PAHOUA XIONG, Plaintiff – Appellee / Cross-Appellant, v. KNIGHT TRANSPORTATION, INC., Defendant – Appellant / Cross-Appellee.

 

Nos. 14-1390 & 15-1035

 

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

 

2016 U.S. App. LEXIS 13648

 

 

July 27, 2016, Filed

 

 

NOTICE:    PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

 

PRIOR HISTORY:     [*1] (D.C. No. 1:12-CV-01546-RBJ). (D. Colo.).

Xiong v. Knight Transp., Inc., 77 F. Supp. 3d 1016, 2014 U.S. Dist. LEXIS 177700 (D. Colo., 2014)

 

COUNSEL: For PAHOUA XIONG, Plaintiff – Appellee (14-1390): C. Todd Drake, Hershey Decker, Lone Tree, CO; Michael P. Kane, Michael L. Nimmo, Daniel A. Slone, Hillyard, Wahlberg, Kudla, Sloane & Woodruff, Denver, CO.

 

For KNIGHT TRANSPORTATION, INC., Defendant – Appellant (14-1390): Kathleen M. Byrne, Paul E. Collins, Lauren M. Getsie, Treece Alfrey Musat, Denver, CO.

 

For PAHOUA XIONG, Plaintiff – Appellant (15-1035): C. Todd Drake, Hershey Decker, Lone Tree, CO; Michael P. Kane, Michael L. Nimmo, Hillyard, Wahlberg, Kudla, Sloane & Woodruff, Denver, CO.

 

For KNIGHT TRANSPORTATION, INC., Defendant – Appellee (15-1035): Kathleen M. Byrne, Paul E. Collins, Treece Alfrey Musat, Denver, CO.

 

JUDGES: Before BACHARACH, O’BRIEN, and PHILLIPS, Circuit Judges.

 

OPINION BY: Terrence L. O’Brien

 

OPINION

 

ORDER AND JUDGMENT*

 

*   After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, [*2]  for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

In May 2009, a car driven by Pahoua Xiong was merging onto Interstate Highway 76 when it collided with a Knight Transportation truck. Testimony differed dramatically as to whether Knight’s truck occupied the right lane of the Interstate when the collision occurred or Xiong had completed her merge and it occurred when the truck moved from the middle lane to the right. The collision forced Xiong’s car into the median where it overturned multiple times.

The jury apportioned fault at 40 percent to Xiong and 60 percent to Knight; its allocation of fault is not at issue here. Knight claims: (1) its motion for new trial (insufficient evidence to support the jury’s award of damages) should have been granted, and (2) evidence regarding a similar lawsuit brought by Xiong (another collision) ought not to have been limited. The second suit involved injuries she suffered in a September 2010 car accident. Xiong cross-appeals from the denial of her motion for costs under Colo. Rev. Stat. § 13-17-202. We affirm.1

 

1   Our jurisdiction derives from 28 U.S.C. § 1291.

 

I

 

A

Xiong suffered a compression fracture in her spine at T-11 (lower middle back) as a result of the accident. She was in the hospital for five [*3]  days. Her doctors encouraged physical therapy but Xiong failed to follow through. Instead, she repeatedly and successfully sought painkillers. Some evidence suggested her subjective complaints of pain were not supported by objective manifestations of injury, such as a limited range of motion. But other evidence — mostly her testimony and that of her family members — indicated her activities were limited by the injuries. In May 2010, she visited a clinic for unrelated reasons and reported her pain level to be 2 (on a 10-point scale). A month later, however, she reported level-10-pain and a need for Percocet, which was prescribed. By July, she claimed to be taking 5 to 6 Percocet tablets a day, but a drug test revealed no opiates in her system. Her physician’s assistant (PA) found the anomaly to be “contradictory.” Aplt. App. Vol. 2 at 499.

As a result of Xiong’s September 2010 motor vehicle accident, she filed a second lawsuit. As with the cause of the collision, testimony conflicted over whether the second accident exacerbated her injuries from the first. The testimony of the PA treating her after the second accident attributed only 20% of her pain to the second accident and predicted [*4]  she will experience lasting limitations in her work and social activities. The orthopedic surgeon she called testified to her need for surgery to fix the T-11 issues and credited that need directly to the first accident. The recommended surgery had not been done at the time of this trial; Xiong told the jury she could not afford it. Conversely, an orthopedic spine surgeon called as an expert by Knight, Dr. Brian Reiss, said his examination of Xiong revealed her fracture to be well-compensated for by the rest of her spine and, without the second accident, the only course of necessary treatment would have been an exercise program.

In total, Xiong sought $95,108.67 in medical expenses, detailed in her compilation of medical expenses, which was admitted as an exhibit. In tabulating the expenses, she alone decided what medical bills pertained only to the second accident and removed them from the compilation. A medical billing specialist put the cost of the recommended spinal surgery at $173,673.10. On this state of the evidence and more, the jury awarded Xiong $832,000, consisting of $282,000 for pain and suffering, $268,000 for economic loss including past and future medical expenses, and [*5]  $282,000 for physical impairment. In accordance with its determination on fault, the jury reduced these awards by 40 percent, resulting in a net $499,200 pre-interest verdict.

After the trial, a paralegal employed by Knight’s counsel found a photograph of Xiong on her cousin’s Facebook page, which led to the discovery of photographs of Xiong smiling with friends at homes, restaurants, a wedding, and what appear to be clubs, as well as what appears to be on a trip to Las Vegas.2 Aplt. App. Vol. 1 at 162-84. Knight moved for a new trial, and later hired a private investigator to follow Xiong and record her daily activities.

 

2   Apparently, the photographs were theretofore unknown to Knight because Xiong’s Facebook page is under “Pahouna Xiong” instead of “Pahoua Xiong.”

In Knight’s new trial motion, it claimed there was insufficient evidence to support the jury’s determination of damages and the new evidence (discovered after trial) showed Xiong to have perpetrated fraud on the court. In a thorough opinion, the district judge denied the motion. The jury “certainly could have assigned lower dollar values” to Xiong’s pain and impairment, he said, but Knight’s argument that the verdict was wholly [*6]  unsupported by the record was unpersuasive. Xiong v. Knight Transp., Inc., 77 F. Supp. 3d 1016, 1021-22 (D. Colo. 2014). He then addressed Knight’s three bases for its argument: (1) an affidavit of Knight’s counsel detailing a number of witnesses who testified to Xiong’s lack of pain or impairment; (2) one medical record; and (3) the Facebook photographs found by a Knight’s paralegal (discussed above). The judge was not impressed with Counsel’s affidavit summarizing the evidence, saying such a summary was not the “appropriate way to call the Court’s attention to trial testimony,” as it included no citations to the trial transcript. Id. at 1022. And, he noted, the single medical record Knight attached did not assign severe pain to Xiong at the time, but the doctor nevertheless assessed her with chronic pain due to injuries at T-11. He also rejected Knight’s suggestion of unnecessary surgery, (because Xiong had yet to have it done) based on the impecunious circumstances she related in her trial testimony. Finally, as to the social media photographs, which did “little to support [Knight] in any event,” he concluded the new evidence could have been discovered before trial and Knight offered no justification for its failure to develop it earlier. Id. at 1022-23. Addressing Knight’s alternative [*7]  request for remittitur, he observed that the jury was properly instructed, without objection, on how it should treat the damage evidence as to each of the accidents as well her (claimed) failure to mitigate damages.

