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Millers Mut. Ins. Assn. v. Wolf

Court of Appeals of Iowa
Dec 11, 2002
No. 2-814 / 02-0061 (Iowa Ct. App. Dec. 11, 2002)

Opinion

No. 2-814 / 02-0061.

Filed December 11, 2002.

Appeal from the Iowa District Court for Scott County, MARK D. CLEVE, Judge.

Defendant-appellant, Greg Wolf, appeals the district court's ruling granting summary judgment to the plaintiff-appellee, Millers Mutual Insurance Association. AFFIRMED.

Bruce Ingham of Gomez, May, Cartee Schutte, Davenport, for appellant.

Robert McMonagle of Lane Waterman, Davenport, for appellee.

Considered by HABHAB, HARRIS and BROWN, Senior Judges.

Senior Judges assigned by order pursuant to Iowa Code section 602.9206 (2001).


The trial court granted plaintiff-appellee Millers Mutual Insurance Association's (Millers) motion for summary judgment in this declaratory judgment action. The defendant. Greg Wolf, appeals, claiming there is a factual issue which cannot be resolved by summary judgment. We agree with the trial court and affirm.

Greg Wolf was injured in a collision between an automobile and his motorcycle. Wolf had rejected the uninsured motorist (UM) and underinsured motorist (UIM) coverages available under a policy insuring his motorcycle issued by Progressive Insurance Co. However, Millers insured other vehicles owned by Wolf and that policy did provide UM and UIM coverage. Wolf asserted a claim under that policy.

The record is unclear as to whether this is a UM claim or a UIM claim. However, the policy provisions are the same for both coverages.

Miller's UM/UIM coverage provided:

EXCLUSIONS

A. We do not provide Uninsured [or Underinsured] Motorists Coverage for "bodily injury" sustained by any person:

1. While "occupying", or when struck by, any motor vehicle owned by you which is not insured for this coverage under this policy.

"Occupying" is defined as "in, upon, getting in, on, out, or off." (emphasis added).

The dispute centers on whether Wolf was "occupying" the motorcycle at the time of the collision. Wolf's deposition is the only evidence submitted, either supporting or resisting the motion.

Wolf's deposition discloses he is a police officer who also works part-time as a private security officer. Wolf and another police-security officer, Morgan, were leaving their employment as security for a club. Morgan tried to stop a motorist driving erratically. Wolf attempted to help. He stopped his motorcycle behind the motorist, who was also stopped by that time, and attempted to put the cycle's kickstand in place. He looked up to see the motorist backing up rapidly directly toward him. Wolf attempted to get off his motorcycle but was struck by the motorist's vehicle before he was able to get clear.

Was Wolf "upon" or "getting off" the motorcycle? If so, the parties agree coverage is not afforded under the Miller policy. The parties do not debate the meaning of "upon" or "getting off" in this context. We think by definition a person who has been riding a motorcycle is either upon or getting off the motorcycle when the person is still astride the cycle, particularly while still gripping the handlebars, at the determinative time, in this case, the impact. This is so regardless of whether both of the person's feet are on the ground or not. That is, he may be standing up, but if he is still astride the cycle, with one leg on one side and one on the other, of necessity he is either "upon" or "getting off" the cycle.

We have carefully reviewed the record and we agree with the trial court that a reasonable jury would necessarily conclude Wolf was astride the cycle and consequently either upon or getting off the motorcycle at the time he was struck by the motorist's vehicle. The district court found the isolated parts of the deposition cited by Wolf were not inconsistent with this conclusion. We believe when viewed in context they are entirely consistent with it.

Summary judgment is appropriate when "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Iowa R.Civ.P. 1.981(3). We have viewed this summary judgment record in the light most favorable to Wolf, Lewis v. State ex rel. Miller, 646 N.W.2d 121, 124 (Iowa Ct.App. 2002), and accorded him every legitimate inference that is reasonable under this record. Id. An inference based upon speculation or conjecture is not legitimate. Id. Unless we engage in such speculation or conjecture, we must conclude the district court correctly granted summary judgment in favor of plaintiff Millers Mutual Insurance Association. We consequently affirm.

AFFIRMED


Summaries of

Millers Mut. Ins. Assn. v. Wolf

Court of Appeals of Iowa
Dec 11, 2002
No. 2-814 / 02-0061 (Iowa Ct. App. Dec. 11, 2002)
Case details for

Millers Mut. Ins. Assn. v. Wolf

Case Details

Full title:MILLERS MUTUAL INSURANCE ASSOCIATION, Plaintiff-Appellee, v. GREG WOLF…

Court:Court of Appeals of Iowa

Date published: Dec 11, 2002

Citations

No. 2-814 / 02-0061 (Iowa Ct. App. Dec. 11, 2002)