Progressive Gulf Insurance Co. v. Daryl Thigpen, et al

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UNPUBLISHED OPINION FILED. [09-60872 Affirmed in Part, Reversed and Remanded in Part] Judge: EMG , Judge: FPB , Judge: MAC Mandate pull date is 09/24/2010 [09-60872]

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Progressive Gulf Insurance Co. v. Daryl Thigpen, et al Doc. 0 Case: 09-60872 Document: 00511224969 Page: 1 Date Filed: 09/03/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED September 3, 2010 N o . 09-60872 Lyle W. Cayce Clerk P R O G R E S S I V E GULF INSURANCE COMPANY Plaintiff - Appellee v. M A R I A PALACIOS ESTATE, deceased; MARIANO PALACIOS; JOANNY M A R I A N A PALACIOS; C.N.P., a minor, through his natural guardian, Mariano P a la c io s D e fe n d a n t s - Appellants A p p e a l from the United States District Court fo r the Southern District of Mississippi U S D C No. 3:08-CV-494 B e fo r e GARZA and BENAVIDES, Circuit Judges, and CRONE * , District Judge. P E R CURIAM:* * T h e Estate of Maria Palacios ("Palacios Estate") appeals the district court's d e n ia l of its partial summary judgment motion, as well as the district court's g r a n t of Progressive Gulf Insurance Co.'s ("Progressive") summary judgment * District Judge of the Eastern District of Texas, sitting by designation. Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. ** Dockets.Justia.com Case: 09-60872 Document: 00511224969 Page: 2 Date Filed: 09/03/2010 No. 09-60872 m o t io n . For the following reasons, we AFFIRM in part, and REVERSE and R E M A N D in part. D a r e l Thigpen and his wife founded Glorious One Ministries ("Glorious O n e " ), a transportation ministry whose purpose was to provide transportation t o students and team members at the schools where Thigpen worked as h e a d m a s t e r . Progressive insured a 1990 MCI forty-eight passenger bus owned a n d operated by Glorious One. The MCI bus was used to transport school b a s k e t b a ll players to and from tournaments. It served that purpose until b r e a k in g down while en route to a tournament. Lacking the funds necessary to m a k e repairs on the MCI bus, Thigpen repaired a fifteen-passenger Chevy van t h a t Glorious One owned, but that had been inoperable, in order to transport the s t u d e n t s .1 A lt h o u g h the MCI bus remained inoperable, Thigpen renewed the in s u r a n c e policy on the bus but continued to use the Chevy van for t r a n s p o r t a t io n . A few months later, Thigpen was involved in a motor vehicle a c c id e n t while driving the Chevy van, which resulted in the death of Maria P a la c io s ("Palacios"). The Palacios Estate filed a wrongful death action against T h ig p e n , who, in turn, filed a claim for coverage under the Progressive policy. S h o r t ly thereafter, Progressive filed a declaratory judgment action in the d is t r ic t court, seeking a declaration that it was not required to provide coverage t o Thigpen for his use of the Chevy van. The Palacios Estate counter-claimed, s e e k in g , inter alia, a declaratory judgment that Progressive was required to p r o v id e coverage under its policy. Both claims center on a provision in the in s u r a n c e contract regarding whether the Chevy van was a "temporary s u b s t it u t e auto" and therefore covered under the insurance agreement. In p a r t i c u l a r , the policy stipulated Progressive would provide coverage to "[a]ny 1 The Chevy van was not insured during the time period relevant to this dispute. 2 Case: 09-60872 Document: 00511224969 Page: 3 Date Filed: 09/03/2010 No. 09-60872 a u t o specifically described on the Declaration Page,"2 including any "temporary s u b s t it u t e autos." "Temporary substitute auto" was defined under the policy as " a n y auto used, with the permission of its owner, as a substitute for an insured a u t o that has been withdrawn from normal use due to breakdown, repair, s e r v ic in g , loss or destruction." Both parties moved for summary judgment as to whether the Chevy van w a s both a "substitute" and a "temporary" vehicle. The district court determined t h a t genuine issues of material fact existed as to whether the Chevy van was a " s u b s t it u t e " vehicle, denying summary judgment for both parties on that issue. However, the district court also found that Thigpen intended to use the van for " a n unlimited or indefinite" amount of time and, thus, that there was no genuine is s u e of material fact as to whether Thigpen's use of the Chevy van was " t e m p o r a r y ." Accordingly, the district court granted Progressive's motion for s u m m a r y judgment. P r o g r e s s iv e also moved for summary judgment on whether the Palacios E s t a t e 's claims for contribution and indemnity were foreclosed by the voluntary p a y m e n t doctrine. The district court denied summary judgment on that issue, fin d in g that factual questions remained on whether recovery was barred by the d o c tr in e . We review the district court's grant of a FED. R. CIV. P. 56(c) summary ju d g m e n t motion de novo. In re Egleston, 448 F.3d 803, 809 (5th Cir. 2006). We w ill affirm summary judgment if the record reveals no genuine issue of material fa c t and the movant is entitled to judgment as a matter of law. Croft v. Governor o f Tex., 562 F.3d 735, 742 (5th Cir. 2009). On cross-motions for summary ju d g m e n t , we review each party's