Dodson v. Munoz
Court of Appeals of Texas, Fourth District, San Antonio
August 8, 2018, Delivered; August 8, 2018, Filed
No. 04-17-00409-CV

Reporter
2018 Tex. App. LEXIS 6192 *; 2018 WL 3747748
Samuel DODSON, Appellant v. Benito MUNOZ d/b/a B M Transport, Erik Munoz, and David Henry Owens, Appellees
Prior History: [*1] From the 25th Judicial District Court, Guadalupe County, Texas. Trial Court No. 16-0367-CV. Honorable William Old, Judge Presiding.
Disposition: AFFIRMED.

MEMORANDUM OPINION
AFFIRMED
Appellant Samuel Dodson appeals the trial court’s take nothing judgment against him in his personal injury suit against David Henry Owens, Benito Munoz d/b/a B M Transport (“BM Transport”), and Erik Munoz. In three issues on appeal, Dodson contends the trial court erred by including a sudden emergency instruction in the jury charge, denying his motion for new trial, and allowing a lay witness to testify as to who was responsible for causing the collision. We affirm.

BACKGROUND
On April 30, 2015, Dodson and Owens were both driving tractor trailers southbound on State Highway [*2] 46, a four-lane highway with a center turn lane. As Dodson was making a right turn into a private driveway, Owens collided with the back of Dodson’s trailer. Thereafter, Dodson sued Owens, BM Transport, and Erik Munoz (“Erik”), asserting claims for negligence, negligence per se, respondeat superior, negligent entrustment, and negligent hiring, training, and retention. The defendants filed a general denial and alleged that Dodson was contributorily negligent and that Owens’s conduct was reasonable based on a sudden emergency.
During the five-day trial which began March 20, 2017 and ended March 24, 2017, the jury heard testimony from Department of Public Safety Trooper Samson Krueger, Dodson, Kevin Hubbard, Linda Riley, and Owens, among others.1 Trooper Krueger responded to the scene and prepared a crash report based on his investigation of the collision. According to the findings of Trooper Krueger’s investigation, Dodson had moved into the left lane to make a right turn into a driveway, and Owens, who was traveling behind Dodson and Riley, was unable to stop, drove onto the highway shoulder, and struck the back of Dodson’s trailer. Trooper Krueger explained his conclusion that Dodson [*3] made the turn from the left lane was based on his assessment that it would have been almost impossible to turn into the driveway from the right lane. Trooper Krueger further explained that because the stretch of highway where the collision occurred is straight, Owens should have had ample time to observe that other vehicles ahead of him had stopped to allow Dodson to turn into the driveway. Trooper Krueger thus concluded the collision was caused by Owens’s failure to control his speed. Trooper Krueger also read a witness statement he took at the scene from Kevin Hubbard, who was a passenger in a vehicle driven by his mother, Linda Riley, that had stopped behind Dodson’s truck while Dodson was turning into the driveway. The statement read: “[Dodson’s] truck was turning right on 46 from the left-hand lane because the turn was too sharp. We were stopped in the right-hand lane. [Owens’s] truck was behind us, going the same way, tried to stop, and instead of hitting our car, hit [Dodson’s] truck instead. It could not be helped.”
Dodson testified that at the time the collision occurred, he was delivering a load of road base material to a job site—his third trip to the site that day. Dodson [*4] explained that to turn from the highway into the driveway, he had to slow down, almost to a stop, and veer to the left just prior to turning right. Dodson explained this was because if a tractor trailer turns too narrowly, the trailer tires could leave the roadway and go into the culvert. Dodson testified that about a quarter of a mile away from the driveway, he began tapping his brakes, shifted into a lower gear, and indicated with his turn signal that he was going to turn right. Dodson explained thirty to forty-five seconds passed from when he started slowing down to when he started to turn into the driveway, and another thirty seconds passed from when he started the turn to when the collision occurred. According to Dodson, he was almost all the way into the driveway when he felt the impact of Owens’s truck colliding into his trailer. Dodson further testified that immediately after the collision, Owens apologized to Dodson and told him that by the time he looked up and saw Dodson turning, he had no choice—he either had to hit the cars next to Dodson, or hit Dodson’s trailer. Dodson also testified he would never make a right-hand turn from the center turn lane because it would be [*5] unsafe.
Kevin Hubbard and his mother Linda Riley, who were traveling in the right lane between Dodson and Owens, witnessed the collision and the events leading up to it. Hubbard testified that when Dodson made the turn, Dodson came to a quick stop and very slowly made the turn from the left lane. Hubbard testified that when he first saw Dodson, he and his mother were about 600 yards behind Dodson’s tractor trailer, which had already started crossing the right lane. Hubbard did not recall seeing Dodson use a turn signal. Hubbard explained his car and two cars in the left lane behind Dodson’s tractor trailer all came to a complete stop to allow Dodson to make the turn, and that the cars had been stopped for about thirty seconds when the crash occurred. Hubbard testified he suddenly heard the screeching of tires as Owens tried to stop while passing his car to the right. Hubbard testified he heard Owens say he drove onto the highway shoulder to avoid hitting the cars that were stopped on the road. Hubbard explained that when he wrote in his witness statement the crash “couldn’t be helped,” he meant Owens had to choose between hitting the cars stopped on the highway or going onto the shoulder [*6] and hitting Dodson’s trailer.
Linda Riley testified she was driving in the right, southbound lane when Dodson’s truck, traveling in front of her, activated his left turn signal, went into the left lane, “nearly took out a white SUV” that was traveling in the left lane next to Dodson, entered the center turn lane, and made a wide right-hand turn. Riley related that while Dodson was turning, Dodson came to a complete stop, which caused Riley to slam on her brakes and come to a complete stop. Riley explained that after Dodson came to a stop with his trailer still on the highway, Dodson pulled further into the driveway and was then hit by Owens’s truck. Riley testified Dodson never activated his right turn signal, and thus she did not know Dodson was going to turn to the right until he did so. According to Riley, the collision occurred less than a minute after she came to a complete stop on the highway, and a minute to a minute and a half after Dodson began the turn. Riley opined that if Owens had sixty seconds to stop before the impact, Owens would not have been able to stop. Riley further testified that Dodson’s testimony that he was in the right lane and veered to the left to turn right [*7] was not accurate. Riley opined that Dodson was responsible for the collision because he was in the right lane, signaled left, moved to the left, and then proceeded to make a right turn, pulling out in front of the traffic behind him.
Owens testified he was traveling in the right lane when Dodson’s truck, which was also traveling in the right lane, traversed the left lane and entered the center turn lane without using a turn signal. According to Owens, Dodson suddenly turned right from the center turn lane, cutting across both southbound lanes. Owens related the cars between him and Dodson slammed on their brakes and that he slammed on his brakes as well, but was unable to quickly slow down because his trailer was fully loaded. Owens explained he decided that rather than hit the car in front of him, he would drive onto the shoulder and hit Dodson’s trailer. Owens related he did not expect Dodson to make a right turn from the center turn lane of the highway. Owens testified he was traveling the speed limit and was keeping a safe and clear distance, about a quarter of a mile, from the vehicles in front of him. Owens further testified about three seconds passed from the time he saw Dodson [*8] turning to when he crashed into Dodson’s trailer. Owens explained he apologized to Dodson after the collision because he had a choice of whom to hit and he was sorry it was Dodson, whom he had known for over a decade. Owens opined the collision was not his fault because he was simply doing his job—traveling at the speed limit and maintaining his lane—and was not the one who chose to turn out of the center turn lane without warning.
The jury returned a verdict finding Dodson was solely responsible for the collision and awarding Dodson no damages. Dodson filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The trial court denied the motion and signed a final judgment that Dodson take nothing. This appeal followed.

