Castro v. Zurich American Insurance Company

Filing 50

MEMORANDUM OPINION AND ORDER by Chief District Judge William P. Johnson, denying 36 MOTION for Summary Judgment and granting 40 Response to Motion and Cross Motion for Summary Judgment. (meq)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
___________________
ESPERANZA CASTRO
Plaintiff,
vs.

No. CV 20-cv-00622 WJ/CG

ZURICH AMERICAN INSURANCE
COMPANY,
Defendant, Third-Party Plaintiff,
vs.
JOSEPH SMITH,
Third-Party Defendant.
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
and
GRANTING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT
THIS MATTER comes before the Court upon Motions for Summary Judgment by both
parties. Plaintiff Castro seeks summary judgment against Defendant (Doc. 36, filed February 23,
2021), and Defendant Zurich American Insurance Company (“Zurich”) seeks summary judgment
in a cross-motion against Plaintiff (Doc. 40, filed March 15, 2021) also as a response to Plaintiff’s
motion for summary judgment). Having reviewed the parties’ pleadings and the applicable law,
the Court DENIES Plaintiff’s motion (Doc. 36) and GRANTS Defendant’s motion (Doc. 40).
BACKGROUND
This is a declaratory action case to determine insurance coverage following an automobile
accident that occurred on April 30, 2018. Third-party defendant Joseph Smith is a welder
employed by Jones Contractors, Inc. (“Jones Contractors”). Mr. Smith was driving eastbound in

his welding truck (a 2016 Ford F350) on State Road 31 in Eddy County, New Mexico on his way
to a job site. In an attempt to pass a tractor-trailer, Mr. Smith veered into the westbound lane and
in doing so, collided with an oncoming vehicle in which Plaintiff Esperanza Castro was a
passenger.
I.

Procedural Background
This lawsuit began when Ms. Castro filed a state court complaint for declaratory judgment

against Zurich on May 6, 2020 in the First Judicial District Court, County of Santa Fe. Defendant
removed the case to federal court on June 26, 2020. The complaint alleges that Plaintiff sustained
significant injuries from the accident and it is anticipated that she will require at least two more
surgeries to regain use of her knee and shoulder. The dispute at the center of this case is whether
Mr. Smith’s vehicle was covered under the commercial auto insurance policy issued by Zurich
(“Zurich policy”).1
II.

Relevant Policy Provisions
Jones Contractors obtained Commercial Auto Insurance Policy No. BAP 018590-02 (“the

Policy”) from Zurich for the October 1, 2017 to October 1, 2018 policy period. Doc. 36-2 (Zurich
policy).
A.

Coverage and Exclusions

The Policy contains a Business Auto Coverage Form which includes a table that shows
numerical symbols used on the Declarations Page to describe covered auto designations:

1

A year and a half earlier, on October 8, 2018, Ms. Castro filed a lawsuit against Mr. Smith in the Fifth Judicial
District Court of Eddy County, Cause No. D-503-CV-2018-01647 (the “underlying action”). In that action, Ms. Castro
amended her complaint to join Jones Contractors, Inc. as a party to the litigation on the theory that Jones Contractors
was liable for Joseph Smith’s conduct occurring during the course and scope of his employment. On October 13, 2020,
the court in that case granted Jones Contractors summary judgment on the vicarious liability claim because it could
not be disputed that Mr. Smith was not acting within the course and scope of his employment for Jones Contractors,
Inc. when the automobile accident occurred.

2

Doc. 36-2 at 45. The Schedule of Coverage shows premium amounts for covered autos which are
designated by the numerical symbols:

3

Doc. 36-2 at 34. Thus, under the Schedule of Coverages and Covered Autos, all Symbol 1 autos
(“Any Auto”) are covered by the Policy for liability and all Symbol 8 autos (“Hired Autos Only”)
are covered for “physical damage comprehensive” and “physical damage collision.”
As indicated above, Symbol 8 autos include autos that are leased, hired, rented or
borrowed, but does not include any auto leased, hired, rented or borrowed from employees . . . Id.
The Policy expressly excludes from coverage:
(1) The owner or anyone else from whom you hire or borrow a covered
“auto” and
(2) Your “employee” if the covered "auto" is owned by that "employee" or a
member of his or her household.”
Doc. 36-2 at 46-47 (Section II, Covered Autos Liability Coverage).
B.

