United States District Court,

M.D. Tennessee,

Nashville Division.

Matthew STONE, Plaintiff,

v.

MARTEN TRANSPORT, LLC, Max R. Pittner, Jr., Americold Mfl 2010, L.L.C., and Dls Trucking, Inc., Defendant.

 

No. 3:12–cv–0396.

Filed April 25, 2014.

 

Daniel P. Clark, Jacob Borchers, J. Robert Miller, Jr., Miller & Brown LLP, Hardin Ramey, Ramey Law Firm, PLLC, Dallas, TX, Joel P. Surber, L. Marshall Albritton, Parker, Lawrence, Cantrell & Dean, Nashville, TN, for Plaintiff.

 

Adam B. Reed, Hermes Sargent Bates LLP, Dallas, TX, Alan B. Easterly, Leitner, Williams, Dooley & Napolitan, PLLC, Chattanooga, TN, Joseph C. Johnsen, Leitner, Williams, Dooley, and Napolitan, Alexander T. Galloway, III, Moore, Ingram, Johnson & Steele, LLP, Nashville, TN, William T. Hart, Alex B. Morrison, Moore, Ingram, Johnson & Steele, LLP, Knoxville, TN, for Defendants.

 

MEMORANDUM

ALETA A. TRAUGER, District Judge.

*1 Defendant DLS Trucking, Inc. (“DLS Trucking”) has filed a Motion for Summary Judgment (Docket No. 116). In circumstances that present a peculiar procedural posture, plaintiff Matthew Stone has filed a Response stating that he does not oppose the DLS Trucking’s motion (Docket No. 122), whereas defendants Marten Transport, LLC and Max R. Pittner, Jr. (collectively, “Marten/Pittner”) and Americold MFL 2010, L.L.C. (“Americold”) have filed separate Responses in opposition to the motion. (Docket Nos. 126 and 134.) FN1 DLS Trucking filed separate Replies to Americold’s and Marten/Pittner’s opposition briefs. (Docket Nos. 129 (responding to Americold) and 135 (responding to Marten/Pittner).) For the reasons stated herein, the motion will be granted, Stone’s claims against DLS Trucking will be dismissed, the court will not enter a “final judgment” for DLS Trucking under Rule 54(b) at this stage, and the court expresses no opinion concerning the preclusive effect of the associated summary judgment order as it relates to listing DLS Trucking on the verdict form.

 

FN1. Marten Transport employed Max Pittner during the incident at issue. Stone originally asserted both compensatory and punitive claims against Pittner, as well as compensatory and punitive damages claims against Marten Transport individually and on a respondeat superior basis. On April 23, 2014, the court entered Consent Judgments dismissing the individual claims and punitive damages claims against Marten Transport and the punitive damages claims against Pittner. (Docket Nos. 139 and 140.) With respect to Marten Transport and Pittner, only nonpunitive individual claims against Pittner and vicarious liability claims against Marten Transport remain. Because Marten Transport and Pittner have defended the lawsuit jointly, the court will refer to them collectively as “Marten/Pittner,” unless the context requires otherwise. The court also notes that, without opposition and with leave of court, Marten/Pittner filed a late Response to DLS Trucking’s motion.

 

BACKGROUND

I. Basic Facts

Americold owns a trucking distribution center in Murfreesboro, Tennessee, where it provides temperature controlled warehousing for the storage and movement of General Mills products. Trailer trucks pick up and unload trailers at the facility. The facility has two main parking lots, “Lot 1” and “Lot 2,” which are separated by a grassy median strip. Americold contracts with DLS Trucking to perform “yard dog” work at the facility, which involves moving empty trailers to the loading docks and moving loaded trailers to Lot 2. When parking the trailers in Lot 2, DLS Trucking is supposed to park the trailers on a concrete landing pad, which is designed to support the weight of the trailer when the trailer’s “landing gear” is deployed.

 

On August 28, 2010, plaintiff Matthew Stone traveled from Shelbyville, Tennessee to Americold’s Murfreesboro facility to pick up an empty trailer from Lot 1. On the same day, Max Pittner, who was driving for Marten Transport at the time, intended to pick up a loaded trailer from Lot 2, where DLS Trucking had placed it after moving the loaded trailer away from Americold’s loading docks. At Lot 2, Pittner backed his truck up to a loaded trailer, performed a “tug test” to check the connection between the truck and the trailer and to check the brakes, and exited the truck to connect the air lines and electrical lines between the tractor truck and the trailer. After Pittner raised the landing strips, he attempted to read the seal on the back of the truck. The seal was too high to read, so Pittner went back to his tractor to pull the trailer forward before attempting to read the seal again. For purposes of linguistic simplicity only, the court will refer to that trailer herein as “Pittner’s trailer.”

 

At approximately the same time, Stone pulled up to an unloaded trailer in Lot 1—on the other side of the grass median from Pittner’s trailer on Lot 2—exited his truck, and walked to the back of the empty trailer to examine it.

 

*2 In the meantime, Pittner prepared to move his truck and the attached trailer forward, but, for reasons unknown to Pittner, it did not move forward. Pittner placed the tractor in neutral and placed his foot on the brake pedal. Unbeknownst to Pittner (initially), the truck and the attached trailer began rolling backwards. After realizing that the truck was rolling backwards, Pittner pressed his foot on the brakes to no avail.FN2 Unfortunately, Stone was positioned in Pittner’s blind spot and did not see or hear Pittner’s trailer backing towards him across the median. Pittner’s trailer struck Stone and pinned him between the two trailers, causing him to suffer significant injuries.FN3

 

FN2. Although it is not material to the instant motion, the parties do not contend that the brakes themselves were defective. The plaintiffs initially added the brake manufacturer as a defendant, but later dismissed the brake manufacturer by joint stipulation. (Docket No. 96.) Under the terms of the Stipulation, the parties agreed not to assign blame to that entity at trial.

 

FN3. According to a Joint Stipulation of Facts filed by the parties, Stone incurred over $193,000 in reasonable and necessary medical expenses as a result of injuries directly caused by the August 28, 2010 incident. (Docket No. 110.)

 

II. Procedural History

On March 28, 2013, Stone filed a First Amended Complaint (Docket No. 50) (“FAC”), which asserted Tennessee state law claims against (1) Marten/Pittner, (2) Americold, and (3) DLS Trucking.FN4 With respect to DLS Trucking, Stone alleged that DLS Trucking negligently failed to place the trailer in a manner that would have prevented it from rolling backwards across the median, negligently failed to remove the danger it created and/or to warn Stone about that danger, and/or negligently failed to take precautions to prevent rollbacks. (FAC ¶¶ 25–27; see also FAC ¶ 36 (gross negligence).)

 

FN4. Stone also initially named Utility Trailer Manufacturing Company and Bendix Commercial Vehicle System LLC as defendants. The parties stipulated to the voluntary dismissal of both companies, subject to the condition that no party would blame Utility or Bendix for any of Stone’s injuries at trial. (Docket No. 96.)

 

In their respective Answers to the FAC, each defendant pleaded that Stone and/or the other defendants were responsible in whole or in part for Stone’s injuries, as either (1) the sole or intervening cause of Stone’s injuries, or (2) a contributing cause of Stone’s injuries under the doctrine of “modified comparative fault.” In most relevant part, Americold and Marten /Pittner specifically pleaded that DLS Trucking was wholly or partially at fault for Stone’s injuries.

 

On November 15, 2013, Stone and DLS Trucking entered into and filed a Stipulation that stated in part as follows:

 

DLS Trucking, Inc. has zero percent (0%) fault for the August 28, 2010 accident involving Matthew Stone which is the subject of this lawsuit. 100% of the fault for the accident is between Americold MFL 2010, L.L.C and Marten Transport, LTD/Max R. Pittner, Jr.

 

This is stipulation may be used for all purposes available during litigation and trial.

 

(Docket No. 103.) Americold and Marten/Pittner were not parties to the Stipulation. Curiously, notwithstanding the terms of the Stipulation, Stone did not seek to dismiss DLS Trucking from the case.

 

III. DLS Trucking’s Motion for Summary Judgment

On February 26, 2014, DLS Trucking filed the instant Motion for Summary Judgment, in support of which it filed a Memorandum of Law (Docket No. 117), a Concise Statement of Undisputed Material Facts (Docket No. 118), and evidentiary materials (Docket No. 116, Exs. 1–3.) Anticipating a response from its co-defendants, DLS Trucking argued that Americold and Marten/Pittner lack standing to oppose the motion. DLS Trucking also argued that, as a matter of law, the undisputed facts showed that (1) DLS Trucking was not a “substantial factor” in causing Stone’s injuries (i.e., that it was not a proximate cause), or (2) Pittner’s actions constituted an independent intervening cause of Stone’s injuries.

 

*3 The remaining parties’ responses to the motion have resulted in an uncommon procedural posture. On the one hand, Stone does not oppose DLS Trucking’s motion, Stone reiterates (consistent with his Stipulation) that DLS Trucking “has 0% fault for the accident and 100% of the fault is between the remaining co-defendants,” and Stone does not dispute any of DLS Trucking’s asserted facts. On the other hand, Americold and Marten/Pittner oppose the motion. Americold argues that there are disputed issues of material fact concerning DLS Trucking’s culpability and that they (Americold and Marten/Pittner) have standing to raise those issues of material fact in opposition to the motion.FN5 Marten/Pittner incorporate Americold’s arguments by reference. Marten/Pittner’s brief also argues that, in the alternative, the court could treat the Stipulation as a Rule 41 motion for voluntary dismissal and essentially decline to address the Rule 56 motion, thereby preserving the comparative fault defenses of Americold and Marten/Pittner.FN6

 

FN5. In support of its opposition brief, Americold filed (1) a Response to DLS Trucking’s SUMF, in which, unlike plaintiff Stone, Americold purports to dispute certain facts. (Docket No. 125); (2) a Concise Statement of Additional Material Facts (“Americold’s SAMF’_); and (3) evidentiary materials (Docket No. 126, Exs. 1–8). In support of its separate opposition brief, which also incorporated Americold’s arguments by reference, Marten/Pittner filed a Response to DLS Trucking’s SUMF, which, similar to Americold’s position but inconsistent with Stone’s position, purports to dispute certain facts. (Docket No. 135.)

 

FN6. Marten/Pittner do not cite any legal authority for this proposed approach.

 

Stone and DLS Trucking each filed separate Responses to Americold’s SAMF (Docket Nos. 128 and 129), and DLS Trucking filed separate reply briefs addressing Americold and Marten/Pittner’s arguments.

 

ANALYSIS

I. Comparative Fault

As explained in Lake v. Memphis Landsmen, LLC, 2014 WL 895519, at *5 (Tenn.Ct.App. Mar.7, 2014), Tennessee utilizes the doctrine of comparative fault in tort cases:

 

[I]n 1992, the Tennessee Supreme Court abandoned contributory negligence in favor of a system of modified comparative fault. In doing so, the court sought a tighter fit between liability and fault. Under the new system, a defendant would only be liable for the percentage of damages that his or her own negligence caused. Additionally, the court adopted the non-party defense, allowing juries to apportion fault to a culpable person or entity though they are not a party to the lawsuit. The court recognized that without allowing participants in the negligent act to share in the apportionment of fault, the tight fit between fault and liability would be lost. Indeed, this Court has stated that the Trial Court has the responsibility to apportion fault to anyone having a degree of culpability.

