Francois Edouazin, appellant,

v.

Theodore Champlain, et al., respondents.

 

2010–09749 2010–10513 (Index No. 37808/07)

 

Supreme Court, Appellate Division, Second Department, New York.

November 15, 2011

 

Brian P. Neary, P.C., Huntington, N.Y., for appellant.

 

Marshall, Dennehey, Warner, Coleman & Goggin, New York, N.Y. (Michael Gallagher and John T. Cofresi of counsel), for respondents Theodore Champlain and Ryder Truck Rental.

 

Hammill, O’Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset, N.Y. (Anton Piotroski of counsel), for respondents Terrence Watts and Cove Plumbing Supply, Inc.

 

Cascone & Kluepfel, LLP, Garden City, N.Y. (Rendon P. Sangalang of counsel), for respondents James C. Malico and JPM Trucking, Inc.

 

REINALDO E. RIVERA, J.P. DANIEL D. ANGIOLILLO ARIEL E. BELEN SHERI S. ROMAN, JJ.

 

SUBMITTED—OCTOBER 25, 2011

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals (1), as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Molia, J.), entered September 9, 2010, as granted the cross motion of the defendants James C. Malico and JPM Trucking, Inc., for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), denied, as academic, the alternative branch of his motion which was for summary judgment on the issue of liability against the defendants James C. Malico and JPM Trucking, Inc., and granted those branches of the separate cross motions of the defendants Terrence Watts II and Cove Plumbing Supply, Inc., and the defendants Theodore Champlain and Ryder Truck Rental, which were for summary judgment dismissing the complaint insofar as asserted against each of them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and (2) from a judgment of the same court entered September 24, 2010, which, upon the order, is in favor of the defendants Terrence Watts II and Cove Plumbing Supply, Inc., dismissing the complaint insofar as asserted against them.

 

ORDERED that the appeal from so much of the order as granted that branch of the cross motion of the defendants Terrence Watts II and Cove Plumbing Supply, Inc., which was for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is dismissed; and it is further,

 

ORDERED that the order is reversed insofar as reviewed, on the law, the cross motion of the defendants James C. Malico and JPM Trucking, Inc., and those branches of the separate cross motion of the defendants Theodore Champlain and Ryder Truck Rental, which were for summary judgment dismissing the complaint insofar as asserted against each of them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) are denied; and it is further,

 

ORDERED that the judgment is reversed, on the law, and that branch of the cross motion of the defendants Terrence Watts II and Cove Plumbing Supply, Inc., which was for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is denied, and the order entered September 9, 2010, is modified accordingly; and it is further,

 

ORDERED that the matter is remitted to the Supreme Court, Suffolk County, to determine the alternative branch of the plaintiff’s motion, that branch of the separate cross motion of the defendants Theodore Champlain and Ryder Truck Rental which was for summary judgment on the issue of liability, on the merits, and that branch of the cross motion of the defendants Terrence Watts II and Cove Plumbing Supply, Inc., which was for summary judgment on the issue of liability, on the merits; and it is further,

 

ORDERED that one bill of costs is awarded to the plaintiff payable by the defendants James C. Malico and JPM Trucking, Inc., the defendants Terrence Watts II and Cove Plumbing Supply, Inc., and the defendants Theodore Champlain and Ryder Truck Rental.

 

The appeal from so much of the order as granted that branch of the cross motion of the defendants Terrence Watts II and Cove Plumbing Supply, Inc., which was for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) must be dismissed, as the right of direct appeal from that part of the order terminated with the entry of the judgment entered September 24, 2010 (see Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on the appeal from that portion of the order have been considered on the appeal from the judgment (see CPLR 5501[a] ).

 

All of the defendants, in support of those branches of their respective cross motions which were for summary judgment on the issue of serious injury, relied upon, inter alia, the affirmed medical report of Dr. Robert Pearl, their expert neurologist. This report failed to eliminate a triable issue of fact, thereby preventing the defendants from meeting their prima facie burdens. Dr. Pearl examined the plaintiff on August 12, 2009, nearly three years post-accident. During his examination of the plaintiff, he noted significant limitations in the ranges of motion of the cervical and lumbar regions of the plaintiff’s spine (see Grisales v. City of New York, 85 AD3d 964; Torres v. Torrano, 79 AD3d 1124; Mondevil v. Kumar, 74 AD3d 1295).

