United States District Court,

S.D. New York.

Employers Insurance Company of Wausau, Plaintiff,

v.

Harleysville Preferred Insurance Company, The Travelers Indemnity Company, and The Electrical Employers Self Insurance Safety Plan, Defendants.

15cv4175 (DLC)

|

Signed 02/29/2016

Attorneys and Law Firms

For the plaintiff: Janet Jakyung Lee, Marshall Todd Potashner, Jaffe & Asher LLP, 600 Third Avenue, 9th Floor, New York, NY 10016.

For defendant Harleysville Preferred Insurance Company: Brooks Howard Leonard, Lance Jon Kalik, Riker Danzig Scherer Hyland & Perretti LLP, Headquarters Plaza, One Speedwell Avenue, Morristown, NJ 07962.

For defendants The Travelers Indemnity Company and Travelers Property Casualty Company of America: Alan C. Eagle, Joanne Mary Engeldrum, Rivkin Radler, LLP, 926 Rexcorp Plaza, Uniondale, NY 11556.

 

 

OPINION AND ORDER

DENISE COTE, District Judge

*1 This case arises from the tragic death of Nicholas Cavataio (“Cavataio”) on August 5, 2014. Cavataio was working at a construction site when a large battery fell on him as it was being unloaded from a truck. Cavataio’s estate filed a lawsuit in New York state court (the “Underlying Action”). This case concerns three insurance companies, Employers Insurance Company of Wausau (“Wausau”), Travelers Indemnity Company (“Travelers”), and Harleysville Preferred Insurance Company (“Harleysville”), who dispute who among them must defend and indemnify various defendants in that state court action. The motions currently before the Court concern the insurers’ duty to defend. For the reasons that follow, neither Travelers nor Harleysville has a duty to defend the Underlying Action.

 

 

Background

The following facts are undisputed, unless otherwise noted.

 

 

1. The Incident of August 5, 2014

On August 5, 2014, Cavataio was working for Hellman Electric Corporation (“Hellman”) on a construction project, known as TN Task 26, to install am integrated security system at the Throgs Neck Bridge in Bronx, New York. The project was pursuant to a contract between Hellman and the Triborough Bridge and Tunnel Authority (“TBTA”), an affiliate agency of the Metropolitan Transportation Authority (“MTA”).

 

On that day, Hellman received a delivery of two large batteries, one weighing 760 pounds, and the other weighing 2760 pounds, from Monarch Electric Company (“Monarch”). The batteries were manufactured by the Eaton Corporation (“Eaton”). The delivery was made in a truck (the “Truck”) rented from Miller Auto Leasing Corporation (“Miller”). The Truck was registered and principally garaged in New Jersey. When the batteries were delivered, Monarch employee Timothy Delaney (“Delaney”) and Hellman employee Carl Wrynn (“Wrynn”) unloaded the batteries from the Truck. Wrynn and Delaney used a hydraulic pallet jack to move the batteries. According to Delaney, a pallet jack is “a mobile device with wheels and has a lever on top and two large, horizontal prongs extending from the bottom.” The prongs may be placed into large wooden pallets in order to hydraulically lift the pallet and its contents.

 

As Wrynn and Delaney unloaded the second of the large batteries, the battery fell off the truck and struck Cavataio in the head, killing him. Immediately prior to the battery falling, Delaney had moved the pallet jack and battery onto the lift gate of the Truck, and had lowered the battery to be flush with the floor of the truck and lift gate, but had not moved the lift gate. Hellman prepared a report on the incident, which stated:

*2 Nick Cavataio was in the parking lot area assisting Carl Wrynn (Hellman Employee) and truck driver from Monarch Electrical Supply (Tim [Delaney] ). They unloaded crate #1 at 765 pounds with no problem. While unloading crate #2 at 2,735 pounds Tim from Monarch turned the pallet jack around on the 3,000 pound lift gate. All of a sudden the crate tipped over so fast that Carl Wrynn and Tim [Delaney] jumped down from the truck and noticed Nick Cavataio underneath by the side of the 2,735 pound crate. Nick [Cavataio] was bleeding excessively and died on impact. Carl Wrynn called General Foreman, Joseph Sergi who immediately called 911 (ambulance); Nick Cavataio was pronounced deceased on site.

 

Officers of the New York City Police Department interviewed Wrynn and Delaney and prepared a police report which stated:

On August 5, 2014, at approximately 0745 hours witness [redacted] M/W/43 and witness [redacted] M/W/46 were making a delivery of a battery cabinet weighing 2760 pounds at 4260 Throgsneck Expressway at the TBTA facility. Witness #1 was inside the delivery truck using a pump jack to move the skid containing the battery cabinet towards the truck lift with the assistance of witness #2. As witness #1 and #2 moved the pallet to the truck lift the skid began to slide forward off the pump jack. Witnesses were unable to hold the battery cabinet due to the amount of the weight. Battery Cabinet fell off the lift and struck the victim Nicolas Cavataio on the head causing his demise. Victim was pronounced [dead] at 0800 h[ou]rs by EMS.

 

 

1. The Underlying Action

On November 17, 2014, Cavataio’s widow, Rosanne Cavataio (“Ms. Cavataio”), on behalf of both Cavataio’s estate and herself, filed a lawsuit against the MTA, Eaton, Miller, Monarch, and the TBTA, in the New York Supreme Court, Bronx County.1 The complaint alleges that the defendants negligently and/or recklessly caused Cavataio’s death, and includes claims for (1) conscious pain and suffering, (2) wrongful death, (3) violation of New York Labor Law § 240, (4) violation of New York Labor Law § 241, (5) violation of Rule 23 of the Industrial Code of the State of New York, (6) violation of New York Labor Law § 200, and (7) loss of consortium. In her bill of particulars, Ms. Cavataio identifies several alternative theories of liability: (1) defendants’ failure to use the proper pallet jack to move the battery, (2) defendants’ failure to properly unload the battery from the Truck, (3) defendants’ failure to use a loading dock to unload the battery, and (4) defendants’ failure to park the Truck in a safe location during unloading of the batteries. On January 15, 2015, the MTA and TBTA filed a third-party complaint against Hellman for indemnification and/or contribution in connection with any damages awarded to Ms. Cavataio in the Underlying Action, and for breach of contract because Hellman failed to obtain insurance as required by its contract with the MTA and TBTA.

 

Wausau is currently defending Hellman, the MTA, and the TBTA in the Underlying Action, subject to a reservation of rights. Wausau contends that Travelers and Harleysville also have a duty to defend Hellman, the MTA, and the TBTA in the Underling Action.

 

 

III. The Insurance Policies

There are three insurance policies at issue in this case. Wausau issued a general commercial liability policy to Hellman (the “Wausau Policy”), and is currently defending Hellman, the MTA, and the TBTA in the Underlying Action. Harleysville issued a business auto policy to Hellman (the “Harleysville Policy”). Travelers issued a commercial auto policy to Monarch (the “Travelers Policy”). Travelers and Harleysville have disclaimed coverage for the claims in the Underlying Action.

