United States District Court,

S.D. Texas,

Houston Division.

Donald ALLEN, et al., Plaintiffs,

v.

COIL TUBING SERVICES, L.L.C., and W–H Energy Services, Inc., Defendants.

 

Civil Action No. H–08–3370.

Jan. 10, 2012.

 

Clark Woodson, III, Attorney At Law, Angleton, TX, Clyde J. Jackson, III, Randall O. Sorrels, Abraham Watkins et al, Houston, TX, for Plaintiffs.

 

Jeremy Chad Boyd, pro se.

 

Eric Koffel, pro se.

 

Ralph Koffel, pro se.

 

Michael Moore, pro se.

 

Joey Ortega, pro se.

 

Christopher E. Moore, Andrew Phelps Burnside, Christine M. White, Erin R. Wedge, Coats Rose, New Orleans, LA, for Defendants.

 

MEMORANDUM AND ORDER

NANCY F. ATLAS, District Judge.

This Fair Labor Standards Act (“FLSA”) case is before the Court on the Motion for Reconsideration [Doc. # 288] filed by Defendant Coil Tubing Services, LLC (“CTS”) and the Motion for Reconsideration [Doc. # 289] filed by Plaintiffs. The parties seek reconsideration of various rulings in the Court’s Memorandum and Order [Doc. # 283] entered October 17, 2011 (“October 2011 Opinion”). The Motions for Reconsideration have been fully briefed .

 

Plaintiffs filed a Response [Doc. # 295] to Defendant’s Motion for Reconsideration and Defendant filed a Reply [Doc. # 296]. Defendant filed a Response [Doc. # 294] to Plaintiffs’ Motion for Reconsideration and Plaintiffs filed a Reply [Doc. # 297].

 

Having reviewed the full record and the applicable legal authorities, the Court grants Defendant’s Motion for Reconsideration as to whether a company-wide analysis of the Motor Carrier Act (“MCA”) Exemption is appropriate and, consequently, whether Defendant is entitled to summary judgment on the application of the MCA Exemption for the period November 13, 2006 through June 6, 2008, to Field Service Employees company-wide with the exception of those Field Service Employees in the Broussard District who were assigned exclusively to offshore projects. The Court denies both Motions for Reconsideration in all other respects.

 

I. BACKGROUND

Defendant CTS is an oil well service company with six districts: Alice, Texas; Angleton, Texas; Bridgeport, Texas; Broussard, Louisiana; Bossier City, Louisiana; and Rock Springs, Wyoming. Plaintiffs were all paid fixed salaries and were not paid overtime wages. Plaintiffs were employed by CTS in various positions, including Equipment Operator, Service Technician, Service Supervisor Trainee, Service Supervisor, Service Coordinator, and Field Engineer. The positions, with the exception of Field Engineers and Service Coordinator, are referred to collectively as “Field Service Employees.” Field Service Employees transported CTS equipment, chemicals, and tools to a project site, often on 18–wheel tractor-trailer trucks and other large trucks.

 

For offshore projects in the Broussard District, third-party trucking companies were hired for the transport.

 

Plaintiffs and Defendant moved for summary judgment on the applicability of certain exemptions to the FLSA, primarily the MCA Exemption, as to certain Bellwether Plaintiffs. In the October 2011 Opinion, the Court granted summary judgment in Defendant’s favor that the MCA Exemption applied to Field Service Employees at the Broussard (land-based projects only) and Angleton Districts, and granted summary judgment in Plaintiffs’ favor that the MCA Exemption did not apply to Field Service Employees at the Alice and Bridgeport Districts. The Court denied summary judgment regarding the applicability of the MCA Exemption to Field Service Employees assigned to offshore projects at the Broussard District.

 

The Court made other rulings in the October 2011 Opinion that are not material to the pending Motions for Reconsideration.

 

Plaintiffs and Defendant filed Motions for Reconsideration, which are ripe for decision.

 

II. DEFENDANT’S MOTION FOR RECONSIDERATION

In the October 2011 Opinion, the Court determined that it was not appropriate to conduct the MCA Exemption on a company-wide basis. Instead, the Court analyzed each district separately. On that basis, the Court concluded that the percentage of interstate projects in the Alice and Bridgeport Districts was too low for the MCA Exemption to apply. Defendant seeks reconsideration of these rulings.

