Komadina v. USAA Cas. Ins. Co.

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MARK KOMADINA, Plaintiff, v. USAA CASUALTY INSURANCE COMPANY, Defendant.

Civ. No. 21-1143 MIS/SCY

United States District Court, D. New Mexico

January 24, 2023

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

STEVEN C. YARBROUGH UNITED STATES MAGISTRATE JUDGE

Plaintiff was working as a security guard when an unknown assailant shot him in the hip inside a shopping mall. The assailant arrived at the mall in a car and stayed in the car for about twelve minutes while the woman he came to the mall with shoplifted inside. Moments before the assailant went into the mall and shot Plaintiff, the assailant parked his car near the exit doors. When Plaintiff tackled the shoplifter before she made it out the exit doors, the assailant entered the store and shot Plaintiff. Immediately after the shooting, the assailant ran outside and drove away in the car. Plaintiff made a claim for uninsured motorist (“UM”) benefits under his automobile insurance policy, under the theory that the assailant's uninsured motor vehicle was used in the shooting. Defendant, the insurer who issued Plaintiff the UM policy, disagreed and denied the claim.

Because the motor vehicle played no role in the shooting other than transportation to and from the scene of the crime, and because the shooting interrupted the causal link between the use of the vehicle for shoplifting and Plaintiff's injury, I agree with Defendant that the policy does not cover Plaintiff's claim. I therefore recommend the Court grant Defendant's Motion For Summary Judgment (Doc. 23).

FACTS

The parties do not dispute the following facts.^[1] Plaintiff was working as a security guard at Dillard's in Cottonwood Mall on November 9, 2020 when a gold sedan pulled up outside of the Dillard's south lower-level doors. An unknown female exited the gold sedan and entered the store at about 4:14 p.m. At approximately 4:18 p.m., Dillard's employees became suspicious of the unknown woman's behavior and notified security. From 4:16 p.m. to 4:25 p.m., the woman can be seen roaming the lower-level floor of Dillard's while examining various clothing items and talking on her cell phone. At roughly 4:25 p.m., the woman got on an escalator and moved to the upper-level Dillard's area. Plaintiff followed her to the upper level. The woman spent the next two minutes examining clothing and talking on a cell phone.

At the 4:26:50 timestamp on the surveillance video (Exhibit 6) the woman grabbed several pairs of sweatpants off of a table and began heading towards the exterior upper-level doors. Seconds after the woman grabbed the sweatpants, Plaintiff started chasing the woman. While still well inside the store Plaintiff tackled the woman and attempted to detain her. Meanwhile-just before Plaintiff grabbed the sweatpants, at the 4:26:30 timestamp on the surveillance video (Exhibit 7)-the gold sedan pulled up outside of the upper-level doors. While Plaintiff and the woman were wrestling on the ground at approximately 4:27 p.m., an unknown male entered the store and shot Plaintiff in the hip. The male assailant and the female shoplifter then exited Dillard's and entered the gold sedan that the assailant had just parked outside the exterior upper-level doors. They drove northbound through the parking lot in the gold sedan.

Over twelve minutes passed between the female shoplifter entering the store and the shooting, and all of these events were captured by surveillance video.

At the time of the incident, Defendant provided a policy of automobile insurance to Plaintiff which included uninsured motorist (“UM”) coverage. On August 25, 2021 Plaintiff made a claim for UM benefits to compensate him for damages related to the shooting. Under the terms of the policy, Defendant agreed to pay damages which a “covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle ....” Doc. 23-2 at 25. “The owner's or operator's liability for these damages must arise out of the ownership maintenance or use of the uninsured motor vehicle.” Id. On September 9, 2021, Defendant denied the claim after determining the incident did not arise out of the use of a motor vehicle.

Plaintiff filed suit in state court on November 1, 2021. Doc. 1-1 at 2. Plaintiff brings claims for bad faith, breach of the covenant of good faith and fair dealing, breach of contract, unfair claims practices, and unfair trade practices. Id. Defendant removed the case to federal court on December 1, citing diversity jurisdiction. Doc. 1 at 3. Defendant filed the instant motion for summary judgment, arguing that under New Mexico law and the language of the policy, UM coverage does not apply to a shooting inside of a department store, and so Plaintiff cannot sustain any of his claims for breach of the insurance contract or bad faith. Doc. 23. The Honorable Margaret I. Strickland referred this matter to me pursuant to 28 U.S.C. § 636(b)(1)(A) and Federal Rule of Civil Procedure 72(a). Doc. 33.