 

2014 WL 8955519, at *5 (internal citations, quotations, and brackets omitted); see also Carroll v. Whitney, 29 S.W.3d 14, 21 (Tenn.2000) (finding that comparative doctrine requires “allocation of fault to all persons involved in an injury causing event.”) (emphasis added).

 

In applying the comparative fault doctrine, courts should further the “goal of fairness that underlies [Tennessee’s] adoption of comparative fault,” not frustrate it by permitting a plaintiff to “shift to some defendants the fault which is properly allocated to other nonparties.” Id. at 21. Accordingly, a defendant accused of negligence should be shielded from shouldering liability greater than its proportional degree of fault, “even though such protection may come at the expense of plaintiffs.” Id. (citing Carroll v. Whitney, 29 S.W.3d 14 (Tenn.2000)); see also Dotson v. Blake, 29 S.W.3d 26 (Tenn.2006) (jury may apportion fault to parties that are “effectively immune,” such as those protected by a statute of repose); Carroll, 29 S.W.3d at 21 (finding that jury should have been permitted to allocate fault to an immune non-party, even though it would have precluded plaintiff from receiving full compensation for plaintiff’s damages). As stated in Lake, this principle applies to non-parties and dismissed parties alike.

 

II. Standing

*4 The parties have engaged in a robust debate about whether Americold and Marten/Pittner have “standing” to oppose DLS Trucking’s motion in the first place, where Stone (the plaintiff) has not opposed it. As summarized in a law review article referenced by DLS Trucking in its opening brief, the issue of whether one co-defendant may oppose another co-defendant’s motion in the absence of a cross-claim is an issue that has vexed federal district courts. See generally Jonathan A. Wolfson, Warring Teammates: Standing to Oppose a Coparty’s Motion for Summary Judgment, 60 Drake L.Rev. 561 (2012). It does not appear that the Sixth Circuit or any other federal appellate court has addressed this issue.

 

Having examined the authorities referenced by the parties, the court concludes that Americold and Marten/Pittner have a right to challenge DLS Trucking’s motion. Although some courts seem to hold that “standing” to oppose a motion requires that parties be on opposite sides of the “v.”, that approach is unnecessarily myopic. In a comparative fault jurisdiction such as Tennessee, a defendant has a stake in whether another entity will be listed on the verdict form, because that other entity (whether or not a party at trial) could be held liable for some measure of the plaintiff’s damages, thereby relieving the defendant from being allocated that percentage of liability.

 

Here, DLS Trucking in part contends that it is entitled to judgment because (1) the plaintiff has stipulated that DLS Trucking is 0% liable, and (2) the plaintiff does not dispute DLS Trucking’s statements of fact. If the court were to adopt DLS Trucking’s position, it could have adverse consequences for Americold and Marten/Pittner, who might be forced to shoulder any blame that might otherwise be assigned to DLS Trucking. Accordingly, if the court were to ignore Americold and Marten/Pittner’s arguments and factual challenges out of hand, it could prejudice Americold and Marten/Pittner’s substantive right under Tennessee law to assign blame to potentially culpable parties. Because Americold and Marten/Pittner certainly “have a dog in this fight,” the court finds that they have standing to challenge the motion.FN7

 

FN7. The court has used the qualifiers “might” and “could” intentionally. The parties have not briefed the issue of the potential preclusive effect of a summary judgment order in favor of DLS Trucking on Americold and Marten/Pittner’s rights at trial, although the potential for preclusion seems to animate their respective positions concerning DLS Trucking’s Rule 56 motion. Based on the court’s own preliminary research, this may be an unsettled issue of law that merits targeted consideration by the parties and the court in advance of trial.

 

In McDonald v. Petree, which involved Tennessee state law claims, the Sixth Circuit found that a defendant could assign fault at trial to a former defendant that had obtained summary judgment. 409 F.3d 724 (6th Cir.2005). This court has located at least two district courts that have struggled with the appropriate application of McDonald. See Jernigan v. CL Bros. Trucking, Inc., 2010 WL 2389548 (E.D.Tenn. June 8, 2010) (applying federal common law estoppel doctrine in light of McDonald and determining that, under that doctrine, remaining defendants were precluded from attributing fault to former defendant in whose favor final judgment had entered under Rule 54(b) following summary judgment, but that remaining defendants were not precluded from attributing fault to two former co-defendants in whose favor judgment had not entered under Rule 54(b) following summary judgment); Quillin v. Easton Sports, Inc., 2005 WL 3560641, *2 (E.D.Tenn. Dec.28, 2005) (characterizing McDonald as “a significant and unanticipated change in what appeared to be the law in Tennessee”). By contrast, as explained in the Tennessee Practice Series, the Tennessee Supreme Court’s recent decision in Banks v. Elks Lodge of Tenn. 1102, 301 S.W.3d 214 (Tenn.2010), which was issued five years after the Sixth Circuit’s decision in McDonald, suggests that the conclusion in McDonald may not have been consistent with Tennessee law. See 17 Tenn. Pract. Tenn. Law of Comparative Fault § 12:9, TNPRAC–CF § 12.9 (2013 ed.). In Banks, the Tennessee Supreme Court found that, when a court directs a verdict for one defendant, “the jury cannot be requested to allocate any portion of the fault to the now-dismissed defendant.” 301 S.W.3d at 225. In the Tennessee Practice Series, the authors suggest that Banks should apply equally to summary judgment orders and that McDonald was wrongly decided. See TN PRAC–CF § 12.9, n. 16.

 

Here, because the parties have not directly addressed the issue, the court expresses no opinion concerning the preclusive effect of its summary judgment order in favor of DLS Trucking, nor does the court express any opinion as to the continuing validity, persuasive value, and appropriate application of McDonald here. Also, given that DLS Trucking has not requested a final order of judgment in its motion and the court’s interest in avoiding some type of unintended consequence of its holding, the court will not enter a final judgment for DLS Trucking under Rule 54(b) at this time, even though it will be dismissing Stone’s claims against DLS Trucking. At any rate, presumably the parties will address the preclusive effect of its summary judgment order with the court in advance of trial, whether by agreement or through a dispute, if the issue is contested.

 

Based on the court’s own research, it appears that this approach is consistent with how Tennessee courts have themselves treated a defendant’s right to challenge a co-defendant’s motion for summary judgment, where the non-moving defendant has asserted the comparative fault of the moving co-defendant. In Conley v. Life Care Ctrs. of Am., Inc., 236 S.W.3d 713 (Tenn.Ct.App.2007), a former nursing home resident’s estate initially sued Life Care for negligence related to her care. After Life Care asserted the defense of comparative fault and stated that both a Tennessee agency and a third-party psychiatric care company (Genesis) were partially at fault, the plaintiff filed an administrative claim against the agency and filed an amended complaint naming Genesis as a party. When Genesis later moved for summary judgment, the plaintiff did not oppose the motion, but Life Care did, contending that genuine issues of material fact precluded summary judgment in favor of Genesis. The trial court held a hearing on the motion and found in favor of Genesis on the merits.FN8 On appeal, the Court of Appeals conducted a “fresh review” of Life Care’s challenge to Genesis’s motion. The court examined the factual evidence in the record and the opinions of multiple experts, including Life Care’s retained expert, who had opined that Genesis had violated its duty of care to the decedent in multiple respects. Based on this review, the court concluded that the evidence in the record “created a genuine dispute of facts material to Plaintiff’s claims against Genesis.” Id. at 737. Accordingly, the court reversed the trial court’s dismissal of the plaintiff’s claims against Genesis—even though the plaintiff had not opposed Genesis’ motion—and remanded the case for a new trial that would list Genesis on the verdict form. Id. Although Tennessee law does not control this court’s application of federal procedural rules, the court finds it significant that, in the context of applying the doctrine of comparative fault, the Tennessee Courts of Appeal have found that a trial court’s refusal to entertain a defendant’s meritorious opposition to a co-defendant’s motion for summary judgment—even where the plaintiff did not oppose the motion—was reversible error in light of the appropriate application of the comparative fault doctrine.

 

FN8. It is not clear whether Genesis or the plaintiff in that case challenged Life Care’s right to oppose the motion in the first place.

 

*5 In sum, the court finds that it is appropriate to consider the merits of Americold and Marten/Pittner’s arguments that summary judgment in favor of DLS Trucking is not warranted. To the extent that DLS Trucking has identified district court cases in other jurisdictions reaching a different conclusion—none of which appears to address the potential prejudice to remaining defendants in a comparative fault jurisdiction—the court finds those cases to be unpersuasive on the issue presented here.FN9

 

FN9. In its initial brief in support of its motion, DLS Trucking relied on the Drake Law Review article referenced herein. Consistent with the court’s conclusion here, that article in fact advocated that district courts should find that a co-defendant has the right to challenge another defendant’s motion for summary judgment on claims by the plaintiff, where that defendant has a material interest in the outcome of the motion. See 60 Drake L.Rev. at 604 “[C]oparties should have the opportunity to oppose co defendant’s motions,” because “[t]he relevant question is not on which side of the case a party sits—the ‘v.’—but rather on which side of an issue the party stands. Parties in opposition to one another or with differing interests on an issue should have standing to make arguments against one another, including opposing codefendant motions for summary judgment. Granting standing prevents appeals, does not unnecessarily impede courtroom efficiency, and protects the rights and interests of all parties to the litigation.”)

 

On a final note, DLS Trucking suggests that Americold and Marten/Pittner lack “standing” to oppose the motion because they did not file cross-claims against DLS Trucking. In the context of Tennessee’s comparative fault regime, that procedural fact is not determinative. In Tennessee, subject to conditions not relevant here, a defendant that asserts the defense of comparative fault may be held liable only for its proportionate fault. Thus, even where another entity is partially at fault in addition to defendant X, defendant X does not hold a “claim” against that other entity for the balance of the plaintiff’s damages attributable to that other entity’s fault. To quantify the issue, imagine that Americold is found to be 60% at fault, Marten/Pittner 30% at fault, and DLS Trucking 10% at fault for the incident at issue, and that Stone suffered $1 million in compensable damages. Americold would be liable to Stone only for the proportion of those damages for which it is at fault—i.e., $600,000. Americold would not hold a “claim” against its co-defendants for the remaining $400,000, because Americold is not liable to Stone for those damages in the first place. That is essentially the point of the comparative fault doctrine—there is no need for Americold to assert claims for contribution from anyone else. As this example demonstrates, under Tennessee’s comparative fault regime, Americold did not have, and does not have, a cross-“claim” against its co-defendants (or, for that matter, any other entity potentially at fault for the incident) to assert in the first place. Therefore, it would make little sense to penalize Americold and Marten/Pittner for “failing” to assert cross-claims that they never held and did not need to assert to vindicate their right under Tennessee law to be liable to Stone only for their proportionate fault.

