Geico Indemnity Company et al v. Portillo et al

Filing 77

ORDER granting 67 Motion for Summary Judgment. Signed by Judge Timothy M. Burgess on 3/13/14. (RMC, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

GEICO INDEMNITY COMPANY and
GEICO CASUALTY COMPANY,
Plaintiffs,
v.

Case No. 3:12-cv-00109-TMB

MARKRYAN PORTILLO, JAIME
POTRILLO, GERALD BUCKEY, WILLIAM
MECHAM, ESTATE OF AUSTIN LONG,
and KEVIN LONG,
Defendants.
ORDER
Plaintiffs Geico Indemnity Company (“Geico Indemnity”) and Geico Casualty Company
(“Geico Casualty”) (together “Plaintiffs”) move for summary judgment in their action for a
declaration that Defendants are not entitled to coverage. 1 Defendants did not file a response in
opposition. 2 For the reasons stated below, Plaintiffs’ motion to dismiss is GRANTED.
I.

BACKGROUND

This is an action brought by Plaintiffs to declare that no insurance coverage exists under
either insurance policy because the Defendants were racing at the time of the accident. Any
potential coverage arises out of an October 21, 2011 fatal three-car collision on the Near Island
Bridge between the city of Kodiak and Near Island. 3

1

Dkt. 67.

2

See Docket.

3

Dkt. 67-2 at 3.
1

The Fred Zharoff Memorial Bridge is a two-lane bridge with designated northbound and
southbound lanes separated by a double yellow line. 4 William Mecham (“Mecham”) stated that
as the parties turned onto the bridge, Markryan Portillo (“Portillo”) slowed down and turned on
his hazard lights. 5 Mecham stated that turning on his hazards, along with going very slow and
dropping into gear, was a clear signal to race. 6 Mecham was driving a red 1995 Honda Civic
heading south in the northbound lane of the bridge alongside Portillo. 7 Portillo was driving a
white 1998 Acura Integra heading south in the southbound lane of the bridge. 8
As they were driving across the bridge, Mecham, driving in the oncoming traffic lane,
saw headlights. 9 He then applied his brakes and attempted to pull behind Portillo and avoid the
oncoming vehicle. 10 But Portillo also braked, causing Mecham to hit Portillo’s rear tire and
forcing the front end of Portillo’s vehicle to spin into the oncoming traffic lane. 11 At that point, a
1993 Chevrolet pickup driven by Monica McFarland (McFarland), which was traveling north in
the northbound lane, struck Portillo’s Acura. 12 The impact of the Chevrolet with the Acura
rotated the Acura and caused it to strike the west wall of the bridge approximately 42 feet from
4

Dkt. 67-3 at 1.

5

Dkt. 67-5 at 14.

6

Id. at 14 – 16.

7

Id. at 2.

8

Id.

9

Id.

10

Id.

11

Id.; Dkt. 67-3 at 2.

12

Dkt. 67-3 at 2.
2

the initial impact. 13 McFarland abandoned her Chevrolet approximately 836 feet north of the
point of impact. 14 Mecham and his passenger, Kevin Long, were not injured and left the scene. 15
Portillo and his passenger, Austin Long, were transported to the hospital after the accident. 16
Austin Long was pronounced dead at the hospital. 17
Mecham admitted that he and Portillo were racing when the accident occurred. 18 Portillo
has not admitted to racing. Jaime Portillo, the policy holder and Portillo’s father, discussed the
accident in a recorded conversation taken by Geico Indemnity Company shortly after the
accident. 19 Jaime Portillo said that his son told him they were racing when the accident
occurred. 20 The Kodiak Police Department’s investigation also concluded that the parties were
racing at the time of the accident. 21
Mecham and Portillo were later each indicted by the grand jury on charges of seconddegree murder and first-degree assault. 22 During the grand jury’s investigation, Kevin Long

13

Id.

14

Id.

15

Dkt. 67-2 at 7.

16

Id. at 4.

17

Dkt. 67-9 at 1.

18

Dkt. 67-5.

19

Dkt. 67-19.

20

Id. at 67-19 at 3. The transcript of Jaime Portillo’s relevant statement reads “what really
happened and he told me that you know there like the the racing something like that . . . and then
all of a sudden a truck incoming . . .” Id.

