Progressive Classic Insurance Company v. Michael Zupan, et al

Filing 1

COMPLAINT for Declaratory Judgment against defendant(s) Michael Zupan, Personal Representative of the Estate of John James Zupan (Receipt # 0981-2730428), filed by Progressive Classic Insurance Company. (Attachments: # 1 Summons, # 2 Civil Cover Sheet)(Foley, Douglas)

1 Douglas F. Foley, WSB #13119
e-mail: [e-mail]
2 DOUGLAS FOLEY & ASSOCIATES, PLLC
13115 N.E. 4th Street, Suite 260
3 Vancouver, Washington 98684
Telephone: [phone]
4 Facsimile: 360.944.6808
5 Attorneys for Plaintiff Progressive Classic
Insurance Co.
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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Progressive Classic Insurance Co.,
No.
Plaintiff,

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COMPLAINT FOR
DECLARATORY JUDGMENT

v.

Michael Zupan, Personal Representative of
14 the Estate of John James Zupan,
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Defendant.

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COMES NOW the Plaintiff, Progressive Classic Insurance Co., (hereinafter

18 “Progressive”), by and through its attorneys, Douglas F. Foley of Douglas Foley &
19 Associates, PLLC, and alleges as follows:
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1.

This action for Declaratory Judgment is one in which the United States District

21 Court is given original jurisdiction by reason of diversity of citizenship and the requisite
22 amount in controversy exceeds $75,000 pursuant to Title 28, U.S.C. §1332.
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2.

Progressive Classic Insurance Co. is an Ohio corporation authorized to

24 transact the business of insurance in the State of Washington, whose principle place of
25 business is in the State of Ohio.
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Douglas Foley & Associates, PLLC
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COMPLAINT FOR DECLARATORY JUDGMENT – Page 1

13115 NE 4 Street, Suite 260
Vancouver, WA 98684
Telephone: [phone]

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3.

Upon information and belief, at all times pertinent to this lawsuit, Defendant

2 Michael Zupan, Personal Representative of the Estate of John James Zupan (“Zupan”), is a
3 resident of the State of Oregon. The Estate of John Zupan is in probate under Clark County
4 Superior Court in the State of Washington, Case No. 11-4-00687-6, and has appointed Zupan
5 Enterprises, Inc., whose address is 7223 NE Hazel Dell Avenue, Vancouver, WA 98665 as
6 the resident agent in Washington for the probate estate.
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4.

Progressive insured Zupan under a Motor Cycle Insurance Policy, providing

8 certain coverages subject to the terms, definitions, exclusions, limitations, and conditions
9 contained in said insurance contract, which was in effect at all relevant times. A copy of the
10 policy is attached as Exhibit “A.”
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5.

Zupan deceased while riding a newly acquired 2009 BMW motorcycle in

12 Portland, Oregon on August 30, 2011. Zupan had recently taken delivery of the 2009 BMW
13 motorcycle and was riding the motorcycle home to his residence when he was hit and killed
14 by a drunken driver. This lawsuit for declaratory relief involves underinsured motor vehicle
15 (UIM) coverage under the Progressive policy.
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6.

Zupan had several different motorcycles. Progressive insured a 1998 Honda

17 Interceptor. The 1998 Honda was licensed in the State of Washington.
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7.

Zupan owned a 2001 BMW that was insured by Foremost Insurance

19 Company. The 2001 BMW was licensed in the State of Washington and was in operable
20 condition. This bike was registered under license plate #7A4802 and VIN#
21 WB10495A91ZE51998.
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8.

Zupan owned additional motorcycles which, upon information and belief,

23 were classic or show motorcycles.
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9.

The pertinent definitions, coverages, and relevant exclusions for the Motor

25 Cycle Policy on Progressive Form 5979 issued to defendant Zupan are, as follows:
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Douglas Foley & Associates, PLLC
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COMPLAINT FOR DECLARATORY JUDGMENT – Page 2

13115 NE 4 Street, Suite 260
Vancouver, WA 98684
Telephone: [phone]

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“GENERAL DEFINITIONS

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The following definitions apply throughout the policy. Defined terms are
printed in bold face type and have the same meaning whether in the singular,
plural, or any other form.

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1.
‘Additional motorcycle’ means a motorcycle you become the owner
of during the policy period that does not permanently replace a motorcycle
shown on the declarations page if:

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a.
we insure all other motorcycles you own;
b.
the additional motorcycle is not covered by any other insurance policy;
c.
you notify us within 30 days of becoming the owner of the additional
motorcycle; and
d.
you pay any additional premium due.