 

B

During opening statements, Knight’s counsel attempted to speak about the second accident and the resulting lawsuit to recover damages from those defendants. Xiong’s objection to the mention of the second complaint being filed was overruled. At the end of the day, Xiong renewed her objection to mentioning the specifics of the second lawsuit, arguing such information was irrelevant to the jury’s determination in this case and any probative value was outweighed by its prejudicial effect under Federal Rule of Evidence 403. In the ensuing colloquy, Knight’s position was revealed — the specifics of the second lawsuit were relevant as to the “motive of the witness,” specifically “to show that she’s a suit filer.” Aplt. App. Vol. 2 at 281. This time the judge sustained the objection, saying “all they need to know is that there’s another accident and there’s another lawsuit, and that will be where we stop.” Id.

 

C

Xiong moved for $40,216.07 in actual costs under [HN1] Colo. Rev. Stat. § 13-17-202, which allows a plaintiff to be awarded costs [*8]  if she makes a timely settlement offer lower than the final judgment. On May 28, 2014, about two years into the litigation, Xiong’s counsel sent an email to Knight’s counsel addressing a number of subjects. It included this phrase: “I want to provide you with a demand and follow up with you on a couple of stipulations. My client has given me the authority to make a demand to settle her case for $675,000.00.” Aplt. App. Vol. 1 at 114. Counsel then went on to discuss mediations and stipulations. The judge denied Xiong’s motion for costs because the passive voice used in the “offer,” along with the lack of a request for a response, indicated the absence of a settlement offer for purposes of the costs statute.

 

II

According to Knight the evidence is insufficient to support (1) the $282,000 awards for pain and suffering and physical impairment, (2) all of Xiong’s past medical expenses (because some should be attributed to the second accident), and (3) the estimated costs of future medical expenses relating to the anticipated surgery. Knight also thinks it is entitled to a new trial in light of the new evidence it presented. Finally, Knight maintains evidence about Xiong’s other lawsuit should [*9]  have been allowed. We cannot agree with any of those propositions.

 

A

[HN2] We review the denial of a motion for new trial or remittitur for a manifest abuse of discretion. Blanke v. Alexander, 152 F.3d 1224, 1235-36 (10th Cir. 1998). Defendants “bear the heavy burden of demonstrating that the verdict was clearly, decidedly, or overwhelmingly against the weight of the evidence.” Id. at 1236 (internal quotation marks omitted). “Under this standard, the jury’s award is inviolate unless we find it so excessive that it shocks the judicial conscience and raises an irresistible inference that passion, prejudice, corruption, or other improper cause invaded the trial.” M.D. Mark, Inc. v. Kerr-McGee Corp., 565 F.3d 753, 766 (10th Cir. 2009) (internal quotation marks omitted). “A district court abuses its discretion in ordering a remittitur when the size of the verdict turns upon conflicting evidence and the credibility of witnesses.” Prager v. Campbell Cty. Mem’l Hosp., 731 F.3d 1046, 1061-62 (10th Cir. 2013) (internal quotation marks omitted).

To be sure, Knight’s arguments raise questions about the severity of Xiong’s injuries. Substantial record evidence would support either a favorable or unfavorable view of them, especially under our very deferential abuse-of-discretion standard. See Prager, 731 F.3d at 1054 ([HN3] “[I]n many cases there will be a range of possible outcomes the facts and law at issue can fairly support; . . . we will defer to [*10]  the district court’s judgment so long as it falls within the realm of these rationally available choices.” (internal quotation marks omitted)).

In challenging the $282,000 award for pain and suffering and physical impairment, Knight goes on at great length, pointing to evidence demonstrating the absence of significant pain. But, [HN4] unlike economic-loss or expense damages, “general damages for pain and suffering, such as those [at issue] here, are not susceptible to proof by a set dollar amount.” Blanke, 152 F.3d at 1237. Our standard for pain-and-suffering damages is even more deferential than our standard for economic damage determinations. The jury heard the evidence Knight cites, but it also heard Xiong’s contrary testimony about the great pain she suffered at various times after the first accident. Add to that the pain testimony of her doctors. The trial judge took note of the competing evidence. The award is not so excessive as to raise an inference of passion, prejudice, or impropriety, and thus does not shock our collective conscience.

As for the physical impairment damages, Knight essentially argues: (1) Xiong’s impairment was not very severe and (2) it was made worse by her failure to take remedial steps, [*11]  such as physical therapy. [HN5] Any failure to mitigate damages is an affirmative defense, about which the jury was instructed. But Knight does not (and did not) challenge the instructions. As we are unable to find fault in the jury’s determination with respect to these damages, we have no reason to second guess the trial judge’s refusal to order a new trial or a remittitur.

In challenging the $268,000 in economic damages for medical expenses, Knight takes issue with the medical necessity of the future spinal surgery. Its argument can be simply stated: Xiong has not had the surgery, so it must not be medically necessary and, accordingly, cannot be included in future medical expenses. Knight also tells us any reasonable person would elect conservative management, calling for physical therapy before having back surgery. Such is a failure-to-mitigate argument about which the jury was instructed. As the trial judge noted, “insofar as the defendant alleges that [Xiong] is not in pain because she has not had the surgery, [Xiong] was questioned about this alleged discrepancy at trial. The plaintiff explained that she did not elect to have the surgery because she was unable to afford it.” Xiong, 77 F. Supp. 3d at 1022. We see [*12]  no legal reason to reverse his decision. Xiong’s failure to undergo recommended surgery has little to do with its medical necessity, especially in light of her testimony about her impecunious circumstances. According to trial testimony, her orthopedic surgeon thought the surgery would be helpful while Knight’s expert considered it to be unnecessary. The jury had divergent evidence from which to choose in deciding an issue committed to its judgment. We see no proper reason to disturb it.

Knight also complains about the evidence pertaining to Xiong’s past medical expenses, claiming: for the medical expenses occurring after the second accident, some records are too ambiguous to permit an assignment to the first or second accident and, because Xiong has the burden of proof, they cannot properly be attributed to the first accident. But it did not raise the argument to the district judge.3 See Richison v. Ernest Grp., 634 F.3d 1123, 1128 (10th Cir. 2011) ([HN6] “[I]f the theory simply wasn’t raised before the district court, we usually hold it forfeited.”). Aplt. App. Vol. 2 at 323-25.