21

Dkts. 67-2, 67-3, 67-4.

22

Dkt. 67-6.
3

testified that they were racing immediately prior to the accident. 23 Mecham later plead guilty to
criminally negligent homicide and second-degree assault. 24 Portillo plead guilty to criminally
negligent homicide and third-degree assault. 25 At Portillo’s sentencing, the Superior Court for
the State of Alaska stated twice that Mecham and Portillo were drag racing at the time of the
accident. 26
II.

LEGAL STANDARD

Summary judgment is appropriate where, viewing the evidence in the light most
favorable to the nonmoving party, 27 “the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” 28 “When the party
moving for summary judgment would bear the burden of proof at trial, it must come forward
with evidence which would entitle it to a directed verdict if the same evidence were to be
uncontroverted at trial.”29 The non-moving party must then “respond . . . by setting out specific
facts showing a genuine issue for trial.” 30 Where no motion in opposition to summary judgment

23

Dkt. 67-9 at 3.

24

Dkt. 67-20 at 4.

25

Dkt. 67-21 at 5-6.

26

Dkt. 67-22 at 2, 4.

27

Hooper v. Cnty. of S.D., 629 F.3d 1127, 1129 (9th Cir. 2011) (citation omitted).

28

Fed. R. Civ. P. 56(a).

29

C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000)
(citation omitted).
30

Id. at 324.
4

is filed, the Court will not grant the motion unless “satisfied that there are no disputed issues of
material fact and that the moving party is entitled to the decision is a matter of law.” 31
In assessing whether there is a genuine dispute as to any material fact, materiality
depends on “which facts are critical and which are irrelevant” under the substantive law
governing a claim. 32 A “genuine” dispute is one where there is enough evidence for a reasonable
jury to “return a verdict for the non-moving party.” 33 The court must accordingly determine
whether there is sufficient evidence supporting the alleged factual dispute to require the trier of
fact “to resolve the parties’ differing versions of the truth at trial.” 34
III.

DISCUSSION

Plaintiffs argue that Portillo and Mecham are not entitled to coverage under their policies
because both policies contain provisions excluding from coverage injuries and damages arising
from street racing. 35 Neither Portillo nor Mecham filed an opposition. 36
A.

Racing Exclusions

In Alaska, “[t]he obligations of insurers are generally determined by the terms of their
policies.” 37 Courts interpret the terms of the policy to determine whether the insured could have
31

D.Ak. L.R. 7.1(e)(2).

32

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

33

Id.

34

T.W. Elec. Serv., Inc., v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987)
(citations omitted).
35

Dkt. 68 at 1.

36

Portillo requested and received an extension of time to respond to Plaintiffs’ motion for
summary judgment, yet he never filed a response. See Dkts. 73, 74, 75.
37

Bering Strait Sch. Dist. v. RLI Ins. Co., 873 P.2d 1292, 1294 (Alaska 1994).
5

reasonable expected coverage under their policy. 38 “In order to determine the reasonable
expectations of the parties, we look to 1) the language of the disputed policy provisions; 2) the
language of other policy provisions; 3) relevant extrinsic evidence; and 4) case law interpreting
similar provisions.” 39
Here, the relevant insurance policies each contain exclusions prohibiting coverage for
injuries and damages arising from racing. The Geico Indemnity Policy No. 4230-19-05-16
issued to Jamie Portillo, which covers the Acura driven by Portillo at the time of the accident,
bars coverage of “bodily injury or property damages caused by an auto driven in or preparing for
any racing, speed, or demolition contest or stunting activity of any nature, whether or not
prearranged or organized.” 40 The Portillo policy also excludes under the Physical Damages
portion of the policy “any loss caused by participation in or preparing for any racing, speed, or
demolition context or stunting activity or any nature, whether or not prearranged or organized.” 41
Similarly, the Policy also contains a racing exclusion under the uninsured and underinsured
motorist section of the policy that states “coverage does not apply to any damage caused by
insured’s participation in or preparation for any racing, speed, or demolition contest . . .” 42 The
Geico Casualty Policy No. 4177-72-55-30, which covers the Honda driven by Meachem,
contains the same racing exclusions.43
38

Id. at 1294-95.

