Opinion
Case No.: 21-CV-01772-RSH-MSB
2023-04-14
Karem Al LALLO, Plaintiff, v. SEDGWICK CLAIMS MANAGEMENT SERVICES, INC. et al., Defendants.
Daryoosh Khashayar, Khashayar Law Group, Vista, CA, for Plaintiff. Timothy Paul Irving, Tyson & Mendes LLP, La Jolla, CA, for Defendants Sedgwick Claims Management Services, Inc., Old Republic Insurance Company.
Daryoosh Khashayar, Khashayar Law Group, Vista, CA, for Plaintiff. Timothy Paul Irving, Tyson & Mendes LLP, La Jolla, CA, for Defendants Sedgwick Claims Management Services, Inc., Old Republic Insurance Company.
ORDER GRANTING DEFENDANT OLD REPUBLIC'S MOTION FOR SUMMARY JUDGMENT
[ECF No. 27]
Robert S. Huie, United States District Judge
Pending is Defendant Old Republic Insurance Company's Motion for Summary Judgment. ECF No. 27. The motion is fully briefed. See ECF Nos. 31-32. The Court heard argument on the motion on April 13, 2023. ECF No. 41. For the reasons discussed below, the Court grants summary judgment to Defendant.
I. Background
On June 11, 2020, Plaintiff Karam Al Lallo was in La Jolla, California, driving an Amazon delivery van owned by his employer, Velocity Transport, LLC ("Velocity"). Joint Statement of Undisputed Material Facts ("SUMF"), ECF No. 32-1 ¶ 1. As Plaintiff drove northbound on Monte Vista Avenue, he approached the intersection of Monte Vista Avenue and Sea Lane. Id. ¶ 2. At that time, a northbound BMW sedan driven by Waleed Azizi was stopped at the intersection's stop sign, directly in front of Plaintiff. Id. ¶ 3; see ECF No. 27-2, Ex. 1 at 13. When the BMW did not move through the intersection, Plaintiff and possibly other drivers behind him honked their horns. SUMF ¶ 4. Azizi then got out of the BMW and walked back to Plaintiff's delivery van, approaching the driver's side door and striking Plaintiff through the open window. Id. ¶¶ 5-6. Azizi returned to his BMW and got inside. Id. ¶ 6.
Plaintiff exited the van through the rear passenger side sliding door and followed Azizi back to the BMW, with the intent to obtain information to identify the BMW and its driver as well as report the incident to the police. Id. ¶ 7; see ECF No. 81-1, Ex. A ("Pl. Dep.") at 116:3-10. Plaintiff left the van's engine running and the back door completely open. Pl. Dep. at 152:20-25, 155:21-25. Plaintiff stood approximately one foot in front of the BMW to keep Azizi from leaving. SUMF ¶¶ 8-9. Azizi honked his horn at Plaintiff while revving the BMW's engine and inching forward approximately three times. Id. ¶ 9. Plaintiff could not estimate the length of time he stood in front of the BMW or the exact distance he was from his own van before he was struck. Id. ¶ 11; see ECF No. 31 at 9.
Azizi then drove the BMW forward into Plaintiff, causing Plaintiff to hold onto the BMW's hood. SUMF ¶ 10. Azizi accelerated and made a turning movement, throwing Plaintiff from the hood of the BMW to the street pavement. Id. ¶ 12. Plaintiff lost consciousness, and due to the impact, sustained a severe cranial injury that required immediate medical attention and surgery. Id. ¶ 13. Although Azizi fled the scene, he was later arrested and booked for assault with a deadly weapon. See ECF No. 31-1, Ex. B.
Azizi's insurance company subsequently paid Plaintiff the policy limit of Azizi's auto policy, but this payment did not fully compensate Plaintiff for his injuries. SUMF ¶ 14. On September 29, 2020, Plaintiff submitted a claim for underinsured motorist ("UIM") coverage to Velocity's auto insurer, Defendant Old Republic Insurance Company ("Old Republic"). Id. ¶ 15. On June 18, 2021, Old Republic denied Plaintiff's UIM claim, asserting that the policy issued to Velocity did not cover Plaintiff under the factual circumstances of the June 11, 2020 incident. Id. ¶ 16. See ECF No. 27-3, Ex. 2.
