Lamb v. KuderE.D.Okla.,2007.

United States District Court,E.D. Oklahoma.

I. Dale and Peggy LAMB, husband and wife, et al., Plaintiffs,

v.

Daniel KUDER, Standard Waste Systems, Ltd, The Scotts Company, Scotts Products Co, Scotts Professional Product Co, The Scotts Miracle-Gro Company, Defendants,

andJ.B. Hunt Transport Services, Inc.; and J.B. Hunt Transport, Inc, Defendants and Third-Party Plaintiffs,

v.

Standard Waste Systems, Ltd, Third-Party Defendant;

andCommerce and Industry Insurance Company, Intervenor.

 

 

Feb. 26, 2007.

 

 

.

 

ORDER AND OPINION

JAMES H. PAYNE, United States District Judge.

Before the Court is Plaintiffs’ Third Motion to Amend Complaint to Add Party Defendants, Defendants J.B. Hunt Transport, Inc., and J .B. Hunt Transport Services, Inc.’s Response in opposition, and Plaintiffs’ Reply thereto. Plaintiffs seek to amend their Petition to name as Defendants in the present action the following parties: Illinois National Insurance Company, Lexington Insurance Company, Swiss Reinsurance America Corporation, and Lloyds Insurance Company. For the reasons stated below, Plaintiffs’ Motion is GRANTED.

 

 

Discussion

 

Plaintiff’s Third Motion to Amend is predicated upon the Motor Carrier Act of 1995, Okla. Stat. tit. 47, §  230.21 et seq. The Act, in relevant part, provides that “[n]o license shall be issued by the Commission to any carrier until after the carrier shall have filed with the Commission a liability insurance policy or bond covering public liability and property damage, issued by some insurance or bonding company or insurance carrier authorized pursuant to this section.” Okla. Stat. tit. 47, §  230.30(A). In addition, the Act provides that “the liability and property damage insurance policy or bond shall bind the obligor thereunder to make compensation for injuries to, or death of, persons, and loss or damage to property, resulting from the operation of any carrier for which the carrier is legally liable.” Id. Finally, the same subsection provides that “[a] copy of the policy or bond shall be filed with the Commission, and, after judgment against the carrier for any damage, the injured party may maintain an action upon the policy or bond to recover the same, and shall be a proper party to maintain such action.” Id.

 

As numerous federal and state courts have made clear, the language of Okla. Stat. tit. 47, §  230.30, like its predecessor Okla. Stat. tit. 47, §  169, “creates a direct cause of action by a person injured by operation of a motor carrier against the motor carrier’s insurer, provided of course that the motor carrier is required to be insured under the statute.” Mize v. Liberty Mutual Ins. Co., 393 F.Supp.2d 1223, 1226 (W.D.Okla.2005). See also Be-Mac Transport Co. v. Lairmore, 129 P.2d 192, 194 (Okla.1942) (“[Okla. Stat. tit. 47, §  169] has been interpreted by this court as authorizing a joint action on the part of an injured party against the motor carrier and its insurer.”);  Blanke v. Alexander, 152 F.3d 1224, 1230 (10th Cir.1998) (“[J]oinder of [a] carrier’s insurer in [a] personal injury action is proper.”). Indeed, to maintain a cause of action against an insurer, “a plaintiff need only allege that: (1) he suffered injury; (2) the injury occurred by operation of a motor carrier; and (3) the motor carrier was required to be and was in fact insured pursuant to §  230 .30.” Mize, 393 F.Supp.2d at 1226.

 

In nevertheless opposing Plaintiffs’ motion to amend its pleadings to name J.B. Hunt Transport’s various insurers as defendants in this case, J.B. Hunt Transport first notes that it is “self-insured” up to $2,000,000 and that “even assuming that liability is proven against [J.B. Hunt], it is completely unreasonable to believe that the Plaintiffs will receive an award of damages that could possibly exceed [$2,000,000].” (Def.’s Resp. 5.) Nevertheless, J.B. Hunt fails to present any authority for the proposition that the ability of an injured party to join a motor carrier’s insurers as defendants in a personal injury action pursuant to Okla. Stat. tit. 47, §  230.30 is contingent on the reasonable value of the injured party’s claims or the likelihood that the potential recovery will implicate a particular insurer’s policy.