 

 

1. The Wausau Policy

*3 The Wausau Policy provided coverage for one year beginning on June 27, 2014, which encompassed the August 2014 accident date. The limit on coverage under the Wausau Policy is $2,000,000 per occurrence and $4,000,000 in aggregate.

 

 

1. The Travelers Policy

Travelers issued the Travelers Policy to Consolidated Electrical Distributors, Inc. (“CED”). CED has subsidiaries in numerous states, one of which is Monarch. By endorsement dated November 11, 2013, Monarch was added as an additional named insured under the Travelers Policy.

 

The Travelers Policy contains the following provisions defining who is considered an “insured”:

1. Who Is An Insured

The following are “insureds”:

3. You2 for any covered “auto”3.
4. Anyone else while using with your permission a covered “auto” you own, hire or borrow except:

 

 

* * *

(4) Anyone other than your “employees”, partners (if you are a partnership), members (if you are a limited liability company), or a lessee or borrower or any of their “employees”, while moving property to or from a covered “auto”.

 

* * *

1. Anyone liable for the conduct of an “insured” described above but only to the extent of that liability.

With respect to autos “principally garaged in New Jersey,” these provisions are modified by an endorsement titled “New Jersey Changes,” which provides:

1. Changes In Who Is An Insured

Paragraph 1.b.(4) of Who Is An Insured in the Business Auto, Motor Carrier and Truckers Coverage forms is replaced by the following:

(4) Anyone other than your “employees”, partners (if you are a partnership), members (if you are a limited liability company), or a lessee or borrower or any of their “employees”, while moving property to or from a covered “auto”.

However, this paragraph does not apply for coverage up to the minimum financial responsibility limits specified in N.J.S.A. 39:6B-1.

The Travelers Policy states that Travelers will pay all sums an insured “must pay as damages because of ‘bodily injury’ or ‘property damage’ … caused by an ‘accident’ and resulting from the ownership, maintenance or use of a covered ‘auto.”’ The coverage limit under the Travelers Policy is $3,000,000 per accident. The Travelers Policy further provides that Travelers has the “duty to defend any ‘insured’ against a ‘suit’ asking for such damages,” but that Travelers has no duty to defend suits related to injuries for which the Travelers Policy does not provide coverage.

 

The Travelers Policy contains two exclusions which Travelers contends are relevant to the Underlying Action. The first is the Employee Indemnification and Employer’s Liability exclusion (the “Travelers Policy Employer’s Liability Exclusion”), which provides:

This insurance does not apply to any of the following:

 

 

* * *

“Bodily injury” to

1. An “employee” of the “insured” arising out of and in the course of:

(1) Employment by the “insured”; or

(2) Performing the duties related to the “insured’s” business;

1. The spouse, child, parent, brother or sister of that “employee” as a consequence of Paragraph a. above.

This exclusion applies:

(1) Whether the “insured” may be liable as an employer or in any other capacity; and

*4 (2) To any obligation to share damages with or repay someone else who must pay damages because of the injury.

The second exclusion is titled Movement of Property by Mechanical Device (the “Travelers Policy Mechanical Device Exclusion”), and provides:

This insurance does not apply to any of the following:

 

 

* * *

“Bodily injury” or “property damage” resulting from the movement of property by a mechanical device (other than a hand truck) unless the device is attached to the covered “auto”.

 

1. The Harleysville Policy

Harleysville issued the Harleysville Policy to Hellman. The Harleysville Policy had a coverage period from June 27, 2014 until June 27, 2015. The Harleysville Policy has a policy limit of $1,000,000.

 

The Harleysville Policy states that Harleysville “will pay all sums an ‘insured’ must pay as damages because of ‘bodily injury’ or ‘property damage’ to which this policy applies, caused by an ‘accident’ and resulting from the ownership, maintenance or use of a covered ‘auto.”’4 It also states that Harleysville has a “duty to defend any ‘insured’ against a ‘suit’ asking for such damages,” but not for any damages “to which this insurance does not apply.” The Harleysville Policy defines who is an insured as:

You for any covered “auto”.

 

 

***

1. Anyone liable for the conduct of an “insured” described above but only to the extent of that liability.

The Harleysville Policy contains two exclusions which Harleysville contends are relevant to the Underlying Action. The first is the Employee Indemnification and Employer’s Liability exclusion (the “Harleysville Policy Employer Liability Exclusion”), which provides:

This insurance does not apply to any of the following:

 

 

* * *

’Bodily injury’ to:

1. An “employee” of the “insured” arising out of and in the course of:

(1) Employment by the “insured”; or

(2) Performing the duties related to the conduct of the “insured’s” business[.]

The second exclusion is the Movement of Property by Mechanical Device exclusion (“Harleysville Policy Mechanical Device Exclusion”), which provides:

This insurance does not apply to any of the following:

 

 

* * *

“Bodily injury” or “property damage” resulting from the movement of property by a mechanical device (other than a hand truck) unless the device is attached to the covered “auto”.

 

1. Procedural Background

Wausau requested that both Travelers and Harleysville provide coverage to Hellman, the MTA, and the TBA for the Underlying Action. Both Travelers and Harleysville have disclaimed coverage. On June 1, 2015, Wausau filed the instant diversity action, seeking a declaratory judgment that Travelers and Harleysville are required to defend and indemnify Hellman, the MTA, and the TBTA in the Underlying Action. Wausau also seeks a money judgment against Travelers and Harleysville in an amount equal to what it has spent and will spend defending Hellman, the MTA, and the TBTA in the Underling Action.

 

Harleysville filed its answer on July 13, and asserted a counterclaim against Wausau seeking a declaration that Harleysville had no duty to defend Hellman, the MTA, or the TBTA in the Underlying Action, or in the alternative, that the coverage under the Harleysville Policy is in excess to that provided by the Wausau Policy, and that Harleysville is entitled to contribution and/or indemnification from Wausau. Harleysville also asserted a cross-claim against Travelers seeking a declaration that the Harleysville Policy is in excess to the Travelers Policy and that Harleysville is entitled to contribution and/or indemnification from Travelers.

 

*5 Travelers filed its answer on July 17, and also sought a declaration that it has no duty to defend or indemnify Hellman, the MTA, or the TBTA in the Underling Action. In the alternative, if coverage is found under the Travelers Policy, Travelers seeks a determination of the relative share of the parties’ coverage.

 

On October 16, Wausau filed a motion for summary judgment on its duty to defend claims. On November 11, Travelers and Harleysville both filed cross motions for summary judgment. The three motions were fully submitted on December 4.

 

 

Discussion

Summary judgment may not be granted unless all of the submissions taken together “show[ ] 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). “Summary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Smith v. Cty. of Suffolk, 776 F.3d 114, 121 (2d Cir. 2015) (citation omitted). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination, the court must view all facts in the light most favorable to the non-moving party. Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 456 (1992); Gemmink v. Jay Peak Inc., 807 F.3d. 46, 48 (2d Cir. 2015). “[W]here the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented.” Sec. Ins. Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir. 2004) (citation omitted).