 

3   [HN7] Though we may entertain forfeited theories on appeal if the district court’s decision is “plainly erroneous,” Richison v. Ernest Grp., 634 F.3d 1123, 1128 (10th Cir. 2011), Knight has failed to argue plain error, which “marks the end of the [*13]  road” for an argument not presented to the district court, Folks v. State Farm Mut. Auto. Ins. Co., 784 F.3d 730, 741 (10th Cir. 2015) (internal quotation marks omitted).

Knight complained only, and without elaboration, about the jury’s failure to apportion damages between the first and second accidents despite being instructed to do so. Aplt. App. Vol. 1 at 148-49. The forfeiture issue aside, Knight does not provide sufficient reason to believe the jury did not follow its instructions on apportionment. Instead, it calls on us to engage in undifferentiated speculation — the $268,000 award must mean the jury did not reduce any of Xiong’s damages with the second accident in mind. Xiong testified to having removed from the medical-expense exhibit any expenses pertaining solely to the second accident. Admittedly, her testimony requires a somewhat of leap of faith and there is good reason to be skeptical. A jury might well be persuaded to reject it, but it was not beyond the pale for it to do otherwise. There was no abuse of discretion by the trial judge, even on merits of the issue.

In challenging the district court’s decision regarding the post-trial Facebook photographs, Knight argues it should have been granted a new trial because the “new evidence” shows Xiong’s [*14]  vitality and physical condition to be inconsistent with her trial testimony. [HN8] To obtain a new trial based on newly discovered evidence, “the moving party must show: (1) the evidence was newly discovered since the trial; (2) the moving party was diligent in discovering the new evidence; (3) the newly discovered evidence was not merely cumulative or impeaching; (4) the newly discovered evidence is material; and (5) that a new trial with the newly discovered evidence would probably produce a different result.” Dronsejko v. Thornton, 632 F.3d 658, 670 (10th Cir. 2011) (internal quotation marks omitted). The district judge correctly found the “new evidence” to offer little support for Knight’s argument and comes too late even if it could be said to contradict Xiong’s claims. Indeed, it could have been discovered before trial. Knight credibly claims a lack of knowledge about Xiong’s Facebook page (her name was misspelled) until her cousin posted a photograph of them together after the trial. But that affords Knight cold comfort; the photographs are ambiguous at best and, at worst, immaterial. The meat of Knight’s “new evidence” is the report of the private investigator it neglected to hire until after it moved for a new trial. The district judge [*15]  found no reason for Knight’s delay in having Xiong surveilled at any point before or during trial when it surely would have been relevant. We agree. Whether this omission was a tactical decision or oversight, it was hardly diligent. There was no abuse of discretion.

 

B

[HN9] “We review a district court’s decisions on the admission or exclusion of evidence . . . for abuse of discretion.” Prager, 731 F.3d at 1054. “A district court abuses its discretion when it renders an arbitrary, capricious, whimsical, or manifestly unreasonable judgment.” Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 968 (10th Cir. 2001) (internal quotation marks omitted). We will reverse the district court’s decision “only if the court exceeded the bounds of permissible choice, given the facts and the applicable law in the case at hand.” United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007) (internal quotation marks omitted). [HN10] Rule 403 permits relevant evidence to be excluded if its probative value is substantially outweighed by a danger of unfair prejudice. Fed. R. Evid. 403.

As an initial matter, Xiong argues this issue was not adequately presented to the district court because the district judge excluded the second lawsuit on an objection to Knight’s opening statement, which was not the introduction or presentation of evidence. In our reading of the colloquy, though, it is clear the district [*16]  court proscribed the subject matter of the second lawsuit on a wholesale basis for the remainder of trial and did not limit its ruling to the lawsuit’s mention in the now-completed opening statement. See Aplt. App. Vol. 2 at 279-81. Knight nevertheless insists the second lawsuit is relevant and the district court abused its discretion. We disagree. In the colloquy, Knight’s ultimate justification for getting into the second lawsuit was to show Xiong was a “suit filer,” which is, in essence, an admission that Knight sought the precise prejudicial effect Xiong argued would pollute the jury’s consideration. The district court was well within its discretion to keep such contaminating details away from the jury, and cannot be said to have “exceeded the bounds of permissible choice” in this case. See McComb, 519 F.3d at 1053.

 

III

[HN11] Under Colorado law, a plaintiff who “serves an offer of settlement in writing” more than fourteen days before trial that is rejected by the defendant, and “the plaintiff recovers a final judgment in excess of the amount offered, the plaintiff shall be awarded actual costs accruing after the offer” to be paid by the defendant. Colo. Rev. Stat. § 13-17-202(1)(a)(I). Such an award is mandatory and nondiscretionary in many respects. [*17]  Scholz v. Metro. Pathologists, P.C., 851 P.2d 901, 910 (Colo. 1993). Colo. Rev. Stat. § 13-17-202 applies in diversity actions and is not preempted by the federal rules. Garcia v. Wal-Mart Stores, Inc., 209 F.3d 1170, 1176-79 (10th Cir. 2000). The statute does not require any particular form for an “offer of settlement” and an offer need not be expressly entitled “settlement offer.” Dillen v. HealthOne, LLC, 108 P.3d 297, 301 (Colo. App. 2004). [HN12] A denial of costs is normally reviewed for an abuse of discretion, but we review a nondiscretionary interpretation of a state statute regarding costs de novo. See Stauth v. Nat’l Union Fire Ins. Co., 236 F.3d 1260, 1263 (10th Cir. 2001).

In addressing Xiong’s motion for actual costs, the trial judge could find no enumerated standard for what the Colorado statute contemplates an “offer of settlement” to be, and concluded counsel’s statement was not a settlement offer because it did not solicit an acceptance, it backwardly stated in passive voice he has been given authority to settle for $675,000, and it did not request Knight’s counsel respond to the settlement figure while there is an express invitation to discuss his position on mediation.

Reliance on counsel’s failure to solicit an acceptance may be an inappropriate contract-law principle as here applied. See Centric-Jones Co. v. Hufnagel, 848 P.2d 942, 946 (Colo. 1993) ([HN13] Section 13-17-202 “invokes a special statutory process spelled out in clear and unambiguous language which can and should be enforced without grafting contract principles onto it.”). But the other [*18]  bases for the denial are valid — the use of passive voice and counsel’s juxtaposition of an invitation to respond about mediation with no invitation to do anything about the “demand.” See Sumerel v. Goodyear Tire & Rubber Co., 232 P.3d 128, 133 (Colo. App. 2009) ([HN14] even where unequivocal language suggests an offer is intended, such language cannot be viewed in isolation from other language). To be sure, the email is ambiguous, but the district judge applied the plain meaning of “offer” to the letter in accordance with Colorado law. See Hufnagel, 848 P.2d at 947 (holding offers under the statute should be construed with their ordinary meaning as a “matter of plain statutory interpretation”).

