Court of Appeals of Kansas.

Arthur Neil WARNER, Individually; and Arthur Neil Warner, for and on Behalf of

all of the Surviving Heirs of Patricia Ann Warner, Deceased, Appellants,

v.

Robert Harry STOVER; Canal Insurance Company; and Farm Bureau Mutual Insurance

Company, Appellees.

No. 94,766.

June 30, 2006.

Before MALONE, P.J., GREEN and BUSER, JJ.

MEMORANDUM OPINION

PER CURIAM.

Arthur Neil Warner appeals the district court’s decision granting summary judgment in favor of Canal Insurance Company (Canal). The district court determined that a commercial insurance policy issued by Canal to Western Liquid Express, Inc. (Western) did not provide coverage for a motor vehicle involved in the accident leading to this action. We affirm.

On December 25, 2002, Robert Stover was driving a 2002 Ford F250 pickup truck near Dalhart, Texas, to attend a Kansas State University football game. Arthur and his wife, Patricia, were passengers. Robert lost control of the pickup truck after hitting a patch of ice, and the vehicle went off the roadway and rolled twice. Patricia died as a result of the accident, and Arthur sustained personal injuries. Arthur filed a lawsuit individually for his injuries and damages and for and on behalf of Patricia’s heirs for her wrongful death. The pickup truck was owned by Robert’s son, Charles W. Stover. Farmers Insurance Company, Inc. (Farmers), insured the pickup truck under Charles’ personal policy. Charles reported the accident and made a claim for the accident to Farmers under his personal insurance policy.

Charles is also the president and owner of Western. Western’s business vehicles were insured under a commercial trucking liability policy issued by Canal which applied strictly to commercial motor vehicles owned by Western. The F250 pickup truck was not identified as a scheduled vehicle in Canal’s policy. Nevertheless, Canal was named as a defendant in the personal injury and wrongful death action brought by Arthur.

Substantial discovery conducted by the parties revealed the following undisputed facts. The F250 pickup truck was titled and registered to Charles. However, the address listed on the vehicle title was Western’s business address. The accident report listed the owner of the vehicle as “Charles Stover, Western Liquid Express.” A 2002 truck list, required by K.S.A. 66- 1,139(b) and prepared and submitted by Western to the Kansas Corporation Commission (KCC), included the F250 pickup truck as a vehicle owned by Western. However, on January 7, 2002, several months before the accident, Western had notified the KCC that the F250 pickup truck was listed in error. The pickup truck was not deleted from the KCC list until December 29, 2003. At the time of the accident, the F250 pickup truck was operating with and displaying a prorate license tag issued to Charles under Western’s KCC motor carrier identification number. As previously stated, the F250 pickup truck was not identified as a scheduled vehicle in Canal’s policy. Canal was unaware that the pickup truck had ever been listed with the KCC as a business vehicle, and Canal was also unaware of the prorate license tag. Finally, the evidence was undisputed that the F250 pickup truck had never been used by Western for any business purpose, and on December 25, 2002, the vehicle was being driven for personal use.

Canal filed a motion for summary judgment. The motion alleged that Canal was not a proper party to the lawsuit because the insurance policy issued to Western did not provide any liability coverage for either Robert or the pickup truck involved in the accident. In granting the summary judgment motion, the district court concluded since Canal’s policy was issued to Western and the pickup truck was titled to Charles, the Canal policy provided no coverage. In a letter decision responding to a motion to reconsider, the district court stated that “ownership of the vehicle controls the coverage question and vehicle ownership in Kansas is controlled by title and registration.” After Canal was dismissed from the lawsuit, the matter proceeded to a trial and a judgment was entered for the plaintiff in the amount of $607,990.80. Farmers satisfied the judgment up to its policy limits. Arthur appeals Canal’s dismissal on summary judgment.

Arthur claims the district court erred in granting summary judgment to Canal. He argues the ownership and insurable interest of the pickup truck were subject to disputed facts which should have precluded the district court from granting summary judgment.