 

III. Summary Judgment Analysis

 

A. The Effect of the Stipulation

 

As an initial matter, the court rejects the proposition that the Stipulation between DLS Trucking and Stone acts as an unassailable determination of DLS Trucking’s potential culpability for Stone’s injuries. Under Tennessee comparative fault law, Americold and Marten/Pittner should not be held responsible for more than their proportionate share of liability, regardless of whether Stone has abandoned pursuing DLS Trucking for damages (either because Stone truly believes that DLS Trucking is not at fault or for some unstated strategic reason). Indeed, if DLS Trucking had not been made a party in the first place, Americold and Marten/Pittner could still have asserted the comparative fault of DLS Trucking (as a non-party “empty chair”) and have sought to list DLS Trucking on the verdict form as a responsible party, since Tennessee permits the jury to assign fault to a non-party.

 

*6 The question remaining for the court is whether there is a genuine dispute of fact concerning DLS Trucking’s potential culpability, regardless of the existence of the Stipulation.

 

B. Summary Judgment Standard

Rule 56 requires the court to grant a motion for summary judgment 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) (2014). At the summary judgment stage, the moving party bears the initial burden of identifying those parts of the record that demonstrate the absence of any genuine issue of material fact. Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir.2009); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, if the moving party seeks summary judgment on an issue for which it does not bear the burden of proof at trial, the moving party may meet its burden by showing that there is an absence of evidence to support the non-moving party’s case. Id. (citing Celotex, 477 U.S. at 325). “When the moving party has carried this burden, ‘its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.’ ” Id. (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) .) The non-moving party also may not rest upon its mere allegations or denials of the adverse party’s pleadings, but rather must set forth specific facts showing that there is a genuine issue for trial. Id.

 

At this stage, “ ‘the judge’s function is not … to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.’ “ Moldowan, 578 F.3d at 374 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “In evaluating the evidence, the court must draw all inferences in the light most favorable to the nonmoving party.” Moldowan, 578 F.3d at 374 (citing Matsushita, 475 U.S. at 587). But “[t]he mere existence of a scintilla of evidence in support of the non-moving party’s position will be insufficient,” Moldowan, 578 F.3d at 374 (quoting Anderson, 477 U.S. at 252), and the non-movant’s proof must be more than “merely colorable.”   Anderson, 477 U.S. at 249. An issue of fact is “genuine” only if the record taken as a whole could lead a rational trier of fact to find for the non-moving party. Moldowan, 578 F.3d at 374 (citing Matsushita, 475 U.S. at 587).

 

C. Application

 

1. Statements of Fact

 

Here, in response to DLS Trucking’s motion, Americold and Marten/Pittner have not meaningfully disputed the facts relied upon by DLS Trucking. Although Americold states that certain facts are “disputed as stated,” it fails to explain why those facts are disputed, let alone offer contrary evidence. Similarly, Marten/Pittner’s response complains that certain facts stated by DLS Trucking simply paraphrase testimony by particular witnesses, but Marten/Pittner fails to identify evidence contradicting or clarifying the stated facts and referenced testimony. Having reviewed these submissions and having considered the individual objections, the court finds that DLS Trucking’s asserted facts are essentially undisputed. At any rate, to the extent that DLS Trucking has sought to characterize the testimony of particular witnesses, the court takes the point, and the court accordingly has scrutinized the underlying testimonial excerpts in determining the specific facts that are material to DLS Trucking’s motion.

 

*7 Americold and Marten/Pittner also filed additional statements of fact, which draw from additional factual and expert testimony in the record. The court’s analysis also incorporates those facts, which are undisputed for purposes of DLS Trucking’s motion.

 

2. Substantial Factor

Under Tennessee law, to show negligence, a party must prove both causation in fact and proximate cause. Kilpatrick v. Bryant, 686 S.W.2d 594, 598 (Tenn.1993). “In Tennessee, there is a three-pronged test for proximate causation: (1) the tortfeasor’s conduct must have been a “substantial factor” in bringing about the harm being complained of; [ ](2) there is no rule or policy that should relieve the wrongdoer from liability because of the manner in which the negligence has resulted in the harm; and (3) the harm giving rise to the action could have reasonably been foreseen and anticipated by a person of ordinary intelligence and prudence.” Fowler v. Henderson, 2003 WL 23099686, at *7 (citing McClenehan v. Cooley, 806 S.W.2d 767, 775 (Tenn.1991)); Hale v. Ostrow, 166 S.W.3d 713, 719 (Tenn.2005). “Proximate causation is a jury question unless the uncontroverted facts to drawn from them make it so clear that all reasonable persons must agree on the proper outcome.” Roe v. Catholic Diocese of Memphis, Inc., 950 S.W.2d 27, 31 (Tenn.Ct.App.1996) (citing McClenehan, 806 S.W.2d at 775); see also Fowler, 2003 WL 23099686, at *7 (finding no genuine dispute of material fact on issue of proximate causation and affirming district court grant of summary judgment). Here, DLS Trucking argues that there is no genuine dispute of material fact that any action by DLS Trucking was a “substantial factor” in causing Stone’s injuries.

 

Americold argues that there is sufficient evidence to show that DLS Trucking’s placement of the trailer on Lot 2 was a substantial factor in causing Stone’s injuries.FN10 In its opposition brief, Americold contends that DLS Trucking did not place the trailer completely on the concrete parking strip, that the distance the trailer rolled back onto Stone was therefore shorter, and that, as a consequence, Stone had “less time to recognize and respond [to the situation] than he would have had if the trailer had been properly parked on the parking strip.” (Docket No. 126 at p. 10.) In other words, Americold argues that Stone might have been able to avoid the accident if DLS Trucking had properly placed the trailer on the concrete slab.

 

FN10. Marten/Pittner incorporated Americold’s arguments in opposition to the motion by reference.

 

The problem for Americold and Marten/Pittner is that no witness or expert endorsed this theory of liability against DLS Trucking. One of Americold’s Rule 30(b)(6) witnesses testified that neither he nor anyone else at Americold had ever stated or even “speculated” that DLS Trucking had done anything wrong with respect to the August 28, 2010 incident. Similarly, Americold’s regional safety specialist, who apparently was designated to testify on behalf of Americold on the topics of safety inspection and accident investigation, testified that he was not aware of any concerns or criticisms of DLS Trucking by Americold in connection with this lawsuit or in connection with the incident more generally. Accident reconstruction expert John Glennon, whom the court presumes is a retained expert for Americold,FN11 testified that, based on Pittner’s testimony, the truck may have been parked only seven feet from Stone, rather than 16 feet from Stone (as it would have been if parked properly). However, Americold has not identified any testimony by Glennon in which Glennon opined that the shorter distance between the two trucks contributed to the injury by depriving Stone of time to react to the oncoming trailer. Similarly, at his deposition, Pittner expressed no complaint about DLS Trucking’s placement or movement of the truck. He testified that, immediately before the incident, he did not have “any concerns at all” about the way that the trailer had been parked on the lot, either before or after he raised the landing gear.FN12 Finally, Americold has not identified testimony from Stone or any other fact witness purporting to blame DLS Trucking for causing Stone’s injuries.

 

FN11. Americold’s brief does not actually state that it retained Glennon, although the substance of the excerpts from Glennon’s testimony suggest that he was retained by Americold.

 

FN12. Pittner reiterated this point multiple times at his deposition. (See Pittner Dep. at 125:3–5 (“Q: And did you have any concerns at all about the way that the trailer was parked on the lot? A: No, because it was flat.”), 125:11–14 (“Q: And when you cranked up the landing gear, you didn’t have any concerns about the way the trailer was parked, did you? A: No.”), 125:21–126:3 (“So when you got into the truck and loaded up the trailer with the kingpin, then you basically were ready to go forward and didn’t have any concerns at all? A: No. Q: About the way the trailer was parked? A: No. Q: That’s a true statement? A: Yes.”), 126:16–18 (“Q: But when you went and picked up this trailer, there weren’t any concerns to you at all? A: I never had an issue there before.”), and 126:24–127:6 (“[Y]ou did a full observation of where those tires were parked on the pavement? A: Yeah, I seen [sic] they were real close to the pavement. Q: Okay. But that wasn’t any concern to you? A: No[.]”).)

 

*8 In sum, Americold’s own witnesses disclaimed any responsibility by DLS Trucking, Pittner disclaimed responsibility by DLS Trucking, no expert opined that the distance between Pittner’s trailer and Stone contributed to the incident by depriving Stone of the opportunity to react to the trailer as it rolled back, and no fact witness has testified that DLS Trucking was even partially responsible for the incident.FN13 Under the circumstances, the court finds that no reasonable person could conclude that DLS Trucking’s conduct was a substantial factor in causing Stone’s injuries based on the theory articulated by Americold. Therefore, a jury could not find that DLS Trucking proximately caused the incident and summary judgment for DLS Trucking is warranted on that basis alone.

 

FN13. It goes without saying that, since Stone has stipulated that DLS Trucking is 0% liable, Stone does not hold with this theory that (1) more time to react would have prevented or lessened his injuries or, for that matter, (2) closer placement of the trailer was otherwise a cause of his injuries.

 

D. Intervening Cause

In Tennessee, the intervening cause doctrine operates to relieve a negligent actor from liability “when a new, independent, and unforeseen cause intervenes to produce a result that the negligent actor could not have reasonably foreseen.” Rains v. Bend of the River, 124 S.W.3d 580, 593 (Tenn.Ct.App.2003).FN14 Here, because the court finds that summary judgment for DLS Trucking is warranted on the independent basis that there is not a genuine dispute of material fact concerning proximate cause (for the reasons stated in the previous section), the court need not address DLS Trucking’s alternative argument that it is also entitled to summary judgment because Pittner’s actions constituted an intervening cause of Stone’s injuries.

 

FN14. “The doctrine applies when the intervening act (1) was sufficient by itself to cause the injury; (2) was not reasonably foreseeable to the negligent actor, and (3) was not a normal response to the negligent actor’s conduct.” Id. at 593. If those conditions are met, the superseding cause “breaks the chain of proximate causation.” White, 975 S.W.2d at 529.

 

E. Final Thoughts

Having considered Americold and Marten/Pittner’s countervailing arguments on the merits, the court finds that summary judgment in favor of DLS Trucking is warranted. Marten/Pittner has not articulated any legal grounds under which the court should treat the Stipulation by DLS Trucking as a Rule 41(a) motion, at least under the circumstances presented here.FN15 The court will therefore dismiss Stone’s claims against DLS Trucking. However, in an abundance of caution, the court will not enter final judgment in favor of DLS Trucking at this time, although DLS Trucking is without prejudice to file a separate motion for entry of final judgment under Rule 54(b).

