her parents were out of town.
Carley only stayed overnight at the Windsor Property four to five
times 	in 	2020, 	prior 	to 	becoming 	a 	foster 	parent. 	Def. 	Exh. 	8,
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ALLSTATE V. ESTATE OF HYRUM W. 	1:24-CV-06
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT [ECF NO. 61] AND DENYING
DEFENDANT RODGER W.’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 62]
12
ECF No. 65-7, at 31:2–16. 	She never spent the night at the Windsor
Property 	with 	a 	foster 	child. 	Id. 	at 	31:2–21. 	Carley 	and 	her
parents could not be considered to be “a family living together,”
especially given Carley’s status as a mother and foster mother who
lived 	with 	her 	children 	in 	a 	separate 	home. 	See 	Syl. 	Pt. 	3,
Tucker, 576 S.E.2d 261. 	The Tucker factors weigh against finding
that Carley was a resident of her parents’ household. 	Accordingly,
the Court concludes that there is no coverage available under the
Windsor Policy.
2. 	Even 	if 	Carley 	were 	a 	resident 	of 	her 	parents’
household, 	the 	Windsor 	Policy 	does 	not 	provide
coverage 	because 	the 	Koontz 	Property 	is 	not 	an
insured premises under the Windsor Policy.
Even if Carley were a resident of her parents’ household, the
Windsor 	Policy 	does 	not 	provide 	coverage 	because 	the 	Koontz
Property is not an insured premises under the policy. 	“Where the
provisions 	of 	an 	insurance 	policy 	contract 	are 	clear 	and
unambiguous 	they 	are 	not 	subject 	to 	judicial 	construction 	or
interpretation, but full effect will be given to the plain meaning
intended.” 	Syl. Pt. 1, Christopher v. U.S. Life Ins. Co. in City
of N.Y., 116 S.E.2d 864 (W. Va. 1960). 	Language may be ambiguous,
however, 	when 	it 	is 	“reasonably 	susceptible 	of 	two 	different
meanings or is of such doubtful meaning that reasonable minds might
be uncertain or disagree as to its meaning[.]” 	Syl. Pt. 1, Prete
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ALLSTATE V. ESTATE OF HYRUM W. 	1:24-CV-06
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT [ECF NO. 61] AND DENYING
DEFENDANT RODGER W.’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 62]
13
v. 	Merchants 	Prop. 	Ins. 	Co. 	of 	Indiana, 	223 	S.E.2d 	441 	(W. 	Va.
1976). 	When the language in an insurance policy is ambiguous, the
ambiguous terms “should be construed strictly against the insurer
and 	liberally 	in 	favor 	of 	the 	insured[.]” 	Id. 	at 	Syl. 	Pt. 	2.
However, “such construction should not be unreasonably applied to
contravene the object and plain intent of the parties.” 	Id. 	“In
ascertaining the intention of the parties to an insurance contract,
the 	test 	is 	what 	a 	reasonable 	person 	in 	insured’s 	position 	would
have 	understood 	the 	words 	of 	the 	policy 	to 	mean.” 	Thompson 	v.
State 	Auto. 	Mut. 	Ins. 	Co., 	11 	S.E.2d 	849, 	850 	(W. 	Va. 	1940)
(citation omitted).
Plaintiffs 	argue 	that 	the 	Windsor 	Policy 	additionally 	does
not 	provide 	coverage 	because 	it 	contains 	an 	exclusion 	that
expressly 	limits 	liability 	to 	bodily 	injury 	arising 	out 	of 	the
insured premises. 	Rodger argues that the exclusion does not apply
because 	Carley 	used 	the 	Koontz 	Property 	in 	connection 	with 	the
Windsor Property by living there with her child and foster children
and occasionally staying at the Windsor Property.
The 	Windsor 	Policy 	states, 	in 	what 	is 	often 	referred 	to 	in
the briefing as “Exclusion 13,” “We do not cover bodily injury or
property damage arising out of any premises, other than an insured
premises, owned, rented or controlled by an insured person.” 	Def.