 

A. Company–Wide Analysis

In the October 2011 Opinion, the Court held that CTS failed to make an adequate showing that its six districts operated as a single unit and, as a result, the Court held that each district should be analyzed independently for purposes of the MCA Exemption. Neither party had argued for a district-by-district analysis, and the Court is now persuaded that the company-wide analysis is proper.

 

The FLSA prohibits an “employer” from requiring its employees to work longer than forty (40) hours in a workweek unless the employer pays overtime wages for the excess hours. 29 U.S.C. § 207(a). The provisions of § 207 do not apply to any employee covered by the Motor Carrier Act. 29 U.S.C. § 213(b)(1). Consequently, if the MCA exemption applies, the “employer” is exempt from paying overtime wages to the employees who fall within the exemption. CTS was Plaintiffs’ only “employer” during the relevant time periods; Plaintiffs were not employed by the various districts. Neither the FLSA nor the applicable legal authorities requires the employer to demonstrate that it operates as a single unit absent evidence to the contrary.

 

The Court is now aware that all CTS districts consistently have operated under a single United States Department of Transportation (“DOT”) number, which is placed on every CTS vehicle subject to DOT regulation, including those in Alice and Bridgeport. Although not frequent, there has been interaction among the districts, including “borrowing” of personnel and/or equipment. Each CTS district solicits new projects both inside and outside the district’s geographic boundaries. Each district has obtained and performed projects outside its boundaries and within other dsitricts. There is insufficient evidence or legal authority for this Court to treat the districts separately instead of conducting the MCA Exemption analysis based on CTS as a single “employer.” The Court notes, additionally, that its prior ruling would have the unintended and unwanted effect of placing employees who engage in interstate driving from the Alice and Bridgeport Districts outside the DOT’s jurisdiction, while the DOT would have jurisdiction over employees in the Broussard and Angleton Districts who never actually drove across state lines.

 

Based on the Court’s reconsideration of the evidence, the relevant statutes and case law, and the unintended practical impact of its prior ruling, the Court concludes that the MCA Exemption should be analyzed on a company-wide basis rather than district-by-district.

 

B. Applicability of MCA Exemption

The MCA Exemption applies if the Secretary of Transportation has the power to “establish qualifications and maximum hours of service pursuant to the provisions of section 31502 of Title 49.” 29 U.S.C. § 213(b)(1). “The Secretary of Transportation has the power to establish qualifications and maximum hours of service for employees who (1) are employed by carriers whose transportation of passengers or property by motor vehicle is subject to the Secretary’s jurisdiction under the Motor Carrier Act (MCA); and (2) engage in activities of a character directly affecting the safety of operation of motor vehicles in the transportation on the public highways of passengers or property in interstate or foreign commerce within the meaning of the MCA.” Barefoot, 16 F.3d 1216, 1994 WL 57686, at(citing 29 C.F.R. § 782.2(a); Baez v. Wells Fargo Armored Serv. Corp., 938 F.2d 180, 182 (11th Cir.1991)). In this case, it was uncontested that CTS is a carrier subject to DOT jurisdiction. The parties disputed, however, whether the Field Service Employees engaged in activities that affected “the safety of operation of motor vehicles in the transportation on the public highways of passengers or property in interstate or foreign commerce.”

 

The Court concluded in the October 2011 Opinion that the Field Service Employees engaged in driving activities that directly affected transportation safety. The Court then, applying the district-by-district analysis, held that the Field Service Employees engaged in activities that affected transportation safety in interstate commerce in Angleton and Broussard, but not in Alice and Bridgeport. Having reconsidered and determined that a company-wide analysis is appropriate, the Court must again determine whether the Field Service Employees satisfied the “interstate” requirement for the MCA Exemption.

 

The Court’s ruling excluded the employees in the Broussard District who were assigned exclusively to offshore projects. Throughout this Memorandum and Order, the Court’s discussion of the application of the MCA Exemption to CTS’s Field Service Employees similarly excludes those offshore employees in the Broussard District.

