412 F.3d 1207 (11th Cir. 2005), 04-14368, McGow v. McCurry

Docket Nº:04-14368, 04-14457.
Citation:412 F.3d 1207
Party Name:John Michael McGOW, Plaintiff, v. Billy Joe McCURRY, Defendant, Allstate Indemnity Company, Movant-Appellant, St. Paul Fire & Marine Insurance Company, Movant-Appellee. John Michael McGow, Plaintiff-Appellee, v. Billy Joe McCurry, Defendant, Auto Club Insurance Group of Michigan, Movant-Appellant.
Case Date:June 14, 2005
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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412 F.3d 1207 (11th Cir. 2005)

John Michael McGOW, Plaintiff,

v.

Billy Joe McCURRY, Defendant,

Allstate Indemnity Company, Movant-Appellant,

St. Paul Fire & Marine Insurance Company, Movant-Appellee.

John Michael McGow, Plaintiff-Appellee,

v.

Billy Joe McCurry, Defendant,

Auto Club Insurance Group of Michigan, Movant-Appellant.

Nos. 04-14368, 04-14457.

United States Court of Appeals, Eleventh Circuit

June 14, 2005

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Sean L. Hynes, R. Chris Harrison, Downey & Cleveland, LLP, Marietta, GA, Alexander Gordon, Fain, Major, Wiley & Brennan, Atlanta, GA, for Allstate Indemnity Co. and Auto Club Ins. Group of Mich.

Alexander H. Booth, Sullivan, Hall, Booth & Smith, P.C., Beth W. Kanik, Hall, Booth, Smith & Slover, P.C., Atlanta, for St. Paul Fire & Marine Ins. Co. and McGow.

Appeals from the United States District Court for the Northern District of Georgia.

Before ANDERSON, HULL and RONEY, Circuit Judges.

HULL, Circuit Judge:

In this appeal, three insurance companies--St. Paul Fire & Marine Insurance Company ("St. Paul"), Auto Club Insurance Group of Michigan ("Auto Club"), and Allstate Indemnity Company ("Allstate")--dispute which of them bears primary uninsured motorist ("UM") coverage responsibility for an automobile accident in which Plaintiff John Michael McGow ("McGow") was injured by an uninsured motorist. Applying Georgia law to interpret the policies, the district court granted St. Paul's motion for summary judgment, concluding that Allstate and Auto Club bear primary responsibility.

On appeal, Allstate and Auto Club argue that the district court erred in applying Georgia law instead of Michigan law in interpreting the insurance policies. Auto Club also argues that the district court lacked personal jurisdiction over it. After review and oral argument, we affirm the district court's exercise of personal jurisdiction over Auto Club but reverse its denial of Auto Club's motion for summary judgment and its grant of summary judgment to St. Paul.

I. BACKGROUND

A. The Accident

Plaintiff McGow is a resident of Michigan. The uninsured motorist who injured McGow is Defendant Billy Joe McCurry, a resident of Georgia.

On March 11, 2002, Plaintiff McGow was a passenger in a 2001 Ford Expedition (the "Expedition") traveling northbound on Interstate 75 in Georgia. The Expedition was towing a trailer that contained Plaintiff McGow's motorcycle. Defendant McCurry was traveling northbound on I-75 directly behind the Expedition. McCurry allegedly fell asleep at the wheel. McCurry's vehicle struck the rear of the trailer attached to the Expedition, and as a result, the Expedition overturned, causing Plaintiff McGow to suffer injuries.

The driver of the Expedition was employed by Cosworth Technologies, Inc. ("Cosworth"). The Expedition was not owned by Cosworth but was owned by Ford Motor Company. 1 St. Paul had issued an insurance policy to Cosworth that included UM coverage on the Expedition.

Allstate had issued an insurance policy for Plaintiff McGow's motorcycle. The Allstate policy also included certain UM coverage for McGow.

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In addition, Auto Club had issued Plaintiff McGow an insurance policy for McGow's personal automobile. That Auto Club policy also included UM coverage for McGow.

After the collision, police officers charged Defendant McCurry with following too closely. Although McCurry previously had been insured by State Farm, that insurance apparently had been cancelled prior to the accident, rendering McCurry an uninsured motorist.

B. The Policies

Each of the three insurance policies involved in this case provides some primary UM coverage. However, each policy also contains an other-insurance clause that seeks to reduce or eliminate that primary coverage when other UM coverage is involved. Thus, we review in detail the UM coverage and the competing other-insurance clauses in each of the three policies.