 

Once the moving party has asserted facts showing that the non-movant’s claims or affirmative defenses cannot be sustained, “the party opposing summary judgment may not merely rest on the allegations or denials of his pleading; rather his response, by affidavits or otherwise as provided in the Rule, must set forth specific facts demonstrating that there is a genuine issue for trial.” Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (citation omitted); see Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). “[C]onclusory statements, conjecture, and inadmissible evidence are insufficient to defeat summary judgment,” Ridinger v. Dow Jones & Co. Inc., 651 F.3d 309, 317 (2d Cir. 2011) (citation omitted), as is “mere speculation or conjecture as to the true nature of the facts.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation omitted). Only disputes over material facts — “facts that might affect the outcome of the suit under the governing law” — will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

 

Under New York law, an insurer has a duty to defend a suit “whenever the allegations of the complaint suggest a reasonable possibility of coverage.” Euchner-USA, Inc. v. Hartford Cas. Ins. Co., 754 F.3d 136, 141 (2d Cir. 2014) (citation omitted). The duty to defend is broader than the duty to indemnify, and thus an insurer may be required to defend a suit and yet have no duty to indemnify once the litigation has run its course. Id. at 140. “If, liberally construed, the claim is within the embrace of the policy, the insurer must come forward to defend its insured no matter how groundless, false or baseless the suit may be,” and “[a]ny doubt as to whether the allegations state a claim within the coverage of the policy must be resolved in favor of the insured and against the carrier.” Id. at 141 (citation omitted).

 

*6 Similarly, under Texas law, “courts strictly apply the ‘eight-corners rule,’ which looks only to the four corners of the most recent complaint in the underlying action as well as the four corners of the insurance policy.” City of Coll. Station, Tex. v. Star Ins. Co., 735 F.3d 332, 336 (5th Cir. 2013). If the underlying complaint pleads facts sufficient to create the potential of covered liability, the insurer has a duty to defend the entire case, but “if the insurer can show that all of the alleged liability falls outside of the scope of coverage or within the scope of an exclusion, the insurer has no duty to defend.” Id. at 336-37. In assessing the duty to defend, the Court must construe the complaint liberally, construe exclusions narrowly, and resolve any ambiguity in favor of the insured. Id. at 337.

 

 

1. Coverage Under the Travelers Policy
2. Choice of Law

Wausau and Travelers dispute which law governs the Travelers Policy. Wausau argues that New Jersey law applies because Monarch has its principal place of business in New Jersey and because the Truck was garaged in New Jersey. Travelers argues that Texas law applies because the Travelers Policy was originally issued to Monarch’s parent, CED, and CED has its principal place of business in Texas. There is a conflict between New Jersey and Texas law because New Jersey law would invalidate certain exclusions in the Travelers Policy that are enforceable under Texas law.

 

“Where jurisdiction is predicated on diversity of citizenship, a federal court must apply the choice-of-law rules of the forum state.” Thea v. Kleinhandler, 807 F.3d 492, 497 (2d Cir. 2015); see also Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). New York recognizes the “center of gravity” or “grouping of contacts” approach to choice of law in contract disputes, which applies the law of the state with the closest relationship to the transaction and the parties. In re Liquidation of Midland Ins. Co., 16 N.Y.3d 536, 543 (2011). “In the context of liability insurance contracts, the jurisdiction with the most ‘significant relationship to the transaction and the parties’ will generally be the jurisdiction ‘which the parties understood was to be the principal location of the insured risk.”’ Id. at 544 (citation omitted). When an insurance policy covers risks spread across multiple states, however, the principal place of business of the insured serves as a proxy for the principal location of the insured risk. Certain Underwriters at Lloyd’s, London v. Foster Wheeler Corp., 822 N.Y.S.2d 30, 35 (1st Dep’t 2006). Here, the insured that negotiated and purchased the Travelers Policy was CED, which has its principal place of business in Texas, and thus Texas law applies to the Travelers Policy.

 

Wausau’s arguments to the contrary are without merit. First, Wausau argues that Monarch, not CED, is the relevant insured, and was added to the Travelers Policy as a separate insured by endorsement dated November 1, 2013. This argument fails. Foster Wheeler focused on the intent of the parties who entered into the insurance contract. Here it is CED and Travelers who purchased and entered into the Travelers Policy, and Monarch was only added by endorsement as an additional insured. In addition, the court in Foster Wheeler reasoned that the choice of law analysis should promote “certainty, predictability and uniformity of result” and “ease in the determination and application of the law to be applied.” Id. at 34 (citation omitted). Wausau’s reasoning would result in the application of dozens of states’ law to a single policy, a result disfavored by New York law. See Maryland Cas. Co. v. Cont’l Cas. Co., 332 F.3d 145, 154 (2d Cir. 2003) (noting “[t]he dearth of New York cases applying the laws of more than one state to an insurance policy”).

 

*7 Second, Wausau argues that the factors used to determine the principal place of the risk weigh in favor of application of New Jersey law: (1) Monarch’s domicile is New Jersey, (2) the Truck was principally garaged in New Jersey, and (3) the Travelers Policy itself contains an endorsement specific to New Jersey. These factors, however, are not controlling when the risk covered by an insurance contract spans multiple states. Foster Wheeler, 822 N.Y.S.2d at 33. Moreover, the inclusion of numerous state-specific endorsements to the Travelers Policy suggests the contracting parties intended that a single state’s law would apply, and that only certain provisions would vary by state accordingly to the respective endorsements.

 

Third, Wausau argues that Foster Wheeler does not apply because Monarch was added as an insured under the Travelers Policy to insure against a specific risk, relying on Ill. Nat. Ins. Co. v. Zurich Am. Ins. Co., 969 N.Y.S.2d 11, 12 (2013). That case is distinguishable because there the additional named insured was added to insure a specific construction project to be performed by a subcontractor. Id. Here, Monarch was added along with numerous other subsidiaries of CED and coverage was not limited to a specific project.

 

 

1. Who Is an Insured Under the Travelers Policy?

Hellman is an insured under the Travelers Policy. This determination requires examination of both the Travelers Policy and its New Jersey Endorsement.

 

The Travelers Policy provides that, in addition to Monarch, an “insured” includes anyone who uses a covered auto with Monarch’s permission except “[a]nyone other than [Monarch’s] ‘employees’ … or a lessee or borrower or any of their ‘employees’, while moving property to or from a covered ‘auto.”’ It is undisputed that Hellman is not an employee of Monarch and that Cavataio’s injuries occurred while a battery was being moved out of the Truck.5 Consequently, Hellman would not qualify as an insured under the language of the Travelers Policy.