ANALYSIS

Sudden Emergency Instruction
In his first issue, Dodson contends the trial court erred by including a sudden emergency instruction in the jury charge over Dodson’s objection.

1. Standard of Review
HN1[ ] We review a trial court’s decision to submit or refuse a particular jury instruction for abuse of discretion. Ginn v. NCI Bldg. Sys., Inc., 472 S.W.3d 802, 828 (Tex. App.—Houston [1st Dist.] 2015, no pet.). “A trial court has wide discretion in submitting jury instructions and questions . . . subject only to the requirement that [*9] the questions submitted must: (1) control the disposition of the case; (2) be raised by the pleadings and the evidence; and (3) properly submit the disputed issues for the jury’s determination.” Id. “If an instruction might aid the jury in answering the issues presented to them, or if there is any support in the evidence for an instruction, the instruction is proper.” Louisiana-Pac. Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex. 1998) (per curiam). An improperly included or excluded jury instruction constitutes reversible error only if it probably caused the rendition of an improper judgment. Ginn, 472 S.W.3d at 828; see also Tex. R. App. P. 44.1(a).

2. Applicable Law
HN2[ ] “A sudden emergency instruction advises the jurors that if the evidence shows that conditions beyond the party’s control caused the accident in question or that the conduct of some person not a party to the litigation caused it, the jury does not have to place blame on a party.” Jordan v. Sava, Inc., 222 S.W.3d 840, 847 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (op. on reh’g). “For an instruction on sudden emergency to be proper, the evidence must support the elements of the sudden emergency defense, i.e., that (1) an emergency situation arose suddenly and unexpectedly; (2) the emergency situation was not proximately caused by the negligent act or omission of the person whose conduct is under inquiry; and (3) after [*10] an emergency situation arose that to a reasonable person would have required immediate action without time for deliberation, the person acted as a person of ordinary prudence would have acted under the same or similar circumstances.” Id.
HN3[ ] “An act of nature is not a prerequisite for a sudden emergency . . . [and] [a]ctions by other vehicles can cause a sudden emergency.” Morales v. Dougherty, No. 12-06-00416-CV, 2008 Tex. App. LEXIS 5725, 2008 WL 2930245, at *2 (Tex. App.—Tyler July 31, 2008, no pet.) (mem. op.); see also Jordan, 222 S.W.3d at 848 (noting an emergency condition may arise from a stopped car, a car slowing down, or an oncoming car in the same lane of traffic). “If there is conflicting evidence regarding whether there was a sudden emergency, the trial court should submit the requested instruction.” Jordan, 222 S.W.3d at 847. “In fact, if there is any support in the evidence for a sudden emergency instruction, the instruction is properly given.” Benham v. Lynch, No. 04-09-00606-CV, 2011 Tex. App. LEXIS 728, 2011 WL 381665, at *6 (Tex. App.—San Antonio Feb. 2, 2011, no pet.) (mem. op.) (emphasis in original).