 

FN15. Certainly, if the court had found that there is a genuine dispute of material fact concerning DLS Trucking’s potential culpability, it would have created an odd and presumably uncommon scenario. If DLS Trucking remained a party, it would need to “defend” itself against claims for which it faces no liability to the plaintiff, because (and this is the odd part) the plaintiff essentially disclaimed any right to recover from DLS Trucking, even if the co-defendants satisfied the jury that DLS Trucking is proportionally at fault. Because Tennessee permits the jury to assign liability to non-parties or dismissed parties under appropriate circumstances, it would seem to make no difference whether DLS Trucking remained a party or not. Under that assumption, it would seem unfair to force DLS Trucking to incur trial-related litigation costs in a case in which it no longer faces potential liability. At any rate, the court need not consider how it might have exercised its equitable discretion under this scenario, because DLS Trucking is entitled to summary judgment for the reasons stated herein.

 

In light of the court’s findings in this opinion and the court’s separate Memorandum and Order addressing Americold Partial Motion for Summary Judgment, it appears that the following claims remain for trial: (1) Stone’s non-punitive damages claims against Americold; (2) Stone’s non-punitive damages claims against Pittner individually; and (3) Stone’s non-punitive damages claims against Marten Transport based on a theory of vicarious liability only. Again, because the parties have not directly addressed the issue, the court expresses no opinion concerning whether its grant of summary judgment to DLS Trucking precludes Americold and Marten/Pittner from asserting at trial that the jury should assign fault to DLS Trucking.

 

CONCLUSION

*9 DLS Trucking’s Motion for Summary Judgment will be granted and Stone’s claims against DLS Trucking will therefore be dismissed.

 

An appropriate order will enter.

United States District Court,

E.D. California.

IMPERIUM INSURANCE COMPANY, Plaintiff,

v.

UNIGARD INSURANCE COMPANY, et al., Defendants.

 

No. 1:13–cv–01707–JLT.

Signed April 28, 2014.

 

Kevin P. McNamara, Traub Lieberman Straus & Shrewsberry LLP, Los Angeles, CA, for Plaintiff.

 

Barbara Kekich, Brown, Brown & Klass, Agoura Hills, CA, Roger Evan Booth, Booth & Koskoff, Torrance, CA, for Defendants.

 

ORDER GRANTING PLAINTIFF IMPERIUM INSURANCE COMPANY’S MOTION FOR SUMMARY ADJUDICATION AND DENYING DEFENDANT UNIGARD INSURANCE COMPANY’S CROSS–MOTION FOR SUMMARY JUDGMENT

JENNIFER L. THURSTON, United States Magistrate Judge.

*1 Imperium Insurance Company, formerly known as Delos Insurance Company (“Imperium”) and Unigard Insurance Company (“Unigard”) have filed cross-motions for summary judgment or, in the alternative, summary adjudication of Imperium’s claims. (Docs.34, 39.) The Court heard the oral arguments of the parties on April 23, 2013. For the following reasons, Imperium’s motion for summary judgment is GRANTED, and Unigard’s cross-motion is DENIED.

 

I. Relevant Factual and Procedural History

Imperium issued insurance policy number DTP7400107 to Juarez Brothers Tucking, Inc. and Juarez Agri Mix Transport, Inc. (collectively, “Juarez”), for the period of March 1, 2010 to March 1, 2011. (Doc. 1 at 3.) According to Imperium, the policy “provides commercial auto liability insurance to Juarez.” (Id.) Specifically, Imperium alleges:

 

Under Coverage A, the Imperium Policy obligates Imperium to pay those sums that the insured legally must pay as damages because of “bodily injury” or “property damage,” to which the Imperium Policy applies, caused by an “accident,” and “resulting from the ownership, maintenance or use of a covered ‘auto.’ ”

 

(Doc. 1 at 3.) Further, Imperium asserts Unigard Insurance Company “issued a multi-line commercial insurance policy, policy number CM004237 to Juarez for a policy period of March 1, 2010 to March 1, 2011.” (Id. at 4, footnote omitted.) Imperium alleges that the Unigard policy “provided commercial general liability insurance to Juarez.” (Id.)

 

Imperium reports that an action entitled Fernando Sanchez v. Seaco Technologies, Inc., et al., was filed on August 6, 2012 in Kern County Superior Court, Case No. S–1500–CV–277330–WDP. (Doc. 1 at 6.) Juarez is identified as a defendant in the action, in which it is alleged:

 

[O]n or about December 8, 2010, defendants IAN GALYAN, while in the course and scope of his employment with defendant SEACO TECHNOLOGIES, INC., and an individual known as “Mr. Pena,” who himself was acting in the course and scope of his employment with defendant, AGRI–M IX TRANSPORT, INC., formally [sic] known as JUAREZ BROTHERS TRUCKING, INC.[ ] JUAREZ BROTHERS TRUCKING, INC., AND DOES 1 to 75, inclusive, and each of them, negligently, carelessly and recklessly and without permission accessed a restricted access road on the private business premises of Grimmway Farms wherein they unpinned a control pole gate and removed fixed barriers from the roadway and left the pole gate unattended pointed diagonally towards the expected pathway of oncoming traffic and thereby created an extreme danger to unwary motorists. That on said date and time Plaintiff, Fernando Sanchez, was driving a forklift on said access road unaware of the hazard and subsequently was impaled by the pole gate. FN1

 

(Doc. 1 at 7, Doc. 1–3 at 6.) Imperium reports that it “is currently providing Juarez with a defense to the Underlying action,” but asserts “Imperium has no duty to defend” because the plaintiff “alleges only injuries caused by acts relative to the operation of the pole gate.” (Id. at 7–8.) Imperium asserts, “Juarez formally tendered its defense and indemnity for the [state court action] to Unigard” on May 20, 2013. (Id. at 7.) According to Imperium, “Unigard has taken the position that it does not understand why the Underlying Action is not covered under the Imperium Policy, but has not otherwise responded to Juarez’s tender under the Unigard Policy.” (Id.)

 

*2 Based upon the foregoing, Imperium filed its complaint on October 23, 2013, seeking declaratory relief that: (1) Imperium has no duty to defend any insured in the state court action; (2) Imperium owes no duty to indemnify any insured in the state court action; (3) Unigard owes a duty to defend the insureds in the state court action; (4) Unigard owes a duty to indemnify the insureds in the state court action; and (5) Imperium is entitled to reimbursement from Unigard for defending Juarez in the state court action. (Doc. 1 at 7–10.)

 

On November 14, 2013, Unigard filed its answer to the complaint denying that its policy was implicated. (Doc. 6 at 8.) Accordingly, Unigard denied that Imperium was “entitled to the requested declaratory judgments, sums requested, or any relief from Unigard whatsoever.” (Id. at 10.) In addition, Unigard filed counterclaims against Imperium, seeking judicial declarations that (1) Imperium has a duty to defend in the underlying action, and (2) even if there is a potential for coverage under the Unigard policy, “the Imperium policy is primary to the Unigard policy,” and as such Imperium has a duty to defend and indemnify its insured parties. (Doc. 7 at 8–9.)

 

On March 19, 2014, Imperium and Unigard filed the cross-motions for summary judgment now pending before the Court. In its notice of motion, Imperium seeks judgment on its First, Second, Third and Fourth Claims for Relief, and a judicial determination that “Imperi um has no duty under its policy to defend or indemnify any insured in the underlying action, and that such duties of defense and indemnity are properly the obligation of Unigard … pursuant to the terms of both the Imperium and Unigard policies.” (Doc. 34 at 2.) On the other hand, Unigard seeks judicial determinations that it “owes no duty to defend Agri–Mix or any other insureds” and “owes no duty to indemnify Agri–Mix or any other insureds under the Unigard policy” in the state court action. (Doc. 39 at 2.) Rather, Unigard contends these duties belong to Imperium. (Id.)

 

Imperium filed an opposition to Unigard’s motion on March 24, 2014 (Doc. 47), to which Unigard filed a reply on March 31, 2014 (Doc. 52). Unigard filed an amended opposition to Imperium’s motion on March 25, 2014 (Doc. 50), to which Imperium replied on March 31, 2014. (Doc. 51.)

 

II. Declaratory Relief

The Declaratory Judgment Act allows a federal court to “declare the rights and other legal relations” of parties to a “case of actual controversy.” 28 U.S.C. § 2201; Spokane Indian Tribe v. United States, 972 F.2d 1090, 1091 (9th Cir.1992); see also Levin Metals Corp. v. Parr–Richmond Terminal Co., 799 F.2d 1312, 1315 (9th Cir.1986) (explaining the Declaratory Judgment Act “was enacted to afford an added remedy to one who is uncertain of his rights and who desires an early adjudication without having to wait until he is sued by his adversary”). The Court has the discretion to determine whether to entertain an action for declaratory relief, because the Declaratory Judgment Act “gave the federal courts competence to make a declaration of rights; it did not impose a duty to do so.” Public Affairs Associates v. Rickover, 369 U.S. 111, 112, 82 S.Ct. 580, 7 L.Ed.2d 604 (1962); Gov’t Employees Ins. Co. v. Dizol, 133 F.3d 1220, 1223 (9th Cir.1998).

 

*3 The Ninth Circuit determined that “[d]eclaratory relief is appropriate (1) when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, and (2) when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding.” Eureka Fed. Sav. & Loan Assn. v. American Cas. Co., 873 F.2d 229, 231 (9th Cir.1989). Here, declaratory relief is appropriate because judgment will clarify which insurance policy covers the claim made in the underlying action.

 

Moreover, despite that the underlying state action has not yet proceeded to judgment, the action here, to determine prospective liability as to the duty to indemnify, is ripe. In American States Ins. Co. v. Kearns, 15 F.3d 142, 144 (9th Cir.1994), the Ninth Circuit Court of Appeals specifically considered and determined that in cases of insurance coverage disputes related to the obligation to indemnify, the matter may be ripe for declaratory judgment. The Court cited its earlier decision in, Aetna Casualty and Sur. Co. v. Merritt, 974 F.2d 1196, 1199 (9th Cir.1992) and held,

 

First, we read Merritt to hold that a case or controversy existed in that action. Merritt’s holding controls here as well. In Merritt, the insurer sought a declaration regarding its duty to defend and indemnify its insured in a pending state court liability suit. American States also seeks a declaration regarding its obligations in the pending state court liability suit against Tahoe Boat. Thus, Merritt controls our decision that there was a case or controversy when American States brought its declaratory judgment action to establish whether it had a duty to defend and to indemnify Tahoe Boat. In addition to Merritt, our conclusion follows from Maryland Casualty v. Pacific Coal & Oil Co., 312 U.S. 270, 61 S.Ct. 510, 85 L.Ed. 826 (1941), in which the Supreme Court held that an insurer’s declaratory judgment action regarding its duty to defend and indemnify was sufficiently ripe, even when the underlying liability action in state court had not yet proceeded to judgment.

 

Second, we read Merritt to hold that there is no per se rule against the district court exercising its jurisdiction to resolve an insurance coverage dispute when the underlying liability suit is pending in state court.