 

But, this conclusion is altered by an endorsement titled “New Jersey Changes.” The endorsement modifies the Travelers Policy’s definition of “Who Is An Insured” such that it does not apply “for coverage up to the minimum financial responsibility limits specified in N.J.S.A. 39:6B-1” (the “Omnibus Statute”). The Omnibus Statute provides:

Every owner or registered owner of a motor vehicle registered or principally garaged in this State shall maintain motor vehicle liability insurance coverage … insuring against loss resulting from liability imposed by law for bodily injury, death and property damage sustained by any person arising out of the ownership, maintenance, operation or use of a motor vehicle wherein such coverage shall be at least in: (1) an amount or limit of $15,000.00, exclusive of interest and costs, on account of injury to, or death of, one person, in any one accident.

N.J. Stat. Ann. § 39:6B-1. The Supreme Court of New Jersey has held that “that the obligation to provide coverage in a loading and unloading accident arises from statute and therefore cannot be limited by contract.” Potenzone v. Annin Flag Co., 191 N.J. 147, 152-53 (2007). Accordingly, if the Omnibus Statute applies, the endorsement modifies the definition of insured but only up to the minimum coverage required by the statute.

 

*8 The Omnibus Statute applies to the claims in the Underlying Action. The statute “requires that owners of motor vehicles registered or principally garaged in New Jersey maintain liability insurance for certain mandatory minimum amounts.” Citizens United Reciprocal Exch. v. Perez, 223 N.J. 143, 152-53 (2015). Here, the owner of the Truck is Miller, not Monarch. Monarch, however, assumed the contractual responsibility to obtain insurance coverage for operation of the Truck. The leasing agreement between Monarch and Miller provides:

CUSTOMER SHALL AT HIS EXPENSE: (1) OBTAIN A POLICY OF BODILY INJURY AND PROPERTY DAMAGE LIABILITY & PHYSICAL DAMAGE INSURANCE WHICH SHALL EXTEND COVERAGE TO MILLER AND MILLER’S ASSIGNEE AS AN ADDITIONAL INSURED AND LOSS PAYEE ENTITLED TO ALL THE TERMS AND BENEFITS OF THE POLICY….

The agreement further states that the insurance obtained by Monarch to satisfy this requirement is the Travelers Policy. Monarch’s insurer, Travelers, was therefore required to provide the minimum coverage required by New Jersey Law. See Carolina Cas. Ins. Co. v. Travelers Prop. Cas. Co., 90 F. Supp. 3d 304, 315 (D.N.J. 2014) (holding that the statutory minimum applies when the party seeking coverage is not the owner of the vehicle but assumed the contractual responsibility to provide insurance).6

 

Having concluded that Omnibus Statute applies, the last issue is whether the claims against Hellman involve an injury “arising out of the ownership, maintenance, operation or use of a motor vehicle.” N.J. Stat. Ann. § 39:6B-1. There is no genuine dispute that Cavataio was killed by a falling battery while Hellman and Monarch employees were in the process of unloading the battery from the Truck. Under New Jersey law, loading and unloading a vehicle is considered “use” of a motor vehicle. Pisaneschi v. Turner Const. Co., 345 N.J. Super. 336, 343 (App. Div. 2001). Accordingly, Hellman is an insured under the Travelers Policy but only up to the minimum coverage required by the Omnibus Statute.

 

Wausau next contends that the MTA and TBTA are insureds under the Travelers Policy because an insured includes “[a]nyone liable for the conduct of an ‘insured’ … but only to the extent of that liability.” The MTA and TBTA are being sued in the Underlying Action under a theory of vicarious liability for the negligence of the other defendants, who are insured under the Travelers Policy. Travelers does not dispute that the MTA and TBTA qualify as insureds under the Travelers Policy.

 

 

1. Mechanical Device Exclusion

The Travelers Policy Mechanical Device Exclusion provides that coverage does not extend to bodily injury “resulting from the movement of property by a mechanical device (other than a hand truck) unless the device is attached to the covered ‘auto.”’ Under Texas law, the term “resulting from” in the insurance context requires only that a result arose out of or flowed from a cause, and does not require a showing of proximate causation. Lancer Ins. Co. v. Garcia Holiday Tours, 345 S.W.3d 50, 55 (Tex. 2011) (holding that “result from” and “arise out of” have the same meaning); Utica Nat. Ins. Co. of Texas v. Am. Indem. Co., 141 S.W.3d 198, 203 (Tex. 2004) (holding that term “arise out of” equates to but-for rather than proximate causation).

 

*9 It is undisputed that Cavataio was injured while a battery was being moved by a pallet jack, a hydraulically-powered mechanical device.7 It is also undisputed that the pallet jack was not attached to the Truck. Cavataio’s injuries therefore resulted from the movement of property by a mechanical device, and fall under the unambiguous language of the Travelers Policy Mechanical Device Exclusion.

 

Wausau raises two arguments for why the exclusion does not apply. Neither has merit. First, Wausau argues that the exclusion does not apply because some of the claims in the Underlying Action do not allege that the injury was a result of the movement of the battery. This argument is unavailing because all of the claims in the Underlying Action allege that Cavataio was killed by the battery while it was being moved from the Truck, and it is undisputed that the battery was being moved by a pallet jack at that time. While the theory of recovery differs among the claims, the alleged injury is that Cavataio was killed by the falling battery, which was being moved by the pallet jack.

 

Second, in a letter dated February 17, 2016, Wausau contends that Cavataio’s injuries were caused by “a failure of the lift gate to maintain level and hold the weight of the battery unit and pallet,” rather than due to failure of the pallet jack. In support of this argument, Wausau relies on the deposition testimony of Delaney, who testified that, immediately prior to the battery falling, he had moved the battery, pallet, and pallet jack onto the lift gate, and lowered the battery to be flush with the lift gate and truck. At that moment, the battery was sitting on a pallet, the pallet was sitting on the pallet jack, and the pallet jack was sitting on the lift gate, which was attached to the end of the Truck. Importantly, Delaney’s unrefuted testimony is that the lift gate was not moving when the battery fell. Accordingly, from the time Delaney and Wrynn began moving the battery until the time it fell on Cavataio, the only device used to move the battery was the pallet jack; the lift gate remained stationary. Delaney further testified that at the time the battery fell on Cavataio, the lift gate remained flush with the bed of the truck. For these reasons, there is no genuine dispute that the battery fell while being moved by a mechanical device.

 

Accordingly, the Travelers Policy Mechanical Device exclusion applies to all the claims in the Underlying Action. Because all of the alleged liability falls within the scope of this exclusion, Travelers has no duty to defend the Underlying Action.

 

 

1. Employer’s Liability Exclusion

*10 The Travelers Employer’s Liability Exclusion provides that coverage does not extend to bodily injuries to “[a]n ‘employee’ of the ‘insured’ arising out of and in the course of (1) [e]mployment by the ‘insured’; or (2) [p]erforming the duties related to the ‘insured’s’ business.” The parties do not dispute that this exclusion is inapplicable to the MTA and TBTA, but dispute whether it applies to Hellman. Having already determined that all the claims in the Underlying Action fall within the scope of the Travelers Policy Mechanical Device Exclusion and that Travelers has no duty to defend the Underlying Action, this issue is moot.