Lessor Endorsement Schedule

The Policy contains a “Lessor -Additional Insureds and Payees Endorsement” (“Lessor
Endorsement”) describing coverage for “leased autos.” The portion entitled “Schedule” lists Jones
Contractors as the named insured, and “All Lessors” as “Additional Insureds.” The Policy
provisions apply “unless modified” by the Lessor Endorsement. Doc. 36-2 at 25 (“With respect
to coverage provided by this endorsement, the provisions of the Coverage Form apply unless
modified by the endorsement.”) (emphasis in original). The section on “Coverage” in Lessor
Endorsement states:
A. Coverage
1. Any “leased auto” designated or described in
the Schedule will be considered a covered
‘‘auto’’ you own and not a covered ‘‘auto’’ you
hire or borrow.
2. For a ‘‘leased auto’’ designated or described in
4

the Schedule, the Who Is An Insured provision
under Covered Autos Liability Coverage is
changed to include as an ‘‘insured’’ the lessor
named in the Schedule. However, the lessor is
an ‘‘insured’’ only for ‘‘bodily injury’’ or
‘‘property damage’’ resulting from the acts or
omissions by:
a. You;
b. Any of your ‘‘employees’’ or agents; or
c. Any person, except the lessor or any
‘‘employee’’ or agent of the lessor, operating
a ‘‘leased auto’’ with the permission of any
of the above.
Doc. 36-2 at 26, Section A (emphasis added).

“Leased Auto” is defined in the Lessor

Endorsement:
As used in this endorsement:
‘‘Leased auto’’ means an ‘‘auto’’ leased or rented to
you, including any substitute, replacement or extra
‘‘auto’’ needed to meet seasonal or other needs,
under a leasing or rental agreement that requires
you to provide direct primary insurance for the
lessor.
3. The coverages provided under this
endorsement apply to any ‘‘leased auto’’
described in the Schedule until the expiration
date shown in the Schedule, or when the
lessor or his or her agent takes possession of
the ‘‘leased auto’’, whichever occurs first.
Id., Section E (emphasis added).2 The Policy does not list any names under the “Named Driver
Exclusion Endorsement.” Doc. 36-2 at 27.

2
The parties agree that the policy provisions speak for themselves, and dispute only whether the policy was issued to
cover Mr. Smith’s welding truck. However, as Defendant notes, Plaintiff refers to the Policy’s Lessor Endorsement
in her factual section but fails to cite specifically to either the Lessor Endorsement’s definition of “leased auto” at
Section E or Section A.3 which provides that coverage under the Lessor Endorsement expires when the lessor takes
possession of the “leased auto.”

5

Both parties acknowledge that the Lessor Endorsement Schedule “changes” and
“modifies” other Policy provisions.
III.

Undisputed Facts3
The material facts are generally undisputed. Parties disagree on the legal significance of

those facts as to whether Mr. Smith is an “insured” and whether his welding truck is a “leased
auto” under the Zurich Policy.
On April 30, 2018, the day of the accident, Mr. Smith was driving a Ford F350 welding
truck that he owned. Jones Contractors does not own their own welding trucks or equipment.
While employed with Jones Contractors, Mr. Smith was paid an hourly wage for his work.
He was also paid an hourly sum for the use of his welding truck while he was on the clock. Doc.
40-2 (Smith Depo. at 13:20-25; 14:9-25) and Doc. 40-1 (Jones Decl. at ¶2).
Mr. Smith earned his hourly wages for his labor and his truck when he was on the job site
and clocked in for work. Doc. 40-2 (at 15:1-12 19:8-20:2). He would not get paid for travel in
between job sites. He would have to clock out, drive to the next site and then clock back in. Doc.
40-2 at 3 (at 19:19-25).
At the time of the accident, Mr. Smith insured his welding truck through Geico Insurance
Company. Doc. 40-3.
Plaintiff’s summary judgment is grounded in the contention that the unambiguous language
of the Policy covers Mr. Smith’s vehicle as a “leased vehicle” and that Mr. Smith is an “insured”
under the Policy. Zurich argues that Mr. Smith was not an “insured” under the Zurich policy
because his vehicle was not being leased at the time of the accident and Jones Contractors did not
agree to provide any lessor direct primary insurance for Mr. Smith or his welding truck.