 

Defendant presented evidence that a total of approximately 7% of all land projects and 11% of all offshore projects during the relevant time period required Field Service Employees to drive across state lines. In Morris v. McComb, 332 U.S. 422, 68 S.Ct. 131, 92 L.Ed. 44 (1947), that United States Supreme Court held that full-time drivers who as a group spent approximately 4% of their time transporting goods in interstate commerce and the remainder driving intrastate were subject to the MCA Exemption. In Songer v. Dillon Res., Inc., 618 F.3d 467, 476 (5th Cir.2010), the Fifth Circuit held that the MCA Exemption applied where the percentage of interstate transport was approximately 2.75%. In Starrett v. Bruce, 391 F.2d 320, 323–24 (10th Cir.1968), the Tenth Circuit held that the MCA Exemption applied to a truck driver working for an employer who derived no income at all from interstate transport where the employer solicited interstate business and would have assigned the driver to interstate transport if the employer had obtained such business. Based on these and similar legal authorities, the Court concludes that the Field Service Employees are covered by the MCA Exemption.

 

In addition to applying the MCA Exemption based on the percentage calculation as discussed in Morris and Songer, the Court concludes that the evidence establishes that there was a reasonable expectation that any CTS Field Service Employee could be assigned to drive interstate. There were interstate trips during each quarter during the relevant time period, and the trips were assigned indiscriminately. As a result, CTS could have assigned any Field Service Employee to any of those interstate trips such that there was a reasonable expectation that a Field Service Employee would drive interstate. Consequently, the Court concludes that CTS is entitled to summary judgment that the MCA Exemption applies to all Field Service Employees for the period November 13, 2006 through June 6, 2008, with the exception of the employees at the Broussard District who were assigned exclusively to offshore projects.

 

III. PLAINTIFFS’ MOTION FOR RECONSIDERATION

 

A. Individual Analysis

 

Plaintiffs seek reconsideration of the Court’s decision not to conduct the MCA Exemption analysis on an individual employee basis. As was discussed fully in the October 2011 Opinion, the Fifth Circuit has rejected the argument that a Court should evaluate the MCA Exemption on an individual analysis basis. See Songer, 618 F.3d at 473–74; Barefoot v. Mid–Am. Dairymen, Inc., 16 F.3d 1216, 1994 WL 57686, * 3 (5th Cir. Feb.18, 1994). The Court denies reconsideration on this issue.

 

B. Partial–Duty Drivers in Angleton District

Plaintiffs seek reconsideration also of the Court’s partial-driver analysis for the Angleton District. The Court in the October 2011 Opinion properly analyzed and applied 29 C.F.R. § 782.3 as it relates to “drivers,” defined to include “partial-duty drivers.” Plaintiffs’ argument that the Court must nonetheless determine whether each individual employee was assigned any other duties during a particular workweek is unpersuasive. As was discussed in the Court’s October 2011 Opinion, the Field Service Employees in the Angleton District qualify as “drivers”—which includes “partial-duty drivers”—for purposes of the MCA Exemption. As a result, they are exempt from the overtime requirements of the FLSA under the general rule because they are likely to be called upon to perform safety-affecting activities. See 29 C.F.R. § 782.2(b)(3). Indeed, partial-duty drivers are exempt “even in a workweek when the employee happens to perform no work directly affecting “safety of operation.” Id.

 

Plaintiffs argue that they fall within the exception to this general rule in 29 C.F.R. § 782.2(b)(3). The exception provides that the MCA Exemption does not apply where the continuing duties of the employee’s job have no substantial effect on safety or where those activities are trivial, casual, and insignificant. 29 C.F.R. § 782.2(b)(3) (emphasis added). The focus of the exception is on the job duties of the employee, not on the amount of time the employee spends performing those duties. The Court previously concluded, and persists in the conclusion, that the Field Service Employees in the Angleton District had continuing duties that involved transporting heavy equipment to and from worksites. Such activities are not trivial, casual, or insignificant, and the general rule providing for the MCA Exemption applies.

 

Plaintiffs’ reliance on 29 C.F.R. § 782.2(b)(4) is misplaced. That section relates to an employee who is shifted from one job to another, such as from driving to marketing. There is no evidence in the record that Plaintiffs were shifted from one j ob to another, only that they spent some of their time on land-based projects and some of their time on offshore projects.

 

C. “Four–Month” Rule

Plaintiffs challenge the application of the “four-month” rule from the DOL’s Field Operations Handbook. The Court did not rule on the application of the “four-month” rule, noting that it had not been fully briefed and could not be decided on the existing record. Consequently, there is no decision on the “four-month” rule for the Court to reconsider.

 

The Court finds none of Plaintiffs’ arguments persuasive and denies their Motion for Reconsideration.