Xiong argues the judge’s analysis is tantamount to requiring specific language or formalities where the statute imposes none, but “that does not mean that any mention of a demand constitutes an offer of settlement.” Xiong, 77 F. Supp. 3d at 1028 (emphasis in original). The judge’s discussion about passive voice does not amount to the imposition of an extra-statutory requirement. To the contrary, it asks a potent question: Was there an offer? Do the words suggest a genuine offer or merely a carefully crafted illusion? Is the putative offer firm or is it only an invitation to further negotiate? Dealing with uncertainty is one [*19]  of the greatest challenges facing a judge or jury. The ambiguity of the email cries out for careful analysis and context matters. In the end and in the aggregate, the trial judge considered it too ambiguous to qualify as an offer. Counsel’s statement that he had authority to make a settlement demand for a stated amount is not the same thing as actually making one, particularly in the context presented here. See Yeiser v. Ferrellgas, Inc., 214 P.3d 458, 463 (Colo. App. 2008) ([HN15] “[T]he offer of settlement must be sufficiently definite to allow the plaintiff to weigh the risks and benefits of the offer against the judgment that may be obtained.” (internal quotation marks omitted)), reversed on other grounds by 247 P.3d 1022 (Colo. 2011). The relevant statute may impose no particular form or language for a settlement offer, but it does require a genuine offer. We cannot say the trial judge’s analysis was erroneous. Clear language deployed in simple, declarative sentences might have made all the difference. Aside from the generic assertion that formalities not contained in the statue are forbidden, Xiong cites no authority suggesting the trial judge’s interpretation of the statute is unsound. We see no reason to reverse.

 

IV

We affirm in all respects.

Entered for the Court

Terrence L. O’Brien [*20]

Circuit Judge

Seventh Circuit.

GREAT WEST CASUALTY COMPANY, Plaintiff-Appellee,

v.

PAMELA K. ROBBINS, as Administratrix of the Estate of Mike Douglas Robbins, Deceased, Defendant-Appellant,

and

WREN EQUIPMENT, LLC, Defendant-Appellee.

No. 15-1181

|

ARGUED SEPTEMBER 9, 2015

|

DECIDED AUGUST 16, 2016

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division.

No. 1:13-cv-00198 — William T. Lawrence, Judge.

Before EASTERBROOK, KANNE, and WILLIAMS, Circuit Judges.

Opinion

KANNE, Circuit Judge.

 

*1 In January 2011, Defendant Linda K. Phillips, an employee of Hoker Trucking, LLC, was driving a semi-truck that struck a vehicle driven by Mike Douglas Robbins in Indiana. Robbins died as a result of the injuries he sustained in the accident. At the time of the accident, the semi-truck driven by Phillips was pulling a trailer Hoker borrowed from Lakeville Motor Express, Inc. Lakeville had purchased an insurance policy from Plaintiff Great West Casualty Company to cover the trailer.

 

This case is not about the liability of Phillips or Hoker for the accident. That action was filed by Robbins’s estate in an Indiana state court, and Phillips and Hoker were indemnified by Hoker’s insurance policy. To preempt a possible claim against Lakeville’s insurance policy, Great West filed this complaint for declaratory judgment against Hoker, Phillips, and Defendant Pamela Robbins, as administratrix of Mike Douglas Robbins’s estate, amongst other defendants, seeking an order stating that it did not have to indemnify Hoker and Phillips for any liability in connection with the accident. After Robbins and Great West filed cross-motions for summary judgment, the district court granted summary judgment in favor of Great West and denied Robbins’s motion. Finding no error with the district court’s decision, we affirm.

 

 

1. BACKGROUND

On January 4, 2011, a tractor-trailer driven by Linda K. Phillips struck a vehicle operated by Mike Robbins in Richmond, Indiana. Robbins died from the injuries sustained in the accident. At the time, Phillips was an employee of Hoker Trucking, LLC, (“Hoker”) and was driving the tractor-trailer in the course and scope of her employment when she struck Robbins’s vehicle. Hoker is incorporated and based in Iowa. Hoker owned the Peterbilt tractor driven by Phillips, but the trailer pulled by that tractor was on loan to Hoker from Lakeville Motor Express, Inc. (“Lakeville”), a company incorporated and based in Minnesota.

 

Lakeville, however, was not the actual owner of the trailer. Defendant Wren Equipment, LLC (“Wren”) owned the trailer. Like Lakeville, Wren is incorporated and based in Minnesota. In July 2001, Wren leased Lakeville dozens of trailers, including the trailer involved in the accident, for five years. In exchange, Lakeville agreed to pay $22,600 per month and provide insurance coverage for the trailers. Upon the expiration of the five-year term, the lease converted to a month-to-month lease.

 

Karen Vanney, Lakeville’s Vice President of Finance, averred that Lakeville continued leasing the trailer after the 2001 lease expired. In December 2009, Lakeville and Wren entered into another written lease agreement whereby Wren agreed to provide trailers to Lakeville, including the trailer involved in the accident, for a one-year term. Lakeville agreed to “provide insurance coverage, at its sole cost and expense, for public liability [and] property damage … with a minimum aggregate coverage of $1,000,000.00 for bodily injury and property damage per occurrence.” Like the earlier agreement, the lease converted to a month-to-month lease after the expiration of the one-year term. According to Vanney, Lakeville continued to lease that trailer until 2013.

 

*2 To satisfy its insurance-coverage obligations, Lakeville purchased a Commercial Lines Insurance Policy from Great West Casualty Company (“Great West”) to provide automobile coverage. Great West is incorporated and based in Nebraska. Lakeville added Wren as an additional insured party under the policy, which was in effect at the time of the accident. Hoker and Phillips were not named as insured parties under the Great West policy. Hoker was insured at the time of the accident by Northland Insurance Company (“Northland”). Northland provided primary coverage in connection with the accident.1

 

The Great West policy contains an endorsement providing that the policy’s coverage will conform “with the provisions of the law or regulation to the extent of the coverage and limits of insurance required by that law or regulation” for the states in which Great West filed a “Motor Carrier Certificate of Bodily Injury or Property Damage Liability Insurance.” Great West filed this certificate in Iowa, Illinois, Minnesota, North Dakota, and Wisconsin.

 

In December 2012, Pamela Robbins, as administratrix of the Estate of Mike Douglas Robbins, (“Robbins”), filed a complaint in Indiana state court against Hoker, Phillips, and Lakeville, alleging negligence. Lakeville has since been dismissed from that lawsuit.

 

Great West filed this action in February 2013 seeking a declaratory judgment that Great West was not liable to defend or indemnify Hoker or Phillips in connection with the accident. After obtaining default judgments in connection with several other defendants to the first complaint, Great West subsequently amended the complaint twice. The only relevant remaining defendants to the current dispute are Robbins and Wren. Wren, however, joined in Great West’s arguments both at the district court and before us.

 

In June 2014, Robbins moved for summary judgment against Great West.2 Great West responded by opposing summary judgment and cross-moving for summary judgment itself. The district court granted Great West’s motion for summary judgment and denied Robbins’s motion. In doing so, the district court determined that Great West’s policy unambiguously excluded Hoker and Phillips as insured parties under the policy. This appeal followed.