STANDARD OF REVIEW

“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute about a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In other words, a dispute is genuine “if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way,” and it is material “if under the substantive law it is essential to the proper disposition of the claim.” Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013) (internal quotation marks omitted). In reviewing a motion for summary judgment, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the non-moving party. S.E.C. v. Thompson, 732 F.3d 1151, 1156-57 (10th Cir. 2013) (internal quotation marks omitted). Initially, the party seeking summary judgment has the burden of showing that there is no genuine dispute as to any material fact. See Shapolia v. Los Alamos Nat'l Lab., 992 F.2d 1033, 1036 (10th Cir. 1993). Once the moving party meets its burden, the non-moving party must show that genuine issues remain for trial. Id.

In this diversity jurisdiction case, the court applies New Mexico substantive law to the questions raised in the motion for summary judgment. State Farm Mut. Auto. Ins. Co. v. Blystra, 86 F.3d 1007, 1010 (10th Cir. 1996).

DISCUSSION

A. New Mexico uses a three-factor test to determine whether uninsured motorist coverage is available in assault cases such as this.

The parties, and every court applying New Mexico law since 1995, agree that the starting point for analysis in cases such as this is Britt v. Phoenix Indemnity Ins. Co., 1995-NMSC-075, 907 P.2d 994. There, the New Mexico Supreme Court concluded, “an intentional act may be an ‘accident' for uninsured motorist coverage purposes,” but “there must be some connection, other than proximity in time and place, between the [intentional] act and that of the uninsured motorist.” Britt, 1995-NMSC-075, ¶ 1. Having so concluded, Britt adopted a three-part “analysis for determining whether intentional conduct and its resulting harm arises out of the use of an uninsured vehicle”: (1) “whether there is a sufficient causal nexus between the use of the uninsured vehicle and the resulting harm”; (2) “whether an act of independent significance broke the causal link between the use of the vehicle and the harm suffered”; and (3) “whether the ‘use' to which the vehicle was put was a normal use of that vehicle.” Id. ¶ 15. For uninsured motorist coverage to exist, each of these three factors must favor the claimant. Defendant argues none do. Plaintiff disagrees and argues all do. I conclude that neither factor one nor factor two weighs in favor of Plaintiff and, therefore, recommend that the Court grant Defendant's motion for summary judgment.

B. Because the uninsured vehicle was not used as an active accessory, an insufficient nexus exists between the use of the uninsured vehicle and the harm.

A causal nexus between the uninsured vehicle and resulting harm cannot exist unless the vehicle is used as an “active accessory.” Britt, 1995-NMSC-075, ¶ 15 (“a causal nexus requires that the vehicle be an ‘active accessory' in causing the injury.”). For instance, when a vehicle is used for the purposes of a “drive-by” shooting, the vehicle serves as an active accessory to the assault. State Farm Mutual Automobile Insurance Co. v. Blystra, 86 F.3d 1007, 1009 (10th Cir. 1996). In Blystra, while Kevin Blystra was walking home from school, an occupant of a white pickup truck shot him in the leg with a pellet gun as the truck drove by. The Tenth Circuit held that “[w]hen an automobile is used by an assailant to undertake a drive-by shooting, the automobile is almost by definition an ‘active accessory' to the assault.” Id. at 1012. The court elaborated:

Through the use of an automobile, a drive-by shooter achieves several advantages in the commission of his crime that would otherwise be unavailable to him. First, the assailant can use the vehicle to unsuspiciously and quickly approach his victim, all the while hiding from public observation that he is armed with a gun. Second, during the commission of the assault, the assailant can use the vehicle to help hide his identity. Third, the assailant can use the vehicle to leave the scene quickly and avoid apprehension.

Id.

On the other end of the scale, the New Mexico Court of Appeals has explained that “the mere fact that the vehicle is used to transport the assailant and/or the victim to or from the scene of the intentional tort is not a...