Moses et al v. Baker et al
Filing
49
MEMORANDUM OPINION & ORDER: It is ordered that Dft Allstate Insurance Company's 40 MOTION for Summary Judgment is GRANTED. Signed by Judge Joseph M. Hood on 7/21/2011.(SCD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
GARRY MOSES and INEZ MOSES,
personal representatives of the
Estate of Michelle M. Moses,
Deceased; and GARRY MOSES and
INES MOSES, individually,
Plaintiffs,
v.
MELVIN A. BAKER; JESSICA B.
GEYER; DIBIASI J. AUSTIN;
UNKNOWN DRIVER; and
ALLSTATE INSURANCE COMPANY,
Defendants.
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)Civil Action No. 5:09-CV-350-JMH
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) MEMORANDUM OPINION AND ORDER
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Defendant Allstate Insurance Company has filed a Motion for
Summary Judgment [Record No. 40]. Plaintiffs have filed a Response
[Record
No.
43].
This
Court
being
sufficiently
advised,
Defendant’s motion is now ripe for decision.
I.
PROCEDURAL AND FACTUAL HISTORY
On December 20, 2008, Michelle Moses was a twenty-one-year-old
college student at the University of Florida on her way to her
father Garry Moses’ home in Ohio for Christmas break.
40-3]; [Record No 43, p. 2].
[Record No.
Just before 11:00 PM, as Michelle
Moses was traveling north on I-75 in the middle lane of traffic,
she lost control of her Mazda 3 and her vehicle slid across the
left lane.
[Record No. 40-3, pp. 5-6].
At least one witness
described seeing an unknown vehicle strike the back of Moses’ car
causing it to lose control.
Id.
Moses’ car hit a median concrete
wall and bounced off the wall before spinning out of control and
striking the wall again, coming to a rest partially blocking the
left lane.
Id.
As Moses was getting out of her car, another collision
occurred.
Id.
The driver of that third vehicle, Defendant Melvin
A. Baker, struck Moses’ Mazda 3 so violently as to knock Moses over
the median divider and into the left lane of southbound I-75.
[Record No. 1, paras. 17-19]. Michelle Moses lay on the interstate
still alive.
Id. at paras. 20-24.
Cars driven by defendants
Jessica B. Geyer and Dibiasi J. Austin then hit and ran over Moses,
killing her.
Id.
Plaintiffs seek to recover under the uninsured/underinsured
motorists’ section of an insurance policy issued by Allstate
Insurance Company to Plaintiff Garry M. Moses.
49.
Id. at paras. 45-
The policy in question extends coverage under this policy to
an insured person, defined by the policy as a resident relative,
driving an otherwise uninsured car. [Record No. 40-6, pp. 29, 33].
The policy defines a resident as “a person who physically resides
in your household with the intention to continue residence there.”
[Record No. 40-6, p. 20] (emphasis in original).
definition
states
“Your
unmarried
dependent
Furthermore, the
children
while
temporarily away from home will be considered residents if they
2
intend to resume residing in your household.”
added).
Id.
(emphasis
Defendant argues that Michelle Moses was not a resident
relative of Plaintiff Garry Moses but rather resided in Florida
with no intention of resuming residence with her parents in Ohio.
[Record No. 40-2, pp. 13-14].
Plaintiffs respond that Michelle
Moses’ repeated trips home for summer vacations and Christmas break
show Moses intended to reside in their household entitling her to
coverage under the policy.
II.
[Record No. 43, pp. 3-5].
STANDARD OF REVIEW
The standard for summary judgment mirrors the standard for
directed verdict.
251 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
A grant of summary judgment is proper “if the movant
shows that there is no genuine dispute as to any material fact and
that the movant is entitled to judgment as a matter of law.”
R. Civ. P. 56(a).
Fed.
The moving party bears the initial burden to
show the absence of a genuine issue of material fact.
Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Celotex
This burden is met
simply by showing the court that there is an absence of evidence on
a material fact on which the nonmoving party has the ultimate
burden of proof at trial.
Id. at 325.
The burden then shifts to
the nonmoving party to “come forward with some probative evidence
to support its claim.”
Lansing Dairy, Inc. v. Espy, 39 F.3d 1339,
1347 (6th Cir. 1994) (citation omitted).