3. Discussion
Dodson argues the submission of a sudden emergency instruction was improper in this case because the evidence shows the emergency situation was caused by Owens’s negligent conduct. Specifically, Dodson argues Owens cannot benefit from a sudden emergency instruction where the emergency [*11] situation was caused by Owens’s failure to control his speed.
HN4[ ] An emergency situation may arise from a vehicle’s sudden and unexpected conduct. See Knighten, 976 S.W.2d at 676 (holding trial court did not abuse its discretion by submitting sudden emergency instruction where it was raining and plaintiff abruptly applied her brakes after which defendant’s truck ran into her from behind); DeLeon v. Pickens, 933 S.W.2d 286, 294 (Tex. App.—Corpus Christi 1996, writ denied) (holding sudden emergency instruction was proper where defendant presented evidence plaintiff and defendant were traveling in different lanes and plaintiff veered into defendant’s lane to avoid hitting another car). However, where the evidence unequivocally shows the emergency situation was caused by a defendant’s own negligence, a sudden emergency instruction is improper. See VIA Metro. Transit Auth. v. Barraza, No. 04-13-00035-CV, 2013 Tex. App. LEXIS 14609, 2013 WL 6255761, at *11 (Tex. App.—San Antonio Dec. 4, 2013, pet. denied) (mem. op.) (holding trial court properly refused a sudden emergency instruction where bus driver unequivocally admitted fault, and thus defendant failed to raise a fact issue as to the second element of the defense).
Dodson’s argument that the sudden emergency instruction is unavailable to Owens in this case mirrors the same argument considered and rejected by this court in Benham v. Lynch. See Benham, 2011 Tex. App. LEXIS 728, 2011 WL 381665, at *7. In Benham [*12] , the plaintiff sued the defendant after the defendant’s vehicle ran into the plaintiff’s vehicle from behind. 2011 Tex. App. LEXIS 728, [WL] at *1. This court stated that HN5[ ] “[w]hile the law provides that a motorist driving behind another vehicle ‘must drive at a reasonable speed, keep back a reasonable distance, and keep his vehicle under reasonable control to provide for the contingency that a vehicle in front [may suddenly stop],’ the mere occurrence of a rear-end collision does not establish negligence as a matter of law.” 2011 Tex. App. LEXIS 728, [WL] at *7. “Rather, whether a rear-end collision raises an issue of negligence or establishes negligence as a matter of law depends on all the facts and circumstances of the case.” Id. This court concluded that because the defendant raised a fact issue as to whether the collision was caused by the sudden, unexpected failure of the defendant’s brakes, the trial court erred by not including a sudden emergency instruction in the jury charge. Id.
Likewise, the mere fact that Owens crashed into Dodson’s trailer as Dodson was turning into the driveway does not conclusively establish Owens’s negligence. Although Trooper Krueger concluded the collision occurred because Owens failed to control his speed, Owens testified [*13] he was traveling the speed limit and was keeping a safe and clear distance of about a quarter of a mile from the vehicles in front of him. This conflicting testimony created a fact issue as to whether Owens’s negligence created the emergency condition, which the jury reasonably could have resolved in favor of Owens. See Benham, 2011 Tex. App. LEXIS 728, 2011 WL 381665, at *7; Gonzalez v. Cruz, No. 13-07-351-CV, 2008 Tex. App. LEXIS 5285, 2008 WL 2764565, at *5-*6 (Tex. App.—Corpus Christi July 17, 2008, no pet.) (mem. op.) (holding sudden emergency instruction was proper in a rear-end collision case where fact issue existed as to whether defendant truck driver acted negligently by failing to control his speed, keep a proper lookout, and maintain proper distance).
Moreover, Hubbard, Riley, and Owens testified Dodson made the right-hand turn from either the left lane or the center turn lane without warning, which caused the vehicles behind Dodson to suddenly come to a stop on the highway. Riley and Owens testified Owens, driving a fully-loaded tractor trailer, did not have enough time to come to a complete stop and avoid hitting another vehicle on the roadway. This evidence was sufficient to support the trial court’s submission of a sudden emergency instruction to the jury because the jury, viewing this evidence, could reasonably [*14] conclude Dodson’s unexpected decision to turn right from the center turn lane obstructed traffic on the highway and created an emergency situation for which Owens was not responsible. See Morales, 2008 Tex. App. LEXIS 5725, 2008 WL 2930245, at *2-*3 (holding sudden emergency instruction was proper where witness testified defendant did everything he could to avoid a collision upon seeing vehicles stopped on the road after coming over a hill); DeLeon, 933 S.W.2d at 294.
Accordingly, the trial court did not abuse its discretion by including a sudden emergency instruction in the jury charge. We overrule Dodson’s first issue.

Factual Sufficiency
In his second issue, Dodson contends the trial court erred by denying his motion for new trial because the evidence is factually insufficient to support the jury’s finding that Dodson was solely responsible for the collision.

1. Standard of Review
HN6[ ] In a factual-sufficiency review, we examine the evidence both supporting and contrary to the judgment. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam); Plas—Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). A factual sufficiency attack on an issue for which the appellant had the burden of proof requires the appellant to demonstrate the adverse finding “is against the great weight and preponderance of the evidence.” Dow Chem. Co., 46 S.W.3d at 242. In reviewing a factual-sufficiency challenge, we consider [*15] and weigh all the evidence and will not reverse the judgment unless the jury’s finding is “so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust.” Id.
HN7[ ] As an appellate court, we are mindful that we may not “pass on the credibility of witnesses or substitute our judgment for that of the jury.” Rowlett/2000, Ltd. v. City of Rowlett, 231 S.W.3d 587, 590 (Tex. App.—Dallas 2007, no pet.). “Rather, we will sustain the challenged finding if there is competent evidence of probative force to support it.” St. Germain v. Carter, 478 S.W.3d 97, 100 (Tex. App.—El Paso 2015, no pet.). “The fact that we may conclude that the evidence preponderates toward an affirmative answer based on our review of the record is not an appropriate ground for reversal.” Id.

2. Discussion
In arguing the evidence was factually insufficient to support the jury’s verdict that none of the defendants were responsible for the collision, Dodson points to his own testimony that he was in the right lane and had to slow down significantly to make the turn and Trooper Krueger’s testimony that Owens should have had enough time to observe the stalled traffic ahead and come to a complete stop. Dodson also points to evidence that Dodson’s truck was almost all the way in the driveway when the impact occurred and that eyewitnesses [*16] agreed at least thirty seconds passed from the time Dodson began the turn to the time of impact. This evidence however, conflicted with the testimony of Hubbard, Riley, and Owens that Dodson made the right turn unexpectedly and without warning from either the left lane or the center turn lane, and that Owens did not have time to come to a complete stop upon realizing Dodson’s tractor trailer was unexpectedly blocking traffic on the highway ahead of him.
HN8[ ] “A jury is entitled to blend evidence admitted before it and may believe all, some or none of a witness'[s] testimony.” Bufkin v. Bufkin, 259 S.W.3d 343, 355 (Tex. App.—Dallas 2008, pet. denied). “Appropriate deference must be given to the jury’s determination, especially concerning its judgment on the weight and credibility of witness testimony because it is the sole judge of the credibility of the witnesses and the weight to be given their testimony.” Hauschildt v. Cent. Freight Lines, Inc., No. 10-10-00185-CV, 2011 Tex. App. LEXIS 970, 2011 WL 455264, at *2 (Tex. App.—Waco Feb. 9, 2011, pet. denied) (mem. op.) (holding evidence was factually sufficient to support jury’s finding of no-negligence of defendant truck driver where there was conflicting evidence as to whether defendant acted negligently prior to colliding with plaintiffs’ vehicle).
The jury, as the judge of the witnesses’ credibility, reasonably could [*17] have disbelieved Dodson and resolved the conflict in the evidence in favor of Owens. Owens’s version of events—that Dodson moved left out of the right lane and without signaling unexpectedly made a right-hand turn—was supported not only by his own testimony, but by two other witnesses who were present at the time of the collision. We therefore conclude the jury’s finding was not against the great weight and preponderance of the evidence. Accordingly, the trial court did not err by denying Dodson’s motion for new trial. See St. Germain, 478 S.W.3d at 103 (concluding evidence was factually sufficient and therefore trial court did not err by denying plaintiff’s motion for new trial). We overrule Dodson’s second issue.