 

American States, 15 F.3d at 144–145. Moreover, none of the Brillhart v. Excess Ins. Co., 316 U.S. 491, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942), factors—which caution against a court declaring rights, even where there is an actual controversy—are present here. Brillhart instructs, “The district court should avoid needless determination of state law issues; it should discourage litigants from filing declaratory actions as a means of forum shopping; and it should avoid duplicative litigation.” Gov’t Employees Ins. Co. v. Dizol, 133 F.3d 1220, 1225 (9th Cir.1998).

 

Here, the state law issues to be determined related to the duty to defend are the same as those needed for a determination of the duty to indemnify. As a result, declining to decide the obligation to indemnify would not avoid determining state law questions. Moreover, there is no attempt at forum shopping here. The parties to this litigation are not parties to the underlying action and are not seeking to subvert the state court judgment. Indeed, in the underlying action, the state court has no occasion to determine the issues presented here. Thus, none of the Brillhart factors weigh against the exercise of jurisdiction. Finally, the outcome of this case will not impact the state court case. No matter how this case is decided, in the underlying action, the remedies sought, the theories of liability advanced and the defenses asserted will not be altered; this action is distinct and separate.

 

*4 Given these considerations, the Court concludes that judicial economy demonstrates it may and should determine now whether or which party has an obligation to indemnify the insureds in the underlying action.

 

III. Standards for Summary Judgment/Adjudication

The “purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation omitted). Summary judgment is appropriate when 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). Accordingly, summary judgment should be entered “after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

 

In addition, a court may grant summary adjudication, or partial summary judgment, when there is no genuine issue of material fact as to a particular claim or portion of that claim. Fed.R.Civ.P. 56; see also Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n. 3 (9th Cir.1981). The standards that apply on a motion for summary judgment and a motion for summary adjudication are the same. See Fed.R.Civ.P. 56(a), (c); Mora v. Chem–Tronics, 16 F.Supp.2d 1192, 1200 (S.D.Cal.1998).

 

A party seeking summary judgment bears the “initial responsibility” of demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. An issue of fact is genuine only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party, while a fact is material if it “might affect the outcome of the suit under the governing law.”   Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Wool v. Tandem Computers, Inc., 818 F.2d 1422, 1436 (9th Cir.1987). The moving party demonstrates summary judgment is appropriate by “informing the district court of the basis of its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which it believes demonstrates the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323 (citation omitted).

 

If the moving party meets its initial burden, the burden shifts to the opposing party to present specific facts that demonstrate a genuine issue of a material fact. Fed R. Civ. P. 56(e); Matsuhita, 475 U.S. at 586. An opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsuhita, 475 U.S. at 587. The party is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that a factual dispute exits. Id. at 586, n. 11; Fed.R.Civ.P. 56(c). Further, the opposing party is not required to establish a material issue of fact conclusively in its favor; it is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” T.W. Electrical Serv., Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir.1987). However, “failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 322.

 

*5 The Court must apply standards consistent with Rule 56 to determine whether the moving party demonstrated there is no genuine issue of material fact and judgment is appropriate as a matter of law. Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir.1993). In resolving a motion for summary judgment, the Court may consider only admissible evidence. Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir.2002) (citing Fed.R.Civ.P. 56(e); Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir.1988)). Further, evidence must be viewed “in the light most favorable to the nonmoving party” and “all justifiable inferences” must be drawn in favor of the nonmoving party. Orr, 285 F.3d at 772; Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.2000).

 

IV. Undisputed FactsFN2

 

A. Underlying State Action

 

Fernando Sanchez initiated an action in which Agri–Mix Transport, Inc., formerly known as Juarez Brothers Trucking, Inc., and Juarez Brothers Trucking, Inc. (“Juarez”) are identified as defendants. (Doc. 37, SF 1.) Sanchez “seek[s] damages for injuries he suffered on December 8, 2010 when he was impaled by an open gate while driving a forklift at Grimmway Farms Malaga.” (SF 1.) Sanchez was injured by the west gate at Grimmway Farms. (SF 22.)

 

Two portable barricades were placed in front of the west gate when it was closed. (SF 38.) Opening the gate required the removal of a locking pin. (SF 43.) “[O]nce open, the gate could be held open by re-insertion of the locking pin.” (SF 44.) If the locking pin was not re-inserted, the gate would be free to move. (SF 45.) After the accident, Lola Marie Rameriz, the safety manager for Grimmway Farms “looked at birds-eye view pictures, as well as the pin and hinge in the gate itself.” (SF 47.) She testified that it appeared “someone had tried to open and pin the gate facing the wrong way.” (SF 48.)

 

Vicente Pena went to Grimmway Farms on the day of the accident “to load and transport carrot products to farms as designated by Grimmway.” (SF 14.) Pena was employed by Juarez, and the truck he drove was owned by Juarez. (SF 11, 12.) Pena testified that he drove though the west gate three times the morning of the accident, and each time “he looked back through his rear view mirror to make sure his tractor-trailer had not moved the gate.” (SF 20, 24.) The parties agree that “[t]he truck Pena was driving on the day of the accident was an ‘auto’ as that term is defined in both the Unigard and Imperium policies,” both of which were in effect when Sanchez was injured. (SF 3, 8, 13.)

 

B. Unigard’s Insurance Policy

“U nigard issued Commercial Multi–Line Policy No. CM004237 to Juarez Brothers Trucking, Inc., Juarez Brothers Agri–Mix Transport Inc., and Juarez Brothers Investments LLC.” (SF 3.) The policy includes a Commercial General Liability Occurrence Coverage Part, which provides:

 

[Unigard] will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies. [Unigard] will have the right and duty to defend the insured against any “suit” seeking those damages. However, we will have no duty to defend the insured against any “suit” seeking damages for “bodily injury” or “property damage” to which this insurance does not apply.

 

*6 (SF 4; Doc. 38–4 at 5.)

 

1. Relevant definitions

Unigard provides the following definitions to terms used in its policy:

 

• “Bodily injury” means bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time.

 

• “Loading or unloading” means the handling of property:

 

a. After it is moved from the place where it is accepted for movement into or onto an aircraft, watercraft, or “auto”; or

 

b. While it is in or on an aircraft, water or “auto”; or

 

c. While it is being moved from an aircraft, water or “auto” to the place where it is finally delivered.

 

• “Occurrence” means an accident, including continuous or repeated exposure to substantially the same general harmful conditions.

 

(SF 6; Doc. 38–4 at 20–22, emphasis added.)

 

2. Exclusions

U nigard’s policy contains an exclusion provision, which provides that the insurance policy does not apply to:

 

“Bodily injury” or “property damage” arising out of the ownership, maintenance, use or entrustment to others of any aircraft, “auto” or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and “loading or unloading.”

 

(SF 4.) This exclusion applies “even if the claims against any insured allege negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by that insured, if the ‘occurrence’ which caused the ‘bodily injury’ or ‘property damage’ involved the ownership, maintenance, use or entrustment to others of any aircraft, ‘auto’ or watercraft that is owned or operated by or rented or loaned to any insured.” (SF 5.)

 

3. Other insurance

The Unigard policy identifies its obligations “[i]f other valid and collectible insurance is available to the insured for a loss [U nigard] cover [s]” as follows:

 

a. Primary Insurance

 

This insurance is primary except when Paragraph b. below applies. If this insurance is primary, our obligations are not affected unless any of the other insurance is also primary. Then, we will share with all that other insurance by the method described in Paragraph c. below.

 

a. Excess Insurance

 

(1) This insurance is excess over:

 

(a) Any of the other insurance, whether Primary, excess, contingent or on any other basis:

 

…

 

(iv) If the loss arises out of the maintenance or use of aircraft, “autos,” or watercraft to the extent not subject to paragraph 2. Exclusions g. Aircraft, Auto or Watercraft of SECTION 1 COVERAGES COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY of COMMERCIAL GENERAL LIABILITY FORM CG0001

 

c. Method of Sharing

 

If all of the other insurance permits contribution by equal shares, we will follow this method also. Under this approach each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the loss remains, whichever comes first.

 

If any of the other insurance does not permit contribution by equal shares, we will contribute by limits. Under this method, each insurer’s share is based on the ratio of its applicable limit of insurance to the total applicable limits of insurance of all insurers.

 

*7 (SF 7, emphasis omitted.)

 

C. Imperium’s Insurance Policy

“Imperium issued a Truckers Policy to Juarez Brothers Trucking Inc. and Juarez Agri Mix Transport Inc. which was in effect from March 1, 2010 to March 1, 2011.” (SF 8.) The Imperium policy provides the following liability coverage:

 

[Imperium] will pay all sums an “insured” legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies, caused by an “accident FN3” and resulting from the ownership, maintenance or use of a covered “auto”.

 

[¶]

 

We have the right and duty to defend any “insured” against a “suit” asking for such damages … However we have no duty to defend any “insured” against a “suit” seeking damages for “bodily injury” or “property damage”… to which this insurance does not apply.

 

(SF 9; Doc. 38–5 at 4–5.) Those considered “insureds” included, but were not limited to (a) covered auto and (b) anyone using a covered auto that was owned, hired, or borrowed with the company’s permission. (Doc. 38–5 at 6.)

 

1. Relevant definitions

Imperium provides the following definitions to terms used in its policy:

 

• “Auto” means:

 

1. A land motor vehicle, “trailer” or semitrailer designated for travel on public roads; or

 

2. Any other land vehicle that is subject to a compulsory or financial responsibility law or other motor vehicle insurance law where it is licensed or principally garaged.

 

• “Bodily injury” means bodily injury, sickness or disease sustained by a person including death resulting from any of these.

 

(Doc. 38–5 at 15–17, emphasis added.)

 

2. Other insurance

The Imperium policy identifies its obligations where there is another insurance policy in effect, providing that Imperium’s coverage would be “primary for any covered ‘auto’ while hired or borrowed by you and used exclusively in your business as a ‘trucker’ and pursuant to operating rights granted to you by a public authority.” (SF 10; Doc. 38–5 at 14.) In addition the policy explains: “This Coverage Form’s Liability Coverage is excess over any other collectible insurance for any covered ‘auto’ while hired or borrowed from you by another ‘trucker.’ ” (Id.) Thus, Imperium’s insurance was intended to be primary insurance for any auto owned by the insured, and excess insurance for any covered auto the insured did not own. (Id.)

 

V. Interpretation of Insurance Contracts

Under California law, “interpretation of an insurance policy is a question of law.” Waller v. Truck Ins. Exch., Inc., 11 Cal.4th 1, 18, 44 Cal.Rptr.2d 370, 900 P.2d 619 (1995) (citing AIU Ins. Co. v. Superior Court, 51 Cal.3d 807, 818, 274 Cal.Rptr. 820, 799 P.2d 1253 (1990)); see also State Farm Fire & Casualty Co. v. Lewis, 191 Cal.App.3d 960, 963, 236 Cal.Rptr. 807 (1987) (“The interpretation of an insurance policy, like any other contract, is a matter of law as to which a reviewing court must make its own independent determination”). When interpreting the language of an insurance policy, the Court “should give the words used their plain and ordinary meaning, unless the policy clearly indicates to the contrary.” Giddings v. Industrial Indemnity Co., 112 Cal.App.3d 213, 218, 169 Cal.Rptr. 278 (1980). If a policy language is “clear and explicit, it governs.” Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264, 10 Cal.Rptr.2d 538, 833 P.2d 545 (1992).