 

 

1. ANALYSIS

Robbins advances three arguments on appeal: (1) because Great West’s policy is ambiguous as to whether Hoker and Phillips were excluded from coverage, we should construe the policy against Great West and find it covers Hoker and Phillips; (2) even if we find the exclusions under the Great West policy are not ambiguous, the policy exclusions nevertheless do not exclude Hoker and Phillips from coverage; and (3) regardless of whether the exclusions apply to Hoker and Phillips or not, such exclusions are invalid under Wisconsin law, the state where the trailer is registered.

 

We review de novo a district court’s decision on cross-motions for summary judgment. Hess v. Reg-Ellen Mach. Tool Corp., 423 F.3d 653, 658 (7th Cir. 2005). In conducting this review, we construe all facts as well as all reasonable inferences derived from those facts “in favor of the party against whom the motion under consideration was made.” Clarendon Nat. Ins. Co. v. Medina, 645 F.3d 928, 933 (7th Cir. 2011). Summary judgment is appropriate where, after that review, we determine that the movant has demonstrated “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).

 

*3 Our jurisdiction over this dispute is based on diversity of citizenship, 28 U.S.C. § 1332, which means that a federal court must apply the substantive law of the forum state—here, Indiana. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). A state’s substantive law includes its conflict-of-law or choice-of-law rules. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). Although Indiana choice-of-law rules apply, the parties posit that Minnesota law governs interpretation of the insurance contract, which was issued and delivered to a Minnesota-based company. Because Indiana’s choice-of-law rules give broad discretion to parties to choose the applicable substantive law, see, e.g., Barrow v. ATCO Mfg. Co., 524 N.E.2d 1313, 1314–15 (Ind. Ct. App. 1988), and we see no reason why Minnesota law should not govern this contract dispute, we apply Minnesota law in interpreting Great West’s policy.

 

 

1. Ambiguity of Great West’s Policy Exclusions

We start with Robbins’s argument that Great West’s policy is ambiguous as to whether Hoker and Phillips are excluded from its coverage. Minnesota courts analyze insurance policies under general contract law principles. Lobeck v. State Farm Mut. Auto. Ins. Co., 582 N.W.2d 246, 249 (Minn. 1998). Whether an insurance policy or particular provision is ambiguous is a question of law. Lott v. State Farm Fire & Cas. Co., 541 N.W.2d 304, 307 (Minn. 1995). “Language in a policy is ambiguous if it is susceptible to two or more reasonable interpretations.” Carlson v. Allstate Ins. Co., 749 N.W.2d 41, 45 (Minn. 2008). In making that determination, Minnesota law directs us “not [to rely] upon words or phrases read in isolation, but rather upon the meaning assigned to the words or phrases in accordance with the apparent purpose of the contract as a whole.” Art Goebel, Inc. v. N. Suburban Agencies, Inc., 567 N.W.2d 511, 515 (Minn. 1997). If language is susceptible to two reasonable interpretations, then “it must be interpreted in favor of coverage.” Wanzek Constr., Inc. v. Emp’rs Ins. of Wausau, 679 N.W.2d 322, 325 (Minn. 2004). Language, however, that is unambiguous “must be given its plain and ordinary meaning,” Hubred v. Control Data Corp., 442 N.W.2d 308, 310–11 (Minn. 1989) (internal quotation marks omitted), as Minnesota law does not permit a court to “read an ambiguity into the plain language of a policy in order to provide coverage,” Jenoff, Inc. v. N.H. Ins. Co., 558 N.W.2d 260, 262 (Minn. 1997) (internal quotation marks omitted). If, however, an exclusion would omit coverage required by applicable law, it will not be enforced. Am. Family Mut. Ins. Co. v. Ryan, 330 N.W.2d 113, 115 (Minn. 1983).

 

The dispute here centers on a disagreement over the effect of a September 2010 endorsement, which modified the policy’s “Coverage” section of “WHO IS AN INSURED.” Without the endorsement, the section read, in relevant part, as follows:

1. WHO IS AN INSURED

The following are “insureds”:

1. You for any covered “auto”.
2. Anyone else while using with your permission a covered “auto” you own, hire or borrow except:

(1) The owner or anyone else from whom you hire or borrow a covered “private passenger type” “auto.”

(2) Your “employee” or agent if the covered “auto” is a “private passenger type” “auto” and is owned by that “employee” or agent or a member of his or her household.

(3) Someone using a covered “auto” while he or she is working in a business of selling, servicing, repairing, parking or storing “autos” unless that business is yours.

(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.”

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

(6) Anyone described in paragraphs c., d. or e. below.

 

The endorsement has a heading that provides in capital letters: “This endorsement changes the policy. Please read it carefully. Changes—Who Is An Insured.” The endorsement goes on to state the following:

The following is added to Section II—Liability Coverage—Paragraph A.1.b.—Who Is An Insured:

1. Anyone who has leased, hired, rented, or borrowed an “auto” from you that is used in a business other than yours.
2. Anyone that is using an “auto” of yours under a written Trailer Interchange Agreement.

Great West contends that this endorsement added to the category of persons excluded under subparagraph A.1.b., which would result in eight enumerated exceptions.

 

Robbins argues there is another reasonable interpretation of the policy exclusions after the endorsement, which is:

1. WHO IS AN INSURED

The following are “insureds”:

1. You for any covered “auto”.
2. 1. Anyone who has leased, hired, rented, or borrowed an “auto” from you that is used in a business other than yours.
3. Anyone that is using an “auto” of yours under a written Trailer Interchange Agreement.

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

(1) The owner …

(2) Your “employee” …

(3) Someone using ….

(4) Anyone other …

(5) A partner …

(6) Anyone described …

According to Robbins, the estate’s interpretation is reasonable because it avoids “duplication of numbers or renumbering of paragraphs.” (Appellant Br. 22.) Robbins contends that Great West’s interpretation requires the reader to “ignor[e] the conflicting numbers” under subparagraph A.1.b., as that subparagraph already had exclusions numbered “(1)” and “(2).” (Id.) Further, according to Robbins, the estate’s interpretation is more reasonable than Great West’s because it adds to and does not subtract from the definition of who is “insured” under the policy, which is consistent with Minnesota law construing ambiguities against insurance policies in favor of the insured.

 

But there is no ambiguity to construe against Great West. We agree with the district court that Great West’s interpretation of this provision is the only reasonable reading. In interpreting the Great West policy and endorsement under Minnesota law, we must read them together “from the viewpoint of a layperson, not a lawyer.” Mut. Serv. Cas. Ins. Co. v. Wilson Twp., 603 N.W.2d 151, 153 (Minn. Ct. App. 1999). Robbins’s interpretation would force us to abandon that position and read the policy language and endorsement as only a lawyer construing a contract could—in the most hyper-technical, over-analyzed sense. We refuse to adopt such a reading.