Evidentiary Objection
In his third issue, Dodson contends the trial court erred by admitting, over Dodson’s objection, Riley’s lay opinion testimony regarding which party was responsible for the collision. Dodson argues Riley’s lay opinion testimony was inadmissible because she did not see Owens’s tractor trailer before the collision and did not actually see the collision happen.

1. Standard of Review and Applicable Law
HN9[ ] We review a trial court’s evidentiary ruling under the abuse of discretion standard. [*18] U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012). “A trial court abuses this discretion when it acts without regard for guiding rules or principles.” Id. “Even if the trial court abused its discretion in admitting certain evidence, reversal is only appropriate if the error was harmful, i.e., it probably resulted in an improper judgment.” Id.
HN10[ ] A lay witness may testify in the form of an opinion provided it is rationally based on the witness’s perception and helpful to clearly understanding the witness’s testimony or to determining a fact in issue. Tex. R. Evid. 701. “The requirement that an opinion be rationally based on the perceptions of the witness is composed of two parts: (1) the witness must establish personal knowledge of the events from which his opinion is drawn; and (2) the opinion drawn must be rationally based on that knowledge.” Lopez-Juarez v. Kelly, 348 S.W.3d 10, 19 (Tex. App.—Texarkana 2011, pet. denied) (internal quotation marks omitted). “An opinion will satisfy the personal knowledge requirement if it is an interpretation of the witness’s objective perception of events.” Merrill v. Sprint Waste Servs. LP, 527 S.W.3d 663, 670 (Tex. App.—Houston [14th Dist.] 2017, no pet.). “An opinion is rationally based on perception if a reasonable person could draw that opinion under the circumstances.” Id. “An opinion is not objectionable just because it embraces an ultimate issue.” Tex. R. Evid. 704.

2. Discussion
The Fourteenth Court of [*19] Appeals recently addressed the issue of lay opinion testimony in a case with similar facts. See Merrill, 527 S.W.3d at 666. In Merrill, a tractor trailer struck a motorcyclist who attempted to pass the truck on the right when it veered wide into the center lane to make a right-hand turn. Id. at 665-66. The trial court excluded an eyewitness’s deposition testimony that the truck driver and motorcyclist were equally at fault for the collision. Id. at 668. The court of appeals held that because the witness observed and perceived the incident, she could reasonably opine as to fault; therefore, the trial court abused its discretion by excluding her testimony. Id. at 672. As our sister court noted, “it is hard to see how the opinion of [an] eyewitness regarding fault would not be helpful” to the jury. Id. at 670.
In this case, Riley, who was driving a vehicle behind Dodson’s tractor trailer, witnessed Dodson’s maneuverings that immediately preceded the collision. Riley testified Dodson activated his left turn signal, went into the left lane, “nearly took out a white SUV” that was traveling in the left lane next to Dodson, entered the center turn lane, and made a wide right-hand turn into the driveway. Riley further testified that Dodson’s wide turn across [*20] the highway caused Riley to slam on her brakes and come to a complete stop. Although Riley did not see the impact occur, she heard it as it happened next to her.
A reasonable person in Riley’s position could have concluded that the collision would not have occurred but for Dodson’s decision to unexpectedly make a right-hand turn from the center turn lane, thereby blocking the highway. Thus, the trial court reasonably could have concluded that Riley’s opinion as to who was responsible for causing the collision was rationally based on her personal and objective perception of the events leading up to the collision and helpful to the jury in determining who was responsible for the collision. Accordingly, we conclude the trial court did not abuse its discretion by admitting Riley’s opinion testimony. We overrule Dodson’s third issue.

CONCLUSION
For the foregoing reasons, the judgment of the trial court is affirmed.
Irene Rios, Justice

Warning As of: August 24, 2018 1:17 PM Z
Monterey Ins. Co. v. Peerless Indem. Ins. Co.
Court of Appeal of California, Fourth Appellate District, Division One
July 27, 2018, Opinion Filed
D072539

Reporter
2018 Cal. App. Unpub. LEXIS 5124 *; 2018 WL 3598848
MONTEREY INSURANCE COMPANY, Plaintiff and Appellant, v. PEERLESS INDEMNITY INSURANCE COMPANY, Defendant and Respondent.
Notice: NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 8.1115(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 8.1115(b). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 8.1115.
Prior History: [*1] APPEAL from a judgment of the Superior Court of Imperial County, No. ECU09231, L. Brooks Anderholt, Judge.
Disposition: Affirmed.