A material fact is one
that may affect the outcome of the issue at trial, as determined by
3
substantive law.
A genuine dispute exists on a material fact, and
thus summary judgment is improper, if the evidence shows “that a
reasonable jury could return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248; see also Summers v. Leis, 368 F.3d 881,
885 (6th Cir. 2004).
The judge’s function is not to weigh the evidence, but to
decide whether there are genuine issues for trial.
Anderson, 477
U.S. at 249; Multimedia 2000, Inc. v. Attard, 374 F.3d 377, 380
(6th Cir. 2004).
The evidence should be construed in the light
most favorable to the nonmoving party when deciding whether there
is enough evidence to overcome summary judgment.
Anderson, 477
U.S. at 255; Summers, 368 F.3d at 885.
III. ANALYSIS
Even assuming that Michelle Moses was a “resident relative”
qualifying as an insured person under the policy, the Court agrees
with
Defendant’s
vehicle”
exclusion
alternative
to
argument
coverage
that
provided
the
under
“other
the
owned
“Uninsured
Motorists Insurance Coverage” section would also preclude recovery
by Plaintiffs. [Record No. 40-6, p. 30]. The exclusion states, in
pertinent part, that:
Allstate will not pay any damages an insured
person . . . is legally entitled to recover
because of bodily injury . . . while in, on,
getting into or out of, or getting on or off
[of a] vehicle owned by or available or
furnished for the regular use of you or a
resident which is not insured for this
4
coverage.
[Record No. 40-6, p. 30] (emphasis added).
As the Mazda 3 was not
covered under this policy, this exclusion applies should the Court
find that Michelle Moses was “in, on, getting into or out of, or
getting on or off” the Mazda 3 at the time of the second collision.
[Record No. 40-6, pp. 7, 30].
Plaintiffs argue, however, that the undisputed facts show that
Michelle Moses was not getting out of the Mazda 3 at the time of
the second collision, but rather “was a pedestrian at the time she
was struck by four underinsured vehicles.” [Record No. 43, p. 6].
Ohio law, however, is clear that “the act of ‘getting out’ of an
insured vehicle is not complete until the occupant has reached a
place of safety.”
Morris v. Cont’l Ins. Cos., 594 N.E.2d 1106,
1109 (Ohio Ct. App. 1991) (citing Joins v. Bonner, 504 N.E.2d 61,
63 (Ohio 1986)) (applying this definition to a policy that defined
“occupying” a vehicle as “in, upon, getting in, on, out or off” the
insured vehicle); see also Pennington v. Ohio Cas. Ins. Co., 579
N.E.2d 507, 510 (Ohio Ct. App. 1989) (“[T]he process of leaving a
vehicle continues at least until the departing passenger has
reached a place of safety.”).1
Plaintiffs’ complaint and police
1
The insurance policy in question contains a choice of law
clause which states that Ohio law will govern all claims or
disputes related to the policy. [Record No. 40-6, p. 23]. A court
sitting in diversity applies the choice of law rules of its forum
state. Himmel v. Ford Motor Co., 342 F.3d 593, 598 (6th Cir. 2003)
(citations omitted).
The Sixth Circuit has held that Kentucky
courts recognize choice of law provisions and “the parties’ choice
5
reports indicate that Moses was located near the median divider of
an unlit wet portion of I-75 on a cloudy dark night at the time of
the second collision, a particularly dangerous portion of the road.
See [Record No. 1, paras. 18-19]; [Record No. 40-3, pp. 5-8]; see
also Etter v. Travelers Ins. Cos., 657 N.E.2d 298, 303 (Ohio Ct.
App. 1995) (“Undeniably, the highway median is not a place of
safety, particularly on an icy day.”).
Thus, even assuming that
Michelle Moses was a “resident relative” under the policy, the
“other owned vehicle” exclusion would not allow recovery as Moses
was in the process of getting out of her vehicle as that phrase is
understood under Ohio law.
