Note: Decisions of a three-justice panel are not t o be considered as precedent before any tribunal.

ENTRY ORDER

SUPREME COURT DOCKET NO. 2011-268

JANUARY TERM, 2012

Gerald F. Gugino } APPEALED FROM: } } Superior Court, Windham Unit,

v. } Civil Division } } National Grange Mutual Insurance } DOCKET NO. 195-4 -10 Wmcv

Trial Judge: John P. Wesley

In the above-entitled cause, the Clerk will enter:

Plaintiff appeals the superior court’s decision gra nting summary judgment in favor of defendant, plaintiff’s insurer, in this breach-of-c ontract action. We affirm.

Our review on a motion for summary judgment is de n ovo. Handverger v. City of Winooski, 2011 VT 134, ¶ 7 (“We review summary judg ment de novo. The same standard employed by the trial court applies here.”). In re viewing the record, we consider the record evidence in the light most favorable to the non-mov ing party, in this case plaintiff. V.R.C.P. 56; Robertson v. Mylan Laboratories, Inc. 2004 VT 15, ¶ 15, 176 Vt. 356 (noting that “nonmoving party receives the benefit of all reasonable doubts and inferences”). Viewing the undisputed evidence in that light, the facts are as follows.

Defendant issued plaintiff a business automobile in surance policy with effective dates of September 21, 2006 to September 21, 2007. The poli cy provided clearly and unambiguously:

1. The most we will pay for “loss” in any one “accide nt” is the

lesser of:

a. The actual cash value of the damaged or stolen property as of the time of the “loss”; or

b. The cost of repairing or replacing the damaged or stolen property with other property of like kind an d quality.

In addition, the declarations page associated with the policy specifically stated that the physical damage insurance—both for collision and for “other than collision”—was limited to “actual cash value, or cost of repair, whichever is less minus a ny deductible shown.”

In November 2006, plaintiff purchased a 2006 Chevr olet HHR. He secured insurance for the vehicle by adding it to this existing polic y. At the time he added the new truck to the policy, the insurance agent told him that in the ev ent of a total loss the coverage would provide for full “replacement cost” of $18,000. Plaintiff received a temporary binder from the insurance2

company good from November 3 through December 3, 20 06. The form documenting the policy change described the change as follows: “Adding veh icle #2 2006 Chevrolet (0342) with Sovereign Bank as loss payee and form CA9944 which now applies per the attached revised

schedules.” 1 The form reflects the new premium and references the original policy issued September 21, 2006. The form does not otherwise at tach or reference any new or substitute policy pages relating to the scope and limits of co verage. The revised schedule of covered autos includes the new Chevrolet truck. On that page, th e “cost new” of the truck is listed as $18,000.

Following a May 2007 automobile accident in which t he truck was totaled, plaintiff submitted a claim to defendant seeking the replacem ent cost for the truck, which he claimed had been set at $18,000. Defendant tendered to plainti ff two checks totaling $15,434, which plaintiff cashed under protest. In April 2010, plaintiff fil ed a complaint alleging that defendant had violated the terms of the parties’ contract by not paying him $18,000 for the replacement cost of

the vehicle.

The trial court denied defendant’s initial motion f or summary judgment, ruling that although the terms of the applicable policy appeare d to limit coverage to actual cash value, plaintiff raised a factual question as to whether d efendant’s agent represented to plaintiff at the time he purchased the truck that he was purchasing “replacement value” coverage. Plaintiff had submitted affidavits in which he claimed that: (1) the automobile salesman from whom he purchased the truck told him that he would have to buy replacement value coverage for the vehicle to obtain financing; and (2) defendant’s ag ent told him that his policy would provide such coverage. In April 2001, the court held an ev identiary hearing to consider the adequacy of plaintiff’s responses to defendant’s discovery requ ests. In affidavits and at the hearing, both the automobile salesman and the insurance agent denied making such statements to plaintiff and testified that they would never engage in such disc ussions in the regular course of an automobile sales transaction. In particular, the agent stated in her affidavit that to her knowledge, there is n o such thing as a “full replacement cost” automobile policy.

In July 2011, the superior court entered a decision granting defendant’s renewed motion for summary judgment. The court found that the rec ord established beyond dispute that plaintiff received proceeds from defendant equaling or exceed ing the actual cash value of his vehicle, which is all that he was entitled to under the plai n language of his insurance policy. According to the court, when the testimony of the automobile salesman and the insurance agent is considered along with the plain language of the pol icy limiting loss to actual cash value or cost of repair, plaintiff’s claim of being entitled to r eplacement value “is left without any context that

would make it credible to a reasonable factfinder.”

On appeal, plaintiff’s primary argument is that the two documents issued to him by defendant when he added his truck to the policy pro ve that he was entitled to replacement value for the totaled truck. According to plaintiff, the first one—the binder given to him on November 3, 2006 when he purchased the truck—“clearly exclud es actual cash value as a limit to the collision portion of the policy.” Plaintiff points out that the binder places an “X” next to the term

“other” rather than the terms “actual cash value” o r “stated amount” with regard to the limits of collision coverage on the truck. The second binder , so called, is the schedule of covered vehicles attached to the notice documenting the mid-term cha nge in policy terms dated November 27, 2006. Again according to plaintiff, this document “specifically states that what was purchased

was a stated amount.” He further maintains that th e second binder lists the cost of the truck at

1 The record contains no evidence regarding the cont ent of form CA9944.3

$18,000 in one section, and then in other sections includes the phrase “PURCHASED STATED AMT” and states “NO” in the space indicating limit to collision coverage.

