Porter v. Buck

137 F.Supp.3d 890

Abigail Lan PORTER, Plaintiff,

v.Jacob Cecil BUCK, et al., Defendants.

Civil Action No. 7:14CV00176.

United States District Court, W.D. Virginia, Roanoke Division.

Signed Sept. 28, 2015.

Gary Lee Lumsden, Gary L. Lumsden Esq., PLC, Peter Brent Brown, William Andersen Jennings, Brown & Jennings PLC, Roanoke, VA, for Plaintiff.

Julie Anna Von Sternberg, Frith Anderson & Peake PC, Catherine Jackson Huff, Gentry Locke Rakes & Moore, Mark K. Cathey, Glenn, Robinson & Cathey, PLC, Ronald M. Ayers, Johnson Ayers & Matthews PLC, Roanoke, VA, Kevin Thomas Streit, Robert Tayloe Ross, Midkiff, Muncie & Ross, P.C., Richmond, VA, for Defendants.

MEMORANDUM OPINION

GLEN E. CONRAD, Chief Judge.

Abigail Porter filed this declaratory judgment action against The Peninsula Insurance Company ("Peninsula"), seeking a declaration that the injuries she sustained as a passenger on an underinsured all-terrain vehicle were covered under the uninsured/underinsured motorist endorsement to an insurance policy issued by Peninsula. On February 24, 2015, the court denied Peninsula's motion for judgment on the pleadings. The case is now before the court on Peninsula's motion for reconsideration of that decision and the parties' cross-motions for summary judgment. For the reasons set forth below, Peninsula's motions will be denied and Porter's motion for summary judgment will be granted.

Background

On July 28, 2012, Porter was seriously injured in an accident involving two all-terrain vehicles ("ATVs"). The Kawasaki four-wheeled ATV on which Porter was riding as a passenger was owned and operated by Jacob Cecil Buck. The second ATV was operated by Patrick Thomason. The accident occurred while the ATVs were being operated on a public roadway in Franklin County, Virginia. As a result of the accident, Porter sustained a catastrophic brain injury, causing her to incur over $590,000.00 in medical expenses. She filed a personal injury action against Buck and Thomason in the Circuit Court of Franklin County, which remains pending.

At the time of the accident, Buck's ATV was insured under a liability policy issued by Foremost Insurance Company. Buck's policy provided $25,000.00 in bodily injury coverage applicable to his operation and use of the ATV. Because Porter's medical expenses exceed the liability coverage provided under Buck's policy, Porter sought payment from Peninsula based on the uninsured/underinsured motorist coverage ("UM/UIM coverage") provided in an endorsement ("the Endorsement") to a commercial automobile insurance policy issued to her father, Steve L. Porter ("the Policy").

The Endorsement at issue provides as follows:

"We" will pay in accordance with the Virginia Uninsured Motorists Law, all sums the "insured" is legally entitled to recover as damages from the owner or operator of an "uninsured motor vehicle."

Endorsement, Docket No. 1–1 at 39.

Part D of the Endorsement defines who is insured under the Endorsement. Part D provides as follows:

Who Is Insured

1. "You" or any "family member"

2. Anyone else "occupying" a "covered auto"

3. Anyone for damages he or she is entitled to recover because of "bodily injury" to which this coverage applies, sustained by another "insured" under 1 or 2 above.

Id.

The Endorsement defines the term "uninsured motor vehicle" to include "a motor vehicle ... [w]hich is an ‘underinsured motor vehicle.’ " Endorsement 1, Docket No. 1–1 at 38. The term "underinsured vehicle" is defined as follows:

"Underinsured motor vehicle" means a motor vehicle, when, and to the extent that, the total amount of "bodily injury" and "property damage" coverage applicable to the operation or use of the motor vehicle and "available for payment" for such "bodily injury" or "property damage[,"] including all bonds or deposits of money or securities made pursuant to Article 15 (Section 46.2–435 et seq) of Chapter 3 of Title 46.2 of the Code of Virginia, is less than the total amount of uninsured motorist coverage afforded any person injured as a result of the operation or use of the motor vehicle.

Id. The term "motor vehicle" is not defined in the Endorsement.

Peninsula denied Porter's claim for UM/UIM coverage. To resolve the coverage dispute, Porter filed a complaint in the Circuit Court of Franklin County, seeking a declaratory judgment that the UM/UIM coverage provided in the Endorsement is applicable to the injuries she sustained in the ATV accident.