Old Republic's policy (the "Policy") contains a "California Uninsured Motorists Coverage - Bodily Injury" endorsement, which extends coverage for compensatory damages to an "insured" for "bodily injury" sustained in an "accident" with an "uninsured motor vehicle." ECF No. 27-1 at 4; see ECF No. 27-3, Ex. 1. An "insured" is defined as follows:
2. A partnership, limited liability company, corporation or any other form of organization, then the following are "insureds":
ECF No. 27-3, Ex. 1 at 65. The UIM endorsement in the Policy further defines the term "occupying" as "in, upon, getting in, on, out or off." Id. at 68.a. Anyone "occupying" a covered "auto" or a temporary substitute for a covered auto. The covered "auto" must be out of service because of its breakdown, repair, servicing, "loss" or "destruction."
b. Anyone for damages he or she is entitled to recover because of "bodily injury" sustained by another insured.
The Court refers to the page numbers generated by CM/ECF.
On August 31, 2021, Plaintiff filed a complaint in California Superior Court against Defendants Sedgwick Claims Management Services, Inc. ("Sedgwick"), Old Republic, and Does 1 through 20 for (1) breach of the duty of good faith and fair dealing, and (2) breach of the contractual duty to pay a covered insurance claim. ECF No. 1-2. Old Republic timely removed the case to federal court based on the Parties' diversity of citizenship. ECF No. 1 at 2.
Sedgwick handled Plaintiff's UIM claim as an independent third-party claims administrator for Old Republic. ECF No. 27-3 ¶ 5.
On June 23, 2022, this case was transferred to the undersigned. ECF No. 25. Old Republic filed its motion for summary judgment on December 2, 2022. ECF No. 27.
II. Legal Standard
Under Federal Rule of Civil Procedure 56, summary judgment is proper "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." See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute about a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
The movant always bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The moving party can satisfy this burden by: (1) presenting evidence that negates an essential element of the nonmoving party's case; or (2) demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. Id. at 322-23, 106 S.Ct. 2548.
If the movant fails to discharge its initial burden, summary judgment must be denied, and the court need not consider the nonmoving party's evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). If the moving party meets its initial burden, however, the nonmoving party cannot defeat summary judgment merely by demonstrating "that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995) ("The mere existence of a scintilla of evidence in support of the non-moving party's position is not sufficient.") (citing Anderson, 477 U.S. at 242, 252, 106 S.Ct. 2505). Rather, the nonmoving party must "go beyond the pleadings" and designate "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (quoting Fed. R. Civ. P. 56(e)).
On summary judgment, the Court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. See Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, [when] he is ruling on a motion for summary judgment." Anderson, 477 U.S. at 255, 106 S.Ct. 2505.
III. Analysis
California requires that all automobile liability insurance policies issued in the state contain a provision covering costs resulting from bodily injury caused by an uninsured or underinsured motorist and which the insured is legally entitled to recover as damages. Cal. Ins. Code § 11580.2. Thus, to be entitled to coverage under Old Republic's endorsement for UIM coverage, Plaintiff must qualify as an "insured." See Powerine Oil Co. v. Superior Ct., 37 Cal. 4th 377, 390, 33 Cal.Rptr.3d 562, 118 P.3d 589 (2005) (holding that where the facts are undisputed, interpretation of an insurance policy is a "question of law").
As stated above, the term "insured" includes anyone "occupying" a covered "auto," and "occupying" was further defined to mean "in, upon, getting in, on, out or off." ECF No. 27-3, Ex. 1 at 65, 68. The question in the instant case is whether Plaintiff was "upon" Velocity's van when he was struck by Azizi, the underinsured motorist. Based on a review of the undisputed facts, the Court concludes that he was not.
A. Cases Discussing the Term "Upon"
When determining whether someone qualifies as a covered person for being "upon" an insured vehicle, California courts consider, at the time of the injury: (1) the proximity between the individual and the vehicle, and (2) the relationship between the individual's acts and use of the vehicle, taking into account the "purpose and intent" of those acts. See Cocking v. State Farm Mut. Auto. Ins. Co., 6 Cal. App. 3d 965, 969-71, 86 Cal.Rptr. 193 (Ct. App. 1970). Because there is no bright-line rule that governs these factors, the Court examines how they have been applied in various cases with UIM endorsement provisions similar to the one at issue here.
The Parties agree that California law governs the interpretation of the Old Republic policy. SUMF ¶ 18.
