Progressive Northwestern Insurance Company v. Boyden et al

Filing 39

MEMORANDUM OPINION AND ORDER: it is ORDERED as follows: Plf's 29 Motion for Summary Judgment is DENIED and Dfts Boyden's and Hill's 31 & 32 Motions for Summary Judgment are GRANTED, as further set out in order. Signed by Honorable Judge Wallace Capel, Jr on 3/17/2017. (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
PROGRESSIVE NORTHWESTERN
INSURANCE COMPANY,
Plaintiff,
v.
JOHN BOYDEN, and LIZZY
CATHERINE HILL, individually and
as personal representative of the estate
of JIMMY L. HILL, SR.,
Defendants.

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Civil Action No. 3:16-cv-010-WC

MEMORANDUM OPINION AND ORDER
Before the court are the Motions for Summary Judgment (Docs. 29, 31, and 32)
filed by the parties in this case. For the reasons that follow, the court concludes that
Plaintiff’s motion for summary judgment is due to be denied, that Defendants’ motions for
summary judgment are due to be granted, and that declaratory judgment is due to be entered
in favor of Defendants.
I.

BACKGROUND
On January 7, 2016, Progressive Northwestern Insurance Company (“Plaintiff”)

filed a complaint (Doc. 1) seeking, in pertinent part, a declaration that “Plaintiff has no
duty to defend and/or indemnify John Boyden in connection with any claim brought against
him” in underlying litigation concerning Boyden’s automobile’s collision with a vehicle
operated by Jimmy L. Hill, Sr., on April 24, 2014, and that “Plaintiff has no coverage
applicable to any claim or garnishment action that may be brought by Lizzie Catherine

Hill, individually or in her representative capacity as personal representative of the Estate
of Jimmy L. Hill, Sr., or by any other claimant, in the event a judgment is obtained against
Defendant Boyden for damages resulting from the April 24, 2014 collision[.]” Compl.
(Doc. 1) at 4-5. On March 8, 2016, Defendant Lizzie Catherine Hill, in her individual and
representative capacities, filed her Answer, Counterclaim, and Crossclaim (Doc. 9), in
which, in pertinent part, she seeks a declaration that “Plaintiff has a duty to defend and
indemnify Defendant Boyden in connection with the April 24, 2014 collision at issue in
the underlying case[,]” and that “Plaintiff has coverage applicable to any claim or
garnishment action that may be brought by Lizzie Catherine Hill, individually and/or in
her representative capacity[.]” Doc. 9 at 15-16. On March 10, 2016, Defendant Boyden
filed his Answer and Counterclaim for Declaratory Judgment (Doc. 12), in which he, too,
seeks a declaration that “Plaintiff has a duty to defend and indemnify” him “in connection
with any claim brought against him arising from damages sustained by Jimmy L. Hill, Sr.,
or any other claimant, as a result of the April 24, 2014, collision[,]” and that “Plaintiff does,
in fact, have coverage applicable to any claim or garnishment action that may be brought
by Lizzie Catherine Hill, individually or in her representative capacity[.]” Doc. 12 at 4-5.
On March 24, 2016, Plaintiff filed a motion to dismiss (Doc. 13) Defendant Hill’s
counterclaim. Thereafter, on March 31, 2016, Defendant Hill noticed her dismissal of her
counterclaim against Plaintiff and her crossclaim against Boyden pursuant to Rule 41(c) of
the Federal Rules of Civil Procedure.

Accordingly, the court entered its Uniform

Scheduling Order (Doc. 27) on May 26, 2016, and the case proceeded into discovery. On
October 31, 2016, Plaintiff filed its motion for summary judgment (Doc. 29). Defendants
2

Boyden and Hill filed their cross motions for summary judgment (Docs. 31 & 32) on
November 2, 2016. All motions are fully briefed and are ripe for determination.
II.

STANDARD OF REVIEW
Under Rule 56(a) of the Federal Rules of Civil Procedure, a reviewing court shall