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***

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3.
‘Covered motorcycle’ means:
a.
any motorcycle shown on the declarations page for the coverages
applicable to that motorcycle;
b.
any additional motorcycle; and
c.
any replacement motorcycle.

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***

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10.
‘Replacement motorcycle’ means a motorcycle, including an off-road
vehicle, that permanently replaces a motorcycle shown on the declarations
page. A replacement motorcycle will have the same coverage as the
motorcycle it replaces if the replacement motorcycle is not covered by any
other insurance policy. However, if the motorcycle being replaced had
coverage under Part IV – Damage To A Motorcycle, such coverage will apply
to the replacement motorcycle only during the first 30 days after you become
the owner unless you notify us within that 30-day period that you want us to
extend coverage beyond the initial 30 days. If the motorcycle being replaced
did not have coverage under Part IV – Damage To A Motorcycle, such
coverage may be added, but the replacement motorcycle will have no
coverage under Part IV until you notify us of the replacement motorcycle and
ask us to add the coverage.

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***

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PART III – UNDERINSURED MOTORIST COVERAGE

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INSURING AGREEMENT – UNDERINSURED MOTORIST BODILY
INJURY COVERAGE

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If you pay the premium for this coverage, we will pay for damages that an
insured person is legally entitled to recover from the owner or operator of an
underinsured motor vehicle because of bodily injury:
1.
sustained by an insured person;
2.
caused by an accident; and
Douglas Foley & Associates, PLLC
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COMPLAINT FOR DECLARATORY JUDGMENT – Page 3

13115 NE 4 Street, Suite 260
Vancouver, WA 98684
Telephone: [phone]

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3.
arising out of the ownership, maintenance, or use of an underinsured
motor vehicle.

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***
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EXCLUSIONS – READ THE FOLLOWING EXCLUSIONS
CAREFULLY. IF AN EXCLUSION APPLIES, COVERAGE WILL
NOT BE AFFORDED UNDER THIS PART III.

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Coverage under this Part III will not apply:
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1.

to bodily injury sustained by any person while using or occupying:

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***
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b.
a motor vehicle that is owned by or available for the regular use of you
or a relative. However, with respect to bodily injury to you or a relative, this
exclusion does not apply to a covered motorcycle that is insured under this
Part III.”

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10.

A justiciable controversy exists between the parties hereto. This controversy

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can be resolved by this Court through entry of its Judgment declaring the rights and liabilities
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of the parties alleged herein under the contracts of insurance alleged above.
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11.

There is no Part III UIM Coverage available for the decedent insured since the

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motorcycle that he was operating at the time of the accident does not qualify as a defined
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covered motorcycle as described in the Progressive Motorcycle Policy. For the 2009 BMW
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motorcyle to be classified as a covered motorcycle, all motorcycles owned by Zupan would
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need to be insured by Progressive.
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12.

Progressive did not insure all motorcycles owned by Zupan at the time of this

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loss. Zupan’s 2001 BMW motorcycle was insured by Foremost Insurance Company. As a
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result, the subject 2009 BMW motorcycle was not a covered motorcycle under the terms of
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the Progressive Motorcycle Policy
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13.

The Court should enter a Judgment wholly in favor of Progressive Classic

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Insurance Company declaring, adjudicating, and decreeing that Progressive is not obligated
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Douglas Foley & Associates, PLLC
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COMPLAINT FOR DECLARATORY JUDGMENT – Page 4

13115 NE 4 Street, Suite 260
Vancouver, WA 98684
Telephone: [phone]

1 to provide coverage to Zupan under the policy.
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WHEREFORE, Progressive prays for relief as follows:

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1.

For Judgment against Defendant declaring that the contracts of insurance

4 issued by Progressive does not obligate Progressive to provide coverage to the Estate of John
5 Zupan.
2.

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For Progressive’s costs and such other and further relief as may be deemed

7 just and equitable.
DATED this 28TH day of February, 2012.

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Douglas Foley & Associates, PLLC
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By /S/ DOUGLAS F. FOLEY
Douglas F. Foley, WSBA 13119
Attorneys for Plaintiff Progressive Classic
Insurance Co.

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473/4407

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Douglas Foley & Associates, PLLC
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COMPLAINT FOR DECLARATORY JUDGMENT – Page 5

13115 NE 4 Street, Suite 260
Vancouver, WA 98684
Telephone: [phone]