3

For ease of reading, references to exhibits are omitted unless necessary.

6

IV.

Legal Standard
Summary judgment is appropriate if the moving party demonstrates there is “no genuine

dispute as to any material fact” and it is “entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); Callahan v. Unified Gov’t of Wyandotte County, 806 F.3d 1022, 1027 (10th Cir. 2015). An
issue is “genuine” if sufficient evidence exists on each side “so that a rational trier of fact could
resolve the issue either way,” and “[a]n issue of fact is ‘material’ if under the substantive law it is
essential to the proper disposition of the claim.” Adler v. Wal Mart Stores, Inc., 144 F.3d 664, 670
(10th Cir.1998) (citations omitted).
The analysis is the same in an insurance case. Interpreting insurance policies and
determining policy rights and obligations “are questions of law, appropriate grist for the summary
judgment mill.” Merchants Ins. Co. U.S. Fidelity, 143 F.3d 5, 8 (1st Cir. 1998); Winters v. Charter
Oak Fire Ins. Co., 4 F.Supp.2d 1288, 1291 (D.N.M. 1998) (construction of an insurance policy is
a matter of law that can be decided through summary judgment). When facts are undisputed, and
the only issue is the application of an insurance policy, all that remains is a question of law for the
court. See Benns v. Continental Cas., Co., 982 F.2d 461, 462 (10th Cir. 1993); Gamboa v. Allstate
Ins. Co., 1986-NMSC-078, ¶ 9, 104 N.M. 756.4
Ordinarily, when reviewing a motion for summary judgment, a court views the facts in the
light most favorable to the non-moving party. See Trask v. Franco, 446 F.3d 1036, 1043 (10th
Cir. 2006). Here, the parties have filed cross-motions for summary judgment, but this does not
change the standard of review. Burrows v. Cherokee County Sheriff=s Officers, 2005 WL 1185620
(D. Kan. May 18, 2005) (unpublished opinion) (citing Taft Broadcasting Co. v. U.S., 929 F.2d
240, 249 (6th Cir. 1991)). Where the parties file cross motions for summary judgment, the court

4

There appears to be no dispute that New Mexico law governs the policy. See Doc. 16 at 2 (Joint Status Rep’t).

7

is “entitled to assume that no evidence needs to be considered other than that filed by the parties,
but summary judgment is nevertheless inappropriate if disputes remain as to material facts.” James
Barlow Family Ltd. Partnership v. David M. Munson, Inc., 132 F.3d 1316, 1319 (10th Cir. 1997).
Also, cross-motions for summary judgment are to be treated separately; “the denial of one does
not require the grant of another.” Buell Cabinet Co., Inc. v. Sudduth, 608 F.2d 431, 433 (10th Cir.
1979).
DISCUSSION
The obligation of an insurer is a question of contract law and will be determined by
reference to the terms of the insurance policy. See Safeco Ins. Co. of Am., Inc. v. McKenna, 90
N.M. 516, 520, 565 P.2d 1033, 1037. The policy should be construed as a complete and
harmonious instrument. See Erwin v. United Benefit Life Ins. Co., 70 N.M. 138, 371 P.2d 791
(1962); Schultz & Lindsay Construction Co. v. State, 83 N.M. 534, 494 P.2d 612 (1972) (A
contract will be considered and construed as a whole, with meaning and significance given to
each part in its proper context, so as to ascertain the parties' intentions). Where a clause “read
alone is clear and unambiguous . . . it is not necessary to read the coverages together,” because
“there is a risk of creating, rather than identifying, ambiguity.” Battishill v. Farmers Alliance Ins.
Co., 2006–NMSC–004, ¶ 16, 139 N.M. 24, 127 P.3d 1111. “Insurance contracts are construed by
the same principles which govern the interpretation of all contracts.” Dove v. State Farm Fire &
Cas. Co., 2017-NMCA-051, ¶ 17, 399 P.3d 400, 407 citing Hinkle v. State Farm Fire & Cas.
Co., 2013-NMCA-084, ¶ 18, 308 P.3d 1009 (alteration, internal quotation marks, and citation
omitted).
The central question is whether Mr. Smith qualifies as an insured under the Policy’s
Lessor Endorsement. Plaintiff argues that the Policy, when construed as a whole, provides