In Atlantic Mutual Insurance Co. v. Ruiz, which is cited and discussed by Plaintiff and Old Republic, Roberto Ruiz was involved in a multivehicle accident in which a sedan had struck Ruiz's truck and another van. 123 Cal. App. 4th 1197, 1200, 20 Cal.Rptr.3d 628 (2004). Both the truck and van were insured by the employers of their respective drivers. Id. Ruiz, who was uninjured at this point, exited his truck and walked approximately 200 feet to the van, so that he could talk to the driver and exchange information. Id. Ruiz intended to return to his own truck and wait for the police to arrive. Id. As Ruiz was standing one foot from the open passenger side door of the van, he was struck by an uninsured driver. Id. at 1200-01, 20 Cal.Rptr.3d 628. The court concluded that Ruiz was "upon" the van because he was positioned "immediately adjacent" to the van "for reasons essentially related to the insured vehicle and its use on the highway," and therefore entitled to coverage under that driver's insurance. Id. at 1211, 20 Cal.Rptr.3d 628. But Ruiz did not qualify as an "insured" under his employer's insurance for the truck. Id. at 1214, 20 Cal.Rptr.3d 628. The court found that Ruiz had "temporarily abandoned" the truck to exchange information with the van's driver, and the distance of 200 feet "in no way qualifie[d] as close proximity" to be considered "upon" the truck. Id. at 1213, 20 Cal.Rptr.3d 628 ("At some distance, an individual who exits a vehicle is no longer 'upon' the vehicle in even a physical sense."). The court recognized that "upon" means "more than direct physical contact with the insured vehicle," and that "California cases have construed 'upon' . . . broadly." Id. at 1207, 1210, 20 Cal.Rptr.3d 628. Nevertheless, the court emphasized that " 'upon' connotes physical proximity, regardless of intent to return to the vehicle after temporarily leaving it or intent to proceed directly to the vehicle to occupy it." Id. at 1213, 20 Cal.Rptr.3d 628.
In Mullins v. Mayflower Ins. Co., a woman brought an action to recover UIM benefits for an accident that resulted in the death of her son, who was a passenger of an insured vehicle. 9 Cal. App. 4th 416, 420, 11 Cal.Rptr.2d 635 (1992). He, along with the driver and several other passengers, got out of the vehicle and began walking down the shoulder of the highway to find a telephone. Id. at 418, 11 Cal.Rptr.2d 635. About 50 feet away from the vehicle, they were struck by an intoxicated driver. Id. at 418, 11 Cal.Rptr.2d 635. The court concluded that the son's death "did not result from his being in close proximity to the insured vehicle nor from his performance of acts 'physically and directly related to the car' or its use." Id. at 420, 11 Cal.Rptr.2d 635. Instead, the son had "temporarily abandoned the vehicle and their intent was to seek a telephone some distance away." Id.
In Menchaca v. Farmers Insurance Exchange, a woman and her boyfriend were struck by an uninsured driver while walking toward the boyfriend's car. 59 Cal. App. 3d 117, 120-21, 130 Cal.Rptr. 607 (Ct. App. 1976). She intended to make no stops on the way to the car, and upon entering the vehicle, intended to go home. Id. at 121, 130 Cal.Rptr. 607. The court concluded the woman was not covered under her boyfriend's policy because, even if she intended to go directly to the car, "her injuries did not result from her being in close proximity to the car or from her performance of acts physically and directly related to the car or its use." Id. at 129, 130 Cal.Rptr. 607 (internal quotation marks omitted).
By contrast, courts have found that a person is "upon" an insured vehicle where he or she is in "close proximity" and performing acts "physically and directly related" to the car or its use. In Cocking v. State Farm Mutual Automobile Insurance Co., an uninsured driver struck an individual who had been driving an insured vehicle with the owner's permission, had exited the vehicle, and was standing one to four feet behind the vehicle in preparation to putting on tire chains. 6 Cal. App. 3d at 967, 86 Cal.Rptr. 193. The court noted that the dictionary definition of the word "upon" includes "in or into close proximity," but declined to limit its interpretation to that definition. Id. at 969, 86 Cal.Rptr. 193. "In determining whether the person was in such a position in relation to the vehicle as to be injured in its use, consideration must be given, not only to what the person was doing upon injury, but also to his purpose and intent." Id. at 970, 86 Cal.Rptr. 193. The court then concluded that the individual's act of stopping the vehicle to put the chains on, and undoing the bag containing the chains "while in close proximity to the car" (approximately one to four feet away), was "physically and directly related to the car." Id. at 971, 86 Cal.Rptr. 193. "His injury while in that position . . . occurred while he was 'using' the car and while he was 'upon' the [insured vehicle] within the meaning of the policy and section 11580.2." Id.
