Almager v. Doe

549 F.Supp.3d 1276

Arturo ALMAGER, Plaintiff,

v.John DOE, Uninsured Driver, and Philadelphia Indemnity Insurance Company, Defendants.

No. 1:20-cv-00368-WJ-LF

United States District Court, D. New Mexico.

Filed July 14, 2021

Mark Bennett, Parnall Law Firm, LLC, Albuquerque, NM, for Plaintiff.

Alison R. Christian, Gena LoPresto Sluga, Christian Dichter & Sluga, PC, Phoenix, AZ, for Defendant Philadelphia Indemnity Insurance Company.

MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

WILLIAM P. JOHNSON, CHIEF UNITED STATES DISTRICT JUDGE

THIS MATTER is before the Court following the May 26, 2021 hearing on Plaintiff Almager's Motion for Summary Judgment (Doc. 20). Plaintiff claims entitlement to uninsured motorist coverage under an insurance policy issued by Defendant Philadelphia Indemnity Insurance Company to the Albuquerque Housing Authority (the "Policy"), on the grounds that Plaintiff is covered under the Policy and the gunshot wounds inflicted upon Plaintiff by the John Doe assailant arose from the operation, maintenance or use of an uninsured motor vehicle. Defendant maintains in its Surreply in Opposition to the Motion (the "Surreply") that Plaintiff is not "insured" under the Policy and reiterates its arguments that Plaintiff is not legally entitled to damages under the law. For the reasons set forth in this Memorandum Opinion and Order, as well as the Court's Memorandum Opinion and Order Denying Defendant's Motion for Summary Judgment and Order for Surreply on Plaintiff's Motion for Summary Judgment, filed December 4, 2020 (Doc. 26) (the "December Order" or "Order"), the Court hereby GRANTS Plaintiff's Motion.

BACKGROUND

On November 28, 2018, Plaintiff, an employee of the Albuquerque Housing Authority, was working at a location operated by his employer. Joint Set of Stipulated Facts (the "Joint Stipulated Facts" or "stipulated facts"), Doc. 18 at 1. While inside, Plaintiff observed John Doe attempting to steal Plaintiff's company vehicle (a Dodge Ram) (the "insured vehicle" or "covered vehicle") from the parking lot. Plaintiff left the building and confronted John Doe to halt the attempted theft, ultimately tackling him to the ground. Id. At the time of the attempted theft, another vehicle (a white Kia Optima or Hyundai Elantra) (the "get-away car" or "uninsured vehicle") was parked near the Dodge Ram. Id. at 2. A woman then exited the get-away car and said to John Doe: "take care of him," referring, of course, to the Plaintiff. Id. John Doe then shot the Plaintiff two times, returned to the get-away car with the woman, and fled. Neither John Doe nor the woman have been identified or arrested. Id.

As a result of the gunshot wounds, Plaintiff sustained significant injuries¹ and requested $1,000,000 from Defendant insurance company. Id. Defendant denied Plaintiff's claim, alleging that Plaintiff was not insured under the Policy at the time of the incident, that Plaintiff was not "occupying" a covered "auto" at the time of the incident, and that Plaintiff's injuries did not result from the ownership, maintenance or use of the uninsured motor vehicle or the get-away car.² Id.

The Policy contains a form (CA 31 29 10 13) titled "New Mexico Uninsured Motorists Coverage – Nonstacked," which includes the following relevant provisions as set forth in the Joint Stipulated Facts:

A. Coverage

1. We will pay all sums the "insured" is legally entitled to recover as damages from the owner or driver of an "uninsured motor vehicle" because of:

a. "Bodily injury" sustained by an "insured" and caused by an "accident"; or

b. "Property damages" 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

If the Named Insured is designated in the Declarations as:

2. A partnership, limited liability company, corporation or any other form of organization, then the following are "insureds":

a. Anyone "occupying" a covered "auto" or a temporary substitute for a covered "auto".³

b. Anyone for damages he or she is entitled to recover because of "bodily injury" sustained by another "insured".

c. The Named Insured for "property damage" only.

F. Additional Definitions

4. "Uninsured motor vehicle" means a land motor vehicle or "trailer":

d. That is a hit-and-run vehicle and neither the driver nor owner can be identified. The vehicle must either:

(1) Hit an "insured", a covered "auto" or a vehicle an "insured" is "occupying"; or

(2) Cause "bodily injury" or "property damage" with no physical contact with an "insured", a covered "auto" or a vehicle the "insured" is "occupying" at the time of an "accident".

13. The parties stipulate and agree that the law of New Mexico governs this case.

Doc. 18 at 2-3.