Regardless, Michelle Moses was not a resident of Garry Moses’
household as defined by the policy and thus, not entitled to
coverage. Under Ohio law, “an insurance policy is a contract whose
interpretation is a matter of law” and “contract terms are to be
given their plain and ordinary meaning.” Lager v. Miller-Gonzalez,
of law should be honored unless (1) ‘the chosen state has no
substantial relationship to the parties or the transaction and
there is no other reasonable basis for the parties’ choice,’ or (2)
‘application of the law of the chosen state would be contrary to a
fundamental policy of a state which has a materially greater
interest.’” Wallace Hardware Co. v. Abrams, 223 F.3d 382, 398 (6th
Cir. 2000) (quoting Restatement (Second) of Conflict of Laws § 187
(1971)). As no one disputes that the parties in question have a
substantial relationship to Ohio or argues that a fundamental
policy of Kentucky state law outweighs the choice of law provision
in the insurance policy, this Court shall apply Ohio law.
See
[Record No. 40-2, p. 10-13] (noting that the policy and parties
most significant connections are in Ohio); [Record No. 43]
(Plaintiffs’ Response never questions whether Ohio law applies)
6
120 Ohio St. 3d 47, 2008-Ohio-4348, 896 N.E.2d 666, at ¶ 15 (Ohio
2008) (citations omitted).
Ambiguities in insurance contracts are
construed most favorably for the insured.
Gomolka v. State Auto.
Mut. Ins. Co., 436 N.E.2d 1347, 1348-49 (Ohio 1982) (citations
omitted).
However, “where the provisions of an insurance policy
are clear and unambiguous[,] courts may not indulge themselves in
enlarging the contract by implication in order to embrace an object
distinct from that contemplated by the parties.”
Id. at 1348
(citations omitted).
The
policy,
in
pertinent
part,
provides
that
Allstate
Insurance Company “will pay those damages which an insured person
or an additional insured person: is legally entitled to recover
from the owner or operator of an uninsured auto . . . .”
[Record
No. 40-6, p. 29] (the policy later defines an uninsured auto to
include an underinsured auto). The policy defines the term insured
person for purposes of the uninsured/underinsured portion of the
policy as follows: “Insured person means . . . you and any resident
relative.” Id. at p. 33.
As defined throughout the policy,
‘Resident’ means a person who physically
resides in your household with the intention
to continue residence there.
We must be
notified whenever an operator becomes a
resident of your household. Your unmarried
dependent children while temporarily away from
home will be considered residents if they
intend to resume residing in your household.
Id. at p. 20 (emphasis in original). As the policy clearly defines
7
“Resident” based on the dependent child’s intent, this Court must
determine whether Michelle Moses intended to resume residing in
Garry Moses’ household, making her a “resident relative,” and thus,
an “insured person.”
Id. at pp. 20, 29, 33.
As an initial matter, the Court finds nothing ambiguous about
the definition of resident in the policy.
The policy defines the
term resident based on the intention of the “unmarried dependent
children . . . temporarily away from home.”
Id. at p. 20.
Plaintiffs cite Rose v. Nat. Mut. Ins. Co., 730 N.E.2d 1014 (Ohio
Ct. App. 1999), and Prud. Prop. & Cas. Ins. Co. v. Koby, 705 N.E.2d
748 (Ohio Ct. App. 1997), as instructive on how to determine
residency in similar insurance policies.
3-5].
See [Record No. 43, pp.
This Court, however, notes that these cases are easily
distinguishable
from
the
matter
currently
before
it,
as
the
policies in question in both Rose and Koby failed to define the
term “resident.”
Rose, at 730 N.E.2d at 1018; see generally Koby,
705 N.E.2d 748 (noting “the person’s intent” as one of several
factors used to determine residency). The definition of “resident”
in this policy, however, leaves no ambiguity as to the requirement
that Michelle Moses show an intention to resume residing in the
household of the insured, Garry Moses.
See [Record No. 40-6, p.
20]; see also Allstate Ins. Co. v. Eyster, 189 Ohio App. 3d 640,
2010-Ohio-3673, 939 N.E.2d 1274, at ¶ 23-24 (looking solely to the
intent of the decedent in determining residency under the exact
8
same definition of resident as seen in the policy currently before
the Court).
Plaintiffs, however, have failed to show that Michelle Moses
was covered by the policy as a “resident relative.”
No. 40-6, pp. 29, 30, 33].
See [Record
Under Ohio law, “[t]he party seeking to
recover under an insurance policy bears the burden of proof to
demonstrate that the policy provides coverage for the particular
loss” while the party seeking to enforce an exclusion to coverage
carries the burden of showing it applies.
at
¶20
(citations
omitted).