Monterey Insurance Company (Monterey) appeals a judgment entered in favor of Peerless Indemnity Insurance Company (Peerless) following Peerless’s successful motion for summary judgment. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Parties
Peerless provided a business auto insurance policy (Peerless Policy) that covered M. David Fish and Joe Martinez Hay Farming (Fish/Martinez). As relevant here, Fish/Martinez owned a tractor-trailer, which was insured under the Peerless Policy.
Monterey provided a commercial auto policy (Monterey Policy), which insured David Shafer, doing business as Shafer Hay Company (Shafer Hay). Shafer Hay owned and operated a hay squeeze vehicle (squeeze) that was covered under the Monterey Policy.
B. The Injury
Fish/Martinez hired Robert Deleon to pick up a load of hay at Jack Seiler Farms and transport it, driving a tractor-trailer [*2] owned by Fish/Martinez and insured under the Peerless Policy. Deleon arranged to meet a Shafer Hay representative with the squeeze at Jack Seiler Farms on February 24, 2014.
On the morning of February 24, 2014, Deleon drove the tractor-trailer to Jack Seiler Farms. He brought his friend, Cory Miller, with him to help load the hay onto the tractor-trailer. Larry Shafer (Larry), who was operating the squeeze, met Deleon and Miller at Jack Seiler Farms as well. Larry identified the stack of hay Deleon was picking up and told Deleon that he would need to untarp the stack before any hay could be loaded.
With Larry operating the squeeze, Deleon stood on one of the squeeze’s forks and then was lifted to the top of the stack.1 There, he untarped the stack and was then lowered, by the squeeze, back to the ground. After he returned to the ground, Deleon returned to the tractor-trailer, got into the cab, and made a couple telephone calls. At that point, Miller was watching the hay being loaded on the tractor-trailer so he could tie it down. After the hay was loaded on the trailer, Miller tied down the hay, which took about 10 to 15 minutes. Once the hay was loaded and tied to the trailer, Deleon [*3] completed his paperwork and started to drive off in the tractor-trailer. Larry stopped him and told him he had to retarp the haystack. Deleon responded to Larry’s direction with an expletive, but eventually agreed to return so he could retarp the haystack when Larry threatened that Deleon would not be permitted to return to Jack Seiler Farms unless he covered the haystack with the tarp. Before that day, Deleon had never retarped haystacks at Jack Seiler Farms.
Deleon parked the truck about 50 to 75 feet from the haystack and returned to retarp it. Deleon again stood on the squeeze’s fork and was lifted to the top of the haystack. After retarping the stack, Deleon was being lowered by the squeeze when the squeeze was moved too close to the stack and Deleon was “brushed off” of the fork and injured himself.
C. DeLeon’s Lawsuit
On June 2, 2014, Deleon and his wife sued Shafer Hay and Jack Seiler Farms based on his injuries caused by falling off the squeeze’s fork. Monterey defended and indemnified Shafer Hay in response to Deleon’s lawsuit. However, Shafer Hay also tendered the defense and indemnification of Deleon’s lawsuit to Peerless as the insurer of the tractor-trailer driven by Deleon. [*4] On October 6, 2015, Peerless refused Shafer Hay’s tender, arguing that Shafer Hay was not potentially insured under the Peerless Policy. Over a month later, Monterey responded to Peerless’s denial, explaining the alleged facts of the Deleon lawsuit as well as informing Peerless of a statutory offer to compromise in the amount of $849,999. Monterey requested Peerless’s assistance and participation in the defense and indemnification of Shafer Hay.
On January 4, 2016, Monterey contacted Peerless, requesting a response to its November 2015 communication about defending and indemnifying Shafer Hay. Monterey eventually settled the claims against Shafer Hay for $75,000. On February 8, 2016, Peerless again refused to indemnify Shafer Hay for the claims alleged in Deleon’s lawsuit.
D. Monterey’s Lawsuit Against Peerless
On June 2, 2016, Monterey filed suit against Peerless for equitable contribution, indemnity, declaratory relief, and breach of the covenant of good faith and fair dealing. Monterey alleged that Peerless had an obligation to defend and indemnify Shafer Hay under the Peerless Policy. Specifically, Monterey claimed Shafer Hay was co-insured under the Peerless Policy because Deleon [*5] was injured from the “ownership, maintenance, use or loading of a covered auto. The tractor-trailer was owned and operated by [Fish/Martinez] for use by and under Deleon’s direction and was a covered auto under the Peerless Policy.”
Peerless answered the complaint then filed a motion for summary judgment. In that motion, Peerless maintained that Shafer Hay was only covered under the Peerless Policy if Shafer Hay was a permissive user under the subject policy. Based on the undisputed facts, Peerless argued that Deleon’s injury did not arise from the loading or unloading of the hay on the tractor-trailer, but after the loading was completed. Thus, according to Peerless, at the time Deleon was injured, Shafer Hay was not a permissive user of the tractor-trailer under the Peerless Policy.
Monterey opposed the motion for summary judgment, arguing a disputed issue of material fact existed: “Was Deleon injured while Shafer Hay was involved in the loading operation of the Peerless-insured trailer?” Further, Monterey claimed this factual dispute established Peerless’s duty to defend Shafer Hay as a matter of law. In support of its position, Monterey asserted that the retarping of the haystack [*6] after the hay was loaded on the tractor-trailer is part of the loading and unloading process. Alternatively stated, when Deleon used the squeeze’s fork to travel to the top of the haystack to retarp the hay, Shafer Hay remained a permissive user of the Peerless insured tractor-trailer.
The superior court found that summary judgment was warranted because no disputed issue of material fact existed. Specifically, the court determined that Deleon’s accident was not the result of the use of the tractor-trailer. The court further concluded that the undisputed facts showed that the loading and unloading of the hay onto the tractor-trailer had ceased by the time Deleon started to drive away in the truck, but before he was lifted by the squeeze to the top of the haystack to retarp.
Monterey timely appealed the ensuing judgment.
DISCUSSION
I