grant a motion for “summary judgment if the movant shows that there is no genuine issue
as to any material fact and that the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(a). Only disputes about material facts will preclude the granting
of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “An
issue of fact is ‘genuine’ if the record as a whole could lead a reasonable trier of fact to
find for the nonmoving party. An issue is ‘material’ if it might affect the outcome of the
case under the governing law.” Redwing Vehicleriers, Inc. v. Saraland Apartments, 94
F.3d 1489, 1496 (11th Cir. 1996) (quoting Anderson, 477 U.S. at 248).
Under Rule 56, summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The
party asking for summary judgment “always 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 demonstrates the absence of a genuine issue of material fact.” Id.
at 323. The movant can meet this burden by presenting evidence showing there is no
dispute of material fact, or by showing that the nonmoving party has failed to present
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evidence in support of some element of his case on which he bears the ultimate burden of
proof. Id. at 322–23.
Once the movant has satisfied this burden, the nonmoving party must “go beyond
the pleadings and by his own affidavits, or by the ‘depositions, answers to interrogatories,
and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for
trial.’” Id. at 324. In doing so, and to avoid summary judgment, the nonmovant “must do
more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The parties
must support their assertions “that a fact cannot be or is genuinely disputed” by “citing to
particular parts of materials in the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations[], admissions, interrogatory
answers, or other materials” or by “showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A) & (B).
If the nonmovant “fails to properly address another party’s assertion of fact” as
required by Rule 56(c), then the court may “consider the fact undisputed for purposes of
the motion” and “grant summary judgment if the motion and supporting materials –
including the facts considered undisputed – show that the movant is entitled to it.” Fed. R.
Civ. P. 56(e)(2) & (3).
In determining whether a genuine issue for trial exists, the court must view all the
evidence in the light most favorable to the nonmovant. McCormick v. City of Fort
Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003). Likewise, the reviewing court must
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draw all justifiable inferences from the evidence in the nonmoving party’s favor.
Anderson, 477 U.S. at 255.

However, “mere conclusions and unsupported factual

allegations are legally insufficient to defeat a summary judgment motion.” Ellis v.
England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam). Furthermore, “[a] mere
‘scintilla’ of evidence supporting the opposing party’s position will not suffice; there must
be enough of a showing that the jury could reasonably find for that party.” Walker v.
Darby, 911 F.2d 1573, 1577 (11th Cir. 1990); see also Anderson, 477 U.S. at 249-50 (“If
the evidence [on which the nonmoving party relies] is merely colorable, or is not
significantly probative, summary judgment may be granted.”) (internal citations omitted).
This court has recently addressed a court’s review of cross-motions for summary
judgment as follows:
Cross-motions for summary judgment “must be considered
separately,” and “each movant bears the burden of establishing that no
genuine issue of material fact exists and that it is entitled to judgment as a
matter of law.” Shaw Constructors v. ICF Kaiser Eng’rs, Inc., 395 F.3d 533,
538–39 (5th Cir. 2004); see also Bricklayers, Masons & Plasterers Int’l
Union of Am., Local Union No. 15 v. Stuart Plastering Co., 512 F.2d 1017,
1023 (5th Cir. 1975) (“Cross-motions for summary judgment will not, in
themselves, warrant the court in granting summary judgment unless one of
the parties is entitled to judgment as a matter of law on facts that are not
genuinely disputed.”). In some cases, “[c]ross motions for summary
judgment may be probative of the nonexistence of a factual dispute.” Shook
v. United States, 713 F.2d 662, 665 (11th Cir.1983). However, the existence
of cross motions for summary judgment “‘do[es] not automatically empower
the court to dispense with the determination whether questions of material
fact exist.’” Ga. State Conference of NAACP v. Fayette Cty. Bd. of Comm’rs,
775 F.3d 1336, 1345 (11th Cir. 2015) (quoting Lac Courte Oreilles Band of
Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 349 (7th Cir.
1983)). This is so because “each party moving for summary judgment may
do so on different legal theories dependent on different constellations of
material facts. Indeed, cross-motions for summary judgment may
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demonstrate a genuine dispute as to material facts as often as not.”
Bricklayers, 512 F.2d at 1023.
“‘[W]hen both parties proceed on the same legal theory and rely on
the same material facts[,] the court is signaled that the case is ripe for
summary judgment.” Shook, 713 F.2d at 665. Even then, however, “[a] court
may discover questions of material fact even though both parties, in support
of cross-motions for summary judgment, have asserted that no such questions
exist. . . . Thus, before the court can consider the legal issues raised by the
parties on cross-motions for summary judgment, it must have no doubt as to
the relevant facts that are beyond dispute.” Griffis v. Delta Family–Care
Disability, 723 F.2d 822, 824 (11th Cir. 1984) (adopting order of district
judge on summary judgment).
Till v. Lincoln Nat’l Life Ins. Co., 182 F. Supp. 3d 1243, 1248-49 (M.D. Ala. April 25,
2016) (footnote omitted).
III.

STATEMENT OF FACTS1
A.

