United States District Court,
D. Colorado.
Kevin MAYS, Plaintiff(s),
v.
TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, a Connecticut Corporation,
Defendant(s).
Sept. 28, 2005.
ORDER
I. INTRODUCTION
THIS MATTER comes before the Court on Defendant’s Motion for Summary Judgment, filed September 8, 2004 (“Motion”). This is an auto insurance coverage dispute in which Plaintiff seeks reimbursement for injuries sustained in an accident pursuant to an uninsured motorist (“UM”) endorsement in an insurance policy issued by Defendant. Defendant asserts that Plaintiff is not entitled to UM coverage under the policy because his accident did not arise out of the “use” of the insured vehicle.
Pursuant to Rule 56(c), the Court may grant summary judgment where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the … moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Equal Employment Opportunity Comm. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir.2000). “When applying this analysis, the court must ‘view the evidence and draw all reasonable inferences therefrom in the light most favorable to the party opposing summary judgment.” ‘ Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir.2000) (quotation omitted). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id.
II. FACTUAL BACKGROUND
Defendant’s Motion includes a Statement of Undisputed Material Facts, and Plaintiff admits that the facts included in that Statement are undisputed. However, Plaintiff’s Brief in Opposition to Motion for Summary Judgment (“Response”) includes a Statement of Additional Disputed Facts. In its Reply, Defendant acknowledges that the facts set forth in Plaintiff’s Statement of Additional Disputed Facts are, in fact, disputed, but maintains that those facts, even if true, are immaterial. Defendant states in its Reply that it will consider those disputed facts true for purposes of disposition of its Motion for Summary Judgment. Therefore, for purposes of ruling on Defendant’s Motion for Summary Judgment, the Court will consider the following undisputed facts:
Plaintiff does dispute, however, that the UM coverage in Defendant’s Policy is the only relevant portion of the Policy that must be considered and asserts that consideration of additional portions of the Policy is necessary to the analysis of this case.
Plaintiff is a long-haul commercial truck driver and regularly drives long distances. On June 27, 1999, Plaintiff was transporting produce from California to Colorado in an 18 wheel tractor-trailer truck designed and intended for long, multi-state trips (the “truck”) when he stopped at a gas station in Georgetown, Colorado. The truck Plaintiff was driving is routinely used for long distance transport of goods. The truck did not have a restroom or telephone. Plaintiff was driving alone, and pursuant to the Department of Transportation, he was required to stop for driving breaks at regular intervals. Plaintiff parked the truck in a gravel lot approximately 70-75 feet from the entrance to the gas station, which was the only space provided for large trucks. Plaintiff left the truck idling, and entered the gas station to use the restroom and make a telephone call. Plaintiff was transporting produce and he did not want to stop any longer than absolutely necessary because of the risk that the cargo would spoil. After a few minutes, Plaintiff exited the gas station and was walking across the paved gas station parking lot towards the truck when he was struck and injured by a vehicle that was driven by an uninsured motorist. Plaintiff was to continue to Denver to make his delivery that same day.
Defendant issued a commercial automobile policy to Plaintiff’s employer that contained an endorsement for uninsured / underinsured motorist coverage pursuant to C.R.S. § 10-4-609 (the “Policy”). Plaintiff obtained a default judgment against the uninsured motorist in the amount of $328,810.59, which he now seeks to recover from Defendant pursuant to the UM coverage endorsement in the Policy.
C.R.S. § 10-4-609(1)(a) provides:
(1)(a) No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance, or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle licensed for highway use in this state unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in section 42-7-103(2), C.R.S., under provisions approved by the commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; except that the named insured may reject such coverage in writing.
The Policy endorsement for UM coverage states in relevant part:
A. Coverage
We will pay all sums the “insured” is legally entitled to recover as compensatory damages from the owner or driver of an “uninsured motor vehicle.” The damages must result from “bodily injury” sustained by the “insured” caused by an “accident.” The owner’s or driver’s liability for these damages must result from the ownership, maintenance or use of the “uninsured motor vehicle”….
B. Who Is An Insured
1. You [the Named Insured … ]
2. If you are an individual, any “family member”
3. Anyone else “occupying” a covered “auto” or a temporary substitute for a covered “auto”….
III. ANALYSIS
Defendant asserts that UM coverage does not extend to the accident in this case because Plaintiff’s injuries did not arise from the “use” of the insured vehicle. When interpreting the insurance policy at issue in this diversity case, we apply Colorado law as announced by the Colorado Supreme Court. Wood v. Eli Lilly & Co., 38 F.3d 510, 512 (10th Cir.1994). The Colorado Supreme Court recently stated that a plaintiff is entitled to recover under the UM provisions of a policy entered pursuant to C.R.S. § 10-4-609(1)(a), “(1) where the motor vehicle is being used in a manner reasonably foreseeable at the time the parties contracted for the insurance and (2) the ‘use’ of the vehicle is inextricably linked to the plaintiff’s injury….” State Farm Mut. Auto. Ins. Co. v. Kastner, 77 P.3d 1256, 1258 (Colo.2003). Defendant contends that the insured truck had no role or involvement in Plaintiff’s accident and that there is no causal nexus between the truck and Plaintiff’s injuries. Plaintiff asserts that the truck was being “used” in a foreseeable manner at the time of the accident, and that the “use” of the truck is inextricably linked to his injuries.
The Colorado Supreme Court defines “use” broadly. Aetna Casualty & Surety Co. v. McMichael, 906 P.2d 92, 102 (1995). Determining whether an insured vehicle was being “used” in a foreseeable manner at the time of the accident requires examination of all the factual circumstances. McMichael, 906 P.2d at 102. Defendant notes that Plaintiff was not even in the same parking lot where the truck was parked when he was injured. While proximity to the vehicle may indicate use, “it is only one factor to be weighted as part of the totality of the circumstances present.” Id. at 103. Equally important is the activity the claimant was engaged in at the time of the accident, the particular characteristics of the vehicle and the intentions of the parties to the insurance contract. Id. at 102-03.
In Kastner, the Colorado Supreme Court addressed whether the vehicle in question was being “used” in a reasonably foreseeable manner where an assailant kidnapped the claimant while she was entering the vehicle and then drove her to a remote location and sexually assaulted her in the vehicle. Kastner, 77 P.3d at 1258. The insured vehicle in Kastner was a non-commercial vehicle that the Supreme Court found had “no obvious inherent use apart from its purpose as a mode of transportation.” Id. at 1262. The Supreme Court concluded that the vehicle was not being “used” in a manner contemplated by the policy at the time of the assault. Id. at 1263. In contrast, the Supreme Court found that the claimant in the McMichael case was using the insured vehicle in a reasonably foreseeable manner. McMichael, 906 P.2d at 103. McMichael involved a commercial vehicle equipped with an overhead beacon and emergency flashers. Id. at 93. In that case, the claimant parked the vehicle on the highway, left it running, activated the emergency flashers and began to repair concrete joints in the median of the highway some distance from the vehicle when he was hit by another vehicle. Id. The Supreme Court determined that the claimant in McMichael was “using” the truck at the time of the accident and concluded that because the truck was modified with warning devises, it was foreseeable that the truck would be used in contracting and construction activities at the time the parties entered the insurance contract. Id. at 103.