 

No reasonable interpretation would construe the endorsement as doing anything but adding two more enumerated exclusions under subparagraph A.1.b. The endorsement states “the following is added” to subparagraph A.1.b., (emphasis added), and it then provides two numbered provisions that are worded in a manner similar to the other enumerated exclusions. Nothing in the endorsement would lead a layperson to believe that Great West intended to modify the beginning of subparagraph A.1.b. In fact, embracing Robbins’s interpretation does the most violence to the policy language as it uses two “1”s and places two numbering conventions next to each other, which is not done anywhere else within the policy. Moreover, additional extensions of coverage are provided in sections A.1.c–A.1.e. If the endorsement intended to extend coverage, it could have added lettered subparagraphs to section A.1, rather than adding numbered subparagraphs to section A.1.b, a section that lists exclusions from coverage. Minnesota courts tend to reject interpretations like the one advanced by Robbins. See, e.g., Red & White Airway Cab Co. v. Transit Cas. Co., 234 N.W.2d 580, 582 (Minn. 1975) (refusing to adopt an interpretation of an insurance policy that “does violence to the plain meaning of the contract language”).

 

*5 Also making Robbins’s reading unreasonable is that it makes the endorsement’s additional language superfluous. Robbins’s reading purports to add two more categories of individuals who are insured under the policy. The problem with Robbins’s interpretation though is that the policy prior to the endorsement would have already included the two categories listed as insured, making the endorsement completely superfluous. Some redundancy in insurance contracts is normal, see, e.g., Horace Mann Ins. Co. v. Indep. Sch. Dist. No. 656, 355 N.W.2d 413, 418 (Minn. 1984), while construing an endorsement to be completely superfluous is not, see Jarvis & Sons, Inc. v. Int’l Marine Underwriters, 768 N.W.2d 365, 371 (Minn. Ct. App. 2009) (rejecting an interpretation that would make an endorsement “wholly superfluous or require an absurd result”).

 

Despite the obvious redundancies the estate’s interpretation would create, Robbins nonetheless argues that Great West’s interpretation is unreasonable because the endorsement’s two exclusions could both independently exclude Hoker and Phillips from the policy’s coverage, making them redundant. Contrary to Robbins’s position, the exclusions are not wholly redundant. For example, an individual could be an independent contractor hired by Lakeville to transport goods for Lakeville in furtherance of Lakeville’s business. The first policy exclusion then would not apply. But if the independent contractor had a written trailer interchange agreement with Lakeville, then the exclusion would not extend the policy’s coverage to that individual. And even if there is some overlap, Great West’s interpretation does not make the entire endorsement itself superfluous. Indeed, it is consistent with the “belt and suspenders” approach often adopted by insurance companies in detailing exclusions in their policies. See Certain Interested Underwriters at Lloyd’s, London v. Stolberg, 680 F.3d 61, 68 (1st Cir. 2012) (“[I]nsurance policies are notorious for their simultaneous use of both belts and suspenders, and some overlap is to be expected.”). Great West’s interpretation is the only reasonable reading of the unambiguous policy and controls our analysis moving forward.

 

 

1. Application of the Policy Exclusions

Even if we adopt Great West’s interpretation of the policy, Robbins contends that neither Hoker nor Phillips are excluded from coverage by the September 2010 endorsement because: (1) the trailer interchange agreement did not cover the trailer involved in the accident and (2) the trailer was being used in Lakeville’s business. We address each argument in turn.

 

 

1. Written Trailer Interchange Agreement

Robbins argues that there is insufficient evidence to conclude that the trailer involved in the accident was part of a “written trailer interchange agreement” between Hoker and Lakeville, rendering inapplicable the endorsement’s second exclusion. Robbins is correct.

 

The evidence offered by Great West to support the assertion that the trailer involved in the accident was subject to a written trailer interchange agreement is: (1) a 2006 trailer interchange agreement between a “Shipper” and a “Carrier,” and (2) Robbins’s discovery admission that “the trailer that Phillips was pulling at the time of the Accident was being used under a Trailer Exchange Agreement between Hoker and [Lakeville].” The trailer interchange agreement offered by Great West does not indicate who the parties to the agreement are. Illegible signatures and handwriting appear below the signature blocks for the “Shipper” and “Carrier,” which make it impossible to determine whether this is a “written trailer interchange agreement” between Lakeville and Hoker. As for Robbins’s admission, it did not request Robbins to admit that the trailer interchange (“or exchange”) agreement was written. The agreement could have been oral and therefore would not qualify for exclusion under the Great West policy.

 

*6 Reviewing this evidence and drawing all reasonable inferences in the estate’s favor, we find Great West has not produced sufficient evidence so as to leave no genuine issue of material fact regarding whether the trailer was subject to a “written Trailer Interchange Agreement.”

 

 

2. Trailer Used in a Business Other Than Lakeville’s

This conclusion, however, does not affect our decision to affirm summary judgment because the Great West policy endorsement excludes Hoker and Phillips as “[a]nyone who has leased …rented, or borrowed an ‘auto’ from you that is used in a business other than yours.” For this exclusion to apply, Great West must demonstrate that: (1) Hoker and Phillips “rented” or “borrowed” (2) an “auto” (3) to be used in a business other than Lakeville’s. It is uncontested that the trailer is an “auto” under the Great West policy, so we look to the other two elements of the exclusion.

 

Robbins’s own discovery responses confirm that there is no genuine dispute over the fact that Hoker and Phillips “rented” or “borrowed” the trailer. The term “borrowed” is undefined in the policy. Where a term is undefined under a policy, Minnesota courts permit a court to consult a dictionary to determine the ordinary meaning of a word. See Hubred, 442 N.W.2d at 311; Wakefield Pork, Inc. v. Ram Mut. Ins. Co., 731 N.W.2d 154, 160 (Minn. Ct. App. 2007). Rent means “to take and hold under an agreement to pay rent.” Webster’s Third New Int’l Dictionary. Borrow means “to receive temporarily from another, implying or expressing the intention of either of returning the thing received or of giving its equivalent to the lender.” Id.

 

Robbins admitted in discovery that “the trailer that Phillips was pulling at the time of the Accident was being used under a Trailer Interchange Agreement between Hoker and [Lakeville].” In the same discovery responses, Robbins admitted that “Hoker was using the trailer owned by [Lakeville] with [Lakeville’s] permission.” Finally, in response to interrogatories served by Great West, Robbins stated that Lakeville “was being paid for the use of the trailer.” Taken together, the only two reasonable inferences from these statements are that: (1) Lakeville allowed Hoker to use its trailer in exchange for payment; and (2) Hoker temporarily possessed the trailer with the intent of returning it to Lakeville.

 

Having established that Hoker and Phillips “rented” and “borrowed” the trailer, we must determine whether the trailer was being used in a business other than Lakeville’s. Robbins does not dispute that the trailer was being used in Hoker’s business, which is moving freight. Instead, the estate contends that it was being used at the same time in furtherance of Lakeville’s business, which also is moving freight.