We review a trial court’s construction of the terms of a contract de novo. Downtown Barre Development v. C & S Wholesale Grocers, Inc., 2004 VT 47 ¶ 8, 177 Vt. 70. When an agreement is ambiguous, meaning disputed language w ill allow more than one reasonable interpretation, courts may consider the circumstanc es surrounding the making of the agreement to ascertain the parties’ true intent. O’Connell-S tarkey v. Starkey, 2007 VT 128 ¶ 8, 183 Vt. 10. However, where the terms of an agreement are plain and unambiguous, “they will be given effect and enforced in accordance with their language.” I d.

In this case, the contract in effect at the time of plaintiff’s collision consisted of the underlying insurance policy and declarations page—b oth of which undisputedly and unambiguously provide that physical damage coverage is limited to actual cash value—and the modifying document reflecting the addition of plain tiff’s truck to the policy. The question for this Court, then, is whether that modifying documen t either (1) reflects a change in the coverage terms set forth in the underlying policy with respe ct to the limits of physical damage coverage, or (2) creates sufficient ambiguity to trigger conside ration of the circumstances surrounding the change—such as who said what to whom. 2

We conclude that the contract is not ambiguous. Th ere can be no doubt that the underlying policy and declarations page clearly est ablish “actual cash value” coverage, subject to specified deductibles and conditions. The updated premium statement and attached schedule of covered autos relied upon by plaintiff do nothing m ore than add the Chevrolet truck to the existing policy. No language in that document purp orts to vary the coverage terms of the actual policy to which it is appended. On its face, it de scribes the mid term change (MTC) effective November 3 simply as “adding vehicle #2 2006 Chevro let (0342) with Sovereign Bank as loss payee and form CA9944 which now applies per the att ached revised schedules.” The fact that

the schedule lists a stated “cost new” for each cov ered vehicle is not sufficient to create an ambiguity as to the clear coverage terms of the con tract. Likewise, on a page that’s rife with abbreviations, headings with and without data under them, and numbers, the heading “PURCHASED STATED AMOUNT” with nothing in the colum n below, and the cryptic letters “NO” in a section that appears to describe the limi ts of collision coverage for the Chevrolet truck do not render the contract ambiguous in the face of the clear language of the underlying policy.

Plaintiff contends that he is entitled to a jury tr ial because defendant has offered only “ex post facto” evidence, but in fact defendant demonst rated that plaintiff received all that he was entitled to under the plain language of the applica ble policy. Plaintiff may be referring to the affidavits and testimony of the car salesman and de fendant’s representative proffered in support

of defendant’s motion. Because we decide this case on the basis of the plain language of the contract, we need not consider that testimony, or p laintiff’s own account of who said what, in upholding the court’s award of summary judgment.

2 The “binder” relied upon by plaintiff is not part of the contract that was in effect at the time of plaintiff’s loss, as it expired on its own terms on December 3, 2006. Accordingly, unless we conclude that the contract is ambiguous such tha t consideration of extrinsic evidence is

warranted, the chosen checkbox on that form has no significance. See 12A J. Appleman, Insurance Law and Practice § 7227, at 154 (1981) (“ [A] binder does not constitute part of an insurance policy, nor does it create any rights for the insured other than during its effective period.”).4

Plaintiff also briefly contends that the trial judg e was biased and corrupt as evidenced by

his failure to disclose that he had been involved i n a car accident. Assuming the truth of plaintiff’s unsupported statement that the trial ju dge was in a car accident at some point, such an event by itself is no basis for finding either bias or a conflict of interest. Rejecting this nonexistent conflict leaves only the court’s adverse r uling, which, “even if wrong, do[es] not alone show judicial bias.” See DeLeonardis v. Page, 2010 VT 52, ¶ 30, 188 Vt. 94.

Finally, plaintiff argues that principles of res ju dicata should have precluded the trial court from granting summary judgment to defendant a fter having previously denied defendant’s previous motions for summary judgment. The trial c ourt’s denial of defendant’s initial request for summary judgment was, of course, not a final ju dgment; therefore, res judicata did not bar the court from reconsidering its prior ruling upon a renewed motion by defendant. See In re Cent. Vt. Pub. Serv. Corp., 172 Vt. 14, 20 (2001) ( setting forth elements of res judicata and collateral estoppel, both of which require prior fi nal judgment regarding claim or issue); Morrisville Lumber Co., Inc. v. Okcuoglu, 148 Vt. 1 80, 182 (1987) (explaining that denial of motion for summary judgment is not a final judgment ).

Affirmed.

BY THE COURT:

_______________________________________ John A. Dooley, Associate Justice

_______________________________________ Brian L. Burgess, Associate Justice

_______________________________________ Beth Robinson, Associate Justice