 

 

1. Coverage Under the Harleysville Policy8

 

1. Who Is an Insured Under the Harleysville Policy?

Hellman is a named insured under the Harleysville Policy. The MTA and TBTA are additional insureds because the Harleysville Policy provides that an insured includes “[a]nyone liable for the conduct of an “insured … but only to the extent of that liability.” The claims against the MTA and TBTA include claims that those parties are vicariously liable for the death of Cavataio. Specifically, the complaint in the Underlying Action includes claims under N.Y. Labor Law §§ 240 and 241, which impose vicarious liability on the owners of premises for the negligence of others. See Robinson v. City of New York, 779 N.Y.S.2d 757, 760 (Sup. Ct. 2004) (noting that violations of § 240 impose vicarious liability on owners); Torres v. City of New York, 7 N.Y.S.3d 539, 542 (2d Dep’t 2015) (noting that § 241 “imposes a nondelegable duty on owners, contractors, and their agents to provide a safe workplace to workers.”). Because the MTA and TBTA’s liability under these statutes could be predicated on Hellman’s conduct, the MTA and TBTA qualify as insureds to the extent of Hellman’s liability.

 

Harleysville argument to the contrary is unpersuasive. Harleysville argues that Ms. Cavataio did not bring any claims against Hellman in the Underlying Action and that the complaint in the Underlying Action alleges that Cavataio’s death was caused solely by the named defendants. For those reasons, Harleysville contends that the MTA and TBTA are not alleged to be liable for the conduct of Hellman. This argument fails because (1) Ms. Cavataio could not bring claims directly against Hellman because of N.Y. Workers’ Comp. Law § 11, which provides that workers’ compensation is “exclusive and in place of any other liability whatsoever,” and (2) the complaint in the Underlying Action does allege that Cavataio’s death occurred at Hellman’s worksite, and it is undisputed that a Hellman employee, Wrynn, was involved in unloading the battery that killed Cavataio. There is a reasonable possibility that the MTA and TBTA will be held liable for the conduct of Hellman, and that is all that is required at this juncture. GMM Realty, LLC v. St. Paul Fire & Marine Ins. Co., 11 N.Y.S.3d 661, 662 (2d Dep’t 2015) (“[A]n insurer’s duty to defend … arises whenever the allegations in the complaint in the underlying action, construed liberally, suggest a reasonable possibility of coverage.”).

 

 

1. Mechanical Device Exclusion

The Harleysville Policy contains an exclusion for bodily injury “resulting from the movement of property by a mechanical device.” The language of this exclusion is identical to the one in the Travelers Policy. As already discussed in connection with the Travelers Policy Mechanical Device Exclusion, Cavataio was killed while a battery was being moved by a pallet jack, and that pallet jack was not attached to the Truck. Because all the claims in the Underlying Action are predicated on Cavataio’s death, all claims fall under the plain language of the Harleysville Policy Mechanical Device Exclusion.

 

*11 Wausau makes three arguments as to why the Harleysville Policy Mechanical Device Exclusion does not apply. None of them has merit. First, it argues that the complaint in the Underlying Action does not mention a pallet jack, and that Harleysville may not rely on extrinsic evidence to defeat coverage. This argument fails because (1) Ms. Cavataio alleges in her bill of particulars in the Underlying Action that the battery was being moved by a pallet jack, and (2) it is undisputed that the battery that crushed Cavataio was being moved by means of a pallet jack when it fell.

 

Second, Wausau argues that the exclusion does not apply because the pallet jack is a type of hand truck, the use of which is an exception to the Harleysville Policy Mechanical Device Exclusion. As discussed above in connection with the Travelers Policy Mechanical Device Exclusion, a pallet jack is not a hand truck under any reasonable interpretation of the term. The case relied upon by Wausau does not alter that conclusion. See Manigault v. W.H. Beaumont & Son, 237 N.Y.S. 370 (3d Dep’t 1929) (concerning a dolly, not a pallet jack). Accordingly, there is no genuine dispute that the battery fell while being moved by a mechanical device.

 

Third, Wausau argues that the exclusion does not apply because Ms. Cavataio has raised several different theories of liability in the Underlying Action, some of which are unrelated to the pallet jack. This argument is unavailing for the reasons discussed in connection with the Travelers Policy. Although Ms. Cavataio has alleged different theories of liability in the Underlying Action, the claims all arise from the allegation that Cavataio was killed while the battery was being moved by a pallet jack. See U.S. Fire Ins. Co. v. New York Marine & Gen. Ins. Co., 706 N.Y.S.2d 377, 380 (2000) (holding that the possibility of alternative theories of recovery did not alter the operative act giving rise to the accident itself). Accordingly, the Harleysville Policy Mechanical Device Exclusion applies to exclude coverage for Hellman, the MTA, and the TBTA under the Harleysville Policy.

 

 

1. Employer’s Liability Exclusion

The Harleysville Policy contains an exclusion for bodily injury to “[a]n ‘employee’ of the ‘insured’ arising out of and in the course of … [e]mployment by the ‘insured.”’ Wausau and Harleysville dispute whether coverage is excluded under this provision. Having determined that coverage is excluded under the Harleysville Policy Mechanical Device Exclusion, this issue is moot.

 

 

III. Priority of Coverage Among the Policies

Wausau seeks a declaration that the Travelers Policy and Harleysville Policy are primary with respect to the claims in the Underlying Action, and that the Wausau Policy is excess. Having determined that neither Travelers nor Harleysville has a duty to defend the Underlying Action, this issue is moot. Similarly, Travelers’ and Harleysville’s requests for a determination of the relative share of the parties’ coverage are moot.

 

 

Conclusion

Wausau’s motion for summary judgment is denied. Neither Travelers nor Harleysville has a duty to defend the Underlying Action. Wausau’s claim for a declaration concerning the priority of coverage among the parties is dismissed as moot.

 

Travelers’ motion for summary judgment is granted insofar as there is no coverage under the Travelers Policy for the claims in the Underlying Action, and thus Travelers has no duty to defend the Underlying Action. For that reason, Harleysville’s cross-claim against Travelers is dismissed.

 

Harleysville’s motion for summary judgment is granted insofar as there is no coverage under the Harleysville Policy for the claims in the Underlying Action, and thus Harleysville has no duty to defend Hellman, the MTA, or the TBTA. Harleysville’s counterclaim against Wausau seeking a declaration that Wausau has a duty to defend the Underlying Action is dismissed as moot.

 

All Citations

Slip Copy, 2016 WL 815277

 

 

Footnotes

1

Ms. Cavataio could not assert claims directly against Hellman because of N.Y. Workers’ Comp. Law § 11, which provides that workers’ compensation is the exclusive remedy to an employee, his spouse, or other personal representatives for injuries to an employee.

2

“You” is defined by the Travelers Policy as “the Named Insured,” which includes Monarch.