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ALLSTATE V. ESTATE OF HYRUM W. 	1:24-CV-06
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT [ECF NO. 61] AND DENYING
DEFENDANT RODGER W.’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 62]
14
Exh. 	4, 	ECF 	No. 	65-3, 	at 	52. 	The 	Windsor 	Policy’s 	definition 	of
“insured premises” includes “any premises used by an insured person
in connection with the residence premises[.]” 	Id. at 32. 	Assuming
arguendo 	that 	this 	definition 	is 	ambiguous 	and 	construing 	it
liberally in favor of the insured, and assuming that Carley is an
insured 	person 	(she 	is 	not), 	no 	reasonable 	person 	would 	have
understood that the Koontz Property was an insured premises under
the 	Windsor 	Policy. 	Not 	only 	was 	Carley 	living 	at 	the 	Koontz
Property 	with 	her 	child, 	her 	foster 	children, 	and 	her 	romantic
partner, but the Koontz Property was a separately insured home on
a separate piece of property.
Rodger relies on a series of non-binding cases to argue that
the 	Koontz 	Property 	was 	used 	in 	connection 	with 	the 	Windsor
Property. 	The 	main 	cases 	cited 	by 	Rodger 	involved 	ATV 	or 	other
vehicle 	accidents 	that 	occurred 	on 	property 	in 	which 	the 	insured
did 	not 	have 	a 	legal 	interest. 	See 	Allstate 	Ins. 	Co. 	v.
Drumheller, 	185 	F. 	App’x 	152 	(3d 	Cir. 	2006); 	Farmers 	New 	Century
Ins. 	Co. 	v. 	Angerson, 	No. 	4:04-cv-2608, 	2008 	WL 	238622 	(M.D. 	Pa.
Jan. 	22, 	2008); 	State 	Farm 	Fire 	& 	Cas. 	Co. 	v. 	Nivens, 	No. 	0:12-
00151-MBS, 	2014 	WL 	4793987 	(D.S.C. 	Sep. 	24, 	2014). 	The 	courts
reasoned 	that 	the 	regular 	and 	repeated 	use 	of 	the 	property 	not
owned by the insured was sufficient to find that the property was
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ALLSTATE V. ESTATE OF HYRUM W. 	1:24-CV-06
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT [ECF NO. 61] AND DENYING
DEFENDANT RODGER W.’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 62]
15
used in connection with the insured premises. 	Here, on the other
hand, the Koontz Property is owned and separately insured by Carley
and 	her 	parents. 	Carley 	lived 	there 	with 	her 	own 	family 	as 	her
primary 	residence. 	Extending 	the 	definition 	of 	insured 	premises
to include the Koontz Property goes beyond the plain intent of the
parties. 	Because 	the 	Koontz 	Property 	is 	not 	an 	insured 	premises
under the Windsor Policy, the Court finds that there is no coverage
under the Windsor Policy for this additional reason.
3. 	Plaintiffs are not estopped from asserting and did
not otherwise waive the applicability of Exclusion
13.
“Generally, 	the 	principles 	of 	waiver 	and 	estoppel 	are
inoperable 	to 	extend 	insurance 	coverage 	beyond 	the 	terms 	of 	an
insurance 	contract.” 	Syl. 	Pt. 	5, 	Potesta 	v. 	U.S. 	Fid. 	& 	Guar.
Co., 	504 	S.E.2d 	135 	(W. Va. 	1998). 	To 	establish 	waiver, 	“the
insured 	must 	show, 	by 	clear 	and 	convincing 	evidence 	where 	the
waiver 	is 	implied, 	that 	the 	insurer 	intentionally 	and 	knowingly
waived 	the 	previously 	unarticulated 	reason(s) 	for 	denying
coverage.” 	Id. at Syl. Pt. 3. 	To establish estoppel, the insured
must 	show 	(1) 	“conduct 	or 	acts 	on 	the 	part 	of 	the 	insurer 	which
are 	sufficient 	to 	justify 	a 	reasonable 	belief 	on 	the 	part 	of 	the
insured that the insurer will not insist on a compliance with the
provisions 	of 	the 	policy”; 	and 	(2) 	“the 	insured 	in 	reliance 	upon
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ALLSTATE V. ESTATE OF HYRUM W. 	1:24-CV-06
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT [ECF NO. 61] AND DENYING
DEFENDANT RODGER W.’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 62]
16
such 	conduct 	or 	acts 	has 	changed 	his 	position 	to 	his 	detriment.”
