Spiller v. Travelers Property Casualty Company of America
Filing
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MEMORANDUM OPINION AND ORDER Signed by Chief Judge Joseph H. McKinley, Jr. on 10/5/2016 denying 19 Plaintiff's Motion for Partial Summary Judgment; granting 21 Motion Defendant's for Summary Judgment. cc: Counsel(JBM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:15CV-00051-JHM
GREGORY SPILLER
PLAINTIFF
V.
TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA
DEFENDANT
MEMORANDUM OPINION AND ORDER
This matter is before the Court on a motion by Plaintiff, Gregory Spiller, for partial
summary judgment [DN 19], and on a motion by Defendant, Travelers Property Casualty
Company of America, for summary judgment [DN 21]. Fully briefed, this matter is ripe for
decision.
I. STANDARD OF REVIEW
Before the Court may grant a motion for summary judgment, it must find that there is no
genuine dispute as to any material fact and that the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of specifying the
basis for its motion and identifying that portion of the record that demonstrates the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the
moving party satisfies this burden, the non-moving party thereafter must produce specific facts
demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U .S. 242,
247–48 (1986).
Although the Court must review the evidence in the light most favorable to the nonmoving party, the non-moving party must do more than merely show that there is some
“metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). Instead, the Federal Rules of Civil Procedure require the nonmoving party to present specific facts showing that a genuine factual issue exists by “citing to
particular parts of materials in the record” or by “showing that the materials cited do not
establish the absence . . . of a genuine dispute[.]” Fed. R. Civ. P. 56(c)(1). “The mere existence
of a scintilla of evidence in support of the [non-moving party’s] position will be insufficient;
there must be evidence on which the jury could reasonably find for the [non-moving party].”
Anderson, 477 U.S. at 252. It is against this standard the Court reviews the following facts.
II. BACKGROUND
Plaintiff, Gregory Spiller, was employed by Chester Bross Construction Company to
repave and repair sections of the Audubon Parkway, a four lane highway. On October 21, 2013,
Plaintiff was part of a four-man work crew working in the right lane on one side of the parkway.
He and co-worker Blake Akers were responsible for caulking overcuts along a 12-mile stretch of
the parkway. The other two members of the crew were Brad Belak and Michael Winningham.
Belak and Winningham were responsible for driving two Ford F-250 trucks owned by Chester
Bross.
Plaintiff was the passenger in Belak’s truck and Akers was the passenger in
Winningham’s truck. Belak’s truck towed an arrow board which had a flashing arrow warning
traffic approaching from the rear to move to the left lane because there was construction work in
the right lane. Winningham’s truck towed a 24-foot flatbed truck which contained tools and
materials.
On this day, Plaintiff caulked the overcuts that were closer to the left lane of the parkway,
and Akers caulked the overcuts closer to the right shoulder of the parkway. Belak’s truck
advanced up the road behind the Plaintiff in the right lane of the parkway. Aker was followed by
Winningham’s truck which remained in the right shoulder. On October 21, 2013, after several
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hours of work, the arrow board which was attached to the rear of Belak’s truck was struck from
behind by a 2008 Cadillac CTS sedan being driven by Paul Owens. The force of the collision
caused Belak’s truck to strike the Plaintiff.
As a result of the accident, the Plaintiff filed a claim against Safeco, the insurance carrier
for Paul Owens, and recovered the policy limits of $100,000.00. Plaintiff also received workers’
compensation.
Plaintiff then filed an underinsured motorist claim against the Defendant,
Travelers Property Casualty Company of America, which insured the Chester Bross truck in
question. Defendant denied the underinsured motorist claim on grounds that Plaintiff was not an
“insured” under the terms of the Defendant’s policy with Chester Bross.
On March 3, 2015, the Plaintiff filed this action against Defendant in the Daviess Circuit
Court seeking declaratory judgment that Plaintiff was an insured under the Travelers
Commercial General Liability Policy and seeking damages for personal injuries in the form of
underinsured motorist (“UIM”) benefits. On April 7, 2015, Defendant filed a notice of removal
of the action to this Court. Defendant answered and filed a counterclaim seeking a declaration
that it owes no UIM coverage.
On May 29, 2015, the Magistrate Judge bifurcated the
proceedings between the declaratory judgment action and the action for recovery of underinsured
benefits. The parties have now filed cross-motions for summary judgment on the issue of
whether the Plaintiff is entitled to UIM benefits under his former employer’s policy.
III. DISCUSSION
A. Choice of Law
“‘Federal courts hearing cases based on diversity must determine which state’s law to
apply to the case. This begins with an analysis of the choice-of-law rules of the forum state.’”