8

coverage for “all leased vehicles”—which includes the vehicles Jones leased from its employees,
and covers “all lessors” of the leased autos, including lessors who are its employees.
I.

Facts Support a Finding of No Coverage Under the Policy
Based on the terms of the Lessor Endorsement, for Mr. Smith to qualify as an insured

under the Lessor Endorsement, the following conditions must apply:
(1) the vehicle must be leased at the time of the accident;
(2) the lease agreement must require Jones Contractors to provide the lessor with direct
primary insurance, and
(3) the vehicle cannot be in the possession of the lessor at the time of the accident.
A.

Defendant’s Evidence

Defendant presents evidence showing that Mr. Smith’s welding truck was not being
leased at the time of the accident and that Jones Contractors did not agree to provide any lessor
direct primary insurance for Mr. Smith or his welding truck. Mr. Heath Jones, President of Jones
Contractors, stated in his Declaration that Mr. Smith was solely responsible for insuring his
welding truck and that he did not have a leasing or rental agreement with Jones Contractors
whereby Jones Contractors agreed to provide direct primary insurance for Mr. Smith’s welding
truck. Mr. Jones also understood that the accident occurred while Mr. Smith was driving to a
work site. Doc. 40-1 (Heath Decl.), Deft’s Statement of Fact (“SOF”) No. 8.5
Plaintiff contends that Mr. Jones’ Declaration is “self-serving” but the Court summarily
rejects this contention. First, who better than the President of Jones Contractors would be
familiar with the details regarding Mr. Smith’s employment and compensation? Second, Plaintiff
offers no explanation at all as to why she believes the Declaration is “self-serving.” It is

5

Because Document 40 is both Defendant’s response to Plaintiff’s motion for summary judgment as well as its own
cross-motion, the Court refers to Defendant’s “Additional Statement of Facts” as “Statement of Facts.”

9

obviously based on Mr. Jones’ personal knowledge as Mr. Smith’s employer and therefore
presents admissible evidence. See Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir.
1995) (requiring that to survive summary judgment a nonmovant’s affidavit must be “based upon
personal knowledge and set forth facts that would be admissible in evidence; conclusory and
self-serving affidavits are not sufficient”). The Court therefore deems the facts set forth in Mr.
Jones’ Declaration as undisputed because Plaintiff offers no evidence refuting them.
Defendant also presents evidence that Mr. Smith was not on the clock and was not at the
jobsite at the time of the accident.
Q.

Were you on the clock when that wreck occurred?

A.

No.

Q.
. . . What other definitions of working would you perceive that you could say, yes,
I was working.
A.

No, I would say I wasn’t working. I was just driving.

Doc. 40-2 at 5 (Smith Depo. at 24:7-17); see Deft’s SOF No. 7.
Plaintiff characterizes this fact as “misleading.” However, in response to Defendant’s fact,
Plaintiff refers to a portion of Mr. Smith’s testimony where he purportedly states that he “was
traveling in the leased welding truck to a Jones job in Texas and was giving a ride to another Jones’
employee to that job.” Pltff’s Resp. to Deft’s SOF No. 7) (emphasis added). The testimony actually
contains no mention of the word “leasing” or any suggestion that Mr. Smith was either “working”
or “on the clock”:
Q.

. . . And on April 30th of 2018, you had a helper with you?

A.

Yes, sir.

Q.

A Lee ---

A.

Stevicks.
10

Q.

Stevicks. Also employed with Jones Contractors?

A.

Yes.

Q.

And how long had you worked with Lee?

Q.

I worked with him I want to say a year before that.