Id. at Syl. Pt. 2 (citation omitted).
Rodger 	argues 	that 	Plaintiffs 	waived 	the 	application 	of
Exclusion 13 or are otherwise estopped from denying coverage based
on 	it 	because 	it 	was 	not 	cited 	in 	Plaintiffs’ 	written 	coverage
denial 	letter. 	The 	Court 	disagrees. 	First, 	Plaintiffs 	did 	not
explicitly or implicitly waive Exclusion 13. 	Their letter denying
coverage 	explicitly 	stated 	that 	Plaintiffs 	did 	not 	waive, 	and
expressly 	preserved, 	all 	of 	the 	terms, 	conditions, 	limitations,
and 	exclusions 	under 	the 	relevant 	policies. 	Second, 	there 	is 	no
evidence 	in 	the 	record 	to 	justify 	a 	reasonable 	belief 	that
Plaintiffs 	would 	not 	insist 	on 	compliance 	with 	the 	provisions
contained 	in 	the 	insurance 	policies. 	Finally, 	Rodger 	has 	not
explained 	how 	he 	relied 	on 	the 	failure 	to 	reference 	Exclusion 	13
to his detriment. 	Because Plaintiffs did not waive their right to
assert 	Exclusion 	13 	as 	a 	reason 	to 	deny 	coverage, 	and 	because
Plaintiffs 	are 	not 	estopped 	from 	denying 	coverage, 	there 	remains
no coverage available under the Windsor Policy.
B. 	The PUP Policy does not provide coverage.
Alternatively, 	Rodger 	asserts 	that 	Carley 	is 	covered 	under
the PUP Policy. 	Specifically, Rodger contends that coverage exists
under 	either 	Section 	1 	or 	Section 	2 	of 	the 	“Excess
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ALLSTATE V. ESTATE OF HYRUM W. 	1:24-CV-06
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT [ECF NO. 61] AND DENYING
DEFENDANT RODGER W.’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 62]
17
Liability — Bodily 	Injury 	and 	Property 	Damage” 	provision.
Plaintiffs 	argue 	that 	neither 	section 	applies 	to 	Carley.
Plaintiffs 	do 	not 	appear 	to 	argue 	that 	point 	one 	of 	Section 	2
provides 	coverage. 	The 	sections 	of 	the 	PUP 	Policy 	at 	issue,
therefore, are Section 1 and point two of Section 2.
First and foremost, the Court finds that Carley is not covered
under the PUP Policy because she is not an insured person, and she
is only listed as a vehicle operator. 	She is not a named insured,
and 	for 	the 	reasons 	discussed 	above 	with 	respect 	to 	the 	Windsor
Policy, 	she 	is 	not 	a 	resident 	of 	their 	household. 	This 	incident
did 	not 	arise 	from 	her 	operation 	of 	a 	motor 	vehicle. 	Therefore,
she 	is 	not 	an 	insured 	person 	under 	the 	PUP 	Policy. 	Even 	if 	she
were an insured person, however, the specific language of the PUP
Policy precludes coverage.
1. 	Section 1 does not provide coverage because Hyrum’s
death 	was 	not 	covered 	by 	the 	Required 	Underlying
Insurance.
Section 1 of the PUP Policy provides,
Under 	Section 	1 	of 	this 	policy, 	we 	will 	pay
damages 	which 	an 	insured 	person 	becomes
legally 	obligated 	to 	pay 	because 	of 	bodily
injury 	or 	property 	damage 	arising 	out 	of 	an
occurrence that is both a loss we cover under
Excess 	Liability 	Insurance – Bodily 	Injury
and Property Damage – Section 1 of this policy
and 	a 	covered 	loss 	under 	your 	Required
Underlying Insurance policy.
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ALLSTATE V. ESTATE OF HYRUM W. 	1:24-CV-06
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT [ECF NO. 61] AND DENYING
DEFENDANT RODGER W.’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 62]
18
. . .
Losses 	We 	Cover 	Under 	Excess 	Liability
Insurance – Bodily 	Injury 	and 	Property
Damage – Section 1
We 	will 	cover 	an 	occurrence 	arising 	only 	out
of:
1. 	Personal activities of an insured person.
Def. 	Exh. 	5, 	ECF 	No. 	65-4, 	at 	18 	(emphasis 	in 	original). 	The
language in Section 1 of the PUP Policy is clear and unambiguous.