The Accident

This litigation concerns an automobile accident involving Defendant Boyden and
Jimmy L. Hill, Sr., on April 24, 2014, in Phenix City, Alabama. On that morning, Boyden

The parties did not adhere to the Uniform Scheduling Order’s requirement that, in any brief in
support of or in opposition to a motion for summary judgment, the parties “shall include a
statement of facts divided into two parts: Uncontested Facts and Contested Facts.” Doc. 27 at 2.
To facilitate compliance with this requirement, the Order further instructed that, prior to filing a
motion for summary judgment, “the parties shall confer and agree upon the facts which are
uncontested; those facts shall be identical in each party’s brief.” Id. The parties appear to attribute
their collective failure to adhere to the court’s Order to their inability to agree upon a set of
uncontested facts before filing their various motions. See Doc. 29-1 at 3; Doc. 35 at 1; id. at n.1;
Doc. 32-1 at 1-2. Despite the parties’ failure, the statement of facts in each brief in support of
summary judgment is nearly identical, and the parties appear to agree that there are few, if any,
disputes of material facts in this matter. Because the court agrees with that assessment, and
because the facts are easily reflected in the record evidence submitted in support of the parties’
motions, in this instance the court will not impose the sanction—dismissal of the motions—
contemplated by the Uniform Scheduling Order for a party’s “[f]ailure to comply strictly” with the
requirements of the Order. See Doc. 27 at 2. Instead, the court will craft a statement of facts using
the parties’ various statements of contested facts.
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and his wife were traveling to Maine after spending the winter in Florida. Deposition of
John Boyden (Doc. 29-3) (“Boyden Dep.”) at 7:4-17; 51:4-6; 53:3-54:6. The Boydens
typically spent half the year living in Florida, and the other half living in Maine. Id. at 7:47. They spent several days at the Uchee Creek campground in Fort Benning, Georgia
during the trek. Id. at 7:14-17, 51:3-14. The Boydens departed the campground and
headed toward Columbus, Georgia, on Highway 431 with Boyden driving his 2006
Dodge Ram 3500 truck. Id. at 11:1-5; 59:8-13. The truck towed a 28-foot Holiday
Rambler travel trailer the Boydens used for camping. Id. at 11:1-5. The trailer weighed
approximately 11,800 pounds. Id. at 91:16-19. Boyden was also transporting his 2005
Maliguta Ciak scooter. Id. at 11:1-10. The scooter weighed approximately 300 pounds.
Id. at 14:12-15:1. The scooter was secured to a motorcycle carrier attached to the rear
of the travel trailer. Id. at 12:11-16.

The motorcycle carrier weighed approximately

40-45 pounds. Id. at 43:20-44:9. The motorcycle carrier attached to a trailer hitch on the
rear of the travel trailer, but was not supported by wheels and had no contact with the
ground.
As Boyden approached the intersection of Highway 280 and Highway 431 in
Russell County, Alabama, Boyden crested the top of a hill, looked down the hill, and
saw an overpass and a traffic signal beyond that. Id. at 60:5-13. After emerging from
under the overpass, Boyden saw that the light had turned yellow, but he was unable to
stop his vehicle before entering the intersection. Id. at 60:15-23. At the intersection, the
front end of Boyden’s truck and the right side of the travel trailer collided with the front
end and driver’s side door of the vehicle driven by Mr. Hill. Id. at 18:7-19. Mr. Hill died
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as a result of the injuries he sustained in the accident. Compl. (Doc. 1), Hill v. Boyden,
No. 3:15cv687-MHT-GMB (filed Sept. 21, 2015).
The truck Boyden was driving, and the attached travel trailer, were insured by
insurers other than Progressive. Boyden Dep. (Doc. 29-3) at 80:1-7; 86:11-20.
B.

The Scooter

Boyden owns a 2005 Maliguta Ciak scooter. Id. at 11:6-10. Boyden and his wife
primarily used the scooter as back-up transportation while traveling—to attend yard sales
on Saturdays, visit the beach, and to run back and forth to the commissary on Tyndall Air
Force Base, as well as for transportation and leisure purposes while they reside in Maine.
Id. at 16:15-17:8, 22:10-23:3.
At the time of the accident, the scooter was affixed to a motorcycle carrier that was
mounted to the receiver at the back of the trailer. Id. at 12:21-13:17. To place the scooter
in the motorcycle carrier, Boyden would take the removable ramp off the motorcycle
carrier and place it on the back of the carrier. Id. at 13:18-22. He then would push the
scooter up the ramp while his wife held it level into the carrier hold. Id. at 15:2-11. Each
of the two wheels on the scooter was then placed down in a hole or well, enabling the
scooter to stand upright. Id. at 14:15-17. At the time of the accident, the scooter was
secured to the motorcycle carrier and strapped down with four straps, which were cranked
tight around the scooter’s two wheels. Id. at 12:11-16; 15:12-23. There was also a locked
chain securing the scooter to the trailer. Id.