” ” ‘Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” [Citations omitted.]” ‘ State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 788, 107 P.3d 1219 (2005).

The district court determined that ownership of the vehicle controlled the insurance coverage question and that vehicle ownership in Kansas is controlled by title and registration. Arthur cites Tyler v. Employers Mut. Cas. Co., 274 Kan. 227, 49 P.3d 511 (2002), to support his argument that ownership and title are not dispositive of whether a vehicle is insured under a policy. In Tyler, a Jefferson County deputy sheriff was injured on duty in a collision with an uninsured motorist. The deputy brought a claim against Employers Mutual Casualty Company (EMC), which provided uninsured motorist coverage for vehicles owned by Jefferson County. EMC attempted to deny coverage and argued that Jefferson County did not own the patrol car involved in the accident because the title listed Jefferson County Sheriff’s Department as the owner. Under these facts, the court distinguished ownership from legal title and found that despite the title being held under the Sheriff’s Department, the insurance policy at issue provided coverage for the vehicle. 274 Kan. at 235.

Arthur also cites Maryland Cas. Co. v. American Family Insurance Group, 199 Kan. 373, 429 P.2d 931 (1967). In this case, two individuals traded cars and shortly after the trade one of the individuals was involved in an accident. The car involved in the accident was still titled in the name of the previous owner in order to secure payment of a promissory note. A dispute arose as to which party’s insurance company was responsible to provide coverage for the accident. In resolving the insurance coverage issue, the court recognized that a person may have an insurable interest in a vehicle even though the person does not possess legal title to the vehicle. 199 Kan. at 379.

Tyler and Maryland Cas. Co., are distinguishable from the present case. In these cases, the vehicles in question were listed in the disputed policies of insurance as covered vehicles. In the present case, however, the Canal policy did not include the F250 pickup truck as one of the vehicles covered by the policy. Canal’s policy applied strictly to commercial motor vehicles owned by Western and was never intended to cover Charles’ personal vehicles.

Arthur tries to establish coverage under the Western policy by noting that the pickup truck was temporarily listed with the KCC as a business vehicle and that it displayed a prorate license tag under Western’s motor carrier identification number. However, this evidence was refuted by the fact that Western informed the KCC prior to the accident that the pickup truck was erroneously listed. Although Charles used his position in Western to receive a prorate license tag for the pickup truck, it was undisputed that the vehicle was driven strictly for personal use. Canal was not aware that the pickup truck was ever listed with the KCC or that it displayed a prorate license tag.

Warner points to the MCS-90 endorsement to the Canal insurance policy which provides coverage for all vehicles used in the motor carrier’s operation regardless of whether the vehicles are specifically listed in the policy. However, even under this endorsement, there must be evidence that the vehicle was used within the motor carrier’s operation in order to provide insurance coverage. Here, the evidence is undisputed that the F250 pickup truck was never used by Western for any business purpose, and the vehicle was certainly being driven for personal use on the day of the accident.

The undisputed evidence clearly established that the F250 pickup truck was titled and registered to Charles. The district court was correct in concluding that vehicle ownership in Kansas is generally controlled by title and registration. Farmers insured the pickup truck under Charles’ personal policy. The pickup truck had never been used by Western for any business purpose, and on December 25, 2002, the vehicle was being driven for personal use. Canal’s policy applied strictly to commercial motor vehicles owned by Western and was never intended to cover Charles’ personal vehicles. The F250 pickup truck was not identified as a scheduled vehicle in Canal’s policy. The evidence that the pickup truck once had been mistakenly listed with the KCC as a business vehicle and that it displayed a prorate license tag was insufficient to create a genuine issue of material fact as to the ownership or insurable interest of the vehicle. Without evidence that the pickup truck was intended to be covered by the Canal policy, or was used by Western for any business purpose, there was no support for a finding that Canal was liable for coverage.

We agree with the district court that there were no genuine issues of material fact concerning ownership of the F250 pickup truck and coverage provided by the Canal insurance policy. Accordingly, the district court did not err in granting summary judgment in favor of Canal.

Affirmed.