 

Likewise, J.B. Hunt Transport’s arguments that “ §  230.30(A) is silent as to a motor carrier’s excess insurance carrier[s]” and that “[f]or all purposes and reasonably possible jury verdicts here, Defendant [J.B.] Hunt [Transport] is self-insured and naming [J.B. Hunt Transport] as a defendant is equivalent to naming its insurer as a defendant” (Defs.’ Mot. 6) are similarly unavailing. J.B. Hunt Transport cites no case law justifying a distinction between a motor carrier’s primary and excess insurers for purposes of which insurers may appropriately be joined as parties to an action, and the language of the statute itself provides for no such distinction. Moreover, although J.B. Hunt Transport notes that “[t]he Illinois National policy does not provide for any defense by Illinois National but simply reimburses or indemnifies [J.B. Hunt Transport] for monies paid up to two million dollars per event,” (Defs.’ Mot. 3-4), it provides no reason for distinguishing between insurers who provide a defense and those who “merely” reimburse a motor carrier for claims, especially when it is repayment of the damage claim that the injured party seeks from the insurer.

 

Finally, J.B. Hunt Transport argues that “[t]he Court is required, under [Fed.R.Evid.] 403, to balance unfair prejudice against probative value.”  (Defs.’ Resp. 7.) According to J.B. Hunt Transport, “evidence of its excess coverage would have [no] probative value or, if it does have some minimal probative value, such would be far outweighed by its unfair prejudice.” (Def.’s Resp. 7.) In essence, J.B. Hunt Transport requests that this Court deny Plaintiff’s Third Motion to Amend, despite Oklahoma’s legislature having expressly provided by statute for the joinder of a motor carrier’s insurers as parties to this type of action, because the potential prejudice that might result from presenting evidence concerning the existence and amount of J.B. Hunt Transport’s insurance coverage or the identity of its insurers at trial substantially outweighs the probative value of such evidence.

 

 

J.B. Hunt Transport also contends that “[t]he Federal Rules of Civil Procedure require the Court to balance the value of naming Illinois National and the excess carriers as defendants against the unfair prejudice it will cause to [J.B. Hunt Transport].” (Defs.’ Resp. 5.) The Court notes, however, that J.B. Hunt Transport provides no citation to any provision of the Federal Rules of Civil Procedure providing for such a balancing test to be employed prior to joinder of parties, nor to any case law supporting this position. Instead, the Court presumes this is a mislabeled reference to Rule 403 of the Federal Rules of Evidence, which J.B. Hunt Transport cites for the same proposition.

 

Unfortunately, J.B. Hunt Transport offers no support for the proposition that the evidentiary balancing test embodied in Fed.R.Evid. 403 affects the procedural appropriateness of joining a motor carrier’s insurance carrier as a party defendant. At best, Fed.R.Evid. 403 might prohibit the parties from making references to J.B. Hunt’s primary and excess insurance carriers at trial, and is more appropriately raised in a motion in limine to exclude such evidence from being presented to the jury. In contrast, the Court can discern no basis for precluding the joinder of otherwise appropriately joined parties on the basis of potential prejudice that evidence relating to those parties may have on another party at trial. Instead, having found J.B. Hunt Transport’s arguments unpersuasive, the Court concludes that Plaintiffs’ Third Motion to Amend should be granted.

 

 

Conclusion

 

For the reasons stated above, Plaintiffs’ Third Motion to Amend Complaint to Add Party Defendants is hereby GRANTED. Plaintiffs are instructed to file their Amended Complaint within 10 days from the date of this Order.

 

IT IS SO ORDERED this 26th day of February, 2007.

 

E.D.Okla.,2007.

Lamb v. Kuder

Supreme Court of Kansas.

Arthur Neil WARNER, Individually; and Arthur Neil Warner For and on Behalf of all of the Surviving Heirs of Patricia Ann Warner, Deceased, Appellants,

v.

Robert Harry STOVER; Canal Insurance Company; and Farm Bureau Mutual Insurance Company, Appellees.

 

March 16, 2007.

 

Background: Passenger who was injured and whose wife was killed in pickup truck rollover, brought personal injury and wrongful death action, individually and on behalf of wife’s surviving heirs, against driver and against the insurer of driver’s company vehicles. Insurer moved for summary judgment. The District Court, Shawnee County, Terry Bullock, J., granted the motion. On appeal, the Court of Appeals affirmed. Passenger petitioned for further review.

 

 

Holding: The Supreme Court, Nuss, J., held that a triable issue existed as to whether the driver’s company was the “owner” of the truck under the terms of the company’s automobile insurance policy.

 

In deciding on a motion for summary judgment, the trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought.