Both parties motioned the Court for summary judgment on July 31, 2020. See Docs. 19 & 20. The Court analyzed both motions in its December Order, ultimately denying Defendant's motion and delaying the disposition of Plaintiff's motion until such time as Defendant filed a surreply pursuant Beaird v. Seagate Tech., Inc. and consistent with the parties’ shared desire to resolve this case at the summary judgment stage of the proceedings. 145 F.3d 1159 (10th Cir. 1998) (permitting a court to consider new arguments or material when the applicable counterparty is allowed surreply); see also Doc. 20 at 8 ("The parties agree that this issue is properly resolved by way of summary judgment."); Doc. 26 at 18.

Defendant filed the Surreply on January 8, 2021. See Doc. 30. Therein, Defendant argues that Plaintiff did not occupy the covered vehicle under the Policy, but also questions the Court's findings that Defendant's injuries arose from the "use" of an uninsured vehicle. The Surreply therefore exceeds the bounds described by the Court in its December Order, but the arguments contained therein will be discussed briefly below.

LAW

A. Summary Judgment

Because summary judgment is a procedural consideration and governed under Rule 56 of the Federal Rules of Civil Procedure, and because Rule 56 is directly applicable and sufficient in coverage to the case at hand, the federal summary judgment standard applies notwithstanding the parties’ stipulation that the law of New Mexico governs.⁴ However, the substantive claims set forth by the parties shall be analyzed under state law. See Doc. 18, Joint Statement of the Facts at 2-3 (citing the Policy, Section F, Subsection 13).

The Court shall therefore apply the federal standards of summary judgment consistent with Rule 56, Hanna v. Plumer , 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965), and the Erie Doctrine. The federal summary judgment standard requires the Court to view the facts in the light most favorable to the non-movant, resolve factual disputes and reasonable inferences in the non-movant's favor, and grant summary judgment if one such party shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56 ; Galbreath v. City of Oklahoma City , 568 F. Appx. 534, 537 (10th Cir. 2014). On summary judgment, though the Court must draw all factual inferences in favor of the nonmovant, those inferences must be "reasonable." Deherrera v. Decker Truck Line, Inc. , 820 F.3d 1147, 1159 (10th Cir. 2016) (internal quotations and citations omitted). And where only one inference may be drawn from the undisputed facts, summary judgment is proper. Id. (citing Empire Elecs. Co. v. United States , 311 F.2d 175, 180 (2d Cir. 1962) ).

B. Cuevas v. State Farm Mut. Auto. Ins. Co.

The facts in Cuevas , as stipulated by the parties in that case, show that a tire on the plaintiff's car became flat while he was driving, and that plaintiff moved the vehicle to the side of the highway. 130 N.M. 539, 28 P.3d 527 (Ct. App. 2001). The car did not have a spare tire, so plaintiff hitched a ride to his mother's house to retrieve one. When he returned with the spare tire, in the process of changing the tire, he was struck by an uninsured motorist. Indeed, when he was hit, the plaintiff was retrieving the tire from an entirely separate vehicle, not the insured vehicle. Nonetheless, the Court of Appeals found that the exercise of retrieving and changing the tire in this instance satisfied the transaction-oriented majority approach to resolving these issues under New Mexico law because the plaintiff was "engaged in a transaction related to the use of the insured car." Id. at 542, 28 P.3d 527. The Court of Appeals in Cuevas reversed the trial court's finding that the plaintiff did not "occupy" the insured vehicle at the time of the accident. Id. at 543, 28 P.3d 527.

C. Newkirk v. Zurich Am. Ins. Co.

In Newkirk v. Zurich Am. Ins. Co. , 2008 WL 11322910 (D.N.M. 2008 Jan. 10, 2008) (unpublished)), plaintiff Newkirk, in the course of his employment, was traveling in the commercial vehicle of his insured employer. Id. He decided to stop at a gas station to clean the vehicle windshield. Id. at *2. Parking a short distance from the fuel island of the station, Newkirk entered the store in search of washer fluid. Id. Inside, Newkirk encountered an employee who offered to refill the washer fluid container for Newkirk. Id. While the employee filled the fluid container outside, Newkirk remained inside to purchase a box of donuts and coffee, and while he was paying for the items, a car drove through the wall of the gas station store, striking and ultimately paralyzing Newkirk. Id.

Citing the broad remedial purpose of § 66-5-301, this Court found that Newkirk was occupying the covered vehicle at the time of his injury. Id. at *5-6. In so doing, the Court explained that Newkirk's actions in the store were oriented to the use of the covered vehicle under the test articulated in Cuevas , 130 N.M. at 542, 28 P.3d 527, because Newkirk's entering of the gas station was to facilitate his use of the commercial vehicle later. Newkirk , 2008 WL 11322910, at *5....