 

To support its position, the estate relies on Scottsdale Insurance Company v. Transport Leasing/Contract, Inc., 671 N.W.2d 186 (Minn. Ct. App. 2003), for the proposition that “Minnesota courts recognize that a vehicle may be used simultaneously in the business of two trucking companies.” (Appellant Br. 32.) But, the court held, in order to find that the vehicle was used simultaneously, evidence must exist that demonstrates the insured entity had some day-to-day operational control over the other’s business or drivers, including employment decisions, contact with the other company’s customers, or sharing of revenue. Id. at 194.

 

*7 There is no evidence here that Lakeville exerted that same level of control over Hoker and Phillips. Robbins relies on language from the trailer interchange agreement—the same one it contends does not apply to the trailer—to support its position that Lakeville had the requisite control. Notwithstanding the fact that we cannot determine who the parties to the agreement are, the provisions in the agreement do not establish that Lakeville exerted any control over the manner in which Hoker moved freight or over its drivers. That Lakeville may have “assigned” work to Hoker does not mean that it had the right to determine how that work was performed or have any say in Hoker’s employment decisions, including the choice of Phillips as a driver.3

 

The only reasonable inferences that can be drawn from the record is that Hoker “rented” and/or “borrowed” Lakeville’s trailer and used it in furtherance of its own business, not Lakeville’s. No facts give rise to a reasonable inference that on the day of the accident, the trailer was being driven in connection with Lakeville’s freight-moving operations. Therefore, we find that this provision excludes Hoker and Phillips from coverage under the Great West policy.

 

 

1. Wisconsin Law’s Effect on Great West’s Policy Exclusions

Robbins’s final contention is that notwithstanding the unambiguous policy language, Hoker and Phillips are covered under the Great West policy because Wisconsin law invalidates the exclusions in the September 2010 endorsement to the extent those provisions exclude permissive users. We disagree.

 

 

1. Wis. Stat. § 632.32

Under Wis. Stat. § 632.32(1), (3), “every policy of insurance issued or delivered in [Wisconsin]” must “provide that: (a) Coverage provided to the named insured applies in the same manner and under the same provisions to any person using any motor vehicle described in the policy when the use is for purposes and in the manner described in the policy.” (emphasis added). The statute goes on to state that “[a] policy may limit coverage to use that is with the permission of the named insured.” § 632.32(5)(a). Wisconsin courts have determined these two provisions in tandem “effectively impose[d] a permissive user requirement” in every automobile insurance contract “issued or delivered” in Wisconsin. See Blasing v. Zurich Am. Ins. Co., 827 N.W.2d 909, 913 (Wis. Ct. App. 2013).

 

Robbins contends that Great West delivered Lakeville’s policy for the purposes of § 632.32 when it filed its “Motor Carrier Certificate of Bodily Injury and Property Damage Liability Insurance” with the Wisconsin Department of Transportation. As such, Great West’s policy must conform to Wisconsin law and cover permissive users like Hoker and Phillips, despite policy language that excludes them from coverage.

 

*8 Wisconsin precedent suggests Robbins’s interpretation is incorrect. In Danielson v. Gasper, 623 N.W.2d 182 (Wis. Ct. App. 2000), the court was confronted with the question of whether a policy issued and “delivered” to a Minnesota company nevertheless had to comply with the § 632.32’s requirements because it contained an “Out of State Coverage” provision. The court found that § 632.32 “does not require a Minnesota insurer issuing a policy in Minnesota to comply with statutes established for policies issued in Wisconsin” and does not apply “to an insurance policy issued in Minnesota to a Minnesota resident.” Id. at 185–86. In so holding, the court found the contract was “delivered” to a Minnesota resident who kept the covered vehicle in that state. Id. at 184.

 

Here, the insurance policy was issued and delivered to the Minnesota-based Lakeville by the Nebraska-based Great West. Wren, another Minnesota-based company, was added to the list of insureds under the policy. The facts here are sufficiently similar to Danielson that we see no reason to depart from it.

 

Robbins attempts to get around these similarities by suggesting that the individual in Danielson did not submit his insurance policy for approval with the Wisconsin Department of Transpiration. Robbins’s position has a fundamental flaw: Filing a certificate of insurance with the Wisconsin Department of Transportation is not the same as delivering an insurance policy to an individual in Wisconsin. Certificates of insurance and insurance policies are not one and the same. The Danielson court construed the word “delivered” from § 632.32 to mean that a policy is “delivered” when it is sent to the policyholder. We decline to adopt Robbins’s more expansive reading, as the estate has not directed us to any Wisconsin state precedent interpreting “delivered” in the way it suggests.

 

Robbins also attempts to circumvent Danielson by highlighting that the trailer was registered in Wisconsin. Danielson is silent on where the vehicle was registered. This fact is a distinction without a difference. As discussed above, the policy itself was not delivered in the state of Wisconsin. It was the certificate of insurance that was delivered in Wisconsin.

 

Alternatively, Robbins contends that even if the policy was not “issued or delivered” in Wisconsin, the Great West policy must still conform to Wisconsin statutory requirements, including § 632.32’s requirement that the policy cover permissive users. For support, Robbins relies on Amery Motor Co. v. Corey, 174 N.W.2d 540 (Wis. 1970). There, the Wisconsin Supreme Court invalidated an exclusion in an insurance policy issued to a Minnesota company based on the fact that the policy contained an endorsement stating it would “conform the policy to the statutory requirements for common motor carriers of property [in Wisconsin], one of which requires the policy to comply with the omnibus statute.” Id. at 542. According to Robbins, Great West’s policy must also conform to § 632.32 because of the certificate of insurance it filed with the state of Wisconsin and the policy endorsement stating it would “comply with the provisions of the law or regulation to the extent of the coverage and limits of insurance required by that law or regulation” in Wisconsin.

 

But the court in Corey observed that “[w]hile these policies were issued in Minnesota they purport to be governed by Wisconsin law” as the result of a Wisconsin-specific endorsement. Corey, 174 N.W.2d at 542. There is no such specific embrace of Wisconsin law contained in the Great West policy. Rather, there is a general endorsement that provides the policy will conform to the motor carrier financial responsibility laws in any state where the certificate is filed. In this case, this particular certificate has been filed in Wisconsin, Iowa, Illinois, Minnesota, and North Dakota. We do not interpret that general contract provision to constitute a wholesale incorporation of all five of those states’ insurance laws unconditionally. Section 632.32 does not apply to the Great West policy.

 

 

2. Wis. Stat. § 194.41

*9 Robbins also attempts to rely on Wis. Stat. § 194.41 to read a permissive-user requirement into the Great West policy. Unfortunately for Robbins, it is clear from the face of the statute that it does not apply to Lakeville’s Great West policy. Section 194.41(1) mandates that motor carriers like Lakeville must “file with the department [of transportation] … an approved certificate for a policy of insurance” in order to obtain and maintain a valid registration and license for a trailer in Wisconsin. This policy must be “in such form and containing such terms and conditions as may be approved by the department issued by an insurer authorized to do a surety or automobile liability business in this state under which the insurer assumes the liability prescribed by this section with respect to the operation of such motor vehicles.” Id.