Doc. 40-2 at 2 (Smith Depo. at 15:13-23). Therefore, the Court deems it undisputed that Mr. Smith
was not on the clock and not at a jobsite at the time of the accident.
B.

Plaintiff’s Evidence

Plaintiff claims that Mr. Smith “affirmatively states” that Jones Contractors “leased” his
vehicle in furtherance of its business. Pltff’s Rsp. to Deft’s Statement of Fact (“SOF”) No. 4.
Mr. Smith stated nothing of the kind. In his deposition, Mr. Smith actually stated that he
received $15/hour for both the use of his truck and the use of his welding equipment. Doc. 36-1
at 3 (Smith Depo. at 19:25-20:7). Again, Mr. Smith did not mention “leasing” at all and he made
it abundantly clear that he was not paid separately for the use of his truck. Plaintiff’s
mischaracterization of the evidence is insufficient to create a factual dispute on the question of
whether Mr. Smith stated that his employer “leased” his welding truck.
II.

Mr. Smith’s Truck Was Not a Leased Vehicle Under the Policy
Having determined what the undisputed facts are in this case, the Court finds that those

facts support Defendant’s motion. For purposes of the parties’ cross-motions, Defendant presents
material factual disputes which preclude summary judgment for Plaintiff, but on the other hand,
Plaintiff offers no evidence suggesting that there is coverage under the Policy. The Court now
applies the undisputed facts to the relevant Policy provisions.
A.

No Coverage Under the Business Auto Coverage Form

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

Section I of the Business Auto Coverage Form states that there is no coverage for “autos”
leased, hired, rented or borrowed from “employees.” Doc. 36-2 at 45 (defining “Hired
“Autos” as not including any “auto” you lease, hire, rent or borrow from any of your
“employees . . . .”).



The definition of “insured” in Section II (“Covered Autos Liability Coverage) expressly
excludes from coverage any covered “auto” owned by an employee, as well as the “owner”
of any car that is hired or borrowed. Doc. 36-2 at 46-47. It is undisputed that Mr.
Under these provisions, coverage is expressly excluded for any vehicle owned by an

employee, including Mr. Smith and his welding truck.
B.

No Coverage Under the Lessor Endorsement

Both parties recognize that the Lessor Endorsement provisions modify the Policy and so
these provisions ultimately control whether Mr. Smith is an “insured” and whether coverage exists
for his welding truck. The Court finds that when considering these provisions in context and as a
whole, Mr. Smith is not an “insured” and that his truck is not a “leased auto” under the Zurich
Policy, as explained in the sub-categories within these paragraphs:6


6

Policy provision: Any lessor of a “leased auto” is an “insured” for “bodily injury” or
“property damage” that is caused by an “employee” or “agent.” Doc. 36-2 at 26 (A.2(b)).
However, the lessor is not an “insured” for “bodily injury” or “property damage” if the
lessor is “operating” the “leased auto.” Doc. 36-2 at 26 (Section A.2(c) (emphasis added).

To recap that provision of the Lessor Endorsement here:
2. For a “leased auto” designated or described in
the Schedule, the Who Is An Insured provision
under Covered Autos Liability Coverage is
changed to include as an ‘‘insured’’ the lessor
named in the Schedule. However, the lessor is
an ‘‘insured’’ only for ‘‘bodily injury’’ or
‘‘property damage’’ resulting from the acts or
omissions by:
a. You;
b. Any of your ‘‘employees’’ or agents; or
c. Any person, except the lessor or any
‘‘employee’’ or agent of the lessor, operating
a ‘‘leased auto’’ with the permission of any
of the above.

Doc. 36-2 at 26, A.2 (emphasis added).

12

o Court finding: Based on the undisputed facts of this case and even assuming Mr.
Smith is a “lessor” whose acts or omissions resulted in bodily injury or property
damage, Mr. Smith would not be an “insured” under the Lessor Endorsement
because it is undisputed that he was operating the (“assumed) “leased auto” with
the permission of the owner.