Eyster, 2010-Ohio-3673,
Defendant
argues
the
following
evidence indicates that Michelle Moses, who lived in Florida while
attending college at the University of Florida, did not intend to
reside again in Plaintiff’s household: (1) Michelle Moses had a
Florida drivers’ license [Record No. 40-3, p. 7], (2) Michelle
Moses’ car was registered in Florida [Record No. 40-3, p. 7], (3)
probate court documents establish Michelle Moses was a resident of
Florida [Record No. 40-5, p. 1] and (4) Michelle Moses owned assets
located in Florida [Record No. 40-5, pp. 1-2].
Plaintiffs’
maintained
interrogatory
a
separate
responses
apartment
in
show
that
Florida
parents’ home during breaks in the school year.
In addition,
Michelle
returning
Moses
to
her
[Record No. 40-4,
pp. 1, 4]
While Plaintiffs respond that Michelle Moses’ choice to return
to Plaintiffs’ home for summer vacations and Christmas break
9
creates a genuine issue of material fact on this question, this
showing only weighs in favor of Defendant’s argument.
43, pp. 3-5].
[Record No.
Ohio law states that “a resident, for purposes of an
insurance policy, excludes a temporary or transient visitor.”
Allstate Ins. Co. v. Eyster, 189 Ohio App. 3d 640, 2010-Ohio-3673,
939 N.E.2d 1274, at ¶23 (citations omitted).
As seen in Eyster,
therefore, a dependent child staying in a relative’s home during
breaks from school while maintaining another residence outside of
that relative’s home and returning to that other residence to
attend school after those breaks demonstrates an intention by that
dependent child to stay temporarily at that relative’s house, not
an intention to resume residing there.
Id. at ¶ 24 (holding a
decedent who lived with her sister for a summer who quit her summer
job before returning home to live with her parents to attend school
was not a resident of her sister’s household under this policy’s
definition of resident).
Thus, Defendant has shown no genuine
issue of material fact exists as to an essential element of
Plaintiffs’ claim and that Defendant is entitled to judgment as a
matter of law.
See Fed. R. Civ. P. 56(a).
As Plaintiffs rely on
inapplicable case law used by Ohio courts to determine otherwise
ambiguous definitions of the term “resident” while failing to
present “probative evidence to support [their] claim,” this Court
shall grant Defendant’s motion for summary judgment and dismiss
10
Plaintiff’s claims against Defendant Allstate Insurance Company
with prejudice.
Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347
(6th Cir. 1994).
IV.
CONCLUSION
There is no ambiguity as to the definition of the term
“resident” in the policy currently before the Court.
Nor have
Plaintiffs shown that their “unmarried dependent [child, Michelle
Moses,] while temporarily away from home [intended] to resume
residing in [Garry Moses’] household” such that Michelle Moses
could be considered a resident relative insured under their policy.
[Record No. 40-6, p. 20].
Thus, no genuine issue of material fact
exists as to Michelle Moses’ lack of intention to resume residing
in Garry Moses’ household and Plaintiffs have failed to come
forward “with some probative evidence to support [their] claim.”
Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).
In addition, the policy’s “other owned vehicle” exclusion also
prevents recovery under this policy.
As this Memorandum Opinion
and Order directly addresses the subject of Defendant Allstate
Insurance Company’s counterclaim,2 this Court shall also grant
summary judgment in favor of Counter Claimant Allstate Insurance
Company as to its counterclaim against Counter Defendants Garry
2
Defendant Allstate Insurance Company seeks in its
counterclaim against Plaintiffs, in pertinent part, “a declaration
of rights that the Plaintiffs are not entitled to uninsured or
underinsured motorist benefits under the policy attached to the
Plaintiff’s Complaint . . . .” [Record No. 6, p. 3].
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Moses and Inez Moses, personal representatives of the Estate of
Michelle
M.
individually.
Moses,
deceased,
and
Garry
and
Inez
Moses,
See [Record No. 6, p.3].
Accordingly, IT IS ORDERED that Defendant Allstate Insurance
Company’s Motion for Summary Judgment [Record No. 40] is GRANTED.
This the 21st day of July, 2011.
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