Judgment 228  185(6)

 

228 Judgment

228V On Motion or Summary Proceeding

228k182 Motion or Other Application

228k185 Evidence in General

228k185(6) k. Existence or Non-Existence of Fact Issue. Most Cited Cases

On appeal from a trial court’s summary judgment ruling, the Supreme Court applies the same rules as the trial court, and where reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.

 

 

Ratification is a question of fact.

Syllabus by the Court

1. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought.

 

2. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case.

 

3. An appellate court applies the same summary judgment rules as the district court and where it finds that reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.

 

4. Under the facts of this case, genuine issues of material fact preclude the entry of summary judgment.

 

 

Review of the judgment of the Court of Appeals in an unpublished decision filed June 30, 2006. Appeal from Shawnee district court; Terry Bullock, Judge.

 

Gary E. Laughlin, of Hamilton, Laughlin, Barker, Johnson & Watson, of Topeka, argued the cause, and David E. Watson, of the same firm, was with him on the briefs for appellant.

Douglas N. Ghertner of Slagle, Bernard & Gorman, P.C., of Kansas City, Missouri, argued the cause, and Jack D. McInnes V, of the same firm, was with him on the brief for appellees.

The opinion of the court was delivered by NUSS, J.:

This is a personal injury and wrongful death action arising out of a pickup truck rollover. The district court held that the pickup was personally owned by the driver’s son and therefore not covered by the son’s corporation’s insurance policy issued by Canal Insurance Company (Canal). As a result, the court granted Canal’s motion for summary judgment against plaintiff Warner. The Court of Appeals affirmed in Warner v. Stover, No. 94,766, unpublished decision filed June 30, 2006. We granted Warner’s petition for review pursuant to K.S.A. 20-3018(b).

 

The sole issue on appeal is whether the district court erred in granting summary judgment to Canal. We hold that the court so erred; we reverse and remand.

 

 

FACTS

 

On December 25, 2002, Arthur Neil Warner (Warner), his wife Patricia Ann Warner, and Vivian Dunn were passengers in a 2002 Ford F250 pickup truck driven by Robert Harry Stover (Robert). When the pickup was just east of Dalhart, Texas, it hit a patch of ice, slid into a ditch, and rolled twice. Patricia Warner was killed, and Warner suffered injuries.

 

The pickup’s certificate of title and registration listed only Robert’s son, Charles Stover (Stover). Farmers Insurance Company (Farmers) provided insurance coverage for the pickup, the only vehicle insured under the Farmers policy. The policy’s named insured was Stover. Stover reported the accident to Farmers, which eventually paid its policy limits of $25,000 to Warner for his injuries and $25,000 for his wife’s wrongful death.

 

Stover is also the president and owner of Western Liquid Express, Inc.  (Western), of Topeka. Western’s trucks transport building materials, farm machinery, and parts. Western’s vehicles are covered by insurance with Canal Insurance Company in the amount of $1,000,000 per occurrence.

 

Warner, individually and on behalf of the surviving heirs of his deceased wife, filed an action against Robert and Canal for his personal injury and her wrongful death. Canal was allegedly a proper party pursuant to K.S.A. 66-1,128 and case law interpretations of the statute. Warner alleged, among other things, that Canal insured Western’s vehicles and that Western’s policy insured the pickup at the time of the accident. As partial support, Warner alleged that the pickup was being operated pursuant to a Kansas Corporation Commission (KCC) permit issued to Western.

 

At the close of discovery the district court eventually granted Canal’s motion for summary judgment. The court concluded that Canal’s insurance policy only provided coverage for vehicles owned by Western, that the truck was “owned and titled” to Stover personally, and that consequently no Canal coverage existed.

 

The district court later denied Warner’s motion for reconsideration, again specifically addressing the ownership issue: “The bottom line, in the Court’s view, is that ownership of the vehicle controls the coverage question and vehicle ownership in Kansas is controlled by title and registration. In the case at bar, that is with the individual defendant alone.”

 

Trial proceeded against Robert and judgment was entered against him in the amount of $607,990.80. On June 30, 2006, our Court of Appeals affirmed the district court’s summary judgment.

 

 

ANALYSIS

 

Issue: The district court erred in granting summary judgment to Canal because genuine issues of material fact existed.

 

 

Warner argues that the district court, as affirmed by the Court of Appeals, relied upon disputed material facts in granting summary judgment. Canal vigorously denies any genuine issue of material facts.

 

Our standard for reviewing summary judgments is well-known:

“ ‘ “Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” [Citations omitted.]’ “ (Emphasis added.)  State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 788, 107 P.3d 1219 (2005).