 

While the defendants also relied on the affirmed medical report of Dr. Scott S. Coyne, their radiology expert, his report was also insufficient to enable the defendants to meet their prima facie burdens in this case. The plaintiff, in his bill of particulars, alleged exacerbations of preexisting injuries to the cervical and lumbar regions of his spine. While it is true that Dr. Coyne opined that the pathology he observed in the plaintiff’s December 2006 MRI films was degenerative in nature and unrelated to the subject accident, the defendants failed to show that the limitations noted by Dr. Pearl were the result of a prior accident, rather than from exacerbations caused by the subject one (see Pero v Transervice Logistics, Inc., 83 AD3d 681, 682–683; Rabinowitz v. Kahl, 78 AD3d 678; Washington v. Asdotel Enters., Inc., 66 AD3d 880; McKenzie v. Redl, 47 AD3d 775, 776).

 

Since the defendants failed to meet their respective prima facie burdens of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), this Court need not determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Grisales v. City of New York, 85 AD3d at 965; Pero v Transervice Logistics, Inc., 83 AD3d at 683; Coscia v. 938 Trading Corp., 283 A.D.2d 538).

 

In light of our determination, the matter must be remitted to the Supreme Court, Suffolk County, to determine the alternative branch of the plaintiff’s motion, and those branches of the cross motions of the defendants Theodore Champlain and Ryder Truck Rental, and the defendants Terrence Watts II and Cove Plumbing Supply, Inc., which were for summary judgment on the issue of liability, on the merits (see Alvarez v. Dematas, 65 AD3d 598, 600).

 

RIVERA, J.P., ANGIOLILLO, BELEN and ROMAN, JJ., concur.

 

ENTER:

 

Matthew G. Kiernan

 

Clerk of the Court

United States Court of Appeals,

Ninth Circuit.

Jason BARBER, husband; and Seana Barber, wife, Plaintiffs–Appellants,

v.

ENCOMPASS INDEMNITY COMPANY, an Illinois insurance company, Defendant–Appellee.

 

No. 10–16710.

Aruged and Submitted Oct. 24, 2011.

Filed Nov. 10, 2011.

 

Scott Macmillan Baker, for Plaintiffs–Appellants.

 

David P. Matheson, Michelle Ray Matheson, Matheson & Matheson, PLC, Scottsdale, AZ, for Defendant–Appellee.

 

Appeal from the United States District Court for the District of Arizona Raner C. Collins, District Judge, Presiding. D.C. No. 4:09–cv–00050–RCC.

 

Before GRABER and IKUTA, Circuit Judges, and KAPLAN,FN*Senior District Judge.

 

FN* The Honorable Lewis A. Kaplan, Senior United States District Judge for the Southern District of New York, sitting by designation.

 

MEMORANDUM FN**

 

FN** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36–3.

 

In this diversity action involving insurance coverage for liability arising from an automobile accident, Plaintiffs Jason and Seana Barber appeal the trial court’s grant of summary judgment in favor of Defendant Encompass Indemnity Company. Applying Arizona law, Goldberg v. Pac. Indem. Co., 627 F.3d 752, 755 (9th Cir.2010), and reviewing de novo, Ferguson ex rel. McLeod v. Coregis Ins. Co., 527 F.3d 930, 932 (9th Cir.2008) (per curiam), we affirm.

 

The district court correctly concluded that the accident at issue—in which the insured vehicle’s involvement was limited to its presence on a towed flat-bed trailer—fell outside the general coverage definitions of Defendant’s insurance policy. That conclusion is correct both under the minimum liability requirements of Arizona automobile insurance law and under the text of the policy itself. Under Arizona law, “for coverage to exist, an insured must be using the car pursuant to the ‘inherent nature’ of the vehicle,” because the “ ‘arising out of the use … of a car’ language implies that the … injury occurs as a result of the operation of the car.” Benevides v. Ariz. Prop. & Cas. Ins. Guar. Fund, 911 P.2d 616, 619 (Ariz.Ct.App.1995) (first ellipsis in original). Here, the trailer might as well have been carrying a load of refrigerators or some other heavy cargo; to the extent that the weight or size of the cargo had a role in causing the accident, nothing about that weight or size was specific to the “inherent nature” of an automobile as a means of transport.