Pogue v. Principal Life Ins. Co., 2015 WL 5680464, *4 (W.D. Ky. Sept. 25, 2015)(quoting
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Wells Fargo Financial Leasing, Inc. v. Griffin, 970 F. Supp. 2d 700, 707 (W.D. Ky. 2013)). In
the present case, the parties agree that Missouri law applies.
Since the parties agree that
Missouri law applies in this case, the Court need not engage in a lengthy choice of law analysis.
See Wilton Corp. v. Ashland Castings Corp., 188 F.3d 670, 673 n. 2 (6th Cir. 1999)(noting that
there is no need to undertake a choice-of-law inquiry when the parties agree on the applicable
substantive law); Williams v. BASF Catalysts LLC, 765 F.3d 306, 316–317 (3d Cir.
2014)(holding that choice of law issues may be waived and noting that both parties agreed about
the applicability of New Jersey law); Redmond v. ACE American Insurance Co., 2015 WL
3514690, *1 n. 2 (3d Cir. June 5, 2015)(declining to undertake a choice of law analysis since
both parties agreed that New York law applied); Buckner v. United States, 2015 WL 5023079,
*8 (N.D. Ohio July 1, 2015). Thus, the Court will apply Missouri law in construing the insurance
policy.
B. Contract Interpretation
The interpretation of an insurance policy is a question of law to be determined by the
Court. Mendota Ins. Co. v. Lawson, 456 S.W.3d 898, 903 (Mo. App. 2015). Missouri courts
read insurance contracts “‘as a whole and determine the intent of the parties, giving effect to that
intent by enforcing the contract as written.’” In re Brauer v. Bankers Life and Cas. Co., 2016
WL 4083480, *2 (W.D. Mo. Aug. 1, 2016) (quoting Thiemann v. Columbia Pub. Sch. Dist., 338
S.W.3d 835, 840 (Mo. App. 2011)). To determine the intent of the parties, “‘the language in the
contract is to be read according to its plain and ordinary meaning.’” In re Brauer, 2016 WL
4083480, *2 (quoting Mendota, 456 S.W.3d at 903). “If an ambiguity exists the policy language
will be construed against the insurer.” Id. “‘An ambiguity exists when there is duplicity,
indistinctness, or uncertainty in the meaning of the language of the policy.’” Id. (quoting Fanning
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v. Progressive Northwestern Ins. Co., 412 S.W.3d 360, 364 (Mo. App. 2013)). “‘To test whether
the language used in the policy is ambiguous, the language is considered in the light in which it
would normally be understood by the lay person who bought and paid for the policy.’” In re
Brauer, 2016 WL 4083480, *2 (quoting Blumer v. Automobile Club Inter-Ins. Exhcange, 340
S.W.3d 214, 219 (Mo. App. Mar. 29, 2011)).
The Missouri Underinsured Motorist Coverage endorsement of the Travelers Commercial
General Liability Policy provides that Travelers
will pay all sums the “insured” is legally entitled to recover as
compensatory damages from the owner or driver of an
“underinsured motor vehicle”. The damages must result from
“bodily injury” sustained by the “insured” caused by an “accident”.
The owner’s or driver’s liability for these damages must result
from the ownership, maintenance or use of the “underinsured
motor vehicle.”
(Missouri Underinsured Motorists Coverage at 1). The endorsement further provides that if the
named insured is designated as “[a] partnership, limited liability company, corporation or any
other form of organization,” an insured is “[a]nyone ‘occupying’ a covered ‘auto’ . . . .” (Id.).
“Occupying” is defined as “in, upon, getting in, on, out or off.” (Id. at 3.) Based upon this policy
language, the parties agree that for the purpose of claiming UIM benefits, the Plaintiff is only
considered to be an insured if he was “occupying” the insured’s vehicle at the time of the
accident, which requires that he be “in, upon, getting in, on, out or off” of the vehicle in question.
(Id.) Plaintiff contends that under Missouri law, he was “upon” the truck for purposes of policy
language and, by reason thereof, he was “occupying” said truck and was an “insured” of the
policy covering the truck.
C. “Occupying” Defined
Missouri courts have consistently held that the words utilized in the policy’s definition of
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“occupying” are not ambiguous and are to be applied as commonly used and understood.