 

IV. CONCLUSION AND ORDER

For the foregoing reasons, the Court concludes that the applicability of the MCA Exemption should be analyzed on a company-wide basis. That analysis persuades the Court that CTS is entitled to summary judgment on the applicability of the MCA Exemption to all its Field Service Employees for the period November 13, 2006 through June 6, 2008, with the exception of the employees at the Broussard District who worked exclusively on offshore projects. The remaining arguments in the Motions for Reconsideration do not persuade the Court to alter its prior rulings . Consequently, it is hereby

 

The Court recognizes that its rulings involve controlling questions of law as to which there is substantial ground for difference of opinion. Consequently, the Court would entertain requests for an interlocutory appeal, pursuant to 28 U.S.C. § 1292(b), of the revised Memorandum and Order.

 

ORDERED that Defendant’s Motion for Reconsideration [Doc. # 288] is GRANTED IN PART and DENIED IN PART. It is further

 

ORDERED that Plaintiffs’ Motion for Reconsideration [Doc. # 289] is DENIED. It is further

 

ORDERED that the Court’s Memorandum and Order [Doc. # 283] entered October 17, 2011, is VACATED and will be replaced by a revised Memorandum and Order.

Supreme Court, Essex County, New York.

Laraine Susan MORETTE, Individually; the Estate of Anthony T. Morette, by Laraine Susan Morette, Executrix; and Kristi Marie Morette, Plaintiffs,

v.

KEMPER, UNITRIN AUTO AND HOME INSURANCE COMPANY, INC., and Merchants Mutual Insurance Co., Defendants.

 

No. 0485–10.

Jan. 10, 2012.

 

Breedlove & Noll, LLP (Carrie McLoughlin Noll, Esq., of counsel), Clifton Park, for plaintiffs.

 

Friedman, Hirschen & Miller LLP (Carolyn B. George, Esq., of counsel), Albany, for defendant Kemper, Unitrin Auto and Home Ins. Co. Costello, Cooney & Fearon, PLLC (Maureen G. Fatcheric, Esq. and Kristin L. Walker, Esq., of counsel), Camillus, for defendant Merchants Mutual Insurance Co.

 

RICHARD B. MEYER, J.

Motion and cross-motion by defendant Merchants Mutual Insurance Co. (Merchants), and cross-motion by defendant Kemper, Unitrin Auto and Home Insurance Company, Inc. (Kemper), for summary judgment dismissing the complaint.

 

A.

On December 2, 2009, at approximately 5:00 a.m., the decedent Anthony T. Morette (Morette) was allegedly struck by an unidentified motor vehicle in a hit and run accident while he was jogging near the intersection of New York State Route 374 and Shore Airport Road in the town of Ticonderoga, Essex County. Morette died a short time later, survived by his wife, plaintiff Laraine Susan Morette, and his daughter, plaintiff Kristi Marie Morette. At the time of the incident, a commercial auto insurance policy was in effect issued by Merchants to “A.T. Morette Electric LLC”, a limited liability company of which Morette was the sole member. Also in force was an automobile liability policy issued by Kemper to Morette and his wife. Both policies provided supplementary uninsured motorists (SUM) coverage.

 

In June 2010 plaintiffs commenced this action against Merchants and Kemper seeking a declaratory judgment that both insurers are liable for the payment of SUM coverage arising out of Morette’s death. The defendants now move for summary judgment dismissing the complaint. Merchants asserts that the SUM coverage in its policy does not apply because its named insured was a limited liability company, not Morette. Also, Merchants and Kemper both contend in their respective cross-motions that witnesses have identified two possible vehicles at the scene around the time of the accident and therefore conditions precedent to SUM coverage—that neither the owner nor driver of the offending vehicle can be identified and plaintiffs have exhausted all reasonable efforts to identify such vehicle and driver—cannot be met. Specifically, the defendants contend that sworn statements obtained by law enforcement from Robert Johnston (Johnston) and Christopher Steady (Steady), as well as Steady’s deposition testimony as a non-party witness, establish that the owner and driver can be identified.