 

*8 “[I]nsurance coverage is interpreted broadly so as to afford the greatest possible protection to the insured, whereas exclusionary clauses are interpreted against the insurer.” MacKinnon v. Truck Ins. Exch., 31 Cal.4th 635, 648, 3 Cal.Rptr.3d 228, 73 P.3d 1205 (2003) (citation, internal quotations marks omitted); see also Pension Trust Fund for Operating Eng’rs v. Fed. Ins. Co., 307 F.3d 944, 951 (9th Cir.2002) (claims are construed liberally to determine whether they are covered by an insurance policy).

 

A. Duty to Defend

“An insurer has a duty to defend when the policy is ambiguous and the insured would reasonably expect the insurer to defend him or her against the suit based on the nature and kind of risk covered by the policy, or when the underlying suit potentially seeks damages within the coverage of the policy.” Foster–Gardner, Inc. v. Nat’l Union Fire Ins. Co., 18 Cal.4th 857, 869, 77 Cal.Rptr.2d 107, 959 P.2d 265 (1998). Whether an insurer has “[t]he duty to defend is determined by reference to the policy, the complaint, and all facts known to the insurer from any source.” Montrose Chem. Corp., 6 Cal.4th at 300, 24 Cal.Rptr.2d 467, 861 P.2d 1153. It is a “fundamental rule of law that an insurer has a duty to defend an insured if it becomes aware of, or if the third party lawsuit pleads, facts giving rise to the potential for coverage under the insuring agreement.” Waller, 11 Cal.4th at 19, 44 Cal.Rptr.2d 370, 900 P.2d 619 (citing Gray v. Zurich Ins. Co., 65 Cal.2d 263, 276, 54 Cal.Rptr. 104, 419 P.2d 168 (1966)). In Waller, the California Supreme Court explained:

 

Gray and its progeny have made it clear that the determination whether the insurer owes a duty to defend usually is made in the first instance by comparing the allegations of the complaint with the terms of the policy. Facts extrinsic to the complaint give rise to a duty to defend when they reveal a possibility that the claim may be covered by the policy.

 

Waller, 11 Cal.4th at 19, 44 Cal.Rptr.2d 370, 900 P.2d 619 (citing Gray, 65 Cal.2d at 276).

 

The duty to defend is “very broad” under California law. Anthem Electronics, Inc. v. Pac. Employers Ins. Co., 302 F.3d 1049, 1054–55 (9th Cir.2002). Consequently, an insurer’s duty to defend “applies even to claims that are ‘groundless, false, or fraudulent.’ ” Waller, 11 Cal.4th at 19, 44 Cal.Rptr.2d 370, 900 P.2d 619 (quoting Gray, 65 Cal.2d at 267, 54 Cal.Rptr. 104, 419 P.2d 168). Because an insurer may owe a duty to defend its insured in an action in which no damages ultimately are awarded,” Montrose, 6 Cal.4th at 295, 24 Cal.Rptr.2d 467, 861 P.2d 1153, the duty to defend “is separate and broader than the insurer’s duty to indemnify.” Waller, 11 Cal.4th at 19, 44 Cal.Rptr.2d 370, 900 P.2d 619.

 

An insurer moving for summary judgment “ ‘must establish the absence of any … potential’ ” for coverage, i.e., that the underlying complaint ‘can by no conceivable theory raise a single issue which could bring it within the policy coverage.’ ” Cunningham v. Univ. Underwriters, 98 Cal.App.4th 1141, 1147, 120 Cal.Rptr.2d 162 (2002) (quoting Montrose Chem. Corp. v. Superior Court, 6 Cal.4th 287, 300, 24 Cal.Rptr.2d 467, 861 P.2d 1153 (1993)). When an insurer seeks summary judgment “on the ground the claim is excluded,” the insurer has the burden “to prove that the claim falls within an exclusion.”   Roberts v. Assurance Co. of America, 163 Cal.App.4th 1398, 1406, 78 Cal.Rptr.3d 361 (2008) (quotations and citations omitted). “Any doubt as to whether the facts give rise to a duty to defend is resolved in the insured’s favor.” Horace Mann Ins. Co. v. Barbara B., 4 Cal.4th 1076, 1081, 17 Cal.Rptr.2d 210, 846 P.2d 792 (1993).

 

B. Duty to Indemnify

*9 “Although an insurer may have a duty to defend, it ultimately may have no obligation to indemnify, either because no damages were awarded in the underlying action against the insured, or because the actual judgment was for damages not covered under the policy.” Montrose Chemical Corp., 10 Cal.4th at 659, n. 9, 42 Cal.Rptr.2d 324, 913 P.2d 878. “Where there is a duty to defend, there may be a duty to indemnify; but where there is no duty to defend, there cannot be a duty to indemnify.” Certain Underwriters at Lloyd’s of London v. Superior Court, 24 Cal.4th 945, 958, 103 Cal.Rptr.2d 672, 16 P.3d 94 (2001). The duty to indemnify “arises only when the insured’s underlying liability is established.” Pardee Const. Co. v. Insurance Co. of the West, 77 Cal.App.4th 1340, 1350, 92 Cal.Rptr.2d 443 (2000); see also Collin v. American Empire Ins. Co., 21 Cal.App.4th 787, 803, 26 Cal.Rptr.2d 391 (1994) (an insurer has a “duty to indemnify only where a judgment has been entered on a theory which is actually (not potentially) covered by the policy”). Thus, the purpose of the duty to indemnify is “to resolve liability … after liability is established.” Certain Underwriters, 24 Cal.4th at 958, 103 Cal.Rptr.2d 672, 16 P.3d 94.

 

VI. Discussion and Analysis

For purposes of these motions, the Court will assume that Vicente Pena opened the west gate at Grimmway Farms to drive a truck (owned by Juarez) through the gate, after which Fernando Sanchez was impaled by a pole of the gate. Through the cross-motions before the Court, Imperium and Unigard seek a determination of which insurance company has the duties to defend and indemnify in the underlying action. Imperium provides coverage for bodily injury caused by an accident and “resulting from” the ownership, maintenance, or use of an auto. On the other hand, Unigard’s policy excludes coverage for bodily injury “arising out of” the use of any auto.

 

A. Use of the truck

Under California law, the word “use,” “when used in a policy without restrictive terms, must be understood in its most comprehensive sense.”   Columbia Southern Chemical Corp. v. Manufacturers & Wholesalers Indem. Exchange, 190 Cal.App.2d 194, 202, 11 Cal.Rptr. 762 (1961). Thus, a use “includes ‘loading and unloading,’ even [when] … there is no specific provision covering such activities.” Truck Ins. Exchange v. Webb, 256 Cal.App.2d 140, 144, 63 Cal.Rptr. 791 (1967) (citing Continental Cas. Co. v. Zurich Ins. Co., 57 Cal.2d 27, 33, 17 Cal.Rptr. 12, 366 P.2d 455 (1961); Cal. Steel Buildings, Inc. v. Transport Indem. Co., 242 Cal.App.2d 749, 753–754, 51 Cal.Rptr. 797 (1966)). The effect of a provision stating that use includes loading and unloading “expand[s] the term ‘use of the vehicle’ so that coverage will extend from the commencement of loading until the completion of unloading.” Webb, 256 Cal.App.2d at 145, 63 Cal.Rptr. 791. Such a provision may “bring[ ] within the scope of the policy some actions in which the vehicle itself does not play any part.” Id.

 

Imperium argues that “the opening and failure to either close or secure the gate in the open position, or to properly secure the gate in the open position, is not the operation or use of an auto.” (Doc. 35 at 13.) According to Imperium, “any act of Pena operating the gate, which would necessarily require stopping the truck and getting out to remove the locking pin and barriers, would not be the use of the auto, but the operation of the gate.” (Id.) On the other hand, Unigard argues that “use” “may apply though the insured vehicle is at rest” and “extends to any activity that utilizes the insured vehicle in the manner intended or contemplated by the insured.” (Doc. 40 at 14) (citing Hartford Accident & Indem. Co. v. Civil Service Employees Ins. Co., 33 Cal.App.3d 26, 31, 108 Cal.Rptr. 737 (1973); Pacific Indem. Co. v. Truck Ins. Exchange, 270 Cal.App.2d 700, 703, 76 Cal.Rptr. 281 (1969)). Unigard asserts:

 

*10 It is undisputed that on the day of the accident Pena was at Grimmway for the sole purpose of loading the truck with product, transporting it to other places as requested, and then returning with the truck to load it again and repeat the process. Even if Pena opened the gate and left it open, creating the alleged hazard, it could only have been so he could drive the truck through it in the process of loading and transporting the product with the truck. Whether he opened the gate is disputed, but even if he did it was a necessary part of using the truck.

 

(Doc. 40 at 17–18.) According to Unigard, Pena “could not have driven the truck had the gate not been open, and thus this was clearly necessary to use this truck for its intended purpose.” (Doc. 48 at 20.)

 

It cannot be seriously disputed that the purpose of opening the gate was to drive the truck through to load products, or that the act of opening the gate was beneficial to the truck. In light of this fact, the Court concludes there was a “use” of the truck related to the events at issue, such to implicate the Imperium policy’s coverage and the Unigard policy’s exclusion.

 

B. Accident arising out of the use

“Although the word ‘use’ must be given an all-inclusive connotation, there must be a causal connection between the use and the injury.” Webb, 256 Cal.App.2d at 145, 63 Cal.Rptr. 791. Thus, for either the coverage or exclusion at issue here to apply, the bodily injury must arise out of the use of the truck such that there is a “causal connection between the use and the injury.”   Truck Ins. Exchange, 256 Cal.App.2d at 145, 63 Cal.Rptr. 791; (citing Gray, 65 Cal.2d at 274, 54 Cal.Rptr. 104, 419 P.2d 168).

 

As the parties observe, “California cases have found that ‘resulting from’ and ‘arising out of,’ are similar, and that the cases interpreting ‘arising out of’ apply to both phrases.” FN4 (Doc. 35 at 10, n. 3; Doc. 48 at 16) (citing State Farm Mutual Auto. Ins. Co. v. Grisham, 122 Cal.App.4th 563, 566, 18 Cal.Rptr.3d 809 (2004)); State Farm Mutual Auto. Ins. Co. v. Davis, 937 F.2d 1415, 1419 (9th Cir.2001). The phrase “arising out of” is broad, and is ordinarily understood to mean “incident to, or having connection with.”   Hartford, 33 Cal.App.3d at 32, 108 Cal.Rptr. 737; see also Continental Cas. Co. v. City of Richmond, 763 F.2d 1076, 1080 (9th Cir.1985) (“ ‘Arising out of’ are words of much broader significance than ‘caused by.’ They are ordinarily understood to mean ‘originating from,’ ‘having its origin in,’ ‘growing out of’ or ‘flowing from’ or in short, ‘incident to, or having a connection with’ ”). The California Supreme Court explained:

 

California cases have established beyond contention that this language of “arising out of the use,” when utilized in a coverage or insuring clause of an insurance policy, has broad and comprehensive application, and affords coverage for injuries bearing almost any causal relation with the vehicle.