3

A “covered auto” is defined by the Travelers Policy as “any auto.”

4

A covered “auto” is defined as “any auto.”

5

Wausau argues that the injury did not occur while property was being moved “from” an auto since the battery was being moved “from the cargo hold of the truck to the lift gate of the truck,” and that movement of the battery was “wholly within and on the Truck.” This argument does not create a genuine dispute since it is undisputed that the battery was moved from the truck bed to remove it from the Truck altogether.

6

In Carolina, a company called Ho-Ro was a named insured under a policy issued by Carolina Casualty Insurance Company (“CCIC”). Ho-Ro leased a vehicle and used it to load materials at a construction site for a contractor called Gardner Bishop. A Ho-Ro employee was injured when an object fell from the truck and crushed his foot. Travelers prevailed in arguing that the Omnibus Statute required coverage under the CCIC policy for Gardiner Bishop, even though it neither owned nor had leased the truck.

7

The parties dispute whether a pallet jack is a type of “hand truck,” the use of which is an exception to the Travelers Policy Mechanical Device Exclusion. There is no genuine dispute, however, that a hydraulically-powered device capable of moving a battery weighing over a ton is not a hand truck. A hand truck is defined as “a two-wheeled cart for moving heavy objects consisting of a vertical framework at the top and a metal blade at the bottom that is inserted beneath a load, the entire assembly being tilted backwards until balanced for easy pushing or pulling.” The American Heritage Dictionary of the English Language (4th ed. 2000). A pallet jack is not a hand truck under any reasonable interpretation of that term, and thus, there is no genuine dispute that the battery was being moved by a mechanical device.

8

The parties agree that the Harleysville Policy is governed by New York law.

United States Court of Appeals,

Eighth Circuit.

Kristen BROWN; A.B., by next friend Kristen Brown; R.B., by next friend Kristen Brown, Plaintiffs–Appellees

v.

Kenneth L. DAVIS, Jr., Defendant

William Davis; William Davis Logging, Inc., Defendants–Appellants.

No. 15–1009.

|

Submitted: Dec. 15, 2015.

|

Filed: Feb. 23, 2016.

 

 

Appeal from United States District Court for the Eastern District of Missouri—St. Louis.

Attorneys and Law Firms

Kenneth L. Halvachs, Belleville, IL, for appellants.

Richard Witzel, Michael A. Fisher, John B. Greenberg, David A Dimmitt, Saint Louis, MO., for appellees.

Before MURPHY, BENTON, and KELLY, Circuit Judges.

Opinion

MURPHY, Circuit Judge.

 

*1 Kyle Brown was killed on a bridge crossing the Mississippi River between Missouri and Illinois when a large “log skidder” tractor fell off a truck onto his car. The truck hauling the log skidder was being driven by Kenneth Davis, Jr. (Ken) for his uncle William Davis and William Davis Logging, Inc. (WDL). Brown’s wife Kristen brought this wrongful death action against Ken Davis, William Davis, and WDL on behalf of herself and her two children. The complaint asserted negligence based on Ken’s driving and William’s failure to block oncoming traffic. After the case was removed to federal court,1 it was tried before a jury which returned a $3 million verdict for the Browns. William Davis and WDL appeal. We affirm.

 

 

I.

On December 14, 2011 William Davis, the president of WDL, and his nephew Ken Davis, an independent contractor, set out from Atlas, Illinois to deliver a John Deere 540B log skidder owned by WDL to a buyer in Eolia, Missouri. In order to reach Eolia, the Davises planned to travel west across the Mississippi on the Champ Clark Bridge. That bridge is 20 feet wide and has two lanes. Since the log skidder was 10 feet wide, it would have had to cross the centerline and encroach on the eastbound lane of the bridge.

 

At trial Sheriff Paul Petty of Pike County, Illinois testified about a 20 year local practice for wide loads crossing the bridge. According to the sheriff, the practice was for a driver with a wide load to call a law enforcement agent and request that all oncoming bridge traffic be stopped. Although Ken was aware of this practice, he preferred to “close” the bridge himself by sending another driver across first to block the eastbound lane. Ken testified that he had hauled loads across the bridge for William “thousands” of times. Often William was with him and would cross first in his pickup truck to close the lane until Ken and his load were safely across to the west. Ken stated that William had closed the bridge for him hundreds of times. William also testified that he had blocked traffic on the bridge himself and sometimes had called law enforcement to close it.

 

At the west end of the bridge where plaintiffs allege William Davis was supposed to block traffic there is a four way stop at the first intersection. There are two gas stations on the eastern corners of that intersection, and between them and the west end of the bridge is a motel. A driver heading east from either gas station or the motel may turn directly onto the road which leads to the bridge and avoid the four way stop at the intersection. Because of these access points on the west side of the bridge, William would be ideally positioned close enough to the bridge to block oncoming vehicles either from the intersection or from the three adjacent properties. The day before the accident, Ken loaded the log skidder onto a flatbed trailer for William who owned both the trailer and the truck.

 

The next morning the two met for breakfast at the Atlas Cafe, then went to Ken’s lot, checked the trailer, and set off westbound for Missouri. William went first in the pickup. Ken followed with the log skidder and slowed as he approached the east end of the bridge and drove onto the shoulder to call William to check on any traffic. After William assured Ken that “the bridge was clear” and hung up, Ken drove west. As Ken passed under the first part of the bridge superstructure, he saw a car coming east over a rise in the center of the bridge. He “tried to move over because [it] was coming at [him] real quick,” but he “got over too far” and hit the bridge with the log skidder. On impact the skidder ripped loose from the trailer and struck the top of the oncoming car, killing its driver, Kyle Brown. The collision occurred on the Illinois side of the bridge about 500 feet east of its center.

 

*2 Ken Davis admitted that his negligence had caused the accident resulting in Brown’s death so the key contested issue for the jury related to William’s actions on the Missouri side of the bridge. Both William and another witness, Richard Brummell, testified about William’s location, using an aerial photograph of the scene to explain to the jury what happened. William testified that as he headed west over the bridge toward Missouri, Ken called and asked him “to look out for trucks.” William responded that “it’s all clear.” Then when William reached the Missouri side of the bridge, he stopped “a few car lengths” before the stop sign at the intersection ahead and “sat there for a few minutes” watching for oncoming traffic. William admitted at trial that from that location he would “probably not” have been able to stop traffic entering onto the road from the motel parking lot or the two gas stations closer to the bridge.

 

When William saw Richard Brummell’s pickup truck approaching the Missouri intersection, he “told [Brummell] that Ken was coming across the bridge with a wide load.” Brummell then stopped and waited. While he was waiting at the intersection, William looked in his rearview mirror and “could see the super structure of [the] truck … coming across the bridge.” Later, however, he stated that he could have been mistaken about whether he had in fact seen it. After he stopped Brummell, William said he “saw no traffic.” Apparently he believed Ken could safely proceed over the bridge at that point. William then crossed to the west side of the intersection to use the restroom in the Shell station. As he walked into the station, Ken called and said that there had been an accident.