 

Both Johnston and Steady are employees of Cleveland Logging, which allegedly is partially owned by Steady’s mother, who were delivering wood to the International Paper Company Mill in Ticonderoga on December 2, 2009. Johnston gave two statements to law enforcement, one on December 8, 2009, just six days after Morette’s death, and the other on August 17, 2010 after he had left the employ of Cleveland Logging “because of family issues”. In his initial statement, Johnston said that while he was at the mill waiting to unload his truck Steady called him on a cell phone at approximately 5:20–5:25 a.m. and “sounded very excited on the phone”. Johnston “could not really understand him” and “could not make out a lot of what was said”. In his later statement, Johnston provides additional, possibly inconsistent, details. He states that after he unloaded his truck and left the mill he noticed that Steady had called Johnston’s cell phone. This was “at about 5:35–5:40 a.m.” Johnston described Steady as “very anxious, very nervous, and act[ing] paranoid”, but admits he “couldn’t understand him”. He said that Steady “called me on the CB radio and all I heard was an accident down the road”. Johnston also relates a subsequent conversation with Steady in which Steady told him about observing “a red car” go “through the stop sign” at the intersection of Shore Airport Road and State Route 22 and “saw the lights bouncing on the car and the car [stop]”. He claims that Steady also told him that he stopped his truck, got out, spoke with the driver of that car, a woman with blonde hair, and she gave Steady “all of her information” before “they both left the scene … leaving the body in the roadway”. Johnston opines at the end of his statement that he believes Steady was involved in the accident and that Steady’s story did not make sense.

 

In Steady’s statement to law enforcement dated December 5, 2009, he relates that he was traveling south on state route 74 and 22 when he saw a vehicle go through “the stop sign coming off from Shore Airport Rd” travelling “about 15 miles per hour”. He described seeing “the headlights bounce”, “the brake lights come on, the back up lights come on then the brake lights went off”. Steady states that the vehicle “looked like a gold Mazda MPV but” he was “not exactly sure”. He got out of his vehicle and observed a body lying in the road near the rear passenger side of the other car. He spoke to the driver, who he described as “about 5’4″ or 5’5″[,] about 130 to 140 pounds”, with “dark hair just below her shoulders” and wearing “a sport blazer and pleated slacks”. After unsuccessfully trying to calm her down and get her name, he wrote his name, cell number and other information on a piece of paper and gave it to her in case anyone needed to get in touch with him. At this time, other vehicles were arriving at the scene. He walked over to his truck to get his cell phone. Once in the truck, he observed other people at the scene with cell phones, and assuming they were calling 911 he drove to the mill to unload. On July 15, 2011, while Merchant’s initial motion for summary judgment was pending, Steady testified at a deposition as a non-party witness that he observed a “goldish color” vehicle that he believed was a Mazda MPV van fail to stop for a stop sign and cross the intersection of the Shore Airport Road and New York State Route 74 and 22. Steady testified that there were no other vehicles in the area. He testified that he saw the headlights of the Mazda bounce, its brake lights come on, and the back up lights come on. Steady claims that after getting out of his vehicle he observed a body on the ground near the rear bumper of the Mazda. The operator was a female with “brunette” and dressed in a “dress jacket” and pleated pants. He believes she was on her phone.

 

The Court has considered the following papers in connection with the motion and cross motions: notice of motion dated June 20, 2011 supported by an affidavit of Maureen G. Fatcheric, Esq. sworn to June 20, 2011, with exhibits A through I, affidavit of Rosemary Bravetti sworn to June 10, 2011, with exhibits A through B, and memorandum of law dated June 20, 2011; affidavit of Carolyn B. George, Esq., sworn to July 26, 2011 in opposition to motion; reply affidavit of Maureen G. Fatcheric, Esq. sworn to September 8, 2011; cross-notice of motion dated September 14, 2011, supported by an affidavit of Carolyn B. George, Esq., sworn to September 13, 201 with exhibits A through F; notice of cross-motion dated September 26, 2011, supported by an affidavit of Kristin L. Walker, Esq. sworn to September 26, 2011 with exhibits A and B; affirmation of Carrie McLoughlin Noll, Esq. dated November 11, 2011 with exhibits A through E and memorandum of law dated November 11, 2011; reply affidavit of Kristin L. Walker, Esq. sworn to November 17, 2011.

 

B.

