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STATE OF MAINE CUMBERLAND, ss.

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SUPERIOR COURT CIVIL ACTION DOCKET NO. CV-08-595

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ROBERT WOOD, Plaintiff v. ALLSTATE INDEMNITY COMPANY and LIBERTY MUTUAL FIRE INSURANCE COMPANY, Defendants
BEFORE THE COURT

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DECISION AND ORDER

This matter is before the court on Liberty Mutual's motion for summary judgment. Wood brought a reach and apply action against the insurers of James Foss and Brian McDowell, who were the driver and the registered owner, respectively, of a 1991 Honda Civic involved in a single-vehicle accident on December 3,2004. Wood was a passenger in the Honda and sustained injuries in excess of $100,000. Both Liberty Mutual and Allstate denied coverage of Wood's claim. Wood recovered the $100,000 limits of the uninsured motorist coverage from his own carrier, Vermont Mutual. On October 7,2008, Wood (Vermont Mutual as subrogee) obtained judgment against Foss in the amount of $100,000, plus interests and costs. Wood now seeks to reach and apply the proceeds of McDowell's policy with Allstate, which provides liability coverage in the amount of $50,000, and of Foss's policy with Liberty Mutual, which provides liability coverage in the amount of $100,000. Allstate contends that McDowell had divested himself of ownership of

the Honda prior to the accident. Liberty Mutual contends that Foss did not own

the Honda, had not contacted Liberty Mutual of his possession of the Honda as required by its policy, and its policy excludes coverage for vehicles that were furnished or available for Foss's regular use. Wood agrees with Liberty Mutual that Allstate's coverage is primary. Wood, however, counters that excess coverage is not excluded under Liberty Mutual's policy of insurance because the use of the Honda by Foss was occasional or incidental to the use of the vehicle and Foss was not required to give notice of a replacement vehicle for liability coverage under the policy.

PROCEDURAL HISTORY AND BACKGROUND
The following facts are undisputed. On or about October 11, 2004, Foss and McDowell exchanged vehicles. Foss took possession of the 1991 Honda Civic and an ATV, while McDowell took possession of a Ford Fairlane. Foss did not sign a bill of sale for the Honda. 1 McDowell's license plates remained on the Honda. McDowell insured the Honda through Allstate and he did not contact Allstate to remove the Honda from his insurance prior to the accident. Foss possessed the only key for the Honda and Foss had exclusive possession of the vehicle prior to the accident. Foss did not register the Honda. Foss did not notify Liberty Mutual that he had possession of the Honda. The parties do not dispute these additional facts. Foss was driving the 1991 Honda Civic when on December 3, 2004 Foss loss control of the vehicle, which skidded off the road and hit a tree. Wood was a passenger in the vehicle and sustained injuries in excess of $100,000. At the time of the accident, Foss had liability insurance with Liberty Mutual that covered all vehicles listed in the
1 A few days after the accident, McDowell asked Foss to sign a bill of sale and Foss signed the bill of sale. It is undisputed that this was the first time that Foss saw the bill of sale.

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Declarations page. Foss listed a 2003 Ford F350 truck and a 1993 Chevrolet truck on the Declarations page. Foss sold the 1993 Chevrolet truck prior to obtaining the Honda. Foss did not list the 1991 Honda Civic in the Declarations page. In February 2005, Allstate denied coverage to Foss. In June 2005, Liberty Mutual denied coverage to Foss. There is a factual dispute about whether Foss made repairs to the Honda when he possessed the vehicle or whether McDowell repaired the Honda before it was transferred to Foss. There is a factual dispute about whether McDowell signed the back of the certificate of title and gave it to Foss at the time of the exchange. These factual disputes are not material to the resolution of the motion for summary judgment.
DISCUSSION 1. Standard of Review.

"Summary judgment is appropriate when review of the parties' statements of material facts and the referenced record evidence, considered in the light most favorable to the non-moving party, indicates that no genuine issue of material fact is in dispute." Blue Star Corp. v. CKF Props. LLC, 2009 ME 101, <rr 23, _A.2d _ (citing Dyer v. Dep1t of Transp., 2008 ME 106, <rr 14, 951 A.2d 821, 825; Stanley v.

Hancock County Comm'rs, 2004 ME 157, <rr 13, 864 A.2d 169, 174); see also M. R. Civ.
P.56. A party wishing to avoid summary judgment must present a prima facie case for the claim or defense that is asserted. Reliance National Indemnity v.

Knowles Industrial Services, 2005 ME 29, <rr 9, 868 A.2d 220, 224-25. A genuine
issue is raised "when sufficient evidence requires a fact-finder to choose between competing versions of the truth at trial." Parrish v. Wright, 2003 ME 90, <rr 8, 828 A.2d 778, 781. A material fact is a fact that has "the potential to affect the 3

outcome of the suit." Burdzel v. Sobus, 2000 ME 84, <JI 6, 750 A.2d 573, 575. "If material facts are disputed, the dispute must be resolved through fact-finding."

Curtis v. Porter, 2001 ME 158, <JI 7, 784 A.2d 18, 21-22.
2.

Coverage under Liberty Mutual's Policy


Liberty Mutual's policy of insurance provides the following exclusion:
B. We do not provide Liability Coverage of the ownership, maintenance or use of: 2. Any vehicle, other than "your covered auto," which is: a. owned by you; or b. furnished or available for your regular use.

Liberty Mutual contends that there is no coverage for the 1991 Honda Civic because: (1) its policy excludes coverage for cars that are not owned by the insured but that are "furnished or available" for the insured; (2) Foss did not own the 1991 Honda Civic when the accident occurred; and (3) the Honda was furnished and available for Foss's regular use. Wood agrees that the ownership of the Honda did not transfer at the time of the exchange on October II, 2004 and McDowell owned the Honda when the accident occurred. Allstate disputes the claim that McDowell owned the Honda. Thus, the coverage questions are whether the Honda is a "covered auto", a vehicle owned by Foss, or a vehicle furnished or available for Foss's regular use. The policy defines "your covered auto" as any vehicle listed in the Declarations page and
vehi~les owned

by the named insured, provided Liberty

Mutual is notified of the ownership within 30 days after acquisition of the vehicle or the vehicle replaces one shown on the Declarations page. Foss did not list the Honda in the Declarations page. Foss also did not provide notice within 30 days to Liberty Mutual. Because this court concludes that Foss did not own the

Honda, the court need not decide whether the Honda is a vehicle that replaces
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the 1993 Chevrolet truck shown on the Declarations age? The Honda was not a "covered auto" at the time of the accident because it was not listed in the Declarations page. The court also concludes that the Honda was not owned by Foss at the time of the accident. The undisputed and specific factual circumstances of this case militate for the conclusion that, as a matter of law, Foss was not the legal owner of the Honda at the time of the accident. These specific circumstances include that McDowell's license plates stayed on the Honda, the Honda remained registered in McDowell's name, McDowell did not remove the Honda from his insurance, Foss did not sign the bill of sale, Foss's name did not appear on the certificate of title, and Foss did not add the Honda to his insurance. On these facts, it was clearly the intention of the parties that McDowell be considered the owner of the Honda, and that the Honda would be covered by McDowell's policy of insurance. See Bourque v. Dairyland, 1999 ME 178, <JI 10, 741
A. 2d 50, 53?

Even if McDowell signed his name to the back of the title, he did not write in Foss's name as the beneficiary of the assignment or warranty of the title as required by 29-A M.R.S.A.

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