Travelers Indemnity Company of Connecticut The v. Beyl-Davenport House Moving Inc et al
Filing
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ORDER denying 12 Plaintiff's Motion for Summary Judgment. Signed by Honorable Timothy D. DeGiusti on 9/23/2019. (mb)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
THE TRAVELERS INDEMNITY
COMPANY OF CONNECTICUT,
a foreign corporation,
Plaintiff,
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v.
BEYL-DAVENPORT HOUSE
MOVING, INC., an Oklahoma corporation,
and DENNIS BEYL, an individual,
Defendant.
Case No.:18-civ-269-D
ORDER
Before the Court is the Motion for Summary Judgment [Doc. No. 12] filed by The
Travelers Indemnity Company of Connecticut (the “Plaintiff”) pursuant to Fed. R. Civ. P.
56(a). Defendants Dennis Beyl (“Defendant Beyl”) and Beyl-Davenport House Moving,
Inc., (“Beyl-Davenport”) (collectively “Defendants”) filed a Response in Opposition and
Brief in Response [Doc. No. 19], to which Plaintiff has replied [Doc. No. 20].
BACKGROUND
The following are undisputed facts unless otherwise indicated. The instant action
arises out of an automobile accident on October 26, 2016 in Perry, Oklahoma. Motion at
2. Beyl-Davenport has an insurance policy with Plaintiff (“Policy”) providing uninsured
motorist coverage to anyone occupying a “covered auto” or a temporary substitute for a
“covered auto.” Id. For an insured to be covered under the policy in a temporary
substitute for a covered auto, the “covered ‘auto’ must be out of service because of its
breakdown, repair, servicing, ‘loss’ or destruction.” Id. at 3. At the time of the accident,
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the Policy identified five “covered autos,” among them a 1981 Kenworth semi-truck
(“Kenworth”). Id. Defendant Beyl’s personal vehicle, a 2006 GMC Sierra (“GMC”),
was not listed as a covered auto under the policy. Id. at 5.
Defendant Beyl owns and operates Beyl-Davenport. Id. at 2. Beyl-Davenport
moves homes and other large structures. Id. In the Fall of 2016, Beyl-Davenport was
hired to move a historic home to a museum site in Perry, Oklahoma. Id. The move was
scheduled for October 27, 2016. Id. In preparation for the scheduled move, on October
26, 2016, Defendant Beyl, acting within the scope of his employment, intended to drive
the route he would follow the next day. Id. On October 26, all covered autos were in
Perry, Oklahoma, being readied to make the move. Id. at 6. More precisely, however,
the Kenworth—a covered auto—was at Sooner Corner Truck and Tire Repair Center
being serviced and repaired so the Kenworth could pass an inspection by the Department
of Transportation. Response at 2.
Because the Kenworth was at Sooner Corner for servicing and repairs, Defendant
Beyl chose to use his personal truck, the GMC, to drive his scheduled route for the next
day’s move. Id. Had the Kenworth not been in the shop, Defendant Beyl indicates that
the Kenworth would have been used on the preparatory drive. Response at 5.1 As
Defendant Beyl set out on this drive, the GMC experienced mechanical problems, which
prompted Defendant Beyl to drive the GMC to a mechanic shop for repairs. Motion at 5.
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This fact is contested by Plaintiff, although no contrary evidence was submitted.
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Once at the shop, Defendant Beyl called Brett Powers (“Powers”) to pick him up
so they could continue the preparatory drive as Defendant Beyl had intended from the
outset. Id. Powers picked Defendant Beyl up in a 1995 Ford Explorer (“Explorer”), not
listed as a covered auto under the Policy. Response at 2. While on the drive in the
Explorer, Powers and Defendant Beyl were involved in a collision, after which Defendant
Beyl presented a claim for underinsured motorist benefits under the Policy. Response at
2. Plaintiff responded by filing this declaratory judgment action.
STANDARD OF DECISION
Summary judgment is proper “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a); Universal Underwriters Ins. Co. v. Winton, 818 F.3d 1103, 1105 (10th Cir.
2016). “An issue is ‘genuine’ if there is sufficient evidence 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) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)).
The Court’s inquiry must be whether the evidence, when viewed “through the
prism of the substantive evidentiary burden,” Anderson, 477 U.S. at 254, “presents a
sufficient disagreement to require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.” Id. at 251–52. Although the Court views all
facts in the light most favorable to the nonmoving party at the summary judgment stage,
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“there is no issue for trial unless there is sufficient evidence favoring the nonmoving
party for a jury to return a verdict for that party.” Id. at 249.
DISCUSSION
Plaintiff now moves for summary judgment, asking the Court to find, as a matter
of law, that because Defendant Beyl was not occupying a covered auto or temporary
substitute under the Policy at the time of the accident, coverage does not apply. Motion
at 8.
The interpretation of an insurance contract is governed by state law and, sitting in
diversity, the Court looks to the law of the forum state. See Braun v. Annesley, 936 F.2d
1105, 1108 (10th Cir. 1991).