It is well-settled that summary judgment “is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues ( Millerton Agway Co-op. v. Briarcliff Farms, 17 N.Y.2d 57, 268 N.Y.S.2d 18, 215 N.E.2d 341)” ( Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 133, 320 N.E.2d 853, 854). In order for a party to be entitled to summary judgment, “it must clearly appear that no material and triable issue of fact is presented ( Di Menna & Sons v. City of New York, 301 N.Y. 118, 92 N.E.2d 918)” ( Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 505, 144 N.E.2d 387, 392), and “issue-finding, rather than issue-determination, is the key to the procedure’ ( Esteve v. Abad, 271 AppDiv 725, 727, 68 N.Y.S.2d 322, 324)” (id.; see also, Benizzi v. Bank of Hudson, 50 AD3d 1372, 1373, 855 N.Y.S.2d 764, 765; Gadani v. Dormitory Auth. of State of NY, 43 AD3d 1218, 1219, 841 N.Y.S.2d 709). Summary judgment “should not be granted where there is any doubt as to the existence of such issues, or where the issue is arguable’. ( Barrett v. Jacobs, 255 N.Y. 520, 522, 175 NE 275)” ( Glick & Dolleck, Inc. v. Tri–Pac Export Corp., 22 N.Y.2d 439, 441, 293 N.Y.S.2d 93, 94, 239 N.E.2d 725, 726).

 

“To obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment’ in his favor (CPLR 3212, subd. (b)), and he must do so by tender of evidentiary proof in admissible form” ( Friends of Animals, Inc. v. Associated Fur Mfrs., Inc. 46 N.Y.2d 1065, 1067, 416 N.Y.S.2d 790, 791–792, 390 N.E.2d 298, 299). “Accordingly, if the movant does not submit sufficient evidence on a particular issue or cause of action to justify judgment as a matter of law, the burden never shifts to the adversary to submit evidence sufficient to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572). Even where there is no opposition to a motion for summary judgment, the court is not relieved of its obligation to ensure that the movant has demonstrated his or her entitlement to the relief requested.” ( Zecca v. Riccardelli, 293 A.D.2d 31, 34, 742 N.Y.S.2d 76, 78).

 

C.

The terms of an insurance contract “are generally to be taken and understood in their plain, ordinary and proper sense. Johnson v. Travelers’ Ins. Co., 269 N.Y. 401, 408, 199 NE 637, 640[,] … [and] resort to a literal construction may not be had where … such a construction would lead to an obvious absurdity ( Silverstein v. Metropolitan Life Ins. Co., 254 N.Y. 81, 171 NE 914)” ( McGrail v. Equitable Life Assur. Soc. of U.S., 292 N.Y. 419, 424, 55 N.E.2d 483, 486 [1944] ). “[T]he policy must be read as a whole ( Loblaw, Inc. v. Employers’ Liab. Assur. Corp., 85 A.D.2d 880, 881, 446 N.Y.S.2d 743, affd. 57 N.Y.2d 872, 456 N.Y.S.2d 40, 442 N.E.2d 438), through the eyes of the average reasonable person ( Prince v. ITT Life Ins. Corp., supra, 89 A.D.2d at 780, 453 N.Y.S.2d 495)[,] … [and] in a practical way, so as not to revise or extend the risk, but with a view toward common speech and to what was reasonably intended by the parties when the policy was written and accepted ( De Forte v. Allstate Ins. Co., 81 A.D.2d 465, 468, 442 N.Y.S.2d 307, appeal dismissed 54 N.Y.2d 1027, N.Y.S.2d, N.E.2d)” ( Cetta v. Robinson, 145 A.D.2d 820, 822, 535 N.Y.S.2d 805, 807). “Generally, policies of insurance are to be construed liberally in favor of the insured and strictly against the insurer’ ( Penna v. Federal Ins. Co., 28 AD3d 731, 731, 814 N.Y.S.2d 226 [2006]; see Government Empls. Ins. Co. v. Kligler, 42 N.Y.2d 863, 864, 397 N.Y.S.2d 777, 366 N.E.2d 865 [1977]; see generally Turkow v. Erie Ins. Co., 20 AD3d 649, 650, 798 N.Y.S.2d 768 [2005] ). Where ambiguity exists as to coverage, doubt should be resolved in favor of the insured (see Handelsman v. Sea Ins. Co., 85 N.Y.2d 96, 101, 623 N.Y.S.2d 750, 647 N.E.2d 1258 [1994]; Penna v. Federal Ins. Co., 28 AD3d at 731, 814 N.Y.S.2d 226)” ( In re Liberty Mut. Fire Ins. Co. (Malatino), 75 AD3d 967, 968, 904 N.Y.S.2d 828, 830). Finally, “[c]overage … is not determined merely on the basis of the insuring clause, but must be determined upon the basis of the combination of the insurance clause and exclusions ( Schiff Assocs. v. Flack, 51 N.Y.2d 692, 697–698, 435 N.Y.S.2d 972, 417 N.E.2d 84)” ( General Acc. Ins. Co. v. U.S. Fidelity and Guarantee Ins. Co., 193 A.D.2d 135, 137, 602 N.Y.S.2d 948, 950).

