Hunt vs AAA Northern California, Nevada & Utah Insurance Agency, et al.,

Filing 27

ORDER that Hunt's motion for summary judgment (ECF No. 15 ) is DENIED; CSAA's motion for summary judgment (ECF No. 16 ) is GRANTED; Clerk directed to enter judgment for defendant AAA Nevada Insurance Company and against plaintiff John David Hunt. Signed by Judge Larry R. Hicks on 2/25/2019. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***
JOHN DAVID HUNT,
Plaintiff,

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Case No. 3:18-cv-00062-LRH-WGC
ORDER

v.
AAA NEVADA INSURANCE COMPANY,
d/b/a CSAA GENERAL INSURANCE
COMPANY,
Defendant.

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Plaintiff John David Hunt has filed a motion for summary judgment on his claims against

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defendant AAA Nevada Insurance Company (“CSAA”). (ECF No. 15). CSAA responded with its

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own motion for summary judgment. (ECF No. 16). For the reasons stated below, the Court denies

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Hunt’s motion for summary judgment and grants CSAA’s motion for summary judgment.

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I. Factual Background and Procedural History

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Prior to filing their cross motions for summary judgment, the parties stipulated to the

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material facts in this UIM insurance coverage case. (ECF No. 14). On March 3, 2013, Hunt was

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driving his vehicle on Veterans Parkway in Reno, Nevada, when he encountered non-party Thomas

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Harper driving well-below the speed limit in the left lane on a two-lane road. (ECF No. 14 at 2).

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Hunt began to pass Harper’s vehicle in the right lane, but before he could complete his pass, Harper

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“aggressively swerved to the right,” which was an “apparent attempt to run Hunt off the road.”

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(Id.) Hunt managed to avoid Harper’s vehicle and continued on until he reached an intersection

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with a stop sign. (Id.) Harper had followed Hunt to the intersection, and upon arriving, both men
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pulled over, exited their vehicles, and approached one another on the side of the road. (Id.) Harper,

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“angered and upset,” caught Hunt by surprise with a punch to the face. (Id. at 3). Hunt grabbed

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Harper as he fell to the ground, but as he did so, he fractured his ankle. (Id.) Harper initially fled

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the scene after striking Hunt, but he returned after realizing that he had forgotten his wireless key

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fob. (Id.) At the time of the fight, Harper and Hunt were standing near Hunt’s vehicle. (Id. at 2).

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Hunt was transported to the hospital and treated there for his injuries, which included an “open

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reduction internal fixation of his ankle fracture.” (Id. at 3). Hunt ultimately contracted an infection

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in his ankle (MRSA), which required several more surgeries and procedures to successfully treat.

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(Id.) At the time of his fight with Harper, Hunt had an auto insurance policy through CSAA. (Id.

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at 1–2).

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Initially, Hunt filed a lawsuit against Harper in this Court (3:17-cv-00165-RCJ-WGC),

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seeking to recover damages for the injuries he sustained in the fistfight. Harper’s insurance carrier,

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Allstate, also filed an action in this Court (3:16-cv-00579-MMD-WGC) seeking declaratory relief

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from having to defend or indemnify Harper. Both of those cases were resolved via a stipulated

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dismissal in March 2018. To date, Hunt has incurred at least $676,000 in medical expenses arising

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out of his injuries and subsequent infection. (ECF No. 14 at 3). He filed a claim with CSAA,

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requesting the $250,000 “each person” UIM limit under his insurance policy, but following an

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investigation, CSAA denied his claim because the injuries he sustained did not fall under the

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purview of his auto insurance policy. (Id. at 3–4). Specifically, Hunt’s policy stated that he would

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be entitled to receive compensation from CSAA if he suffered a bodily injury: (1) “caused by an

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accident” and (2) “arising out of the ownership, maintenance, or use” of an underinsured motor

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vehicle. (ECF No. 14 at 4). CSAA denied coverage because it claimed that Hunt’s injuries did not