“Under Oklahoma law related to insurance contracts, ‘[t]he terms of the parties’
contract, if unambiguous . . . are accepted in their plain and ordinary sense, and the
contract will be enforced to carry out the intentions of the parties as it existed at the time
of the contract.’” Am. Cas. Co. v. Fed. Deposit Ins. Corp., 958 F.2d 324, 326 (10th Cir.
1992) (quoting Dodson v. St. Paul Ins. Co., 812 P.2d 372, 376 (Okla. 1991)). Where a
genuine ambiguity exists in an insurance policy, Oklahoma courts will interpret the
contract against the carrier. See Hous. Gen. Ins. Co. v. Am. Fence Co., 115 F.3d 805, 806
(10th Cir. 1997) (citing to Dodson, 812 P.2d at 376). The parties agree that no ambiguity
exists here, and the Court finds none. Motion at 10; Response at 6.
Guided by state law, the Tenth Circuit has indicated that the key to interpreting a
temporary substitute automobile provision lies in the purpose behind such provisions.
Hous. Gen., 115 F.3d at 806 (interpreting Oklahoma law). Although the Tenth Circuit
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was unable to locate an Oklahoma decision which explicitly sets forth the purpose, and
this Court likewise cannot, “courts that have considered the matter in other jurisdictions
appear to [agree].” Id. at 807.
“The objective of the substitution provision is to afford temporary coverage to an
insured who is using a borrowed vehicle because he or she is unable to use the vehicle
designated in the policy for one of the specified reasons.” Id. (collecting cases from
many jurisdictions and citing to multiple authorities). “It has been repeatedly said that
the purpose of a substitute automobile provision is not to defeat liability but, rather, to
provide additional coverage for the insured yet reasonably define coverage by limiting
the insurer’s risk to one operating vehicle at a time for a single premium.” Id. (collecting
cases). Oklahoma law provides some guidance on the limits to the insurer’s risk. To be a
temporary substitute, there must be evidence that the covered auto would have been used
on the trip in question. State ex rel. Crawford v. Indem. Underwriters Ins. Co., 1997 OK
CIV APP 37, ¶ 13, 943 P.2d 167, 171, as corrected (July 3, 1997) (finding an auto was
not a temporary substitute where there “was no evidence that the [covered auto] would
have been used for the trip in question.”).
There is no dispute that the GMC—not covered—was a temporary substitute
under the Policy for the Kenworth—a covered auto. Reply at 2. But Plaintiff argues that
the Explorer—not a covered auto—was a temporary substitute for the GMC—also not a
covered auto. Id. It was because the GMC was experiencing mechanical problems that
Defendant Beyl was in the Explorer. Id. As such, Plaintiff contends, the Explorer was
not a temporary substitute under the Policy, and coverage does not apply. Id. Defendants
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contend that the Explorer was a temporary substitute for the Kenworth, which was being
serviced and repaired at the time of the collision. Response at 2.
In Houston General Insurance v. American Fence, the Tenth Circuit concluded
that a temporary substitution provision did not cover an auto because “there [was] no
indication that the vehicle involved in the accident [] was being used in place of the
covered vehicle []. On the contrary, the very nature of the task that the insured was
seeking to accomplish required the use of both vehicles.” 115 F.3d at 808. In Houston
General, rather “than being used in place of the insured vehicle, [another vehicle] was
being used in addition to it for reasons of convenience.” Id. The case at hand is
distinctly unlike Houston General in that the GMC and the Explorer were never used, or
intended to be used, concurrently. Although the Court does not purport to conclude that
the Explorer was a temporary substitute,2 on the record submitted, the Court likewise
cannot say that, as a matter of law, the Explorer was not covered by the temporary
substitute provision.
Allowing for the temporary substitute provision to reach the Explorer would not
be contrary to the rationale underlying temporary substitute provisions, nor would be it
contrary to the plain language of the contract. See id.
This is so because Defendants have not moved for summary judgment, and Defendant
Beyl’s intent to drive the Kenworth on the date of the accident is contested by Plaintiff.
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In light of the way the Explorer and the GMC were used in this case, the insurer’s
risk was always limited to “one operating vehicle at a time for a single premium.” Id.
(citing St. Paul Fire & Marine Ins. Co. v. Nationwide Mut. Ins. Co., 558 A.2d 1244, 1246
(Md. Ct. Spec. App. 1989) (finding no substitute coverage for a second rental vehicle that
was being used by the insured to return the first—covered—rental vehicle but noting that
had the insured returned the covered vehicle and thereafter rented another vehicle, that
second vehicle would have been covered under a temporary substitute provision.)).
Thus, on the present summary judgment record, the Court cannot find as a matter
of law that the Explorer was not a temporary substitute for a covered auto under the
Policy.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Summary Judgment
is DENIED.
IT IS SO ORDERED this 23rd day of September, 2019.
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