Policy provision: Coverage under the Lessor Endorsement ends when the lessor takes
possession of the “leased auto.”7
o Court finding: Here, even assuming that Mr. Smith’s welding truck qualifies as a
“leased auto” under the Lessor Endorsement, there is no coverage because it is
undisputed that the truck was in the possession of Mr. Smith (the alleged lessor) at
the time of the accident. See Allstate Ins. Co. v. Ford Motor Credit Co., 236 F.
App'x 405 (10th Cir. 2007) (individual hired to repossess leased truck was in
possession of the vehicle when it struck lessee, thereby invoking the expiration
provision).



Policy Provision: A “leased auto” means an auto leased “under a leasing or rental
agreement that requires you to provide direct primary insurance for the lessor. Doc. 36-2
at 26 (E. “Additional Definition”).
o Court finding: Plaintiff maintains that Mr. Smith’s welding truck was a leased
vehicle under the Policy, but fails to submit any indicia of a leasing or rental
agreement that required Jones Contractors to provide direct primary insurance for
the lessor. Defendant presents a copy of the Geico policy that was issued to Mr.
Smith for his truck, Doc. 40-3, which Plaintiff characterizes as “misleading”
because Defendant does not show which insurance policy was “primary.”
However, Plaintiff misapprehends his burden in order to prevail on his summary
judgment motion. In order to create a factual dispute on this issue, it is Plaintiff who
must present some evidence of a leasing agreement to provide for direct primary
insurance for Mr. Smith’s truck—and this she has not done. Chronister v. State
Farm Mut. Auto. Ins. Co., 1963-NMSC-093, ¶ 8, 72 N.M. 159 (the insured has the
burden to prove that she or he is covered under the Policy). On the other hand,
Defendant presents evidence of the Zurich policy that does not reference Mr.

7

Again, to recap this portion from the earlier discussion:
3. The coverages provided under this
endorsement apply to any ‘‘leased auto’’
described in the Schedule until the expiration
date shown in the Schedule, or when the
lessor or his or her agent takes possession of
the ‘‘leased auto,’’ whichever occurs first.
Doc. 36-2 at 26 (A.3).

13

Smith’s truck at all as well as evidence of the Geico insurance policy issued to Mr.
Smith providing direct coverage on his truck—and both are unrefuted by Plaintiff.8
Plaintiff presses on, despite the very plain language of the provisions in the Lessor
Endorsement excluding coverage for Mr. Smith’s welding truck. Plaintiff states that “Zurich may
argue that there is a conflict in the Lessor Endorsement,” specifically, between the identification
of “All Lessors” as “Additional Insureds” and the exclusion of “the lessor . . . operating a ‘leased
auto’ with the permission of the owner.” Doc. 36 at 9. She suggests resolving this “conflict” by
considering the parties’ intent within the context of the entire contract and concludes that the
parties must have intended coverage for “all Leased Vehicles and all Lessors” because Jones
Contractors does not own its own welding trucks and its normal business practice was to pay its
employees an additional hourly fee to “lease” welding trucks from its employees.
Plaintiff’s argument rests on shaky ground. First, it is the classic “straw man” argument.
Defendant is not arguing that the terms of the Lessor Endorsement are unclear, inconsistent of
ambiguous. Instead, Zurich contends that the more specific terms of the Lessor Endorsement are
controlling over the general terms. See Doc. 40 at 11 (“When the more specific terms of the Lessor
Endorsement are read with the more general terms in the Schedule, it becomes clear that only a
lessor of a “leased auto” is considered an “insured” under the Lessor Endorsement”); see Weldon
v. Commercial Union Assurance Co., 1985-NMCS-118, ¶9, 103 N.M. 522, 524, 710 P.2d 89
(where general and specific provisions of an insurance policy differ as to coverage or applicability,
the specific provision will prevail).

8

The complete lack of evidence of any type of leasing or rental agreement between the parties in this case precludes
any discussion on whether Mr. Smith’s truck was primarily insured under the Zurich policy. Cmp. Fireman's Fund
Ins. Co. v. CNA Ins. Co., 2004 VT 93, ¶ 46 (2004) (summary judgment denied where the record not fully developed
as to whether parties’ written lease agreement was renewed annually and whether trailer involved in accident was
listed on the schedule in the last agreement).