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arise out of the use of an automobile. (ECF Nos. 14-5, 14-6, 14-7). Following the denial of

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coverage, Hunt filed this lawsuit against CSAA in February 2018, alleging four causes of action

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in his amended complaint: (1) breach of contract; (2) bad faith; (3) breach of the implied covenant

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of good faith and fair dealing; and (4) tortious interference of a contract. (ECF No. 5). Before the

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close of discovery, the parties filed cross-motions for summary judgment on August 7, 2018. (ECF

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Nos. 15, 16).
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II. Legal Standard

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Summary judgment is appropriate only when the pleadings, depositions, answers to

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interrogatories, and admissions on file, together with the affidavits, if any, show “that there is no

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genuine issue as to any material fact and that the [moving party] is entitled to judgment as a matter

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of law.” FED. R. CIV. P. 56(c). In assessing a motion for summary judgment, the evidence, together

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with all inferences that can reasonably be drawn therefrom, must be read in the light most favorable

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to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

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587 (1986); Cnty of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir. 2001). The

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moving party bears the burden of informing the court of the basis for its motion, along with

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evidence showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477

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U.S. 317, 323 (1986). On those issues for which it bears the burden of proof, the moving party

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must make a showing that is “sufficient for the court to hold that no reasonable trier of fact could

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find other than for the moving party.” Calderone v. United States, 799 F.2d 254, 259 (6th Cir.

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1986).

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To successfully rebut a motion for summary judgment, the non-moving party must point

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to facts supported by the record which demonstrate a genuine issue of material fact. Reese v.

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Jefferson Sch. Dist. No. 14J, 208 F.3d 736 (9th Cir. 2000). A “material fact” is a fact “that might

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affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S.

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242, 248 (1986). Where reasonable minds could differ on the material facts at issue, summary

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judgment is not appropriate. See v. Durang, 711 F.2d 141, 143 (9th Cir. 1983). A dispute regarding

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a material fact is considered genuine “if the evidence is such that a reasonable jury could return a

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verdict for the non-moving party.” Liberty Lobby, 477 U.S. at 248. The mere existence of a scintilla

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of evidence in support of the non-moving party’s position is insufficient to establish a genuine

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dispute; there must be evidence on which the jury could reasonably find for the non-moving party.

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See id. at 252.

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Where, as here, the parties filed cross-motions for summary judgment on the same claims,

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the court must consider each party’s motion separately and on its own merits, “giving the non-

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moving party in each instance the benefit of all reasonable inferences.” A.C.L.U. of Nev. v. City of
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Las Vegas, 466 F.3d 784, 790-91 (9th Cir. 2006). Further, in evaluating the motions, “the court

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must consider each party’s evidence, regardless under which motion the evidence is offered.” Las

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Vegas Sands, LLC v. Nehme, 632 F.3d 526, 532 (9th Cir. 2011). See also Fair Hous. Council of

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Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1134 (9th Cir. 2001) (“[T]he court must

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consider the appropriate evidentiary material identified and submitted in support of both motions,

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and opposition to both motions, before ruling on each of them.”).

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III. Discussion

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Because the parties have stipulated to a set of facts, there is no question of material fact in

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this case, making it apt for summary judgment. The success of both parties’ motions turns on the

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definition of two phrases contained within Hunt’s insurance policy – “caused by accident” and

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“arise out of the ownership, maintenance, or use” of a motor vehicle. If Hunt’s incident with Harper

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was an “accident” and arose out of the “use” of his motor vehicle, then CSAA is obligated to

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compensate Hunt based on the terms of his insurance policy and because it did not, it will have

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breached the insurance contract. If Hunt’s incident does not fall under the purview of both

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provisions, then CSAA has abided by the terms of the contract and is not obligated to compensate

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Hunt. Furthermore, the parties have stipulated that if CSAA prevails on its motion for summary

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judgment, it dispenses with all of Hunt’s claims, not just the breach of contract claim that he seeks

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summary judgment on. (ECF No. 14 at 4). On the other hand, if Hunt prevails on his motion for

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partial summary judgment for his breach of contract claim, then he will be allowed to further

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pursue his second, third, and fourth claims against CSAA. (Id.) This narrows the Court’s analysis

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to that of insurance contract interpretation, which presents only a question of law. State Farm Mut.