Peninsula removed the action to this court on the basis of diversity jurisdiction, and then moved for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. In seeking judgment on the pleadings, Peninsula argued that an ATV is not a "motor vehicle" and, thus, that Buck's ATV is not an "uninsured motor vehicle" within the terms of the Endorsement. See Peninsula's Reply Br., Docket No. 23 at 2 (emphasizing that the "single, determinative question that the Motion[ ] asks the Court to decide" is whether "the Buck ATV [is] a motor vehicle, particularly as that term is used in the Insurance Contract's UM/UIM endorsement").

On February 24, 2015, the court denied Peninsula's motion for judgment on the pleadings. See Porter v. Buck, No. 7:14CV00176, 2015 WL 788881, 2015 U.S. Dist. LEXIS 21815 (W.D.Va. Feb. 24, 2015). In so doing, the court rejected Peninsula's argument that the term "motor vehicle" must be considered in conjunction with the term "auto," which is defined in another section of the Policy to exclude vehicles that are not designed principally for use on public roads. The court emphasized that the Endorsement specifically states that it "CHANGES THE POLICY, " and that it includes words or phrases that have special meaning for purposes of the Endorsement. The court noted that the coverage provided under the Endorsement is not limited to damages resulting from the operation of an uninsured or underinsured "auto," and that Peninsula instead used the broader term "motor vehicle."

The court also found unpersuasive Peninsula's reliance on the Supreme Court of Virginia's decision in State Farm Mutual Automobile Insurance Co. v. Gandy, 238 Va. 257, 383 S.E.2d 717 (1989), in which the Supreme Court held that expenses for treatment of bodily injuries sustained by an insured who was struck by a forklift were validly excluded from coverage under the medical payments provision of an insurance policy. In reaching its decision, the Supreme Court assumed, without deciding, that the language of inclusion in the policy's medical payments provision, standing alone, "arguably afforded coverage because a forklift qualifies within the definition of ‘motor vehicle,’ and the insured sustained ‘bodily injury ... caused by accident ... through being struck by [a motor vehicle].’ " Gandy, 383 S.E.2d at 718. However, the policy's medical payments provisions included an exclusion, which made them inapplicable to bodily injuries sustained by an insured "through being struck by ... a farm type tractor or other equipment designed for use principally off public roads, while not upon public roads." Id. at 717. Under the facts presented, the Supreme Court concluded that "the forklift, which struck the insured on private property, was ‘equipment designed for use principally off public roads,’ " and, thus, that coverage was precluded by the exclusion. Id. at 717–18. Unlike the policy provisions in Gandy, the Endorsement at issue in this case contains no similar exclusion precluding coverage for injuries or damages arising from the operation of a vehicle designed for use principally off public roads. Accordingly, the court concluded that Gandy did not compel the result urged by Peninsula.

Finally, relying on the Supreme Court of Virginia's decision in Hill v. State Farm Mutual Automobile Insurance Co., 237 Va. 148, 375 S.E.2d 727 (1989), the court rejected Peninsula's argument that the court should look to various Virginia statutory provisions to determine whether an ATV is a "motor vehicle" for purposes of the Endorsement. In Hill, the Supreme Court considered "whether a ‘moped’ [was] a ‘motor vehicle’ within the terms of the uninsured motorist coverage in an automobile liability insurance policy." Id. at 728. In refusing to rely on various statutory provisions, which excluded mopeds from the definition of the term "motor vehicle" and from the requirements of licensure and registration, the Supreme Court emphasized that "the policy contains no indication to an insured that cross-reference must be made to provisions scattered throughout the Code of Virginia in order to determine the meaning of the seemingly unambiguous term ‘motor vehicle.’ " Id. at 729. Rather than relying on such statutory provisions, the Supreme Court referred to a dictionary that defined the term "motor vehicle" as " ‘a self-propelled wheeled conveyance that does not run on rails.’ " Id. (quoting The American Heritage Dictionary 817 (2d ed.1982)). Given this definition, the Supreme Court found that there was "no clear indication to a careful reader of the policy that mopeds [were] intended to be excluded from coverage," and that any ambiguity had to be construed against the insurer. Id. at 729–30. Applying these principles in the instant case, the court concluded that an ATV plainly qualifies as a "motor vehicle" under the definition cited by the Supreme Court, and that such vehicles are not otherwise excluded from coverage in a clear and unambiguous manner. Since any doubt concerning the meaning of disputed policy language must be resolved against the insurer under Virginia law, the court held "that the term ‘motor vehicle,’ as used in the Endorsement, includes ATVs." Porter, 2015 WL 788881, at *5, 2015 U.S. Dist. LEXIS 21815, at *14.

Peninsula has now moved for reconsideration of the court's decision to deny its motion for judgment on the pleadings. The parties have also filed cross-motions for summary judgment. The motions have been fully briefed and argued and are ripe for decision.

Standards of Review

The...