North American Specialty Insurance Company v. Pen Pals Productions LLC et al

Filing 108

ORDER (letter): Summary judgment is GRANTED to Plaintiff North American on the issue of whether the self-propelled Genie lift operated by Welin was covered by North Americans business auto policy. Ordered by Judge Marc Thomas Treadwell on 7/14/2011. (tlh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF GEORGIA
475 MULBERRY STREET
P. O. BOX 65
MACON, GEORGIA 31202-0065
CHAMBERS OF
MARC T. TREADWELL
JUDGE

TELEPHONE: [phone]
TELECOPIER: 478-752-3502

July 14, 2011

VIA CM/ECF
Mr. Seth F. Kirby
Attorney at Law

Mr. Wallace Miller III
Attorney at Law

Mr. Joshua B. Portnoy
Attorney at Law

Mr. Martin A. Rosen
Attorney at Law

Mr. Philip W. Savrin
Attorney at Law

Mr. Steven R. Thornton
Attorney at Law

RE:

North American Special Ins. Co. v. Pen Pals, et al.
Civil Action No. 5:10-CV-191(MTT)

Dear Counsel:
At the pretrial conference, all parties agreed that the question of whether the selfpropelled Genie lift operated by Welin was covered by North American’s business auto
policy could be decided as a matter of law. The Parties further agreed the sole issue
was whether the lift fell within paragraph K.6.b. of Section V. of the policy. North
American did not move for summary judgment on this issue, but rather contended,
initially, that the automobile policy was not at issue. However, North American said in
its reply brief that this issue could be decided as a matter of law, and it later agreed the
issue could be resolved in this action. Because the facts are undisputed and the sole
question is the construction of the policy, I agree that the issue can be decided as a
matter of law. Therefore, this issue will not be submitted to the jury. I will enter an order
granting summary judgment to North American on that issue for the reasons stated
below.
Paragraph K.6.b. states that self-propelled “cherry pickers and similar devices
mounted on automobile or truck chassis and used to raise or lower workers” are “autos”
rather than “mobile equipment,” and thus are vehicles covered by the business auto
policy. The commercial general liability policy contains similar language. The clear
intent of the policies is to draw a line between vehicles that are classified as autos and
vehicles that are classified as mobile equipment for the purpose of determining which
policy provides coverage for such vehicles.
The Lamensdorfs argue that paragraph K.6.b. covers two categories of vehicles:
(1) self-propelled cherry pickers and (2) similar devices mounted on automobile or truck
chassis. In other words, they argue that the requirement of being mounted on an
automobile or truck chassis applies only to similar devices and not to cherry pickers.
The Genie lift, which is not mounted on an automobile or truck chassis, is a selfpropelled cherry picker, and thus is an “auto” covered by the business auto policy.

Mr. Seth F. Kirby
Mr. Joshua B. Portnoy
Mr. Philip W. Savrin
July 14, 2011
Page 2
_____________________________

Mr. Wallace Miller III
Mr. Martin A. Rosen
Mr. Steven R. Thornton

North American argues that the requirement of being mounted on an automobile
or truck chassis applies to both cherry pickers and similar devices. Thus, the Genie lift
is “mobile equipment” not covered by the business auto policy. North American argues
that the clear intent of paragraph K.6.b. is to describe vehicles such as electrical utility
vehicles, e.g., a truck with a cherry picker attached, that likely will be operated on public
roads.
Viewed in isolation, paragraph K.6.b. is arguably ambiguous.1 However, viewing
Section V.K. in its entirety, it is clear that the business auto policy does not provide
coverage for the self-propelled Genie lift.
Section V.K. begins by defining “mobile equipment” to include land vehicles
described in paragraphs K.1. through K.4. Paragraph K.1 describes “[b]ulldozers, farm
machinery, forklifts and other vehicles designed for use principally off public roads.”
Without question, this description includes the Genie lift. Paragraph K.6. addresses
vehicles not described in paragraphs K.1. through K.4. Paragraph K.6. then describes
types of self-propelled vehicles that will be considered “autos” rather than “mobile
equipment.” For example, paragraph K.6.a. includes snow plows, street cleaners, and
road maintenance (but not construction or resurfacing) vehicles. Paragraph K.6.a.
supports North American’s argument that the exceptions in paragraph K.6. are intended
to include utility-type vehicles that may be operated on public roads although they may
perform functions not traditionally associated with autos or trucks. However, paragraph
K.6.c. describes self-propelled vehicles with permanently attached “[a]ir compressors,
pumps and generators . . . .” The Lamensdorfs argue that this provision would include
any self-propelled vehicle with an air compressor even if it were self-propelled in the
same manner that the Genie lift is self-propelled, and thus was not intended for use on
public roads. Their point is that the exceptions found in paragraph K.6. are not limited
to utility vehicles that might be operated on public roads.
Finally, North American points to paragraph K.5.b. That paragraph defines as
“mobile equipment” any vehicle not described in paragraphs K.1. through K.4. that is not
self-propelled and which provides mobility to “cherry pickers and similar devices used to
raise or lower workers.” While that paragraph does not describe the self-propelled
Genie lift, North American’s point is that it clearly equates as one type of vehicle both
cherry pickers and similar devices used to raise or lower workers. Therefore, the
qualifying language in paragraph K.6.b. should be read to apply to both cherry pickers
and similar devices used to use or lower workers.

1

Only arguably ambiguous because the absence of a comma after cherry pickers supports North
American’s reading of paragraph K.6.b.

Mr. Seth F. Kirby
Mr. Joshua B. Portnoy
Mr. Philip W. Savrin
July 14, 2011
Page 3
_____________________________

Mr. Wallace Miller III
Mr. Martin A. Rosen
Mr. Steven R. Thornton

After applying appropriate rules of construction, I have concluded that paragraph
K.6.b. describes cherry pickers mounted on automobile or truck chassis. Because the
Genie lift is not mounted on an automobile or truck chassis, it is not described in
paragraph K.6.b. Rather, the self-propelled Genie lift falls within the general definition
of vehicles described in paragraph K.1. designed for use principally off public roads.
This is consistent with the clear intent of Section V.K. to include in the definition of
“autos” utility vehicles that reasonably could be used on public roads. I acknowledge
that paragraph K.6.c. can be read to conflict with the general intent of paragraph K., but
this potential conflict is not sufficient to render paragraph K.6.b. ambiguous.
Given the circumstances, I do not view my ruling to be a sua sponte entry of
summary judgment. The undisputed facts are in the record. All parties agree that this
is a question of law and the issue has been thoroughly briefed and argued.
Nevertheless, I will allow any party until July 21 to submit any additional authority or
argument.2
With best regards.
Sincerely,
s/Marc T. Treadwell
Marc T. Treadwell
MTT:tlh
Cc:
Mr. David A. Dial
Ms. Lindsay M. Gatling

2

We also found Scottsdale Ins. Co. v. State Farm Mutual Auto Ins. Co., which Mr. Savrin cites in his
letter. It seems that anything associated with Scottsdale only adds confusion to this case. I understand
the holding in Scottsdale, and it is consistent with my conclusion here. I do not understand the statement
y the court that although Scottsdale’s policy did not provide liability coverage for the truck, it did provide
liability insurance for the cherry picker mounted on the truck.