 

It is not entirely clear whether this particular provision reads a permissive user requirement into every insurance policy that is certified with the Wisconsin Department of Transportation. We need not decide that question, however, as § 194.41 does not apply to Lakeville in the first instance. There is an exception to § 194.41’s compliance requirements for motor carriers who are “registered by another state under the unified carrier registration system consistent with the standards under 49 USC 13908 and 14504a.” § 194.41(1). Lakeville legally possessed the trailer pursuant to a 2009 lease agreement with Wren and had agreed to register the trailer in Wisconsin. Robbins has not provided any evidence to contradict the sworn statement of Lakeville’s representative concerning its obligation to register the trailer, and the documentation from the Wisconsin Department of Transportation indicates Lakeville is the primary lessee of the vehicle. Because Lakeville was a motor carrier registered under the unified carrier registration system in Minnesota at the time of the accident, its insurance policy did not need to comply with § 194.41.

 

The Wisconsin Court of Appeals applied this same statutory exception in Sisson v. Hansen Storage Company, 756 N.W.2d 667 (Wis. Ct. App. 2008), when it held that § 194.41 did not apply to invalidate an exclusion in an insurance policy because the insured company had registered under the unified carrier registration system in Iowa. We see no reason why the same logic should not apply here and exempt the Great West policy from § 194.41’s reach.

 

Robbins attempts to avoid § 194.41’s exclusionary language by relying on an unpublished Fifth Circuit opinion involving the same statute and Great West. In Gulf Underwriters Insurance Company v. Great West Casualty Company, the Fifth Circuit assumed that § 194.41 applied to a Great West policy issued and delivered to a Wisconsin-based company, and on those grounds, it invalidated an exclusion contained in the policy. 278 F. App’x 454, 457–59 (5th Cir. 2008). This case is factually distinguishable. First, the Great West policy was issued to a Wisconsin-based company and delivered to that company in Wisconsin. The insurance policy at issue here was issued and delivered to a Minnesota-based company. Second, there is no indication in the facts that the Wisconsin-based company registered under the unified carrier registration system of another state.

 

Robbins’s other efforts to have us apply § 194.41 are also unpersuasive. The estate directs us to Mullenberg v. Kilgust Mechanical, Inc., 612 N.W.2d 327 (Wis. 2000), for the proposition that whenever an insurance company certifies a policy “as proof of financial responsibility” in a state and the underlying policy states it will conform itself with applicable motor-carrier financial responsibility provisions of any states where the policy has been certified, its policy must conform to the insurance laws of that state, even if the accident does not occur within that state’s boundaries. Of course, Mullenberg does not stand for this proposition. If it did, it would mean that Robbins in this case could select from the insurance laws of Iowa, Illinois, Minnesota, North Dakota, and Wisconsin, and ask a court to apply the law of the state that is most favorable, even if the accident and the parties had no connection to that particular state other than the insurance company’s certification. That would be an absurd result.

 

*10 The issue decided in Mullenberg was whether “the term ‘negligent operation’ requires insurers to cover the loading activities of third-parties,” which was part of the question certified by this court. Id. at 328. The Wisconsin Supreme Court decided it did.4 Importantly, the parties conceded that § 194.41 applied, and there was no indication that the insured was registered with the unified carrier registration system of another state.

 

Robbins also argues that we are focusing on the wrong company in determining whether § 194.41’s exclusion applies. Rather than asking if the statute applies to Lakeville—a motor carrier—we should be determining whether it applies to Wren because, according to Robbins, it is a rental company within the meaning of § 194.41 and decided to register the trailer in Wisconsin. While it is true that § 194.41 applies with equal force to a “rental company,” we do not believe § 194.41 applies to Wren here. The statute states that the motor “carrier or rental company” must have an “approved certificate for a policy of insurance” on file. § 194.41(1) (emphasis added). The statute does not require both the motor carrier and rental company to have an approved certificate of insurance on file. From the facts in the record, we know that prior to the accident Lakeville “was responsible for registration for operation of the trailer.” The only reasonable inference then is that the application for registration on file was related to Lakeville’s use of the trailer, as its obligation to obtain registration preceded the accident.

 

This conclusion is unaffected by the fact that Wren is listed as the owner in the 2010 registration because Lakeville is listed as the primary lessee. For the purposes of § 194.41, a lessee is considered the owner of the vehicle and the insurance policy when the lessee assumes all legal liabilities and control of the vehicle under the agreement. Maas v. Ziegler, 492 N.W.2d 621, 626 (Wis. 1992); Cont’l Cas. Co. v. Transp. Indem. Co., 114 N.W.2d 137, 139 (Wis. 1962). The lease agreement here provided Lakeville with control and legal responsibility for the trailer, including insuring it. The owner of the vehicle and the policy for purposes of § 194.41 is Lakeville. Section 194.41 does not apply to Wren here. Therefore, the exception in question works to exclude Lakeville and the Great West policy from § 194.41’s reach.

 

 

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment.

 

All Citations

— F.3d —-, 2016 WL 4366769

 

 

Footnotes

1

Northland’s policy has a per occurrence limit of $1,000,000, and Great West’s policy limit per occurrence is $5,000,000.

2

Another defendant, Continental Western Insurance Company (“Continental”), joined in Robbins’s motion for summary judgment. Continental provided insurance coverage for the vehicle driven by Michael Robbins at the time of the accident. It has elected not to appeal the district court’s decision.

3

Robbins relies on Canal Insurance Company v. Great West Casualty Company, No. 11-772, 2013 WL 5275789 (D. Minn. Sept. 18, 2013), to argue that because the Great West exclusion itself is ambiguous as to whether it applies when a vehicle is being used simultaneously in the business of two parties, it must be construed in favor of granting coverage. But Robbins’s argument rests on a faulty premise. Accepting the argument that the endorsement is ambiguous on the point of whether it applies to simultaneous business use does not mean that a court will just “grant coverage” to anybody. Rather, Robbins must show that she is eligible for having the ambiguity construed in her favor. The necessary prerequisite then is that she show the trailer was in fact being used “simultaneously.” It was not. The court in Canal Insurance found that there was a triable issue of fact on whether the vehicle was being used “simultaneously” because the insured company exercised a significant degree of control over the particular vehicle involved in the accident. Here, however, we have no evidence that Lakeville exercised any significant degree of control over the trailer after it was in Hoker’s possession.

4

The Wisconsin Supreme Court declined to answer our other certified question, which was “whether Wis. Stat. § 194.41 incorporates the Omnibus Statute, Wis. Stat. § 632.32, so that an insurer who issues and delivers a policy outside of Wisconsin must comply with the requirements of the Omnibus Statute.” Mullenberg, 612 N.W.2d at 328.