 

Westfield Insurance Co. v. Aetna Life & Casualty Co., 739 P.2d 218, 222 (Ariz.Ct.App.1987), is not to the contrary. That case involved insurance coverage of an actively controlled, towed automobile. Here, only the flat-bed trailer was being towed and actively controlled, while the insured vehicle was nothing more than passive cargo. Westfield does not decide how to treat such a situation. Indeed, our outcome today is consistent with the general rule announced in Westfield; that decision’s reliance on “utilization … in the manner intended or contemplated by the insured” requires utilization specific to the inherent nature of an automobile. Id. (internal quotation marks omitted).

 

Because the accident at issue was not within the general coverage definitions of the insurance policy, Plaintiffs’ other arguments necessarily fail.

 

AFFIRMED.

 

IKUTA, Circuit Judge, dissenting:

There is no need to guess how an Arizona court would resolve this case, because a state court opinion is directly on point: Westfield Ins. Co. v. Aetna Life & Cas. Co., 739 P.2d 218 (Ariz.Ct.App.1987). In that case, the Arizona Court of Appeals held that a car being towed by a tow truck was in “use” within the terms of the towed car’s insurance policy. Id. at 222. Broadly construing the concept of “using” an insured car, Westfield held that the tow truck driver was “using” the car because he was (1) “operating the tow truck on the road for the purpose of transporting” the insured car, and (2) “actively controlling the movement of both the tow truck and [the insured car].” Id.

 

Westfield is on all fours with this case. Here, a driver was (1) operating a truck and flatbed trailer for the purpose of transporting the insured car, and (2) actively controlling the movement of both his truck and the insured car. Under Westfield, the insured car here was in “use” when it was being towed and therefore within the insurance policy’s omnibus coverage provision. That should be the end of the inquiry.

 

Yet the majority purports to distinguish Westfield on the ground that the towed car in Westfield was “actively controlled,” whereas here, only the “flat-bed trailer [carrying the car] was … actively controlled.” Maj. op. at 3. According to the majority, Wesyiield’s reasoning extends only to cars towed by a traditional tow truck because towing a car with a flat-bed trailer makes the insured car merely “passive cargo.” Id. But nothing in Westfield suggests that its reasoning is so limited. In fact, Westfield does not even mention how the insured car was being towed. 739 P.2d at 219. Under the reasoning in Westfield, it makes no difference whether the tow truck driver wraps chains around an axle or puts all four wheels on a flat bed—it is the tow truck driver that is actively controlling the vehicle.

 

Nor does any other Arizona opinion justify the majority’s weak efforts to distinguish Westfield. The majority’s reliance on Benevides v. Arizona Property & Casualty Insurance Guaranty Fund, 911 P.2d 616 (Ariz.Ct.App.1995), is entirely misplaced. Benevides involved a parked car blasting music so loudly that an angered bystander shot the car’s occupants. Id. at 617. Not surprisingly, the Arizona Court of Appeals held that the car was not in “use” for purposes of its insurance policy because its function as a “mobile boom box” was not pursuant to the “inherent nature” of the car. Id. at 619 (quoting Hawkeye–Security Ins. Co. v. Gilbert, 866 P.2d 976, 979 (Idaho Ct.App.1994)). But Arizona courts have been clear that the “inherent nature” of a car includes more than just driving or transportation. A car’s flashing lights may serve as safety warnings for persons working outside the car, see Tobel v. Traveler’s Ins. Co., 988 P.2d 148, 154 (Ariz.Ct.App.1999) (holding that the car was in “use”), just as loading and unloading a car is equally a “use” within its “inherent nature,” see Mission Ins. Co. v. Aid Ins. Servs., 585 P.2d 240, 242 (Ariz.1978) (same). Clearly, the “inherent nature” of a car also includes being towed, or else the majority’s narrow interpretation of “use” would overrule Westfield itself. Indeed, contrary to the majority’s suggestion, Maj. op. at 3, the parties here clearly “intended or contemplated” that an antique show car would be towed: the insurance policy notes at least three times that the insured car may be “trailered from one location to another.”

 

Our duty as a federal court sitting in a diversity action is to apply the substantive law of the forum state. Goldberg v. Pac. Indem. Co., 627 F.3d 752, 755 (9th Cir.2010). That job is seemingly easy here, where an Arizona court has already spoken directly on a substantially identical issue. But the majority ignores the guidance, finding distinction where none can be found and creating uncertainty when there should have been absolute clarity. I respectfully dissent.