 

Richard Brummell’s testimony was different in significant points. He explained that as he was driving east from Missouri to his farm in Illinois, he first saw William when they were both approaching the intersection at the west end of the bridge. Brummell testified that instead of waiting at the intersection to block traffic, William had proceeded through the crossing “just like you do at a normal stop sign” and gone over to the Shell station. Brummell did not see William give any signal for him to wait and “didn’t see nobody stop anybody.” Brummell continued onto the bridge and came to the scene of the accident where he saw Ken standing next to his truck calling for help on his cell phone. At that point Brummell backed up to the Missouri end of the bridge in order to block traffic coming from the two gas stations or the motel. Brummell did not see Kyle Brown’s car prior to the accident.

 

Kyle’s wife Kristen Brown filed a wrongful death action in state court which was subsequently removed to the United States District Court for the Eastern District of Missouri, see 28 U.S.C. §§ 1332(a), 1441(a). The case was tried to a jury which found in favor of Brown and her children. Damages of $3,000,000 were assessed against Ken, William, and WDL jointly and severally. After trial William and WDL filed a motion for judgment as a matter of law, claiming that there had been insufficient evidence to find William individually liable and that the WDL company was entitled to judgment on the vicarious liability claims. See Fed.R.Civ.P. 50. The district court concluded that there was sufficient evidence for the jury to find that William Davis was negligent and liable for Kyle Brown’s death, and WDL also responsible for William’s negligence. William and WDL now appeal.

 

 

II.

*3 [1] [2] [3] Appellants contend that the district court erred by denying their motion for judgment as a matter of law because there was insufficient evidence that William was negligent. We review de novo the denial of such a motion. Conseco Fin. Servicing Corp. v. N. Am. Mortg. Co., 381 F.3d 811, 818 (8th Cir.2004). We view the evidence “in the light most favorable to the verdict, giving the prevailing party the benefit of all reasonable inferences, and we will not judge the credibility of the witnesses or weigh the evidence.” Id. (citation omitted). We will not set aside the jury verdict “unless there is a complete absence of probative facts to support the verdict.” Id.

 

The collision which killed Kyle Brown occurred east of the boundary between Missouri and Illinois at the middle of the main channel of the Mississippi River. See 3 Stat. 545 (1820) (delineating the boundary). William’s actions on the west end of the bridge occurred in Missouri. The district court had jurisdiction based on the diversity of the parties and applied Missouri tort law under Missouri’s choice of law principles. See Am. Guar. & Liab. Ins. Co. v. U.S. Fid. & Guar. Co., 668 F.3d 991, 996 (8th Cir.2012). No party has challenged that determination, and we also apply Missouri tort law. See Lackawanna Chapter of the Ry. & Locomotive Historical Soc’y, Inc. v. St. Louis Cty., 497 F.3d 832, 835 (8th Cir.2007). See generally Gerhard v. Terminal R.R. Ass’n of St. Louis, 299 S.W.2d 866, 869–70 (Mo.1957) (per curiam) (discussing Missouri’s concurrent jurisdiction “on the river Mississippi” as applied to cases involving bridges).

 

[4] To prove a claim of negligence under Missouri law, “a plaintiff must establish that the defendant had a duty to protect the plaintiff from injury, the defendant failed to perform that duty, and the defendant’s failure proximately caused injury to the plaintiff.” Lesch v. United States, 612 F.3d 975, 981 (8th Cir.2010) (citing Lopez v. Three Rivers Elec. Co-op., 26 S.W.3d 151, 155 (Mo.2000)).

 

 

A.

[5] [6] [7] [8] Appellants first argue that the Browns did not present sufficient evidence to establish that William had a legal duty. “The duty to exercise care may be a duty imposed by common law under the circumstances of a given case.” Hoover’s Dairy, Inc. v. Mid–Am. Dairymen, Inc./Special Prods., Inc., 700 S.W.2d 426, 431 (Mo.1985) (quoting Zuber v. Clarkson Constr. Co., 363 Mo. 352, 251 S.W.2d 52, 55 (Mo.1952)). The extent of a duty “is generally measured by ‘whether or not a reasonably prudent person would have anticipated danger and provided against it.’ ” Id. (quoting Scheibel v. Hillis, 531 S.W.2d 285, 288 (Mo.1976)). The “paramount factor” in determining whether a duty exists is the foreseeability that some injury might result. Id. Whether the defendant “should have foreseen a risk in a given set of circumstances” depends on whether there was “some probability or likelihood of harm sufficiently serious that ordinary persons would take precautions to avoid it.” Lopez, 26 S.W.3d at 156.

 

*4 [9] There was ample evidence in the record for the jury to find that William should have foreseen the risks of transporting the log skidder across the bridge without first stopping traffic and that ordinary persons would have taken some precautions. An ordinary person would know that truckers must take special measures when hauling wide loads, especially on narrow roads. It would have appeared to a reasonably prudent person that the 10 foot wide log skidder required both of the two lanes in order to pass safely across the narrow Champ Clark Bridge. Given the risk of a collision, an ordinary reasonable person would have either called law enforcement to close the bridge from other traffic or blocked it himself. In fact, the normal practice for William and Ken was to close the bridge before crossing with a wide load. On this record, moreover, the evidence indicated that William directed each stage of the move and his role was to stop traffic during the bridge crossing and inform Ken once the bridge was clear. The record was sufficient to prove that William had a duty to take precautions against the risks involved in transporting the log skidder over the bridge.

 

Appellants argue however that William had no legal duty because he did not “gratuitously and voluntarily undertake” a duty to Kyle Brown. They cite the Restatement (Second) of Torts § 323 which imposes liability on a person “who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things.” See Trader v. Blanz, 937 S.W.2d 325, 328 (Mo.Ct.App.1996). Section 323 of the Restatement is not applicable to this case, however. The jury found that William agreed to “participate in the process of transporting the log skidder over the Champ Clark bridge,” that he failed to stop oncoming traffic or to properly advise Ken of oncoming traffic, and that he was thereby negligent. In this case, William’s legal duty arose because a reasonably prudent person would have anticipated danger under the circumstances and provided against it, Hoover’s Dairy, Inc., 700 S.W.2d at 431 (Mo.1985), not because he was “render[ing] services” to Kyle Brown.

 

The district court used the language of a liability element under section 323 in one of its instructions, asking the jury to determine whether William’s negligence “increased the risk of harm.” See Restatement (Second) of Torts § 323 (1965). This was not however a “gratuitous undertaking” case. The district court added that element “to accommodate a belief by [William] that this would be some action that he is undertaking voluntarily,” but it explained that the jury could find William liable even if he “was not performing in a gratuitous manner.” Appellants’ objections to the jury instructions were denied, and the jury was never asked to determine whether William undertook to “render services” to Kyle Brown. The district court correctly instructed on general negligence principles, and there was sufficient evidence for the jury to find that William had a legal duty to take appropriate precautions.