14

The Court agrees as well. There is no conflict that exists within the provisions of the Lessor
Endorsement. The “lessor . . . operating a ‘leased auto’” simply constitutes one of specific
coverage exclusions that is typical in insurance policies, and the Court declines to take up
Plaintiff’s invitation to apply a meaning that isn’t there and where doing so would be contrary to
the principles of contract interpretation. Dove v. State Farm Fire & Cas. Co., 2017-NMCA-051,
¶17 (“If a policy is clear and unambiguous, then the court does not construe the terms; it merely
gives the terms their usual and ordinary meaning.”), citing Apodaca v. Farmers Ins. Co., 2003NMCA-095, ¶ 8, 134 N.M. 188, 75 P. 3d 404; Gallegos v. Pueblo of Tesuque, 2002–NMSC–012,
¶ 30, 132 N.M. 207, 46 P.3d 668 (“court’s duty is confined to interpreting the contract that the
parties made for themselves, and absent any ambiguity, the court may not alter or fabricate a new
agreement for the parties).
Second, Plaintiff assumes that the welding trucks are “leased” vehicles under the Policy
simply because Jones Contracting paid employees an additional fee for use of the trucks and
welding equipment. This conclusory statement has no support in the record and is directly
contradicted by the evidence. In his Declaration, Mr. Jones stated that Mr. Smith was paid an
amount of money while on the job which covered both the use of his truck and his welding
equipment but that there was no leasing or rental agreement for the truck. Doc. 40-1 at 1. And as
the Court has already found, Plaintiff’s reliance on Mr. Smith’s deposition testimony as evidence
that his truck was “leased” is misplaced because Mr. Smith’s testimony was mischaracterized.9

9

Mr. Smith was paid $15/hour for both the use of his truck and the use of his welding equipment. Doc. 36-1 at 3
(Smith Depo. at 19:25-20:7). This testimony is consistent with Mr. Jones’ statement that Mr. Smith was “paid hourly
for the use of his personal pickup truck and the use of his personal welding equipment mounted in the bed of his
truck.” Doc. 40-1 at ¶2.
Also, it is strange why Plaintiff’s counsel is reluctant to acknowledge that a worker can be paid an amount of money
for use of his own vehicle for work without it meaning that it is “leased” by the employer. Such payment, considered
a form of reimbursement to defray wear and tear on a vehicle, is common in many employment situations, including
the government sector.

15

CONCLUSION
In sum, the Court finds and concludes that the Policy issued by Zurich to Jones Contractors
does not provide coverage for Mr. Smith’s welding truck on several grounds:


The undisputed facts confirm Mr. Smith’s welding truck was not being leased at the time
of the accident. Mr. Smith was off the clock and not being paid for the use of his welding
truck at the time of the accident and therefore cannot be a lessor under the Lessor
Endorsement.



When the more specific terms of the Lessor Endorsement are read with the more general
terms in the Schedule, it is clear that only a lessor of a “leased auto” is considered an
“insured” under the Lessor Endorsement. Under those terms, Mr. Smith’s truck was not a
“leased auto” because Jones Contractors did not provide a leasing or rental agreement with
direct primary insurance covering the truck and so Mr. Smith is not an “ insured” under the
Policy.



Mr. Smith also cannot qualify as an insured under the Lessor Endorsement even if the truck
was a “leased auto” because he was “operating” the truck and was in “possession” of the
truck at the time of the accident—both qualifying as exceptions to coverage under the
Lessor Endorsement.
THEREFORE,

IT IS ORDERED that on the parties’ cross-motions for summary judgment:
(1) Plaintiff’s Motion for Summary Judgment (Doc. 36) is hereby DENIED for reasons
described in this Memorandum Opinion and Order; and
(2) Defendant’s Cross-Motion for Summary Judgment (Doc. 40) is hereby GRANTED for
reasons described in this Memorandum Opinion and Order.

16

A Rule 58 Judgment shall issue separately.

___________________________________
WILLIAM P. JOHNSON
CHIEF UNITED STATES DISTRICT JUDGE

17