 

Review of the policy provisions here reveals that the SUM endorsement in the policy defined “[t]he unqualified term insured’ [to] [mean] … [y]ou, as the named insured and, while residents of the same household, your spouse and the relative of either you or your spouse”  Similarly, “survivor rights” coverage was afforded to “you or your spouse, if a resident of the same household”, should either one die, in which event “this SUM coverage shall cover … [t]he survivor as named insured [and] … [t]he decedent’s legal representative as named insured, but only while acting within the scope of such representative’s duties as such”  At the time the policy was issued, “spousal liability” was excluded , but Merchants issued a notice to the LLC that “upon written request of an insured, and upon payment of the premium” it would provide “Supplemental Spousal Liability Insurance coverage … cover[ing] the liability of an insured spouse because of the death of or injury to his or her spouse, even where the injured spouse must prove the culpable conduct of the insured spouse.” Also, the policy excluded as an “insured” a member of a limited liability company only “while moving property to or from a covered auto’ “ or “for a covered auto’ owned by him or her or a member of his or her household”  No other language can be found in the policy excluding members of a limited liability company from coverage.

 

Exhibit B to Bravetti affidavit: New York Supplementary Uninsured/Under-insured Motorists Endorsement (CA 31 07 11 98), page 1, paragraph 1, subparagraph a(1).

 

Exhibit B to Bravetti affidavit: New York Supplementary Uninsured/Under-insured Motorists Endorsement (CA 31 07 11 98), page 4, paragraph 16, subparagraphs a. and b.

 

Exhibit B to Bravetti affidavit: New York Changes In Business Auto, Business Auto Physical Damage, Motor Carrier and Truckers Coverage Forms (CA 01 12 03 06), page 2, paragraph A, 4, j.

 

Exhibit B to Bravetti affidavit: Business Auto Coverage Form (CA 00 01 03 06), page 2, Section II–Liability Coverage, A. coverage, 1. Who Is An Insured, paragraph b. (4) and (5):

 

“1.Who Is An Insured

 

The following are “insureds”:

 

* * * *

 

b. Anyone else while using with your permission a covered “auto” you own, hire or borrow, except:

 

* * * *

 

(4) Anyone other than your employees’, partners (if you are a partnership, members (if you are a limited liability company) … while moving property to or from a covered auto’.

 

(5) A partner (if you are a partnership), or a member (if you are a limited liability company) for a covered auto’ owned by him or her or a member of his or her household.”

 

Only by employing a construction which allows for a member of the limited liability company who is a “natural person” (Limited Liability Law § 102[w] ) to be an “insured” under the policy can these policy provisions be given any effect; otherwise they are illusory.

 

Applying the foregoing legal principles to the provisions in Merchants’ policy, Morette is an “insured” for whom SUM benefits are provided. Merchants furnished SUM coverage to an “insured” who sustains bodily injury by physical contact with an unidentified motor vehicle. Reading the policy as a whole “to determine its purpose and effect and the apparent intent of the parties’ (see, Murray Oil Prods. v. Royal Exch. Assur. Co., 21 N.Y.2d 440, 445, 288 N.Y.S.2d 618, 235 N.E.2d 762)” ( A. Meyers & Sons Corp. v. Zurich American Ins. Group, 74 N.Y.2d 298, 303, 546 N.Y.S.2d 818, 820, 545 N.E.2d 1206, 1208 [1989] ), the fact that the LLC was the named insured does not preclude Morette, as the sole member of that company, from being an “insured” entitled to coverage.