 

 

As summarized by the United States Supreme Court in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), in this case we must determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”

 

We continue our analysis by examining the language of the Canal insurance policy. The interpretation is a question of law which we make de novo. Exploration Place, Inc. v. Midwest Drywall Co., 277 Kan. 898, 89 P.3d 536 (2004). In that examination, if the policy language is clear and unambiguous, it must be construed in its plain, ordinary, and popular sense and according to the sense and meaning of the terms used. Marshall v. Kansas Med. Mut. Ins. Co., 276 Kan. 97, 111, 73 P.3d 120 (2003).

 

According to Section A.I of the insurance policy, Canal agreed:

“The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of

 

 

 

bodily injury or property damage

 

to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use, including loading and unloading, for the purposes stated as applicable thereto in the declarations, of an owned automobile or of a temporary substitute automobile….”

 

Section A.III of the policy defined “insured” as the named insured or any other person while using an owned automobile with the permission of the named insured.

 

Section A. VII defined “Owned automobile” as “(a) an automobile which is owned by the named insured and described in the declarations; or (b) an automobile ownership of which is newly acquired by the named insured during the policy period.”

 

[10] Under the plain language of the policy, the named insured is Western; Robert initially qualifies as an insured because indisputably he was using the pickup with the permission of Western. The question remains whether Robert was using a Western “owned automobile.” While under the plain language of the policy the district court was correct in holding that “ownership” was important to the coverage issue, we conclude the court was incorrect in holding that “title and registration” is dispositive of the ownership question and in holding that Stover, personally and absolutely, owned the “owned automobile.” As we stated in Weaver v. Hartford Fire Ins. Co., 168 Kan. 80, 84, 211 P.2d 113 (1949): “A person may actually own an automobile and thus have an insurable interest in it and yet not have legal evidence of title.”

 

More specific guidance on ownership is contained in Tyler v. Employers Mut. Cas. Co., 274 Kan. 227, 49 P.3d 511 (2002). There, while driving a patrol car, a Jefferson County deputy sheriff collided with an uninsured driver. The deputy brought an action against the county’s automobile insurance carrier to recover uninsured motorist benefits. The insurance carrier argued that its named insured, “Jefferson County, Kansas,” did not actually own the patrol car because the title listed “Jefferson County Sheriff Dept.” as the owner. 274 Kan. at 234, 49 P.3d 511. Despite the carrier’s assertion that “ownership and legal title are presumed to be one and the same concept in defining the scope of insurance coverage” (274 Kan. at 234, 49 P.3d 511) and despite the sheriff’s department’s listing on the title, the Tyler court concluded that the county’s insurance policy provided coverage, citing Weaver v. Hartford Fire Ins. Co., 168 Kan. 80, 211 P.2d 113.

 

The Court of Appeals distinguished Tyler by noting that there the patrol car was actually listed in the county’s policy as a “covered vehicle.” By contrast, the Canal policy did not specifically list the pickup as a covered automobile. Slip op. at 6. We find this distinction to be potentially relevant to a trier of fact on the issue of ownership, but not dispositive on that issue in a motion for summary judgment. An endorsement to the Canal policy, Form MCS-90, specifically addresses the impact of a vehicle’s nonlisting, providing in relevant part:

“In consideration of the premium stated in the policy to which this endorsement is attached, the insurer (the company) agrees to pay, within the limits of liability described herein, any final judgment recovered against the insured for public liability resulting from negligence in the operation, maintenance or use of motor vehicles subject to the financial responsibility of requirements of Sections 29 and 30 of the Motor Carrier Act of 1980 regardless of whether or not each vehicle is specifically described in the policy and whether or not such negligence occurs on any route or in any territory authorized to be served by the insured or elsewhere.” (Emphasis added.)

 

 

We acknowledge a substantial amount of evidence suggests Stover’s personal ownership of the pickup. Farmers insured the pickup, and only the pickup, under a policy showing Stover as the named insured. The accident report shows only Farmers as the pickup’s insurance carrier. Stover reported the accident to Farmers which paid its policy limits. The certificate of title shows Stover’s name, not Western’s; indeed, Stover testified that he owned the pickup. He also testified that the pickup was not used in Western’s business and that the day of the accident, the pickup was being used for personal business-transporting people to a K-State football bowl game.

 

While the certificate of title shows Western’s address, Stover testified that he often used Western’s address as his own. Additionally, the named insure