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Auto Ins. Co. v. Cramer, 857 P.3d 751, 753 (Nev. 1993).

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The starting point for the interpretation of any contract, including insurance policies, is

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with its plain language. McDaniel v. Sierra Health and Life Ins. Co., Inc., 53 P.3d 904, 906 (Nev.

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2002). Under Nevada law, insurance policies “should be interpreted broadly, affording the greatest

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possible coverage to the insured.” Farmers Ins. Group v. Stonik By and Through Stonik, 867 P.2d

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389, 391 (Nev. 1994) (citing Harvey's Wagon Wheel v. MacSween, 606 P.2d 1095, 1098 (Nev.

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1980)). Any ambiguity in an insurance contract must be interpreted “against the drafting party and
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in favor of the insured.” Id. (citing Neumann v. Standard Fire Ins., 699 P.2d 101, 104 (1985)).

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Despite the presumption of ambiguity in favor of the insured, when a contract contains clear and

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unambiguous provisions, those provisions will be construed according to their plain and ordinary

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meaning. Dickenson v. Nevada, 877 P.2d 1059, 1061 (Nev. 1994); Siggelkow v. The Phoenix Ins.,

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Co., 846 P.2d 303, 304 (Nev. 1993). With these principles in mind, the Court turns to whether the

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injuries Hunt suffered were the result of an “accident” as that term is defined in his insurance

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policy.

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A. “Accident”

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Hunt’s CSAA insurance policy defines an “accident” as a “sudden, unexpected, and

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unintentional occurrence. An intentional act, event, or happening is not an ‘accident.’” (ECF No.

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14 at 4). Hunt argues that the definition of “accident” is written from his perspective rather than

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that of an omniscient observer, and because he was not expecting Harper to punch him, the fight

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was sudden and unexpected. (ECF No. 15 at 8). Moreover, Harper’s battery, while an intentional

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tort, was not an “intentional act” for policy purposes because Hunt did not intend to be injured or

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battered during his confrontation with Harper. (Id. at 9–10). Hunt also asserts that CSAA

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“conceded” that the fight with Harper was an “accident” in a January 23, 2018 email: “[a]t no point

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in time have we [CSAA] denied that the events that took place would fall under the definition of

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an ‘accident’ in the policy.” (Id. at 12). In response, CSAA asserts that the term is unambiguous

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and should be afforded its plain meaning, which would exclude all intentional acts, regardless of

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who the actor is, from being deemed “accidents.” (ECF No. 23 at 7).

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Although creative, the Court rejects Hunt’s interpretation of the term “accident.” The

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definition of “accident” within Hunt’s insurance policy is clear and unambiguous; intentional acts

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are specifically excluded from coverage regardless of whether the policy holder or a third party is

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the actor. (ECF No. 14 at 4). Presumably, if the parties intended for intentional acts by third parties,

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such as the intentional destruction of a vehicle, to be included in policy coverage under the term

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“accident,” they would have specified as such. But they did not. The Court is not permitted to

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rewrite insurance contracts to provide coverage for the insured where none exists. See State Farm

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Mut. Auto. Ins. Co. v. Cramer, 857 P.2d 751, 755 (Nev. 1993) (“We will not rewrite unambiguous
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insurance policy provisions or attempt to increase the parties' legal obligations where the parties

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intentionally limited such obligation.”). It is uncontested that Harper committed an intentional

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battery against Hunt when the two men confronted one another following Harper’s alleged attempt

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to run Hunt off the road. This is not a situation where Harper intended to scare or frighten Hunt,

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but accidentally harmed him instead. See Allstate Ins. Co. v. Sanders, 495 F. Supp.2d 1104, 1108

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(D. Nev. 2007) (finding coverage under an “accident” provision where intoxicated insured threw

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a metal object at plaintiff intending to scare him, not injure him). The evidence before the Court

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indicates that Harper fully intended to harm Hunt, and therefore, Hunt’s injuries cannot be deemed

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to have resulted from an “accident.”

