govinfo:USCOURTS-wvnd-1_24-cv-00006-0

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 Compa ny 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. E xh. 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. 
Case 1:24-cv-00006-TSK     Document 71     Filed 03/27/26     Page 17 of 20  PageID #:
<pageID>
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
Case 1:24-cv-00006-TSK     Document 71     Filed 03/27/26     Page 18 of 20  PageID #:
<pageID>
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. 
Case 1:24-cv-00006-TSK     Document 71     Filed 03/27/26     Page 19 of 20  PageID #:
<pageID>
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 
Case 1:24-cv-00006-TSK     Document 71     Filed 03/27/26     Page 20 of 20  PageID #:
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