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C.

The Scooter and the Accident

Neither the scooter, receiver, nor carrier came into contact with Mr. Hill or his
vehicle during the collision. Id. at 18:7-19:5. Before, during, and after the impact, the
scooter remained on the motorcycle carrier with all of the restraints placed by Boyden
intact. Boyden’s Answer to Pl.’s Interrogatories Nos. 8-9 (Doc. 29-7), Ex. D to Pl.’s Mot.
for Summ. Judgment; Boyden Dep. at 19:6-8. The scooter’s ignition was not on and the
keys to the scooter were in the cab of the truck with Boyden at the time of the accident.
Boyden Dep. at 87:6-17.
After the accident, the only known damage to the scooter was to a reflector that
had popped off the scooter’s fender. Id. at 89:1-14. Boyden picked up the reflector, and
eventually glued the reflector back on. Id. Boyden did not observe any other damage to
the scooter. Id. at 20:13-21:1. The scooter was transported with the travel trailer to a
camper repair business after the accident, where it remained unused for several months.
Id. at 19:6-21. Boyden was not able to start it afterwards; he speculates that, during the
several months it spent sitting idle, the “gas had gummed up the carburetor.” Id. at 19:1621. Boyden did not make a property damage claim with Progressive or any other insurer
for physical damage to the scooter. Id. at 21:15-20.
Although Boyden acknowledged that the total weight of his traveling unit,
including the 300 pound scooter and about 40 or 45 pound scooter carrier, precluded him
from stopping in time to avoid the collision, id. at 62:14-23, 63:22-64:14, he also testified
that having the scooter and motorcycle carrier attached to the rear of the travel trailer does
not affect his handling of the truck while driving. Id. at 93:19-94:7.
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D.

The Insurance Policy

Plaintiff issued motorcycle policy number 42925615-8 to Boyden on February 21,
2014. Policy (Doc. 29-4) at 1, Ex. B to Pl.’s Mot. Summ. J. The policy covered the period
from March 31, 2014, through March 31, 2015. Id. Although the policy is specifically
titled “Maine Motorcycle Policy,” and Boyden’s insurance agent works out of an agency
in Maine, Boyden’s “Renewal Declarations Page” indicates that his address is Tyndall
Air Force Base in Florida. Id. Part I of the policy covers “Liability to Others.” The
“Insuring Agreement” reads as follows: “If you pay the premium for this coverage, we
will pay damages for bodily injury and property damage for which an insured person
becomes legally responsible because of an accident.” Id. at 16. The policy goes on to
define an “insured person” as, in pertinent part, “you or a relative with respect to an
accident arising out of the ownership, maintenance, or use of a motorcycle[.]” Id. The
terms “arising out of,” “ownership,” “maintenance,” and “use” are not defined in the
policy.2 The policy defines a “motorcycle” as “any motorcycle, motorbike, motor scooter,
or motorized trike that is designed for operation principally upon public roads and has at
least two wheels, but not more than three wheels.” Id. at 14. Although the “Liability to
Others” section sets forth many exclusions for Plaintiff’s “duty to defend” an “insured

Notwithstanding the policy’s failure to define these terms, in the “General Definitions” section
of the policy, “occupying” is defined as “in, on, entering, exiting, mounting or dismounting.”
Notably, an “insured person” is not required by the policy to be “occupying” the scooter at the
time of an accident in order for the insurer to owe a duty to defend.

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person,” there are no exclusions pertaining to injuries resulting from accidents during
which the covered “motorcycle” is being transported but is not occupied.
IV.

DISCUSSION
The parties appear to agree that Maine law governs this court’s construction of the

insurance contract at issue. See Doc. 29-1 at 4 n.1; id. at 10-11 (Plaintiff discussing Maine
cases interpreting contract language); Doc. 35 at 4-5 (Hill discussing construction of
contract terms in Maine cases); Doc. 31 at 9 (Boyden assuming correctness of Plaintiff’s
contention that Maine law applies); Doc. 32-1 at 6; id. at n.2 (Hill declining to dispute
that Maine law applies for purposes of the summary judgment motions). The court agrees.
See, e.g., New Hampshire Ins. Co. v. Hill, 516 F. App’x 803, 805 (11th Cir. 2013)
(“Because the district court sat in Alabama, it was obliged to follow Alabama’s lex loci
contractus doctrine, which requires that Alabama courts interpret contracts according to
the law of the state in which they were made.”).
Plaintiff seeks a declaratory judgment that it owes no duty to defend its insured in
the tort litigation underlying this matter. “To determine whether an insurer owes its
insured a duty to defend, Maine courts apply the ‘comparison test,’ which involves a
‘comparison of the allegations in the underlying complaint with the provisions of the
insurance policy’ to determine if the claims alleged are within the coverage of the policy.”
Lyman Morse Boatbuilding, Inc. v. N. Assur. Co. of Am., 772 F.3d 960, 965 (1st Cir. 2014)
(quoting Mitchell v. Allstate Ins. Co., 36 A.3d 876, 879 (Me. 2011)). “An insurer’s refusal
to defend is proper only when the allegations of the complaint fall completely outside the
policy.” Cox v. Commonwealth Land Title Ins. Co., 59 A.3d 1280, 1283 (Me. 2013)
11