THE MOTION FOR SUMMARY JUDGMENT
A. Monterey’s Contentions
Monterey contends the superior court erred in granting Peerless’s motion for summary judgment. Monterey argues that there exists a disputed issue of material fact, namely whether Deleon was injured while loading the Peerless insured tractor-trailer. As such, Monterey asserts summary judgment was improper. [*7] In addition, it maintains that Peerless had a duty to defend Shafer Hay based on the allegations of Deleon’s complaint and the extrinsic facts known at the time of tender. Thus, even if Peerless did not ultimately have to provide insurance coverage for Shafer Hay, it nevertheless had a duty to defend and breached that duty by denying the tender of defense. For this reason as well, Monterey claims that the superior court should not have granted the summary judgment motion. As we explain below, we reject these contentions.
B. Background
Here, the facts are undisputed. Peerless insured a tractor-trailer owned by Fish/Martinez. Fish/Martinez hired Deleon to drive the tractor-trailer to pick up hay from Jack Seiler Farms and transport it to another location. Deleon contacted Shafer Hay to load the hay. Deleon with his friend, Miller, drove the Peerless insured tractor-trailer to Jack Seiler Farms. Larry of Shafer Hay met Deleon at Jack Seiler Farms. Larry was operating the squeeze, which Monterey insured. With Larry at the controls, the squeeze lifted Deleon to the top of the haystack so he could untie the tarp. After untying the tarp, Larry lowered Deleon back to the ground. Larry then used [*8] the squeeze to load the hay onto the tractor-trailer. Miller tied down the hay to the trailer. Deleon completed some paperwork and then started to drive away. Larry stopped him and told him he had to retarp the haystack. Deleon did not want to do so, but agreed after Larry said that he would not be allowed back to Jack Seiler Farms unless he retarped the haystack. Deleon parked the truck and walked 50 to 75 feet to the haystack. Larry, using the squeeze, lifted Deleon to the top of the haystack. After Deleon finished retarping it, while he was being lowered by the squeeze, Deleon fell off the squeeze’s fork, injuring himself.
It was “common practice” to retarp haystacks. It was Jack Seiler Farms’ expectation that if a tarp was moved to obtain hay then it would be placed back to cover the haystack. However, Deleon had never retarped any haystack at Jack Seiler Farms before the date in question.
Under the Peerless Policy, Peerless promises to “pay all sums an ‘insured’ legally 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.’ It is undisputed that the subject tractor-trailer [*9] is a covered auto under the policy. Further, the Peerless Policy states that an “insured” includes “[a]nyone else . . . using with [Fish/Martinez’s] permission a covered ‘auto’ . . . .”
In addition, use of a covered auto includes the loading and unloading of that auto. (See Ins. Code, § 11580.06, subd. (g).)
C. Legal Principles and Standard of Review
A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) In the context of an insurance dispute, “[a]n ‘insurer is entitled to summary [judgment] that no potential for indemnity exists and thus no duty to defend exists if the evidence establishes as a matter of law that there is no coverage.'” (Great Western Drywall, Inc. v. Interstate Fire & Casualty Co. (2008) 161 Cal.App.4th 1033, 1039, 74 Cal. Rptr. 3d 657.) “‘”We apply a de novo standard of review to an order granting summary judgment when, on undisputed facts, the order is based on the interpretation or application of the terms of an insurance policy.” [Citations.] In reviewing de novo a superior court’s summary [judgment] order in a dispute over the interpretation of the provisions of a policy of insurance, the reviewing court applies settled rules governing the interpretation of insurance contacts.'” (Stellar v. State Farm General Ins. Co. (2007) 157 Cal.App.4th 1498, 1503, 69 Cal. Rptr. 3d 350.) An “insurer is entitled to summary [*10] [judgment] that no potential for indemnity exists and thus no duty to defend exists if the evidence establishes as a matter of law that there is no coverage.” (Smith Kandal Real Estate v. Continental Casualty Co. (1998) 67 Cal.App.4th 406, 414, 79 Cal. Rptr. 2d 52.)
“‘”While insurance contracts have special features, they are still contracts to which the ordinary rules of contractual interpretation apply.” [Citations.] “The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties.” [Citation.] “Such intent is to be inferred, if possible, solely from the written provisions of the contract.”‘” (Powerine Oil Co., Inc. v. Superior Court (2005) 37 Cal.4th 377, 390, 33 Cal. Rptr. 3d 562, 118 P.3d 589.) “Whether a clause is ambiguous and whether [an insured] has an objectively reasonable expectation of coverage in light of the insuring language are questions of law.” (Windsor Food Quality Co., Ltd. v. Underwriters of Lloyds of London (2015) 234 Cal.App.4th 1178, 1185, 184 Cal. Rptr. 3d 477.) “Courts do not engage in forced construction of insuring clauses to find coverage, nor will they strain to create an ambiguity where none exists.” (Ray v. Valley Forge Ins. Co. (1999) 77 Cal.App.4th 1039, 1044, 92 Cal. Rptr. 2d 473.)
“An insurer’s duty to indemnify and its duty to defend an insured ‘lie at the core of the standard [insurance] policy.’ [Citation.] The duty to defend is broader than the duty to indemnify. [Citation.] ‘Unlike the obligation to indemnify, which is only determined when the insured’s liability is established, the duty to defend must be [*11] assessed at the very outset of a case.'” (Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277, 286-287, 172 Cal. Rptr. 3d 653, 326 P.3d 253.) When determining whether a duty to defend exists, the insurer must compare the allegations of the complaint and the terms of the insurance policy. (Id. at p. 287.) Furthermore, the insurer must consider “‘extrinsic facts known to the insurer suggest[ing] that the claim may be covered.'” (Ibid.) “[W]here the extrinsic facts eliminate the potential for coverage, the insurer may decline to defend even when the bare allegations in the complaint may suggest potential liability. [Citations.] This is because the duty to defend, although broad, is not unlimited; it is measured by the nature and risks covered by the policy.” (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 19, 44 Cal. Rptr. 2d 370, 900 P.2d 619 (Waller).)
D. Analysis
The instant action is somewhat unique because the parties are not offering dueling interpretations of the subject insurance policy. Instead, for purposes of the issues before us, the parties do not disagree that Shafer Hay could be covered under the Peerless Policy as a permissive user if Deleon was injured while loading or unloading the tractor-trailer. As such, this case does not turn on the interpretation of the Peerless Policy, but the application of that policy to undisputed facts.