 

State Farm Mutual Auto. Ins. Co. v. Partridge, 10 Cal.3d 94, 100–101, 109 Cal.Rptr. 811, 514 P.2d 123 (1973) (emphasis in original). However, the parties disagree regarding the requisite causal connection.

 

*11 Imperium argues the Court should adopt the “predominating cause/substantial factor test,” under which “a mere ‘but for’ connection between the use of the vehicle and the alleged injuries is insufficient to bring the claim within the scope of coverage.” (Doc. 35 at 11) (citing Am. Nat’l Prop. & Casualty Co. v. Julie R ., 76 Cal.App.4th 134, 90 Cal.Rptr.2d 119 (1999); R.A. Stuchbery & Others Syndicate v. Redlands Ins. Co., 154 Cal.App.4th 796, 802, 66 Cal.Rptr.3d 80 (2007); California Auto. Ins. Co. v. Hogan, 112 Cal.App.4th 1292, 1297, 5 Cal.Rptr.3d 761 (2003)). Unigard argues that “under … established caselaw, for the accident to ‘arise out of’ the use of the truck it must only be ‘incident to or have a connection with’ the use of the truck.” (Doc. 40 at 18–19) (citing St. Paul Mercury Ins. Co. v. Mountain W. Farm Bureau Mutual Ins. Co., 210 Cal.App.4th 645, 658–59, 148 Cal.Rptr.3d 625 (2012); Acceptance Ins. Co. v. Syufy Enterprises, 69 Cal.App.4th 321, 328, 81 Cal.Rptr.2d 557 (1999)).

 

In Partridge, the California Supreme Court examined whether a defendant’s homeowner policy covered injuries sustained by a passenger after a gun, modified by the insured to have a hair trigger, discharged as he negligently drove the vehicle. The court observed that “California cases uniformly hold that the ‘use’ of an automobile need not amount to a ‘proximate cause’ of the accident for coverage to follow.” Partridge, 10 Cal.3d at 100–101, n. 7, 109 Cal.Rptr. 811, 514 P.2d 123 (citing, e.g., St. Paul Fire & Marine Ins. Co. v. Hartford Accident & Indem. Co., 244 Cal.App.2d 826, 831, 53 Cal.Rptr. 650 (1966); City of Santa Monica v. Royal Indem. Co., 157 Cal.App.2d 50, 54, 320 P.2d 136 (1958)). Although the court compared Universal Underwriters Ins. Co. v. Aetna Ins. Co., 249 Cal.App.2d 144, 145, 57 Cal.Rptr. 240 (1967) with Truck Ins. Exchange v. Webb, 256 Cal.App.2d 140, 148, 63 Cal.Rptr. 791 (1967), the court declined to clarify the level of causal connection required for the injury to arise out of the use. Partridge, at 100–101, n. 7, 109 Cal.Rptr. 811, 514 P.2d 123.FN5 The California Supreme Court observed: “Although the vehicle need not be, in the legal sense, a proximate cause of the injury, the events giving rise to the claim must arise out of, and be related to, its use.” Id. (quoting Entz v. Fidelity & Casualty Co., 64 Cal.2d 379, 385, 50 Cal.Rptr. 190, 412 P.2d 382 (1966)).

 

After Partridge, a number of California courts applied the “predominating cause/substantial factor test” to determine whether a claim was covered under an insurance policy. See, e.g., Stuchbery, 154 Cal.App.4th at 802, 66 Cal.Rptr.3d 80; Grisham, 122 Cal.App.4th at 566–67, 18 Cal.Rptr.3d 809; Julie R., 76 Cal.App.4th 134, 90 Cal.Rptr.2d 119 (adopting the predominating cause/substantial factor test). Despite this and without substantial analysis, the Ninth Circuit determined in State Farm Mutual Auto. Ins. Co. v. Davis, 937 F.2d 1415 (1991), that Partridge did not require that a ‘use’ of a vehicle “be the proximate cause of an injury in order to require coverage.”   Id., 937 F.2d at 1419. Rather, the Court found that under Partridge, “[i]t was sufficient if some minimal causal connection between the vehicle and an injury existed.” Id. In so finding, the Court explained: “[w]hen the Partridge court said a use of an automobile need not be a proximate cause in order to require coverage as long as it was a minimal cause, we understand it to mean that the causal nexus need not be substantial.” Id. at 1419, n. 3.

 

*12 On the other hand, in Oregon Mutual Ins. Co.v. Nat’l Gen. Ins. Co, the Ninth Circuit opined that “[a] vehicle’s operation, movement, maintenance, loading, or unloading must be a substantial factor or predominating cause of the claimant’s injury.” Id., 436 Fed App’x 802, 803 (2011). The Court finds that Oregon provides a more considered approach and, as a result, it is bound by it given that it reflects the decisions of that the majority of California courts and there is no convincing reason to conclude the California Supreme Court would hold otherwise. Munson v. Del Taco, Inc., 522 F.3d 997, 1002 (9th Cir.2008).

 

Significantly, whether the Court applies the “predominating cause/substantial factor” test or a lesser minimal causal connection between the use and the injury, it does not appear Sanchez’s injury resulted from or arose out of the use of the truck. See Davis, 937 F.2d at 1421 (observing that “a tortfeasor leaving his vehicle prior to committing the tort might serve to break the causal nexus between the use of the vehicle and the subsequent tort”). California courts have routinely held the use of a vehicle as a mode of transportation to the scene of where an injury occurs is insufficient to establish a causal connection between a vehicle’s use and the injury for coverage under an automobile insurance policy. See e.g., Rowe v. Farmers Ins. Exchange, 7 Cal.App.4th 964, 972, 9 Cal.Rptr.2d 314 (1992) (“mere transportation of a tortfeasor to a site where he commits a tort after departing from the uninsured vehicle’ does not establish the requisite causal relationship”); Webb, 256 Cal.App.2d at 145, 63 Cal.Rptr. 791; Julie R., 76 Cal.App.4th at 141, 90 Cal.Rptr.2d 119; Interinsurance Exchange v. Macias, 116 Cal.App.3d 935, 938, 172 Cal.Rptr. 385 (1981).FN6

 

Recently, in Travelers Prop. Cas. Co. of Am. v. LK Transp., Inc. ., 2014 WL 996235 (E.D.Cal. Mar.13, 2014), this Court confronted similar arguments to those raised here. In Travelers, the insured “vehicle” was a trailer that the defendant was hired to pick up from Yuba and move to Sacramento. Id. at *1. The accident occurred when the driver was en route to Yuba to pick up the trailer for transport. Id. The Court concluded that the auto policy covering the trailer was not implicated despite that the only reason the driver was on the road was to retrieve the trailer from Yuba and move it to Sacramento. Id. at *5. The Court held, “Although Prado and LK had the intention of eventually moving the Trailer, it is undisputed that the Trailer had not been moved at the time of the accident. [Citation] Finding that an accident arose from the movement of a motionless vehicle would defy common sense and the laws of physics.” Id.

 

Likewise, in Webb, the insured’s employee used a truck to transport cardboard boxes that the driver deposited on the ground and ignited, after which the driver “got into the truck and drove back …” Id., 256 Cal.App.2d at 142, 63 Cal.Rptr. 791. Fire from the boxes the driver ignited “spread to the buildings and damaged or destroyed them.” Id. The court was faced with the issue of “whether the destruction of the buildings was a loss ‘arising out of the use of any automobile.’ ” Id. at 143, 63 Cal.Rptr. 791. The court observed, “The automobile is so much a part of American life that there are few activities in which the ‘use of an automobile’ does not play a part somewhere in the chain of events.” Id. at 145, 63 Cal.Rptr. 791. The court determined requisite causal connection between the use and injury was not satisfied, explaining:

 

*13 [A]lthough the use of the pick-up truck did play a part in the chain of events, it cannot be reasonably said that the destruction of the buildings arose out of the ‘use’ of the vehicle. The conduct of Smith in igniting the boxes and leaving the fire unattended was independent of and unrelated to the use of the truck. The use of the truck was neither a ‘predominating cause’ or a ‘substantial factor’ in causing the injury.

 

Id., 256 Cal.App.2d at 148, 63 Cal.Rptr. 791. Similarly, here, the truck played a part in the events because it was driven by Pena to Grimmway Farms. Contrary to Unigard’s assertion that “Pena’s alleged conduct in opening the gate, and leaving it open, cannot possibly be construed as ‘wholly disassociated from and independent of’ the use of his truck” (Doc. 40 at 21), under Webb, opening the west gate was an independent act from the use—even if Pena resumed driving the truck after opening the gate, as the driver did in Webb after igniting the boxes. The opening of the gate did not require the presence of the truck, although its driver benefited from the gate being opened and, indeed, the evidence shows that the reason for the gate being opened was to provide egress from the area where the truck loaded.

 

Relying in part on Webb, in Julie R., the court explained the “[u]se of a vehicle as transportation to the scene of an injury does not establish a sufficient causal connection between the ‘use’ and the injury.” Julie R., 76 Cal.App.4th at 141, 90 Cal.Rptr.2d 119. In Julie R., a woman was raped in the vehicle by the driver-owner of the car. See Julie R., 76 Cal.App.4th at 137, 90 Cal.Rptr.2d 119. Before the attack, the driver positioned the car against a fence so that the victim could not escape through her car door. The victim made a claim against the auto policy which covered “bodily injury … [which] result from the ownership, maintenance, or use of the vehicle.” Id. The court concluded the injuries did not arise out of the use of the vehicle because its use was incidental to the attack and its use “for transportation to and away from the site … was not a substantial factor in the assault on Julie R.” Id. at 141, 90 Cal.Rptr.2d 119.

 

This Court relied in part upon Julie R. to determine whether an injury arose from the use of a truck in Oregon Mutual Ins. Co. v. Nat’l Gen. Ins. Co., 2010 WL 1343529 (E.D.Cal. Apr.5, 2010), affirmed 436 Fed. App’x. 802 (9th Cir.2011). The Court found an individual’s injury did not arise out of the use of a vehicle when he leaned into the truck and was bitten by a dog that was inside. The Court explained that the truck was merely the site of the attack and was a mere fortuity given that the victim could have been bitten just as he walked on the sidewalk and leaned down toward the dog. Id., 2010 WL 1343529 at *8 (citing Ohio Casualty Ins. Co. v. Hartford Accident & Indemnity Co., 148 Cal.App.3d 641, 646, 196 Cal.Rptr. 164 (1983)). Similarly, here, the proximity of the truck and its use was a mere fortuity. Put another way: though opening the gate may have been connected to the use of the truck, it was not dependent upon the use of the truck. See Travelers, 2014 WL 996235 at *5 (The reason the negligence occurs is due to the need to drive the vehicle does not establish the injuries arose from the use of the vehicle).