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Case law from the Supreme Court of Nevada supports this ruling. In Fire Ins. Exchange v.

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Cornell, the court held that an intentional act committed by the insureds’ son did not qualify as an

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“occurrence” under their homeowner’s policy, and thus the insurance company had no obligation

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to defend them. 90 P.3d 978, 980. There, the term “occurrence” was defined as an “accident

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resulting in bodily injury.” Id. Although the term “accident” itself was not defined in the policy,

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the court applied the “common definition” of the word – “a happening that is not expected,

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foreseen, or intended.” Id. (citing Beckwith v. State Farm Fire & Cas. Co., 83 P.3d 275, 276 (Nev.

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2004)). The court held that the insureds’ son’s molestation of a minor in the insureds’ house was

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not an “accident” because it was an intentional act even though the insureds were unaware of their

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son’s conduct and did not expect or intend for it to happen. Id. Notably, the Supreme Court’s

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definition of “accident” is nearly identical to the definition of the term in Hunt’s insurance policy,

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and the Court sees little reason to deviate from well-established Nevada insurance law.

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There is also no evidence that CSAA conceded that the fistfight was an “accident.” Hunt

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misconstrues CSAA’s January 23, 2018 email as a concession from CSAA that the incident was

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an “accident.” But this is not what a plain reading of the email reveals. Instead, the email merely

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states that CSAA had not, at that point, denied that Hunt’s injuries were not caused by an

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“accident.” Removing the double negatives, CSAA merely stated that at that point in time, it had

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not reached a decision regarding Hunt’s coverage. CSAA’s email is essentially a non-statement

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and far from the definitive concession Hunt portrays it as.
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Because the definition of “accident” within Hunt’s insurance policy specifically excludes

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intentional acts from coverage, Harper’s intentional battery of Hunt is not covered under the

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policy. Therefore, CSAA cannot be liable for breach of contract because it correctly refused to

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accept Hunt’s insurance claim.
B. “Use” of a Motor Vehicle

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Even if Hunt could demonstrate that his fight with Harper was an “accident,” he would still

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need to show that his injuries arose out of the “ownership, maintenance, or use” of his motor

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vehicle. (ECF No. 16 at 6). Hunt argues that road rage was the cause of his injuries, and because

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road rage necessarily involves the use of a vehicle, his injuries fall under the terms of his insurance

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policy. (ECF No. 22 at 6). On the other hand, CSAA argues that road rage incidents where the

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parties have exited their vehicles do not arise out of the “ownership, maintenance, or use” of their

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motor vehicles, and thus Hunt’s injuries are excluded from coverage. (ECF No. 16 at 15).

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The Court agrees with CSAA. While Hunt is correct in asserting that the impetus for the

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fight occurred while he and Harper were driving, he sustained his injuries because of a physical

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assault on the side of the road, not in an auto collision. The insurance policy covers injuries that

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occur while the policy holder is actively using his motor vehicle; the fact that the policy holder

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traveled to an area by way of a motor vehicle does not automatically bring the injuries he sustained

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at that area into the purview of his insurance policy. For instance, someone who drives to a bar

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with his insured motor vehicle and suffers injuries in an ensuing bar fight cannot claim that his

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injuries resulted from the use of his vehicle simply because of his method of travel. Similarly,

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someone who develops the motivation to engage in particular conduct while driving also cannot

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claim that subsequent injuries arose out of the “use” of his motor vehicle. A ruling to the contrary

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would defeat the plain meaning of the word “use,” which the Ninth Circuit has previously stated

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to mean “make use of or to enjoy.” Yandle v. Hardware Mut. Ins. Co., 314 F.2d 435, 437 (9th Cir.