For 	an 	insured 	person 	to 	be 	covered 	under 	Section 	1, 	the 	claimed
bodily injury or property damage must be covered under both Section
1 	of 	the 	PUP 	Policy 	and 	the 	insured 	person’s 	Required 	Underlying
Insurance policy. 	As discussed above, Hyrum’s death is not covered
by the underlying policies, i.e., the Windsor Policy and the Koontz
Policy. 	Because 	neither 	policy 	provides 	coverage 	for 	Hyrum’s
death, Section 1 of the PUP Policy does not provide coverage.
2. 	Point 	two 	of 	Section 	2 	does 	not 	provide 	coverage
because coverage was required and in effect, but it
was excluded.
Section 2 of the PUP Policy states,
Under 	Section 	2 	of 	this 	policy, 	we 	will 	pay
damages 	which 	an 	insured 	person 	becomes
legally 	obligated 	to 	pay 	because 	of 	bodily
injury or property damage arising only out of:
. . .
2. 	a 	covered 	occurrence 	for 	which 	you 	are
required 	by 	this 	policy 	to 	maintain 	Required
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ALLSTATE V. ESTATE OF HYRUM W. 	1:24-CV-06
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT [ECF NO. 61] AND DENYING
DEFENDANT RODGER W.’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 62]
19
Underlying Insurance but there is no Required
Underlying Insurance in effect at the time of
the occurrence.
Id. 	at 	19 	(emphasis 	in 	original). 	Although 	Family 	Liability
Protection was “not purchased” with respect to the Koontz Policy,
the Koontz Policy contains a Secondary Residence Endorsement:
Your 	policy 	provides 	Family 	Liability
Protection — Coverage 	X 	and 	Guest 	Medical
Protection – Coverage 	Y 	under 	Section 	II 	of
the policy for the insured premises. 	However,
if 	this 	policy 	providing 	Family 	Liability
Protection – Coverage 	X 	and 	Guest 	Medical
Protection – Coverage Y is no longer in force,
whether 	canceled 	of 	otherwise 	terminated, 	no
coverage 	for 	Family 	Liability
Protection – Coverage 	X 	or 	Guest 	Medical
Protection – Coverage Y shall apply.
See Def. Exh. 2, ECF No. 65–1, at 20. 	The coverage is subject to
the 	exclusions 	applicable 	to 	the 	Koontz 	Policy. 	Under 	both 	the
Koontz Policy and the Windsor Policy, coverage was required and in
effect but excluded. 4 	Accordingly, point two of Section 2 of the
PUP Policy does not provide coverage.
IV. 	CONCLUSION
For the reasons discussed above, the Court ORDERS as follows:
x 	Plaintiffs’ 	motion 	for 	summary 	judgment 	is
GRANTED [ECF No. 61];
4 Although not discussed in detail herein, the Koontz Policy does not provide
coverage 	for 	Hyrum 	because, 	as 	someone 	under 	21 	in 	the 	care 	and 	custody 	of
Carley (a named insured), Hyrum is an insured person, and bodily injury to an
insured person is expressly excluded. 	See Def. Exh. 2, ECF No. 65-1, at 23.
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ALLSTATE V. ESTATE OF HYRUM W. 	1:24-CV-06
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT [ECF NO. 61] AND DENYING
DEFENDANT RODGER W.’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 62]
20
x 	Rodger’s 	motion 	for 	summary 	judgment 	is
DENIED [ECF No. 62];
x 	The 	Windsor 	Policy, 	the 	Koontz 	Policy, 	and
the 	PUP 	Policy 	do 	not 	provide 	coverage 	for
claims arising from the death of Hyrum;
x 	The 	Clerk 	is 	DIRECTED 	to 	enter 	judgment 	in
favor of Plaintiffs; and
x 	This 	action 	is 	STRICKEN 	from 	the 	Court’s
active docket.
It is so ORDERED.
The Clerk is DIRECTED to transmit copies of this Memorandum
Opinion and Order to counsel of record.
DATED: March 27, 2026
____________________________
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA
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