In Utah Home Fire Ins. Co. v. Fireman's Fund Ins. Co., an individual was struck by an uninsured vehicle while touching the door of his friend's Cadillac. 14 Cal. App. 3d 50, 52, 91 Cal.Rptr. 781 (Ct. App. 1970). There was a factual disagreement concerning the individual's precise position at the time he was struck; either he was leaning into the Cadillac with his hands on the windowsill or had his hands on the windowsill, but not leaning inside. Id. While he was in one of these positions, he was alerted to the approach of the uninsured vehicle. Id. To avoid getting hit, the individual straightened up but was flattened against the Cadillac. Id. The court determined that the individual was "in and upon" and "using" the Cadillac at the time of impact, and thus entitled to coverage as a permissive user under his friend's policy. Id. at 54, 91 Cal.Rptr. 781.
B. Application
Here, the undisputed facts establish that Plaintiff was not "upon" his employer's van at the time he was injured.
As recognized by the Atlantic Mutual court, "[c]ases uniformly hold that the statutes providing compensation for persons injured on the highways by uninsured motorists should be construed liberally in favor of coverage whenever possible to carry out the legislative objective [of uninsured motorist coverage]." 123 Cal. App. 4th at 1211, 20 Cal.Rptr.3d 628. The Atlantic Mutual court interpreted the meaning of "upon," specifically "with this in mind." Id. Similarly, other cases cited above discussing the term "upon" acknowledge the "duty to liberally construe uninsured motorist provisions." See Cocking, 6 Cal. App. 3d at 968-69, 86 Cal.Rptr. 193; see also Utah Home, 14 Cal. App. 3d at 53, 91 Cal.Rptr. 781. But see Mullins, 9 Cal. App. 4th at 420-21, 11 Cal.Rptr.2d 635 ("When interpreting the terms of an insurance policy, the courts will not indulge in any forced construction in order to fasten liability upon an insurer which it has not assumed."). Thus, in applying the reasoning of those cases here, the Court takes into account the public policy that underlies UIM coverage.
First, based on the specific circumstances presented in this case, Plaintiff was not in "close proximity" to the van as that term has been used by case law. Plaintiff was not inside his employer's van or in physical contact with the van at the time he was struck by Azizi's BMW, although neither circumstance by itself is dispositive here. Plaintiff acknowledges that the exact distance between himself and his employer's van was "unclear." ECF No. 31 at 9. But it is undisputed that Plaintiff had left the van behind Azizi's BMW and walked around to the front of the BMW; at minimum, there was a car's length between Plaintiff and the van. ECF No. 32-1 ¶¶ 3-7; ECF No. 27-2, Ex. 1 at 13. Whatever the precise number of feet that Plaintiff travelled to get to his position at the front of the BMW, he separated himself from his employer's van by this distance, intentionally positioning himself on the other side of the BMW that thereafter injured him. None of the cases provided by Plaintiff have found sufficient proximity under such circumstances. Compare Cocking, 6 Cal. App. 3d at 971, 86 Cal.Rptr. 193 (finding "close proximity" where individual was one to four feet away from the insured vehicle) and Atlantic Mutual, 123 Cal. App. 4th at 1211, 20 Cal.Rptr.3d 628 (finding that the individual who was "immediately adjacent" to the vehicle was "upon" the vehicle) with Mullins, 9 Cal. App. 4th at 420, 11 Cal.Rptr.2d 635 (finding that individual who was 50 feet away from the insured vehicle was not in "close proximity").
At oral argument, Plaintiff's counsel estimated this distance was 12 to 14 feet.
Second, Plaintiff's acts at the time he was injured, taking into account his purpose and intent in performing those acts, were not physically and directly related to his own use of the van. See Cocking, 6 Cal. App. 3d at 969-71, 86 Cal.Rptr. 193. Even if Plaintiff left the engine of the van running and the rear passenger door open, Pl. Dep. at 152:20-25, 155:21-25, the Parties agree that Plaintiff "stood in front of the BMW in an attempt to keep Azizi from leaving the scene." SUMF ¶ 8. According to Plaintiff's own briefing, he walked to the front of the BMW to "photograph the license place and prevent Azizi's departure until the police arrived." ECF No. 31 at 11. This was not a momentary task. Because the police were not already at the scene, this was a task of undefined duration that presumably would take minutes, at least. Plaintiff then stood approximately one foot from the BMW while Azizi honked his horn at Plaintiff and revved the BMW's engine while inching toward Plaintiff multiple times. SUMF ¶ 9. Plaintiff's motivation for doing this arose from the fact that moments earlier when Azizi had struck Plaintiff, who was sitting in his employer's van with the window down; there was no automobile accident, but rather an assault. See id. ¶ 6. Plaintiff's act of using his own body to block Azizi from fleeing the scene—though well-intentioned—was not sufficiently related to his own use of the van. Similar to the individuals who were struck in Atlantic Mutual and Mullins, Plaintiff had "temporarily abandoned" his employer's van to confront Azizi. See Atl. Mut. Ins., 123 Cal. App. 4th at 1214, 20 Cal.Rptr.3d 628; Mullins, 9 Cal. App. 4th at 420, 11 Cal.Rptr.2d 635.