Arbuthnot v. Northern Ins. Co. of New York, 140 S.W.3d 170, 172 (Mo. App. E.D. 2004); Loyd
v. State Auto. Prop. & Cas. Co., 265 S.W.3d 901, 904–05 (Mo. App. 2008); Pope v. Stolts, 712
S.W.2d 434, 436 (Mo. App. E.D. 1986); State Farm Mut. Auto. Ins. Co. v. Farmers Ins. Co., 569
S.W.2d 384, 385 (Mo. App. 1978). Under Missouri law, when construing the definition of
“occupying”
[t]he cases generally fall into one of two categories where the
results are generally consistent with a few exceptions. Id. The first
category includes those cases where “the reason for leaving the
vehicle and the claimant’s activities after leaving the vehicle are
directly related to the insured vehicle itself.” Id. This category
normally includes situations where a vehicle has malfunctioned or
sustained damage and the claimant is trying to repair the damage,
prevent further damage, or is giving or receiving information about
the damage. Id. Because the injuries in this category of cases are
resulting directly from the operation of the vehicle, courts have
liberally construed the “occupancy” provision to allow coverage.
Id. The second category includes those cases where the “vehicle is
the means of transportation to the point where the claimant leaves
the vehicle, and the reason for leaving the vehicle is unrelated to
the vehicle itself.” State Farm, 569 S.W.2d at 385. Courts have
been much more rigid in requiring a claimant to prove he fits
within one of the definitions of occupancy in these cases. Id.
Arbuthnot, 140 S.W.3d at 173. A discussion of four Missouri cases is helpful in addressing the
parties’ respective arguments.
In State Farm Mutual Automobile Insurance Co. v. Farmers Insurance Co., 569 S.W.2d
384 (Mo. App. 1978), Roger Hammett was beside the insured car, walking towards the car door
when another car rear-ended the car. At the time of the impact, Hammett was completely outside
the car and was not touching any part of the car; however, the force of the impact moved the car
and caused it to collide with Hammett. Id. at 384-385. The court held that the case fell into the
second category of cases, those in which the claimant’s reason for being outside the automobile
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is unrelated to the operation of the vehicle itself. The Missouri Court of Appeals found that
“[w]e find no cases in the second category which have held that the ‘upon’ requirement is met
where the claimant was not in contact with the vehicle immediately prior to the accident.” Id. at
386. Therefore, the court determined the insured was not “occupying” the vehicle at the time of
the accident and was not covered by the insurance policy. Id.
In Pope v. Stolts, 712 S.W.2d 434 (Mo. App. E.D.1986), the claimant was leaning under
the hood with his stomach against the grill of the car and his legs against the bumper preparing to
connect jumper cables to the car’s battery. Id. at 435–36. The Missouri Court of Appeals found
that under those circumstances the claimant was “upon” the car “because as that term is
commonly used and understood it clearly encompasses the position he occupied in relation to the
automobile.” Id. at 438.
In Arbuthnot v. Northern Ins. Co. of New York, 140 S.W.3d 170, 172–74 (Mo. App.
2004), the plaintiff was working for the Missouri Machinery and Engineering Company and had
been assigned to repair a fountain device in Union Station in St. Louis. At the time of the
accident, the plaintiff was on the driver’s side of the Missouri Machinery’s service truck which
was parked along the curb. At the time of the accident, the plaintiff had been retrieving tools or
parts from the truck for use in repairing the fountain device. Plaintiff was discovered lying in the
street seriously injured with the side compartment door panel detached and lying in the street
nearby. Plaintiff’s hair and other bodily remains were found on the truck. In discussing the two
categories of cases discussed above, the Missouri Court of Appeals noted that the case did not
clearly fit into either the first or second category. Relying on a factually similar case from the
Supreme Court of Iowa, Simpson v. United States Fidelity & Guaranty Co., 562 N.W.2d 627,
631 (Iowa 1997), the Missouri Court of Appeals found that the plaintiff was an insured because
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he was “occupying” his service truck. Arbuthnot, 140 S.W.3d at 172–74. Specifically, the policy
in Arbuthnot defined “occupying” as “in, upon, getting in, on, out or off.” In finding that the
plaintiff was occupying his service truck, the Missouri Court of Appeals concluded that
the truck Plaintiff was using was specialized to carry parts and
tools and had compartments that were accessible from outside the
truck. Plaintiff was repairing a fountain device and had returned to
the truck to retrieve a tool or part. As evidenced by Plaintiff's
bodily remnants and hair, which were found on the truck, Plaintiff
was in close proximity to the truck when the accident occurred.
We find that Plaintiff comes within the definition of occupancy
because he was upon the truck as that term is commonly
understood, and Plaintiff’s purpose was related to the truck.
Therefore, we find that based on the facts of this case, Plaintiff was
“occupying” the truck within the meaning of the insurance policy.