 

Merchants relies on case law holding that a business automobile policy issued to a corporation does not provide uninsured motorist coverage to a family member of the sole shareholders of the corporation ( Buckner v. Motor Vehicle Accident Indemnification Corporation, 66 N.Y.2d 211, 495 N.Y.S.2d 952, 486 N.E.2d 810; Gallaher v. Republic Franklin Insurance Co., 70 AD3d 1359, 896 N.Y.S.2d 274; Siragusa v. Granite State Insurance Co., 65 AD3d 1216, 886 N.Y.S.2d 432). This rule does not apply to limited liability companies to the extent that its members are “natural persons”. “The LLC was designed as a hybrid of the corporate and limited partnership forms, offering the tax benefits and operating flexibility of a limited partnership with the limited liability protection of a corporation. See Weber v. King, 110 FSupp 2d 124, 131 (E.D.N.Y.2000); see also N.Y. Practice § 1:2 (explaining that the NYLLCL drew upon the N.Y. Revised Limited Partnership Act and N.Y. Business Corporation Law)” ( Bischoff v. Boar’s Head Provisions Co., Inc., 436 FSupp 2d 626, 630 (SDNY, 2006). Significantly, a limited liability company is “an unincorporated organization of one or more persons having limited liability for the contractual obligations and other liabilities of the business …” (italics added) (Limited Liability Company Law § 102[m] ). A limited liability company is more akin to a partnership (see Partnership Law § 2, § 10 ) since both entities are “combination[s] of individuals, who can suffer injuries and do have spouses, households and relatives” ( Buckner v. Motor Vehicle Acc. Indemnification Corp., supra at 214, 495 N.Y.S.2d at 954, 486 N.E.2d at 812). Notably, in Matter of Aetna Casualty & Surety Co. v. Mantovani, 240 A.D.2d 566, 658 N.Y.S.2d 926, leave denied 90 N.Y.2d 810, 665 N.Y.S.2d 401, 688 N.E.2d 257, an arbitration award in favor of a partner for underinsured motorist benefits under a business automobile policy issued to the partnership was upheld.

 

Merchants’ motion for summary judgment dismissing plaintiffs’ complaint is denied, without costs. However, because a non-moving party may be awarded summary judgment “with respect to a cause of action or issue that is the subject of the motions before the court [citations omitted]” ( Dunham v. Hilco Const. Co., Inc., 89 N.Y.2d 425, 430, 654 N.Y.S.2d 335, 337, 676 N.E.2d 1178, 1180 [1996] ), and this Court having searched the record, plaintiffs are granted partial summary judgment (CPLR 3212[b] ) determining that, subject to compliance with other conditions of the policy, the plaintiffs are entitled to SUM benefits for Morette’s injuries and death.

 

“[T]he entry of the summary judgment shall be held in abeyance pending the determination of” (CPLR § 3212[e]) the remaining issues raised by the pleadings.

 

D.

The defendants’ cross-motions for summary judgment, on the ground that plaintiffs have not taken “all reasonable efforts” to identify the motor vehicle and its owner and driver which struck Morette, are denied as the defendants have not met their burden of proof. Johnston’s statement that he believes Steady was involved in the accident is pure speculation. “[C]onclusions based upon surmise, conjecture, speculation or assertions are without probative value’ [internal quotation marks omitted] ( Dapp v. Larson, 240 A.D.2d 918, 919, 659 N.Y.S.2d 130, quoting Maiorano v. Price Chopper Operating Co., 221 A.D.2d 698, 699, 633 N.Y.S.2d 413; see, Whiting v. Bella Vista Dev. Corp., 267 A.D.2d 662, 663, 699 N.Y.S.2d 552)” ( Denny v. New York State Industries For Disabled, 291 A.D.2d 615, 616, 737 N.Y.S.2d 674, 676). Steady’s written statement and deposition testimony regarding the Mazda van and his own conduct are similarly insufficient to warrant the award of summary judgment to the defendants. “Viewing the evidence in a light most favorable to the plaintiff[s] as the part[ies] opposing summary judgment, and giving [them] the benefit of every favorable inference (see, Sheryll v. L & J Hairstylists of Plainview, 272 A.D.2d 603, 709 N.Y.S.2d 429; Rockowitz v. City of New York, 255 A.D.2d 434, 680 N.Y.S.2d 864)” ( Perez v. Exel Logistics, Inc., 278 A.D.2d 213, 214, 717 N.Y.S.2d 278, 279; see also Greco v. Boyce, 262 A.D.2d 734, 691 N.Y.S.2d 599), material issues of fact exist requiring trial. The defendants’ cross-motions are thus denied without costs.

 

It Is So Ordered.