 

*14 Unigard argues that both Julie R. and Oregon Mutual should be distinguished because “[t]he whole reason Pena was there was to load the truck and transport product, he could not have driven the truck had the gate not been open, and thus this was clearly necessary to use the truck for its intended purpose.” FN7 (Doc. 48 at 20.) In addition, Unigard observes that in Gradillas v. Lincoln General Ins. Co., 2012 U.S. Dist. LEXIS 171423, 2012 WL 6020094 (N.D.Cal.2012), the Northern District court determined “a rape did arise out of the use of a bus.” (Doc. 48 at 20). Significantly, however, the court in Gradillas was careful to note that the vehicle “was designed for social activity to occur on it, and promoted a party atmosphere” with “long padded benches, at least two bar areas, glasses, and bottles for storing alcohol.” Id., 2012 WL 6020094 at *9. The court found that “the manner of operating the vehicle directly contributed to the assault” because “it was being used for its party atmosphere, and features of the vehicle aided in the commission of the rape.” Id. In contrast, here, no features of the truck contributed to the injury suffered by Sanchez. Rather, it was used as a means of transportation to the west gate, where the alleged negligent operation of the gate occurred.

 

Further, Unigard relies upon cases in other jurisdictions to demonstrate that opening the gate, such as Merchants Co. v. Hartford Acci. & Indem. Co., 187 Miss. 301, 192 So. 566 (1940). (See Doc. 40 at 17; Doc. 48 at 26.) Unigard observes that in Merchants, “a truck went into a ditch, and the operator used several poles to extricate it,” after which the operator “drove away, leaving the poles,” upon which a passenger in an automobile was injured. (Doc. 40 at 17.) The Mississippi court determined that an automobile insurance policy covered the injury, because the accident arose “out of the ownership, maintenance, and use of automobile.” Merchants, 187 Miss. at 307, 188 So. 571. The court explained:

 

The use of the poles in extricating the truck and thence the driving away and leaving the poles in the road thus had such a direct and substantial relation or connection in point of actual fact as respects the use and operation of the truck that in order to separate that use or break its continuity, we must interpose or insert, not an independent act, there being none such, but the negligent omission to remove the poles from the road, which, if allowed, would be to insert or interpolate into the contract a provision that liability shall follow only as to a strictly proximate cause; and, under familiar rules, we cannot rewrite the insurance contract by interpolating that provision therein.

 

Merchants, 187 Miss. at 309. Significantly, however, Webb distinguished Merchants, explaining that “play[ing] a part in the chain of events” is insufficient under California law to satisfy the requisite causal connection between an injury and the use of a vehicle. Webb, 256 Cal.App.2d at 147–148, 63 Cal.Rptr. 791 (“although the use of the pick-up truck did play a part in the chain of events,” the conduct of the driver in setting fire to the boxes and driving away was “independent of and unrelated to the use of the truck”). Moreover, here, of course, the truck did not act upon the gate in any fashion; it was not used to “nose” open the gate, nor did the truck touch the gate at any time before the injury. (Doc. 38–6 at 14–16.)

 

*15 In light of the above cases—in particular Webb, Julie R., and Ohio Casualty—the Court finds Pena’s act of opening the gate and leaving it open was independent of his use of the vehicle, because the reason the gate was opened fails to establish a sufficient causal connection between the injuries and the use of the truck. Where “the particular injury which was suffered was of a type which could have occurred without the involvement of a vehicle and the vehicle in no way contributed to the injury,” the injury does not “arise out of” the use of that vehicle. See State Farm Fire & Cas. Co. v. Kohl, 131 Cal.App.3d 1031, 1038, 182 Cal.Rptr. 720 (1982). Though the truck played a role in the chain of events, it was neither a predominating cause nor substantial factor in the injury suffered by Sanchez. See Julie R., 76 Cal.App.4th at 139, 90 Cal.Rptr.2d 119 (“[m]ere use of a vehicle in some way connected to the events giving rise to the injury is insufficient to establish coverage”); Ohio Casualty, 148 Cal.App.3d at 648, 196 Cal.Rptr. 164 (injury did not arise out of the use of a boat where the negligent act was connected to the use, but not dependent on the use).

 

C. Unigard has a duty to defend and indemnify in the underlying action

Because the injury did not “result from” or “arise out of” use of the truck, the exclusion found in Unigard’s policy for commercial general liability insurance does not preclude the claim. As a result, Unigard has a duty to defend Agri–Mix Transport, Inc., formerly known as Juarez Brothers Trucking, Inc., and Juarez Brothers Trucking, Inc. in the underlying action and, if liability is established as to any of the insureds, to indemnify.

 

D. Imperium need not defend or indemnify in the underlying action

Under California law, “[t]he defense duty is a continuing one, arising on tender of defense and lasting until the underlying lawsuit is concluded, or until it has been shown that there is no potential for coverage.” Montrose Chemical Corp., 6 Cal.4th at 295, 24 Cal.Rptr.2d 467, 861 P.2d 1153 (emphasis in original). The California Supreme Court explained the duty “continues until the third party litigation ends, unless the insurer sooner proves, by facts subsequently developed, that the potential for coverage which previously appeared cannot possibly materialize, or no longer exists.” Scottsdale Ins. Co. v. MV Transp., 36 Cal.4th 643, 657, 31 Cal.Rptr.3d 147, 115 P.3d 460 (2005); see also Hartford Accident & Indemnity Co. v. Superior Court, 23 Cal.App.4th 1774, 1781, 29 Cal.Rptr.2d 32 (1994) (holding that once duty to defend arises, an insurer “must defend until it obtains a declaratory judgment or summary judgment” that it no longer has duty to defend). Here, the facts have demonstrated that the injury suffered by Sanchez was not caused by an accident resulting from the use of the truck. Consequently, Imperium does not have a duty to defend in the underlying action, and it follows that Imperium could not have a duty to indemnify. See Certain Underwriters at Lloyd’s of London, 24 Cal.4th at 958, 103 Cal.Rptr.2d 672, 16 P.3d 94 (“where there is no duty to defend, there cannot be a duty to indemnify”).

 

VII. Conclusion and Order

*16 Based upon the foregoing, it is HEREBY ORDERED:

 

1. Imperium’s motion for summary adjudication is GRANTED;

 

2. Unigard’s motion for summary judgment is DENIED.

 

IT IS SO ORDERED.

 

FN1. Imperium and Unigard jointly request that the Court take judicial notice of the allegations in the complaint filed in Case No. S–1500–CV–277330–LHB. (Docs.43, 46.) The Court may take notice of facts that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed.R.Evid. 201(b); United States v. Bernal–Obeso, 989 F.2d 331, 333 (9th Cir.1993). The record of state court proceeding is a source whose accuracy cannot reasonably be questioned, and judicial notice may be taken of court records. Mullis v. United States Bank. Ct., 828 F.2d 1385, 1388 n. 9 (9th Cir.1987); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D.Cal.1978), aff’d, 645 F.2d 699 (9th Cir.1981); see also Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir.1989). Therefore, the Court may take judicial notice of the allegations in the plaintiff’s complaint in Sanchez v. Seaco Technologies, Inc., Case. No. S–1500–CV–2773330–WDP, and the parties’ joint request is GRANTED.

 

FN2. The parties provided stipulated facts in support of their cross motions for summary judgment (Doc. 37), which are designated as “SF,” followed by the fact number. In addition, the parties filed joint evidence in support of their crossmotions, including Unigard’s insurance policy (Doc. 38–4) and Imperium’s insurance policy (Doc. 38–5).

 

FN3. The parties agree the underlying “bodily injuries” were caused by an “accident.” (SF 11–20) Moreover, at the hearing Imperium’s counsel clarified that there is no dispute that in this regard.

 

FN4. Recently, in Paroline v. United States, ––– S.Ct. ––––, 2014 WL 1612426 at * 8 (April 23, 2014), The United States Supreme Court observed, “The words ‘as a result of’ plainly suggest causation.” Paroline relied upon Pacific Operators Offshore, LLP v. Valladolid, ––– U.S. ––––, –––– – ––––, 132 S.Ct. 680, 681–682, 181 L.Ed.2d 675 (2012), in which a longshoreman was killed while working onshore despite that 98 percent of his time was spent offshore. His widow asserted that his death should have been covered by the Outer Continental Shelf Lands Act which provides workers’ compensation benefits to those who suffer injuries “as the result of” operations that occur on the continental shelf. Pacific Operators, 132 S.Ct. at 687. The Court determined the phrase “plainly suggests causation” and determined that a “but for” level of causation is insufficient because it “would extend workers’ compensation coverage to all employees of a business engaged in the extraction of natural resources from the OCS, no matter where those employees work or what they are doing when they are injured. This test could reasonably be interpreted to cover land-based office employees whose jobs have virtually nothing to do with extractive operations on the OCS. Because Congress extended LHWCA coverage only to injuries ‘occurring as the result of operations conducted on the outer Continental Shelf,’ we think that § 1333(b) should be interpreted in a manner that focuses on injuries that result from those ‘operations .’ ” Id. at 690. As a result, the Court adopted the standard imposed by the Ninth Circuit Court of Appeals which required a showing of a “substantial nexus.” Id. at 691. Notably, the Court found that the OCSA was designed to fill the gaps between coverage gaps for workers but not to create overlaps. Id. at 690.

 

Though in a different context and despite that coverage issues are to be interpreted expansively, Paroline and Pacific Operators are consistent with the majority of California Courts of Appeal which find that a causal connection between the use of a vehicle and the injuries must be greater than a “but for” relationship because this lesser test would turn an auto policy into a general liability policy.

 

FN5. While Universal Underwriters “does not require that the injury be the direct and proximate result in any strict legal sense of the active movement of the motor vehicle covered by the policy,” Webb required use of the vehicle be “a predominating cause or a substantial factor in causing the injury.” Universal Underwriters, 249 Cal.App.2d at 150, 57 Cal.Rptr. 240 (citation omitted); Webb, 256 Cal.App.2d at 148, 63 Cal.Rptr. 791 (internal quotation marks omitted).

 

FN6. However, even this circumstance has not, necessarily, yielded predictable results in the state courts. Compare Ohio Casualty Ins. Co. v. Hartford Accident & Indemnity Co., 148 Cal.App.3d 641, 646, 196 Cal.Rptr. 164 (1983) with National Indemnity Co. v. Farmers Home Mutual Ins. Co. 95 Cal.App.3d 102, 157 Cal.Rptr. 98 (1979).

 

FN7. The evidence submitted makes clear that Pena did not have to drive through the open gate to leave the area though this is the pathway chosen by him. (Doc. 38–6 at 13)