Id. at 174.
Finally, as noted by the Missouri Court of Appeals in Loyd v. State Auto Property &
Casualty Co., 265 S.W.3d 901 (Mo. App. 2008), numerous other state courts have also addressed
this issue. Many courts have adopted a four-part test to determine if an individual is occupying
an insured vehicle: (1) “there is a causal relation or connection between the injury and the use of
the . . . vehicle;” (2) “the person asserting coverage must be in reasonably close geographic
proximity to the vehicle, although the person need not be actually touching it;” (3) “the person
must be vehicle-oriented rather than highway or sidewalk oriented at the time;” and (4) “the
person must also be engaged in a transaction essential to the use of the vehicle.” Id. at 905 (citing
General Accident Insurance Co. of America v. Olivier, 574 A.2d 1240, 1241 (R.I. 1990)). While
not adopting the test per se, the Missouri Court of Appeals found that this test was consistent
with Missouri cases that determine whether a vehicle is occupied. Loyd, 265 S.W.3d at 905.
At the time of the collision, the Plaintiff was approximately five feet to a car length from
the front of Belak’s truck. He was neither getting into the truck nor getting out of it. Belak’s
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truck rolled gradually behind the crew as they worked. Plaintiff testified that he and other crew
members always located themselves in front of the truck because it contained the trailer with the
flashing arrow. Plaintiff maintains that the purpose of the flashing arrow is to divert traffic away
from the truck and away from the workers as they work in front of the truck. Plaintiff testified
that the truck contained tools (including his shovel), materials, and supplies which were retrieved
from the truck from time to time.1 Plaintiff was last inside Belak’s truck approximately five
minutes before the collision. Plaintiff also had been in Belak’s truck during the day when the
crew drove to the parkway that morning and when he and the crew returned periodically to ride
the truck in order to go to the next site along the parkway if it was not within a reasonable
walking distance.
Despite Plaintiff’s argument to the contrary, the case does not clearly fit into the first
category of cases recognized by Missouri courts. At the time of the accident, Plaintiff was not
engaged in activity “directly related to the insured vehicle itself.” Plaintiff was not involved in a
situation where the vehicle had malfunctioned and he was attempting to repair the vehicle,
attempting to prevent further damage to the vehicle, or giving or receiving information about the
vehicle. See Arbuthnot, 140 S.W.3d at 173. Further, in contrast to the plaintiff in Arbuthnot, it
is undisputed that Plaintiff was not returning to the truck to retrieve a tool or equipment at the
time of the collision. Although he was using the flashing arrow light pulled behind the truck, he
was not using the truck itself at the time of the accident. Instead, Plaintiff was standing on the
parkway, bent over at the waist caulking an overcut on the roadway. Plaintiff’s attention was
focused on caulking the overcut and was not focused on the truck; therefore, the activity he was
engaged in at the time was not “essential” to the use of the truck nor was it vehicle oriented. See
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Defendant argues that Belak’s truck did not contain tools, materials, and supplies, but only contained
Plaintiff’s lunch box and water bottle.
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e.g., Miller v. Mabe, 947 S.W.2d 151, 154 (Tenn. App. 1997)(while cablevision worker who was
repairing downed cable wire had engine of van running, was using the vehicle’s lights to warn
oncoming traffic of his presence and to run a spotlight toward the area in which he was working,
and had originally retrieved tools from the van, he was not occupying the van at the time of the
accident); Younger v. Reliance Ins. Co., 884 S.W.2d 453 (Tenn. App. 1993)(power line
repairman working in a ditch was not occupying the vehicle at the time of the accident).
Finally, the fact that Plaintiff was struck by the insured truck does not render the Plaintiff
an occupant of the vehicle. The Missouri Court of Appeals in State Farm Mut. Auto Ins. Co. v.
Farmers Ins. Co. specifically rejected a similar argument finding that “[w]e do not believe the
word ‘upon' can be stretched that far. To do so would mean anyone who is struck by a vehicle
would be an ‘occupant’ regardless of his status.” 569 S.W.2d at 386.
Based on these facts, the Court finds that Plaintiff was not “occupying” his work truck at
the time of his accident, and therefore, was not covered under the underinsured motorist
provision of his employer’s policy.
IV. CONCLUSION
For the reasons set forth above, the motion by Plaintiff, Gregory Spiller, for partial
summary judgment [DN 19] is DENIED, and the motion by Defendant, Travelers Property
Casualty Company of America, for summary judgment [DN 21] is GRANTED. A Judgment
will be entered consistent with this Opinion.
cc: counsel of record
October 5, 2016
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