The St. Paul policy, on which Cosworth was the insured and which covered the Expedition, provided primary UM coverage for both the named insured and other persons protected by the policy, as follows:

What This Agreement Covers

We'll pay damages the named insured and other persons protected under this agreement are legally entitled to collect from the owner or driver of an uninsured or underinsured vehicle if the damages result from an accident that causes bodily injury to the protected person. However, we'll only pay these damages when the owner's or driver's liability results from owning, maintaining or using the uninsured or underinsured vehicle.

The St. Paul policy provides that protected persons include "[a]nyone in a covered auto or temporary substitute for a covered auto." Thus, McGow, as a passenger in the covered Expedition, is a protected person under St. Paul's policy.

Although St. Paul provided primary UM coverage to McGow, the St. Paul policy contained a provision limiting its coverage if other insurance is involved. The "other insurance" provision in the St. Paul policy states:

Other Insurance

This agreement provides primary insurance for covered autos the named insured owns and excess insurance for those the named insured doesn't own. Excess insurance applies after other collectible uninsured motorists insurance has been used up.

Insurance written with another company. When this agreement and other collectible uninsured motorists insurance apply to an uninsured motorists loss on the same primary or excess basis, we'll pay that portion of the loss equal to what our limit of coverage bears to the total available limits.

Thus, if other insurance is involved, the St. Paul policy provides that its primary UM coverage remains primary for the vehicles the insured (Cosworth) owns but becomes excess for vehicles the insured (Cosworth) does not own, such as the Expedition in this case. Thus, St. Paul has what is known as an "excess" other-insurance clause for vehicles the insured does not own.

The Allstate policy, on which McGow was the named insured and which covered McGow's motorcycle trailing the Expedition, also provided primary UM coverage for McGow, as follows:

We will pay damages which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by an injured person. The bodily injury must be caused by accident and arise out of the ownership, maintenance

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or use of an uninsured motor vehicle. We will not pay any punitive or exemplary damages.

The Allstate policy also contained the following "other insurance" provision limiting its coverage where other insurance is involved:

If There Is Other Insurance

If the insured person was in, on, getting into or out of a vehicle you do not own, which is insured for this coverage under another policy, this coverage will be excess. This means that when the insured person is legally entitled to recover damages in excess of the other policy limit, we will only pay the amount by which the limit of liability of this policy exceeds the limit of liability of that policy.

If more than one policy applies to the accident on a primary basis, the total benefits payable to any one person will not exceed the maximum benefits payable under the policy with the highest limit for uninsured motorists coverage. This applies no matter how many motor vehicles or insurance policies may be involved whether written by Allstate or another company.

(Emphasis added.) Thus, the other-insurance provision in the Allstate primary policy provides that Allstate's coverage will be "excess" when McGow is in a vehicle he does not own and the vehicle is insured by another policy. At the time of the accident, McGow was in a vehicle he did not own (the Expedition), and that vehicle was covered by another policy (St. Paul's). Accordingly, Allstate, like St. Paul, has an "excess" other-insurance clause.

The Auto Club policy, on which McGow was the named insured and which covered McGow's automobile, provides primary UM coverage for McGow as follows:

INSURING AGREEMENT

Subject to the Definitions, Exclusions, Conditions and Limits of Liability that apply to this Part, we will pay damages for bodily injury to an insured person which:

a. is caused by accident; and

b. arises out of the ownership, operation, maintenance or use of an uninsured motor vehicle; and

c. that insured person suffers death, serious impairment of body function or permanent serious disfigurement; and

d. that insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle.

The Auto Club UM policy contains the following "other insurance" clause, limiting its liability where other insurance is involved:

OTHER INSURANCE

If there is other Uninsured Motorists Coverage with us or any other insurer for a loss covered by this Part, we will only be liable to pay for the damages recoverable in the same proportion that the applicable limit of liability of this coverage bears to the sum of all the applicable limits of liability that cover the loss. However, we will not be liable under this coverage to pay more than our proportionate share, as determined in the manner provided for in the previous sentence, of an amount equal to the highest Limit of Liability that is applicable to the loss.

Thus, when other UM insurance covers part of the loss, the Auto Club primary policy provides that it will be liable on a pro-rata basis with other insurers. Auto Club has a "pro-rata" other-insurance clause.

However, the Auto Club policy also contains an important exclusion stating that

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its UM coverage will not apply at all to bodily injury sustained by an insured person (McGow) when that insured occupies a vehicle (the Expedition) that provides "the same or...

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