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1963) (repairing a trailer axle did not constitute “use” or enjoyment of a motor vehicle). Hunt was

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certainly not making use of or enjoying his motor vehicle when he was standing on the side of the

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road and being attacked by Harper.

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Hunt’s case is similar to a Ninth Circuit opinion, State Farm Mut. Auto. Ins. Co. v.

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Fernandez, 767 F.2d 1299 (9th Cir. 1985). There, the policy holder (Fernandez) was involved in

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a road rage incident with an unrelated third party (White). Id. at 1300. White shouted at Fernandez

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when the two passed each other on the road, which lead to Fernandez turning around and pursuing

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White. Id. In the subsequent confrontation outside of their vehicles, White stabbed Fernandez. Id.

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Fernandez filed a claim for UM benefits through his auto insurance policy, but his carrier denied

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the claim because his injuries did not arise out of the “use” of his motor vehicle. Id. at 1302. The

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District Court for the District of Hawai’i granted the insurance carrier’s motion for summary

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judgment on the coverage issue, and the Ninth Circuit subsequently affirmed. In so holding, the

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Ninth Circuit noted that “an intervening intentional act breaks the causal connection between the

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use of an uninsured vehicle and an injury.” Id. This is precisely the case here. Between Hunt

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driving his vehicle and breaking his ankle, he was involved in a curbside attack by Harper in which

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he was punched in the face. The curbside assault, much like the stabbing in Fernandez, is an

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intervening intentional act that breaks the causal connection between Hunt’s use of his vehicle and

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his injury. See also Wincor Nixdorf Inc. v. Discover Property & Cas. Ins. Co., 612 Fed. App’x.

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900, 901–902 (9th Cir. 2015) (insured did not “use” his vehicle when he exited it and attacked a

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pedestrian while stopped at a crosswalk); Allstate Ins. Co. v. Bruttig, 2006 WL 3248393, at *7–8

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(D. Nev. Nov. 3, 2006) (insured was not “using” his motor vehicle when, following an accident,

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he exited his vehicle and assaulted the other party to the accident).

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Hunt asks the Court to effectively ignore the Ninth Circuit’s holding in Fernandez because

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the “case is dated and has earned its retirement.” (ECF No. 15 at 6). Hunt directs the Court to a

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published case from the District of Arizona, Moore v. Farm Bureau Property & Cas. Ins. Co.,

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which “expressly rejected Fernandez.” 993 F. Supp.2d 1039 (D. Ariz. 2014). Moore, however, is

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not only not binding on the Court, but it dealt solely with a secondary issue in Fernandez

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concerning an arbitration clause within the insurance policy rather than the insurance coverage the

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Court faces today. Id. at 1041–42. Moore is inapplicable to the case at bar, and Hunt has given no

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persuasive reason as to why the Court should ignore the Ninth Circuit’s ruling in Fernandez.

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In sum, Hunt has failed to demonstrate that the incident with Harper amounted to an

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“accident” (as the term is defined in his insurance policy) or that his injuries arose out of the “use”

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of his vehicle. Instead, a plain reading of both terms indicates that his fight with Harper is not

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covered under either of them. The Court will accordingly deny his motion for summary judgment

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and grant CSAA’s motion for summary judgment, which will dispense with all Hunt’s claims

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pursuant to the parties’ stipulation. (ECF No. 14 at 4).
IV. Conclusion

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IT IS THEREFORE ORDERED that Hunt’s motion for summary judgment (ECF No. 15)
is DENIED.

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IT IS FURTHER ORDERED that CSAA’s motion for summary judgment (ECF No. 16)

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is GRANTED. The Clerk of Court is directed to enter judgment for defendant AAA Nevada

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Insurance Company and against plaintiff John David Hunt.

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IT IS SO ORDERED.

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DATED this 25th day of February, 2019.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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