 

 

B.

*5 [10] Appellants next argue that there was insufficient evidence for the jury to find that William breached his duty of care. The district court properly instructed the jury to determine whether William failed to use “the degree of care that an ordinarily careful person would use under the same or similar circumstances.” See Lopez, 26 S.W.3d at 158. There was ample evidence to support the jury’s finding that William failed to use ordinary care. Sheriff Petty’s testimony showed that closing the bridge was an ordinary practice in the community. See Wright v. Chicago, Burlington & Quincy R.R. Co., 392 S.W.2d 401, 405 (Mo.1965) (discussing the relevance of evidence of custom in determining what an ordinarily prudent person would do under the circumstances). William knew about the crossing procedure because on prior occasions he had called law enforcement to close the bridge or blocked the bridge himself. Ken testified that William had blocked the bridge hundreds of times when WDL was transporting wide loads. Brummell’s testimony, viewed in the light most favorable to the verdict, showed that on this record William did not warn others to stop. Instead of blocking traffic, William went to the Shell station. William testified that he called Ken and told him the bridge was “all clear” although he did not know in fact if it was.

 

Appellants point to William’s testimony about what he agreed to do the day of the bridge crossing, but the jury apparently believed Brummell’s version of the facts, and we cannot reweigh the evidence or the jury’s credibility findings. Conseco Fin. Servicing Corp., 381 F.3d at 818. Moreover, William’s own testimony showed that even if he did in fact stop and wait, he did so in a position that would not have prevented cars leaving the motel from turning on to the bridge. He therefore was not in a position to block traffic adequately. “Maybe I was a little too far forward,” William admitted. We conclude that the evidence of his failure to stop traffic and of his misleading signal to Ken was sufficient for the jury to find that William failed to exercise ordinary care.

 

 

C.

[11] [12] [13] Appellants also argue that William’s actions were not the proximate cause of Kyle Brown’s death. The general test for proximate cause “is whether an injury is the natural and probable consequence of the defendant’s negligence.” Stanley v. City of Independence, 995 S.W.2d 485, 488 (Mo.1999). Proximate cause “inquires into the scope of foreseeable risk created by the defendant’s act or omission.” Nail v. Husch Blackwell Sanders, LLP, 436 S.W.3d 556, 563 (Mo.2014). In this context, “foreseeability refers to whether a defendant could have anticipated a particular chain of events that resulted in injury or the scope of the risk that the defendant should have foreseen.” Lopez, 26 S.W.3d at 156. The defendant need not have anticipated the “exact manner” in which a particular injury would occur. Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 865 (Mo.1993) (quoting Tharp v. Monsees, 327 S.W.2d 889, 894 (Mo.1959)). Rather, the plaintiff must prove that the defendant “could foresee the person who would be injured” and that he “knew or ought to have known that there was an appreciable chance some injury would result.” Id. (quoting Tharp, 327 S.W.2d at 894).

 

*6 [14] Viewed in the light most favorable to the verdict, the evidence was sufficient for the jury to find that William’s actions were the proximate cause of the accident. Had William blocked traffic from entering the bridge, as an ordinarily careful person would have done, Kyle Brown’s car would not have been on the bridge at the same time as the truck carrying the log skidder. William knew that any person driving onto the bridge might be at risk and should have foreseen the risk of a collision.

 

[15] [16] Appellants nonetheless assert that Ken’s negligent driving on the bridge was the sole proximate cause of the accident. When two or more persons commit successive acts of negligence, the first person’s negligence is not the proximate cause of the injury when there is an “efficient, intervening cause.” Krause v. U.S. Truck Co., 787 S.W.2d 708, 710 (Mo.1990). “If some injury is reasonably to be anticipated or is reasonably probable as a result of the defendant’s act of negligence, then the added [negligent] act of a third person … does not break the chain of causation and defendant is liable; in such event the act of the third person is mere concurring negligence.” Dickerson v. St. Louis Pub. Serv. Co., 365 Mo. 738, 286 S.W.2d 820, 824 (Mo.1956). Here, Ken’s negligence did not “interrupt[ ] the chain of events” set in place by William’s negligence. See id. Ken’s driving error occurred after he was surprised to see another vehicle on the bridge after William had told him that the bridge was clear. The entire sequence of events was set in motion by William’s failure to stop Kyle Brown’s car from driving onto the bridge, and the problem was exacerbated by the negligent warning he gave to Ken.

 

We conclude that there was sufficient evidence to support the jury’s verdict that William Davis acted negligently and caused the death of Kyle Brown.

 

 

III.

[17] [18] Appellants’ final contention is that the district court erred by denying their motion for a new trial based upon what they allege was an improper comment in closing argument. When reviewing the denial of a motion for a new trial under Fed.R.Civ.P. 59(a), we give great deference to the district court’s ruling and will not reverse in the absence of a clear abuse of discretion. Bass v. Gen. Motors Corp., 150 F.3d 842, 845 (8th Cir.1998). “The key question is whether a new trial should have been granted to avoid a miscarriage of justice.” Id. (quoting McKnight v. Johnson Controls, Inc., 36 F.3d 1396, 1400 (8th Cir.1994)).

 

[19] Appellants claim that they were biased by the Browns’ attorney’s rebuttal statement that the defendants had agreed that although the Brown family had sustained damages of $700,000, “I think Kyle was worth more than that.” After appellants moved to strike, the district court told the jury to disregard the comment. Then appellants moved for a mistrial which was denied. Appellants renewed their argument that the comment was prejudicial in their post verdict motion for a new trial.

 

*7 [20] [21] The propriety of a statement in closing argument is a procedural question which we review under federal law. Sylla–Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 285 (8th Cir.1995). District courts have considerable discretion to control closing arguments, and we will not reverse unless counsel has made statements that were “plainly unwarranted and clearly injurious.” Id. (quoting Vanskike v. Union Pac. R.R., 725 F.2d 1146, 1149 (8th Cir.1984)). The Browns asked for a verdict of $8.5 million. Counsel for Ken Davis stated that the evidence showed $700,000 of damages and told the jury, “So, give them $700,000.” Counsel for William and WDL said he agreed with that calculation. Those statements opened the door for the allegedly prejudicial statement by the counsel for the Browns. See Crouch v. Teledyne Continental Motors, Inc., 511 F. App’x 822, 824 (11th Cir.2013) (per curiam) (concluding that defendant’s comments in opening and closing arguments were not reversible error where plaintiffs opened the door to the allegedly improper references). Moreover, the statement at issue was not unwarranted given the context, nor was it clearly injurious since the court instructed the jurors to disregard it. We conclude that the district court did not abuse its discretion in denying appellants’ motion for a new trial.

 

 

IV.

For these reasons we affirm the judgment of the district court.

 

All Citations

— F.3d —-, 2016 WL 711294

 

 

Footnotes

1

The Honorable Audrey G. Fleissig, United States District Judge for the Eastern District of Missouri, presiding.