(citing Mitchell, 36 A.3d at 879). As such, the insurer must defend the insured even if the
court’s reading of the complaint and policy “reveals a mere potential that the facts may
come within coverage[.]” Id. (citation omitted) (emphasis in original). This court must
“evaluate the policy in its entirety, including any exclusions and exceptions, to determine
whether [Plaintiff] has a duty to defend [Boyden].” Id. (citation omitted).
In reviewing the insurance contract, “[u]nambiguous contract language must be
interpreted according to its plain meaning.” Travelers Indem. Co. v. Bryant, 38 A.3d
1267, 1269 (Me. 2012) (citation omitted). However, “[b]ecause the duty to defend is
broad, any ambiguity in the policy regarding the insurer’s duty to defend is resolved
against the insurer, and policy exclusions are construed strictly against the insurer.”
Mitchell, 36 A.3d at 879. This comports with the general rule in Maine that “[a]ny
ambiguity in an insurance contract is construed strictly against the insurer and liberally in
favor of the insured.” Bryant, 38 A.3d at 1269 (quotation omitted). “A provision of an
insurance contract is ambiguous if it is reasonably susceptible of different interpretations
or if any ordinary person in the shoes of the insured would not understand that the policy
did cover claims such as those brought.” Id. (quotation omitted). See also Union Mut.
Fire Ins. Co. v. Commercial Union Ins. Co., 521 A.2d 308, 310 (Me. 1987) (quotation
and citation omitted) (“[T]he contract language is to be viewed from the perspective of
an average person untrained in the law or the insurance field in light of what a more than
casual reading of the policy would reveal to an ordinarily intelligent insured.”).
Ultimately, there is no “formula for defining the outer limits of a ‘reasonable reading’ of
. . . ambiguous policy language.” Genthner v. Progressive Cas. Ins. Co., 681 A.2d 479,
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482 (Me. 1996). Rather, the “exact line between ‘reasonable’ and ‘unreasonable’” is
“defined on a case-by-case determination.” Id.
For purposes of Maine’s “comparison test,” the undersigned notes the following
regarding the underlying complaint in this matter. The insured was sued in the state
court,3 where the plaintiff alleged that the insured’s negligence caused the decedent’s
wrongful death and decedent’s spouse’s loss of consortium. See Doc. 29-5 at 4-6. In
particular, the underlying plaintiff alleged that, “while operating a unit consisting of a
2006 Dodge Ram 3500, Savoy SL by Holiday Rambler travel trailer (‘travel trailer’), and
a 2005 Malaguti Ciak scooter (‘scooter’),” Boyden “negligently disregarded the traffic
signal at the intersection of U.S. Highway 431 and U.S. Highway 280 in Russell County,
Alabama, running a red light, traveling through the intersection, and colliding with the
vehicle driven by Decedent.” Id. at ¶¶ 7, 10. The plaintiff in the underlying litigation
alleges that “[t]he combination of Defendant’s Dodge Ram, travel trailer, and scooter
formed the traveling unit that caused the injuries . . . to Decedent Jimmy L. Hill, Sr.” Id.
at ¶ 8.
As set forth above, Plaintiff’s duty to defend Boyden in the underlying litigation is
triggered if there is any potential that proof of the facts alleged in the underlying complaint
will come within the coverage described in the subject insurance policy. Cox, 59 A.3d at

The matter was subsequently removed by Defendant Boyden to the United States District Court
for the Middle District of Alabama, where it was stayed pending the outcome of this litigation.
See Order (Doc. 15), Hill v. Boyden, No. 3:15cv687-MHT-GMB (noting previous entry of stay,
ordering administrative closure of case, and requiring the parties to file periodic joint status
reports).

