Nationwide Mutual Insurance Company v. Aquino et al
ORDER granting Nationwide's motion for summary judgment, 25 , as to Austin Aquino and Nationwide has no duty to defend him. Summary Judgment is denied as to Al Aquino. Signed by Chief Judge Brian S. Miller on 1/12/2016. (jak)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
CASE NO. 3:15CV00041 BSM
AUSTIN AQUINO et al.
Nationwide Mutual Insurance Company’s motion for summary judgment [Doc. No.
25] is granted as to Austin Aquino and denied as to Al Aquino.
Viewing the record in the light most favorable to defendants, the non-moving parties,
the material facts are as follows. On August 22, 2013, Austin Aquino and Sue Garrison were
involved in a car collision in Jonesboro, Arkansas. At the time of the accident, Austin
Aquino was a minor and was driving a vehicle titled to his grandmother. Garrison
subsequently sued Austin Aquino for her injuries and damages in the Circuit Court of
Craighead County, Arkansas. She also sued Al Aquino and Carrie Wade, Austin Aquino’s
parents, under vicarious liability theory. At the time of the accident, Al Aquino and Wade
were divorced. Wade lives in Jonesboro and is the custodial parent while Al Aquino lives
At the time of the accident, Al Aquino had an automobile liability policy (the
“policy”) with Nationwide. After the parties inquired about the policy, Nationwide filed this
lawsuit seeking a declaratory judgment that the policy does not cover Al Aquino or Austin
Aquino for Garrison’s claims. Nationwide moves for summary judgment.
Summary judgment is appropriate when there is no genuine dispute as to any material
fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P.
56(a); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249–50 (1986). Once the moving party
demonstrates that there is no genuine dispute of material fact, the non-moving party may not
rest upon the mere allegations or denials in his pleadings. Holden v. Hirner, 663 F.3d 336,
340 (8th Cir. 2011). Instead, the non-moving party must produce admissible evidence
demonstrating a genuine factual dispute that must be resolved at trial. Id. Importantly, when
considering a motion for summary judgment, all reasonable inferences must be drawn in a
light most favorable to the nonmoving party. Holland v. Sam’s Club, 487 F.3d 641, 643 (8th
Cir. 2007). Additionally, the evidence is not weighed, and no credibility determinations are
made. Jenkins v. Winter, 540 F.3d 742, 750 (8th Cir. 2008).
An insurer must defend its insured if there is a possibility that an injury or damages
alleged against the insured in a lawsuit may fall within the policy coverage. Ison v. S. Farm
Bureau Cas. Co., 221 S.W.3d 373, 378 (Ark. 2006). When the terms of the insurance policy
are clear, the language in the policy controls the determination of whether such injury or
damage falls within the policy coverage. Id. When the policy language is ambiguous,
however, the policy will be construed liberally in favor of the insured and strictly against the
insurer. Id. at 379. Policy language is ambiguous when there is doubt or uncertainty as to
its meaning, and it is susceptible to more than one reasonable interpretation. Anderson Gas
& Propane, Inc. v. Westport Ins. Corp., 140 S.W.3d 504, 507 (Ark. 2004). When ambiguity
exists, the meaning of the ambiguous term becomes a question for the fact-finder. Id.
Coverage of Austin Aquino under the Policy
Summary judgment is granted as to Austin Aquino because it is undisputed that he is
not covered by the policy. See E.D Ark. Local Rule 56.1(c) (warning that all material facts
set forth in the statement filed by the moving party shall be deemed admitted unless
controverted by the statement filed by the non-moving party); Libel v. Adventure Lands of
Am., Inc., 482 F.3d 1028, 1032 (8th Cir. 2007) (“courts have neither the duty nor the time to
investigate the record in search of an unidentified genuine issue of material fact to support
a claim or a defense.” Accordingly, Garrison’s claims against Austin Aquino do not fall
within the policy coverage.
Coverage of Al Aquino
Summary judgment is denied as to Al Aquino because there are material issues of fact
that must be resolved in order to determine whether he is covered. In relevant part, the policy
provides: “[t]his coverage applies ... [to] a motor vehicle owned by a non-member of your
household ... while the vehicle is being used by you or a relative.” Ex. J at L2, Doc. No. 27.
The policy “protects the user, and any person ... who does not own the vehicle but is
responsible for the use.” Id. The policy does not cover “losses involving a vehicle ...
furnished to you or a relative for regular use.” Id. The policy therefore covers Al Aquino
for Garrison’s claims against him if: (1) the motor vehicle involved in the accident was not
owned by him; (2) Austin Aquino was his relative under the policy; (3) he is legally
responsible for the use of the vehicle by Austin Aquino; and (4) the vehicle was not furnished
for Austin Aquino’s regular use.
First, the vehicle is undisputably owned by Austin Aquino’s grandmother, a nonmember of Al Aquino’s household. Second, at the time of the accident, the vehicle was
being used by Austin Aquino, whom a reasonable juror could conclude is a relative of Al
Per policy language, a relative means “one who regularly resides in your
household.” Ex. J at D1, Doc. No 27. Although “reside” is not an ambiguous term, whether
Austin Aquino resides in his father’s household is a question of fact. See Nationwide Prop.
& Cas. Ins. Co. v. Faircloth, No. 3:13-CV-236-DPM, 2015 WL 4943962, at *3 (E.D. Ark.
Aug. 19, 2015); Coley v. Amsler, 290 S.W.2d 840, 841 (Ark. 1956) (holding that the
determination of one residence is a fact question). A residence is:
[A]n established abode, fixed permanently for a time for business or other
purpose, although there may be an intent existing all the while to return ... at
some time or other to the true domicile; but so difficult is it found to provide
a definition to meet all the varying phases of circumstance that the
determination of this question may present, that the courts say, that, subject to
the general rule, each case must be decided on its own state of facts
Lawrence v. Sullivan, 205 S.W.3d 168, 170 (Ark. App. 2005) (quoting Davis v. Holt, 804
S.W.2d 362, 365 (Ark. 1991)). Importantly, a person can have several residences at one
time. Id. Depending on the facts presented at trial, a reasonable fact-finder could conclude
that Austin Aquino resides in both of his parents’ homes for insurance purposes if he
regularly visits his father. See Allstate Ins. Co. v. DiGiorgi, 9 F. Supp. 2d 657, 660 (S.D.W.
Va. 1998). In that the policy does not define “regularly,” Nationwide’s reliance on the fact
that Austin Aquino’s mother is his custodial parent is not dispositive. Moreover, the record
contains no evidence indicating how often Austin Aquino visits his father. Third, whether
Austin Aquino’s use of the car was “regular use” requires a factual determination. S. Farm
Bureau Cas. Ins. Co. v. Pettie, 924 S.W.2d 828, 834 (Ark. 1996). Finally, pursuant to
Arkansas law, Al Aquino may be legally responsible for Austin Aquino’s negligent use of
the vehicle even though he is not the custodial parent and did not provide the car to Austin.
See Ark. Code Ann. § 27-16-702( c )(1); see also Rogers v. MFA Mut. Ins. Co., 554 S.W.2d
327, 330 (Ark. 1977).
For these reasons, Nationwide’s motion for summary [Doc. No. 25] is granted as to
Austin Aquino and Nationwide has no duty to defend him. Summary judgment is denied as
to Al Aquino.
IT IS SO ORDERED this 12th day of January 2016.
UNITED STATES DISTRICT JUDGE
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