Plaintiff cites United Servs. Auto. Assn. v. United States Fire Ins. Co., 36 Cal. App. 3d 765, 767, 111 Cal.Rptr. 595 (Ct. App. 1973), to argue that his injuries arose from the "use" of his employer's van. ECF No. 31 at 11. In that case, an insured individual was working on a friend's car in the friend's garage; the insured tried to start the car while pouring gasoline into the carburetor, and the gasoline can ignited. United Servs. 36 Cal. App. 3d at 767, 111 Cal.Rptr. 595. The insured threw the flaming can toward the open garage door, and the can struck the insured's friend. Id. The court held that the injury was covered under the insured's automobile insurance policy, which (different from the relevant language of the Policy here) covered "other actual use" of a non-owned automobile. Id. at 769, 111 Cal.Rptr. 595. The court explained that the activity of working on the car was "not an activity wholly disassociated from, independent of and remote from [the vehicle's] use," and that there was "a close sequential relationship between the vehicle and the accident." Id. at 771, 111 Cal.Rptr. 595. Here, Plaintiff's activity at the time he was injured—trying to prevent Azizi from leaving—was far more remote from Plaintiff's own use of his employer's van.
To the extent Plaintiff argues there is a factual issue as to whether he was "getting out [of] or off" the van, the Court is unpersuaded. See ECF No. 31 at 12. Even accepting Plaintiff's argument that "getting out [of] or off" a vehicle "does not necessarily end the moment a person exits the door," the Court cannot conclude that the meaning of either "getting out [of]" or "getting off" a vehicle extends to a situation where a person has fully exited the vehicle, walked over to another intended location, and stopped at that location with the purpose and intent of detaining another vehicle. See Atl. Mut. Ins. Co., 123 Cal. App. 4th at 1214, 20 Cal.Rptr.3d 628 ("The fact that he had good reason to leave the immediate vicinity of the [vehicle] does not support judicial expansion of [a] term . . . beyond its commonsensical meaning."). The undisputed facts show, and Plaintiff confirms, that he exited his employer's van and then went to the front of Azizi's BMW to "prevent Azizi's departure until police arrived." ECF No. 31 at 11. Thus, Plaintiff was not in the process of "getting out [of] or off" the van.
Plaintiff also cites National Indemnity Co. v. Farmers Mutual Insurance Co., 95 Cal. App. 3d 102, 105, 157 Cal.Rptr. 98(Ct. App. 1979), which is inapposite. See ECF No. 31 at 10, 12. In that case, as the driver was parking across the street from her house, the driver's nephew (a minor child) got out of the car and started walking or running across the street to get to the house; and was struck by a car while halfway across the street. The court held that the injury was covered under the automobile insurance policy, which (different from the relevant language of the Policy here) provided that "use" of an automobile includes "loading and unloading." National Indemnity, 95 Cal. App. 3d at 106, 157 Cal.Rptr. 98. The court noted that "[t]he conduct of an ambulatory child of tender years is often impulsive and unpredictable," and that "[t]he process of unloading a child from a motor vehicle does not end the moment that the child's feet touch the ground or when his or her body is entirely outside the vehicle." Id. As discussed above, at the time Plaintiff was injured, he was not in the process of "unloading" himself, but was undertaking the separate task of trying to prevent Azizi from leaving.
Accordingly, the Court concludes that no reasonable juror could find that Plaintiff was "upon" his employer's van, where the undisputed facts establish that he left the van, walked around another vehicle, and stood in front of it, blocking it with his body to prevent it from leaving until police arrived. Plaintiff therefore was not an "insured" within the meaning of Old Republic's endorsement for UIM coverage. See ECF No. 27-3, Ex. 1 at 65, 68.
IV. Conclusion
For the foregoing reasons, the Court GRANTS Old Republic's Motion for Summary Judgment and dismisses Plaintiff's claims against Old Republic. ECF No. 27. Further, because all Plaintiff's claims are based on the denial of coverage under the Policy, his claims against Defendant Sedgwick are also dismissed.
Accordingly, the instant case is DISMISSED with prejudice.
IT SO ORDERED.