Monterey asserts that it has raised a triable issue [*12] of material fact because it is disputed whether Deleon was injured during the loading and unloading of the tractor-trailer. In support of its position, Monterey cites Mirpad, LLC v. California Ins. Guarantee Assn. (2005) 132 Cal.App.4th 1058 at page 1068, 34 Cal. Rptr. 3d 136: “If coverage depends on an unresolved dispute over a factual question, the very existence of that dispute would establish a possibility of coverage and thus a duty to defend.” Although we do not quibble with the general legal principle espoused by the court in Mirpad, that rule does not apply here. Monterey correctly frames the primary disagreement between the parties, but it glosses over the fact that underlying that quarrel, the facts are undisputed. Thus, we do not have to resolve any factual issue, but instead, we must decide a legal issue based on undisputed facts. (See Waller, supra, 11 Cal.4th at pp. 25-26.) “If the facts are undisputed . . . then summary judgment may be entered on issues that otherwise would have been submitted to the jury. That is the function of summary judgment proceedings.” (Davis v. Consolidated Freightways (1994) 29 Cal.App.4th 354, 366, 34 Cal. Rptr. 2d 438.) Put differently, the instant matter is one that can be properly resolved by us as a matter of law. We thus can determine, based on the undisputed facts, whether Deleon was injured during the loading of the tractor-trailer.
Here, the subject tractor-trailer [*13] was loaded with hay. Miller tied down the load to the trailer. Deleon completed his paperwork and began to drive off with the hay. Larry stopped him and told him that he had to retarp the haystack. Deleon then exited the tractor-trailer, walked 50 to 75 feet to the haystack where Larry operated the squeeze to lift Deleon to the top of the haystack so he could retarp it. On the way down, Deleon fell off the fork of the hay squeeze and was injured. Monterey argues that it is unimportant that Deleon was injured after the hay was loaded and tied down because the untarping and retarping is part of the loading procedure. Further, Monterey points out it was custom for a trucker, who was picking up a load of hay, to untarp and retarp a haystack.
In support of its position, Monterey relies on Argonaut Ins. Co. v. Transport Indemnity Co. (1972) 6 Cal.3d 496, 99 Cal. Rptr. 617, 492 P.2d 673 (Argonaut), Encompass Ins. Co. v. Coast National Ins. Co. (9th Cir. 2014) 764 F.3d 981 (Encompass), American Auto. Ins. Co. v. American Fidelity & Casualty Co. (1951) 106 Cal.App.2d 630, 235 P.2d 645 (American Fidelity), and American Auto. Ins. Co. v. Transport Indemnity Co. (1962) 200 Cal.App.2d 543, 19 Cal. Rptr. 558 (Transport Indemnity). None of these cases are instructive here.
In Argonaut, supra, 6 Cal.3d 496, a truck driver was injured when he was assisting in the unloading of a semitrailer and a portion of the load fell from the semitrailer onto him. (Id. at pp. 500-501.) There was no issue whether the truck driver was injured during the loading or unloading process. Indeed, the court stated the “vehicle was therefore clearly being ‘used’ by those engaged [*14] in the loading process.” (Id. at p. 506.) Thus, the court concluded the trial court correctly prorated both liability and costs of defense to include contribution from the semitrailer’s insurer. (Id. at p. 507.)
Argonaut, supra, 6 Cal.3d 496 is not helpful here. It does not aid us in determining whether Deleon was injured during the load or unloading process. Instead, it merely stands for the unremarkable principle that loading and unloading of a vehicle constitutes use of that vehicle. In other words, Argonaut does not answer the question presented in the instant action.
Nor does Encompass, supra, 764 F.3d 981. In that case, Anthony Watson lost control of his vehicle, ran off the road, and crashed into a light pole. Alexandra Van Horn was a passenger in that car. A second car, not involved in the accident, stopped at the scene of the accident to render aid. A passenger in this second car, Lisa Torti, saw Van Horn inside the wrecked car and allegedly feared that Van Horn might be in danger. Thus, Torti grabbed Van Horn and pulled her out of the car. Van Horn suffered severe injuries and sued Torti. (Id. at pp. 982-983.) Torti tendered her defense to the insurer of her car, home, and personal excess liability, Encompass Insurance Company (EIC). She also tendered her defense to Mid-Century [*15] Insurance Company, which also insured her car. Finally, Torti tendered her defense to Coast National Insurance Company, which had insured Watson’s car. Both those insurance companies denied Torti’s tenders. (Id. at p. 983.)
After settling Van Horn’s suit against Torti, EIC sued Mid-Century and Coast National, seeking contribution or subrogation for the expenses EIC incurred in its defense and indemnification of Torti. The district court entered judgment in favor of Mid-Century and Coast National. (Encompass, supra, 764 F.3d at pp. 983-984.) On appeal, the Ninth Circuit reversed, concluding the unloading of an injured passenger from a vehicle constitutes “use” of that vehicle under California law. (Id. at p. 987.)
Here, it is undisputed that Deleon was not injured loading anything onto the tractor-trailer or unloading anything from the tractor-trailer. Thus, Torti’s removal of Van Horn from the vehicle in Encompass is not analogous to any of the facts in the instant matter. Here, the subject tractor-trailer was fully loaded, and Deleon was driving away when Larry stopped him and told him that he needed to retarp the stack. He then was injured in the process of retarping the haystack.
In American Fidelity, supra, 106 Cal.App.2d 630, the Second District considered whether an oil spill arose out of [*16] the unloading of a tanker truck and trailer carrying diesel oil. Ultimately, the court held that, “the accident falls within the coverage of the ‘loading and unloading’ provision of defendant’s policy since the accident occurred while unloading was in progress and before the oil had come to . . . its ultimate destination.” (Id. at p. 638.) Thus, American Fidelity does not offer any guidance to decide the issue before us, but instead, is simply another case supporting the principle that Peerless would have had to defend and/or indemnify Deleon if he was injured while loading the tractor-trailer.