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1283. The parties appear to agree that the crux of the question before the court is thus
whether Boyden is an “insured person” within the meaning of the policy in that the
accident which caused the bodily injury and/or property damage described in the
underlying complaint arose out of Boyden’s “ownership, maintenance, or use of a
motorcycle[.]” Doc. 29-4 at 3. See, e.g., Doc. 29-1 at 10-13 (Plaintiff arguing that it is
entitled to summary judgment because “the accident or injuries did not ‘arise out of’
Boyden’s ‘ownership, maintenance, or use’” of the scooter); Doc. 31 at 9-18 (Boyden
arguing that he is entitled to summary judgment because the accident arose out of his
ownership, use, or maintenance of the scooter); and Doc. 32-1 at 7-12 (Hill arguing that
she is entitled to summary judgment because the accident arose out of Boyden’s
ownership, use, or maintenance of the scooter).4

Plaintiff appears to briefly offer another reason why it is entitled to declaratory judgment,
arguing “the vehicle involved in the loss was not a motorcycle.” See Doc. 29-1 at 9-10. Plaintiff’s
theory in this regard appears to be that because Boyden was operating his truck when he caused
the accident, and a truck is not a motorcycle, there is no coverage under the policy. Plaintiff’s
argument is easily refuted. There is no doubt that the scooter was “involved” in the accident. The
scooter was part of the traveling unit and contributing, even if only very slightly, to the overall
weight of the unit that precluded Boyden from stopping before his unit entered the intersection.
The case cited by Plaintiff in support of this argument, Farmers Ins. Co., Inc. v. Wilson, 424
S.W.3d 487 (Mo. Ct. App. 2014), is inapposite. There, claimants sought to “stack” liability
coverage afforded by a motorcycle policy with other possible coverages stemming from an
accident involving claimants’ decedent, who was a passenger in a vehicle driven by an insured
person possibly covered by multiple automobile liability policies, and a single motorcycle policy.
Id. at 490-91. The accident involved a 2002 Dodge Intrepid. Id. at 490. The motorcycle was not
involved in the accident. The Missouri Court of Appeals held simply that the Dodge, as the lone
relevant vehicle involved, was not a motorcycle within the meaning of the motorcycle policy, and,
therefore, no coverage under the policy applied. Id. at 492. This is vastly different from the
circumstances in this case, where, as discussed above, the covered motorcycle was at the scene of
the accident as a component of the traveling unit, and was contributing, however slightly, to the
weight of Boyden’s unit.

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As discussed previously, the policy does not offer a definition of the terms that
control the issue before the court. However, Maine law affords some guidance as to what
is meant by “arising out of.” See Acadia Ins. Co. v. Vermont Mut. Ins. Co., 860 A.2d 390,
393 (Me. 2004) (internal quotation omitted) (favorably citing a case affording “arising
out of” a “broad interpretation” in an insurance contract, to wit: “originating from,
growing out of, flowing from, incident to or having connection with”). Likewise, Maine
law affords some guidance as to what may constitute “use” under the policy. The
Supreme Judicial Court of Maine has previously observed that, in the context of the
language of the omnibus clause found in the instant contract, “[t]he word ‘use’ is a general
catch-all term, encompassing all proper uses of a vehicle.” Union Mut. Fire Ins. Co., 521
A.2d at 310.

Maine law thus requires “a broad construction” of the term.

Id.

Accordingly, Maine courts have interpreted “use” as “‘broader than operation’” of a
motor vehicle, which is described as “manipulation of the car’s controls in order to propel
it as a vehicle.” Id. (quoting Allstate Ins. Co. v. Lyons, 400 A.2d 349, 352 (Me. 1979)).
Under the “broad construction” afforded to the term “use,” Maine courts have
found, for instance, that an automobile was in use where a firearm accidentally discharged
while being unloaded from the automobile during a hunting excursion. Id. at 311. In any
event, “whether a particular injury is within the meaning of the ‘ownership, maintenance
or use’ clause of an insurance policy, the cases are in general agreement that a causal
relationship must exist between the accident or injury and the ownership, maintenance or
use of the vehicle.” Id. at 310 (citation omitted). Importantly, the “causal relationship
between the proper use of the vehicle and subsequent injury need not be the proximate
15