motion independently, viewing the evidence The parties do not dispute that only the MCI bus was identified on the policy's Declaration Page. 2 3 Case: 09-60872 Document: 00511224969 Page: 4 Date Filed: 09/03/2010 No. 09-60872 a n d inferences in the light most favorable to the nonmoving party. Ford Motor C o . v. Tex Dep't of Transp., 264 F.3d 493, 498 (5th Cir. 2001). F ir s t , the Palacios Estate appeals the district court's denial of its motion fo r partial summary judgment on the ground that genuine issues of material fact e x is t e d as to whether the Chevy van constituted a "substitute" for the MCI bus. T h e district court did not err in determining that there are sufficient structural d is s im ila r it ie s between the two vehicles and conflicting deposition testimony d is c u s s in g the prior uses of those vehicles to preclude determining as a matter o f law that the Chevy van was a "substitute" vehicle. Accordingly, we affirm the d is t r ic t court's denial of the Palacios Estate's motion for summary judgment on t h is issue. T h e Palacios Estate also appeals the district court's grant of summary ju d g m e n t in favor of Progressive as to whether the Chevy van constituted a " t e m p o r a r y " vehicle. As a federal court sitting in diversity, we look to M is s is s ip p i law to construe the insurance policy in this case. See Erie R.R. Co. v . Tompkins, 304 U.S. 64, 78)80 (1938); Centennial Ins. Co. v. Ryder Truck R e n ta l, Inc., 149 F.3d 378, 382 (5th Cir. 1998). N o Mississippi case, however, h a s considered the meaning of "temporary" in the context of insurance coverage fo r a "temporary substitute vehicle." Courts in other states have analyzed s im ila r provisions, differing significantly on how to construe the term, and many fo c u s on the operator's intent when evaluating the permanency of the s u b s t it u t io n . Compare Armstrong v. Nationwide Mut. Ins. Co., 209 S.E. 2d 903, 9 0 4 (Va. 1974) (no coverage under temporary substitute vehicle provision where s u b s t it u t e use "was of an unlimited or indefinite duration"), and Duncan Auto R e a l t y , Ltd., v. Allstate Ins. Co., 754 So. 2d 863, 865 (Fla. Dist. Ct. App. 2000) (t e m p o r a r y use "means that a substituted vehicle's use is to be of limited d u r a t io n , at the conclusion of which the substitute vehicle is to be discarded"), w ith Nat'l Indem. Co. v. Ryder Truck Rental, Inc., 472 So. 2d 856, 858 (Fla. Dist. 4 Case: 09-60872 Document: 00511224969 Page: 5 Date Filed: 09/03/2010 No. 09-60872 C t . App. 1985) ("Whether a substitute automobile is used temporarily is a matter o f intent, the use being deemed temporary where it was intended not be used p e r m a n e n t ly ." ), and St. Paul Fire & Marine Ins. Co. v. Nyquist, 175 N.W.2d 494, 4 9 7 9 8 (Minn. 1970) (holding that use of an automobile may be "temporary" e v e n if used for several months, "so long as the owner does not view such use as p e r m a n e n t " ). Given the difference of opinion among state courts on how the w o r d "temporary" may be construed within the context of a "temporary s u b s t it u t e vehicle" provision, reasonable minds could differ on interpretation of t h e term in the insurance policy at issue. Here, we will apply a construction that fa v o r s the insured, the Palacios Estate. See Nationwide Mut. Ins. Co. v. Lake C a r o lin e , Inc., 515 F.3d 414, 419 (5th Cir. 2008); FDIC v. Firemen's Ins. Co., 109 F .3 d 1084, 1087 (5th Cir. 1987). This case presents a fact-specific dispute as to whether Thigpen intended t o make the necessary repairs to the MCI bus, such that the Chevy van was a " t e m p o r a r y " substitute. Thigpen had been using the Chevy van for nearly fo u r t e e n months at the time of the accident giving rise to this case. And, as the d is t r ic t court noted, he could not say when the MCI bus would be repaired. On t h e other hand, Thigpen renewed his insurance policy with Progressive on the d is a b le d vehicle even though it had become inoperable eleven months earlier. The evidence included an affidavit from one witness who talked with Thigpen a t various times about the van's temporary status. And indeed, Thigpen's own a f f i d a v i t alleged that "[t]he Chevy van was never intended to be a permanent r e p la c e m e n t for the MCI bus" and that "[i]t was a temporary substitute vehicle u p until [the date of the accident]." We conclude that a genuine issue of m a t e r ia l fact exists on the issue of whether Thigpen intended the Chevy van to s e r v e as a "temporary" substitute for the disabled MCI bus, and reverse the d is t r ic t court's grant of summary judgment in favor of Progressive. 5 Case: 09-60872 Document: 00511224969 Page: 6 Date Filed: 09/03/2010 No. 09-60872 L a s t , the Palacios Estate asks us to consider, both substantively and p r o c e d u r a lly , the district court's ruling that denied Progressive's motion for s u m m a r y judgment based on the voluntary payment doctrine. Progressive has n o t cross-appealed the district court's ruling and we decline the Palacios Estate's in v it a t io n to undertake an advisory review of that ruling. Our review of the r e c o r d reveals no procedural error in the district court's consideration of that m o t io n . See Pasco v. Knoblauch, 566 F.3d 572, 577 (5th Cir. 2009). AFFIRMED in part, REVERSED in part, and REMANDED. 6

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