Transport Indemnity, supra, 200 Cal.App.2d 543 suffers from the same shortcomings as the three previously discussed cases on which Monterey relies. There, Culy Transportation Company, by its driver Guerrero, drove its truck containing four steel blocks, each weighing 400 to 600 pounds, to General Grinding Company’s yard. Ordinarily, General would have removed the blocks with a crane, but the crane was out of order. Grinding’s foreman, Bardon, directed Guerrero to place the truck out in the street so that the blocks could be thrown into some dirt that was a part of the street. (If the blocks were thrown off in the yard, they would have broken the cement [*17] paving of the yard and the blocks would have been dented.) Bardon directed Rea, another employee of Grinding, to help Guerrero unload and then left the scene. The truck was placed in the street and Guerrero and Rea pushed a block off the truck, striking and injuring a little girl. Pertinent here is the fact that American Automobile Insurance Company (American) insured the Culy truck, giving coverage to any person for injuries arising out of the use of any automobile, including the loading and unloading thereof. The court held, as an alternative basis for holding that the American policy covered Bardon, that Bardon was “in substance a user of the truck.” (Id. at p. 551.) “Bardon’s liability arises from his own conduct, not from vicarious liability for the acts of Rea, whom he assigned to assist Guerrero in the unloading. The parties agree that American would not be liable for Bardon’s amenability as respondeat superior. But Bardon’s own, or independent, negligence lay in his failure to post a guard to warn persons using the street to watch for the danger.” (Ibid.) The court then held that Bardon was responsible for the “particular usage of the Culy truck” and hence was covered by the policy which [*18] insured a person “using the truck.” (Id. at p. 552.) Again, we observe the injury giving rise to insurance coverage in Transport Indemnity occurred during the unloading of the subject truck.
In short, all four cases on which Monterey relies simply stand for the proposition that Shafer Hay would be a permissive user of the Peerless insured tractor-trailer if Deleon was injured while loading the tractor-trailer. These cases, however, do not provide guidance regarding the undisputed facts before us, namely the tractor-trailer was fully loaded and was being driven away when Deleon was stopped, parked the tractor-trailer, walked 50 to 75 feet to the haystack, where he was injured when he fell off the hay squeeze’s fork after retarping the haystack. None of the cases cited by Monterey address a similar factual issue. They do not address whether Deleon was loading the tractor-trailer when he was retarping the haystack. In this sense, Monterey has not provided us with any authority to support its position, but instead, is asking us to expand what California law considers “use” of a vehicle.
Our high court has discussed the phrase “use” in the context of an automobile insurance policy. (See State Farm Mut. Auto. Ins. Co. v. Partridge (1973) 10 Cal.3d 94, 100-101, 109 Cal. Rptr. 811, 514 P.2d 123 (Partridge).) [*19] It is “established beyond contention that this language of ‘arising out of the use,’ when utilized in a coverage or insuring clause of an insurance policy, has a broad and comprehensive application, and affords coverage for injuries bearing almost any causal relation with the vehicle.” (Id. at p. 100, italics omitted; Prince v. United National Ins. Co. (2006) 142 Cal.App.4th 233, 238-239, 47 Cal. Rptr. 3d 727.) However, “some minimal causal connection” between the use of the vehicle and the accident is “required.” (Partridge, supra, at p. 100, fn. 7; State Farm Mutual Automobile Ins. Co. v. Grisham (2004) 122 Cal.App.4th 563, 566-567, 18 Cal. Rptr. 3d 809 (Grisham).)
After Partridge, supra, 10 Cal.3d 94 a majority of California decisions have applied the “predominating cause/substantial factor test” to determine whether the “minimal causal connection” requirement has been met. (R.A. Stuchbery & Others Syndicate 1096 v. Redland Ins. Co. (2007) 154 Cal.App.4th 796, 802, 66 Cal. Rptr. 3d 80 (Stuchbery); Grisham, supra, 122 Cal.App.4th at pp. 566-567.) “Under this test, a mere ‘but for’ connection between the use of the vehicle and the alleged injuries is insufficient to bring the claim within the scope of coverage” because to “hold otherwise would convert auto liability policies into general liability policies.” (Stuchbery, supra, at p. 802; Grisham, supra, at p. 567.) “Coverage based on ‘use’ must encompass an event that reasonably could have been contemplated as falling within the insurance policy.” (Ibid.) Neither where the vehicle merely provides the situs of the tort nor where the vehicle serves simply as the transportation of a tortfeasor to a site where [*20] he commits a tort after departing from the vehicle is sufficient for causation to be found between the injury and the vehicle’s “use.” (Ibid.; American National Property & Cas. Co. v. Julie R. (1999) 76 Cal.App.4th 134, 139-140, 90 Cal. Rptr. 2d 119 (Julie R.).)
Here, the tractor-trailer played no role in Deleon’s injuries. The tractor-trailer was completely loaded without Deleon suffering his injury. Further, Deleon was driving away before he was stopped to return some 50 to 75 feet to the haystack to retarp it. Therefore, the tractor-trailer had completed its purpose on the farm, i.e., to pick up hay and transport it away. It played no role in Deleon’s injuries. Indeed, Deleon was injured during the retarping process. That process did not involve the use of the tractor-trailer. It involved the squeeze only. As such, Shafer Hay, as operator of the squeeze, was not loading the Peerless insured tractor-trailer at that time. Because Deleon was injured after the tractor-trailer was fully loaded and was beginning to drive away, Shafer Hay was not a permissive user under the Peerless Policy when Deleon’s injury occurred.
Because we conclude as a matter of law, based on the undisputed facts before us, that Shafer Hay was not covered under the Peerless Policy when Deleon was injured, Peerless had [*21] no duty to defend or indemnify Shafer Hay based on Deleon’s lawsuit. (See Grisham, supra, 122 Cal.App.4th at pp. 567-568 [concluding no coverage under the auto policy where a dog escaped from a parked vehicle and bit a man walking on the street about 25 yards away from the vehicle]; Stuchbery, supra, 154 Cal.App.4th at p. 803 [determining no coverage under the auto policy because the subject vehicle was merely used to transport victim to the locale of the sexual assault]; Julie R., supra, 76 Cal.App.4th at p. 140 [finding no coverage under the auto policy because the use of the subject car as transportation to the scene of the injury did “not establish a sufficient causal connection between the ‘use’ and the injury.”].)
Additionally, we reject Monterey’s claim that even if we determine Peerless did not have to indemnify Shafer Hay under the Peerless Policy, Peerless still owed a duty to defend based on the allegations in Deleon’s complaint and the extrinsic facts. There is no allegation in Deleon’s complaint that he was injured while using the tractor-trailer. Further, the undisputed extrinsic facts show that Deleon was injured after the tractor-trailer was completely loaded. As such, Peerless owed no duty to defend. (Waller, supra, 11 Cal.4th at p. 19.)2
DISPOSITION
The judgment is affirmed. Peerless is awarded its costs on appeal.
HUFFMAN, J.
WE [*22] CONCUR:
McCONNELL, P. J.
BENKE, J.