cause of the injury; coverage will be extended if there is a reasonable causal connection
between the use and the injury.” Id. at 311 (citation omitted).
Against this backdrop of principles, the parties have cited numerous cases from
around the country in support of their contentions that the accident in this matter did, or
did not, arise out of Boyden’s use, ownership, or maintenance of the scooter. Although
no case presents the precise circumstances as this case, numerous courts have found
coverage under circumstances similar to this matter. See, e.g., American Fire & Cas. Co.
v. Allstate Ins. Co., 214 F.2d 523, 525 (4th Cir. 1954) (finding Jeep in-tow was in use
pursuant to similar policy language because towing Jeep subjected it to “the vicissitudes
and dangers of travel on the public highway,” and Jeep was “employed” in a manner that
was not “so unusual as not to have been within the contemplation of the parties to the
insurance contract”); State Auto. Mut. Ins. Co. v. State Farm Mut. Auto. Ins. Co., 456 F.2d
238, 239 (6th Cir. 1972) (Jeep in-tow was in use pursuant to similar policy language
where, although Jeep did not collide with the opposing vehicle, Jeep was loaded with
hunting equipment insured intended to use upon reaching his destination and the “Ford
and the Jeep constituted a unit which the insured of both companies operated on the wrong
side of the road, and caused the accident”); State Farm Fire and Cas. Co. v. Pinson, 984
F.2d 610, 612-613 (4th Cir. 1993) (finding, where relevant state’s law interprets identical
policy language broadly, a pontoon boat being towed was in “use” pursuant to watercraft
liability policy, and noting that if the insurer “had wanted to exclude towing from the
boat’s liability coverage, it could easily have done so”); Westfield Ins. Co. v. Aetna Life
& Cas. Co., 739 P.2d 218, 222 (Ariz. App. 1987) (collecting cases and adopting “majority
16

view” of jurisdictions that a truck being towed by tow truck was in use by the tow truck
driver for purposes of liability policy covering towed truck); and State Farm Fire & Cas.
Co. v. Erwin, 393 So. 2d 996, 998-99 (Ala. 1981) (finding identical policy language
“ambiguous” and concluding that, where insured’s boat was involved in an accident while
being towed for repairs, insurer “could have avoided the broad language used or
specifically excluded out-of-water use of boatcraft in drafting its policy”).
To be sure, some courts, construing the relevant language more narrowly, have
determined that coverage does not apply in similar circumstances. See, e.g., Sass v.
Acuity, 765 N.W.2d 582, 588 (Wis. Ct. App. 2009) (distinguishing Pinson and concluding
that, given the inherent nature of a boat and its purpose to be used on the water, the “act
of transporting a boat on a trailer” is not “a normal incident of the use itself,” and,
therefore, where a boat is towed on a trailer it merely “constitutes cargo upon the trailer”
and is not in use); Vann v. United Farm Mut. Ins. Co., 790 N.E. 2d 497, 503-04 (Ind. Ct.
App. 2003) (finding no coverage under watercraft liability endorsement to homeowner’s
insurance policy where the watercraft endorsement did not clearly “set forth the
conditions under which liability coverage is triggered with regard to the boat[,]” and boat
was simply attached to a transport trailer which detached from automobile before
colliding with injured party); and Hannah v. Erie Ins. Exchange, 537 A.2d 182, 183-84
(Del. 1987) (distinguishing “an insured vehicle in tow and an insured boat merely being
transported as cargo” and concluding that a boat being transported upon a trailer is not in
“use” and finding no “causal connection” between boat and accident where the boat “did
not cause or contribute to the severity of the accident”).
17

The parties’ submissions, as well as the court’s own research, indicates that the
greater weight of authorities supports a finding of coverage in this instance. While again
acknowledging that no case that is fully square with the facts of this case has been
presented to or located by the court, considering the “broad” interpretation Maine affords
both “arising out of” and “use” in the relevant policy language, the court finds the majority
view persuasive as to how this issue should be decided under Maine law. Again, “use”
of a motor vehicle in Maine encompasses more than simply operation of the vehicle. As
such, “use” necessarily entails ordinary usages beyond “manipulation of the car’s controls
in order to propel it as a vehicle.” Union Mut. Fire Ins. Co., 521 A.2d at 310.
Accordingly, it is immaterial to the court’s analysis that, as argued by Plaintiff, “[t]he
scooter was not being operated, driven, ridden, used, handled, occupied, engaged, or
otherwise manipulated when the accident occurred.” Doc. 29-1 at 12. Even if that
statement, minus the legal conclusion that the scooter was not “used” at the time of the
accident, is true, Maine law establishes that the standard for determining whether the
scooter was in fact used at the time of the accident is broader than that. Furthermore, the
fact that the policy defines “occupying,” but does not require that an insured person be
occupying, operating, driving, riding, handling, engaged with, or otherwise manipulating
the scooter at the time of the accident, cuts against Plaintiff’s argument.
The subject policy requires only that an accident arise out of the “use” of the scooter
and some causal connection between the use and the accident. Because, by law, “use” is
construed broadly to encompass the scooter’s “employment for some purpose of the user,”
Union Mut. Fir Ins. Co., 521 A.2d at 310 (citation omitted), and is therefore “reasonably
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susceptible of different interpretations,” Foremost Ins. Co., 868 A.2d at 246 (quotation
omitted), it is inherently ambiguous. As such, the resulting ambiguity is to be construed
against Plaintiff, as the preparer of the insurance contract, and in favor of coverage.
Genthner, 681 A.2d at 482. Construing the ambiguity here in favor of the insured, the
court concludes that transporting a covered vehicle under the power of another vehicle so
that the insured person may continue to use the transported vehicle upon reaching his
destination is a normal, permissible, and foreseeable “use” of the transported vehicle
under Maine law.
Likewise, the evidence in the record supports the conclusion that a “causal
connection” exists between Boyden’s “use” of the scooter and the accident. Boyden
testified that the weight of his traveling unit, especially considering that he was traveling
downhill,