39

State Farm Fire & Cas. Co. v. Bongen, 925 P.2d 1042, 1047 (Alaska 1996).

40

Dkt. 67-15 at 2-7.

41

Id. at 21.

42

Id. at 22-23.

43

Dkt. 67-16 at 20-23.
6

Thus, the relevant policy provisions clearly exclude coverage for injuries or damages
incurred while the insureds were racing. There are no conflicting provisions in the policies that
suggest that coverage should be available when the parties were racing. Further, there is no
extrinsic evidence that suggests that the parties had a reasonable expectation of being insured
while racing. Thus, the Court looks to case law interpreting similar provisions to determine
whether or not the parties had a reasonable expectation of being insured under the
circumstances. 44
This Court is not aware of any Supreme Court of Alaska cases upholding an insurance
policy’s racing exclusion. 45 However the Supreme Court of Alaska’s decision in Morgan v.
Fortis Benefits Ins. Co., which held that an intoxication exclusion precluded a motorist from
accidental death and dismemberment coverage, is instructive. 46 There, the insured’s policy
provided that no coverage existed if the loss stemmed either directly or indirectly from the
insured’s intoxication. 47 The court upheld summary judgment in favor of the insurance company
over the objection that the insured’s accident could have been caused by factors other than
intoxication, finding that “the only reasonable conclusion to be drawn from the evidence in this
case is that [insured’s] accident was at least indirectly caused by her intoxication.” 48 The court
also noted that the insured was “entitled to all reasonable inferences at the summary judgment
stage, but without any admissible evidence suggesting an alternative cause for the accident . . . it
44

See Bongen at 1947.

45

Plaintiffs did not notify the Court of any such cases nor did the Court locate any cases.

46

107 P.3d. 267 (Alaska 2005).

47

Id. at 270.

48

Id. at 268.
7

is not reasonable to infer that the intoxication exclusion does not apply.” 49 Thus, in the absence
of contrary case law interpreting the racing exclusion and the clarity of the racing exclusion in
the policies, the Court finds that the Defendants did not have a reasonable expectation of
coverage while racing.
B.

Whether or not the Defendants were racing

The Court has concluded that the racing exclusions in the insurance policies are valid.
Therefore, the question is whether or not the Defendants were racing. Mecham has confessed he
was racing. 50 Thus, no coverage exists under the Geico Casualty Company which insured the
Honda he was driving. However, Portillo denied that he was racing in his answer to the
Plaintiffs’ Complaint.51 Thus, the Court examines whether or not the Plaintiffs have put forth
sufficient evidence to establish that no genuine issue of material fact exists as to whether or not
Portillo was racing at the time of the accident.
Here, Mecham testified that he and Portillo were racing at the time of the accident.
Kevin Long, Mecham’s passenger at the time of the accident, states that the parties were racing.
Portillo told his own father that he was racing at the time of the accident. The Kodiak Police
Department’s lengthy investigation concluded that Mecham and Portillo racing caused the
accident. Further, the Superior Court for the State of Alaska, Third Judicial District at Kodiak,
concluded after reviewing sealed presentence investigation reports that Portillo was racing at the
time of the accident. Accordingly, Plaintiffs have put forth sufficient evidence,that if
uncontroverted at trial, would entitle it to a directed verdict. Neither Portillo nor Mecham have
49

Id. at 271.

50

Dkt. 67-18 at 3.

51

Dkt. 43.
8

put forth any evidence to suggest that there are disputed issues of material fact. Accordingly, the
Court finds that the Plaintiffs’ motion for summary judgment is granted. Because the Court
concludes that the Plaintiffs are entitled to a declaration that no coverage exists because the
accident was caused by Mecham and Portillo’s racing, the Court need not consider whether or
not the Policy insuring the Honda driven by Mecham covered him as an insured.
IV.

CONCLUSION

For the foregoing reasons, Plaintiffs’ motion for summary judgment (at Dkt. 67) is
GRANTED.

Dated at Anchorage, Alaska, this 13th day of March, 2014.
/s/ Timothy M. Burgess
TIMOTHY M. BURGESS
U. S. DISTRICT JUDGE

9