prevented

him

from

stopping

in

time

to

avoid

the

collision.

Boyden Dep. (Doc. 29-3) at 38:20-39:13. The scooter was a component part of the
traveling unit and was contributing, even if only slightly, to the overall weight of the unit.
There is no fact in evidence before the court tending to show that the scooter’s weight did
not, minimally, contribute to either Boyden’s inability to stop or to the force with which
Boyden’s unit collided with the vehicle driven by Mr. Hill. Thus, even if Boyden’s use
of his scooter was not the proximate cause of Mr. Hill’s injuries, the evidence shows at
least a “reasonable causal connection between the use and the injury.” Union Mut. Fire
Ins. Co., 521 A.2d at 311. This is all that Maine law requires in order to find coverage
and trigger the insurer’s duty to defend.

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Viewing the policy as a whole, and considering the Maine construction principles
already discussed, the court concludes that, at the least, “[a]n insured carefully reading
the policy language could not determine whether [the underlying] plaintiff’s claim is
covered.” Genthner, 681 A.2d at 480. This conclusion is bolstered by a few simple
observations. First, Plaintiff, as the writer of the insurance contract, could have defined
the operative terms—meaning “arising out of,” “use,” and “ownership”—in a manner to
exclude situations where the scooter was put to some use by the insured, but was not
occupied or otherwise being manipulated in its controls by the insured. Plaintiff declined
to do so. Second, if Plaintiff found that task too difficult or disadvantageous for some
unknown reason, Plaintiff could have simply excluded from liability an accident in which
the scooter was not occupied or in mechanical operation, but was instead involved only
as “cargo” in a larger traveling unit. Despite more than fifty years of cases finding
vehicles in “use” under identical policy language when such vehicles are in-tow or loaded
on trailers, see supra, Plaintiff declined to do so.5 It is highly foreseeable that motorcycle
owners will transport their motorcycles with the intention of using them upon reaching
their destination. It was especially foreseeable in this circumstance, where Plaintiff wrote
a Maine motorcycle policy and sold it through a Maine agency, but appears to have
directed correspondence about the policy to the insured at a residential address in Florida.

Plaintiff did take care to insert into the policy several specific exclusions, both ordinary and
extraordinary, to its liability coverage. For example, liability coverage is excluded where, inter
alia, the scooter is used to escort persons or property for a fee, or for general employment or
business purposes, or for racing, stunts, or speed demonstrations, or for “bodily injury or property
damage due to a nuclear reaction or radiation[,]” or for bodily injury or property damage resulting
from intentional and/or criminal acts. Doc. 29-4 at 17-18.

5

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Under the guiding principles discussed in this Opinion, the court cannot conclude
that the scooter was not being put to use by Boyden, or that there is not at least a
reasonable causal connection between Boyden’s use of the scooter and the accident in the
underlying litigation. Plaintiff was in the best position to avoid or correct any ambiguity
in its own policy but failed to do so, and, as a result, an ordinary insured carefully reading
the subject policy language would not be able to tell whether the underlying plaintiff’s
claim is covered by the policy. As such, because there is at least a potential that proof of
the facts alleged in the underlying complaint will come within the coverage afforded by
the policy, the court cannot conclude that Plaintiff is not required to defend and indemnify
Boyden in the underlying litigation, or that there is no coverage for the underlying
plaintiff’s claims against Boyden.
V.

CONCLUSION
For all of the foregoing reasons, it is ORDERED as follows:
Plaintiff’s Motion for Summary Judgment (Doc. 29) is DENIED and Defendants

Boyden’s and Hill’s Motions for Summary Judgment (Docs. 31 & 32) are GRANTED.
A separate declaratory judgment shall issue.
Done this 17th day of March, 2017.
/s/ Wallace Capel, Jr.
CHIEF UNITED STATES MAGISTRATE JUDGE

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