Addison Insurance Company v. Veverka
| Decision Date | 23 February 2021 |
| Docket Number | Civil Action No. 19-cv-03008-RBJ |
| Citation | 522 F.Supp.3d 874 |
| Parties | ADDISON INSURANCE COMPANY, an Iowa corporation, Plaintiff, v. Michael VEVERKA, an individual, Defendant. Michael Veverka, an individual, Counterclaim Plaintiff, v. Addison Insurance Company, an Iowa corporation, Counterclaim Defendant. |
| Court | U.S. District Court — District of Colorado |
Elaine Katherine Stafford, Lelia Kathleen Chaney, Lambdin & Chaney, LLP, Denver, CO, for Plaintiff/Counterclaim Defendant.
Eric Brandon Ballou, Frickey Law Firm, Lakewood, CO, Peter Michael Anderson, Carlo Francisco Bonavita, Peter M. Anderson, The Law Office of Peter M. Anderson, Longmont, CO, for Defendant/Counterclaim Plaintiff.
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
This is an auto insurance case in which the insurance company seeks a declaratory judgment that defendant is not entitled to insurance coverage. Before the Court are plaintiff/counterclaim defendant's motion for summary judgment (ECF No. 39) and defendant/counterclaim plaintiff's partial motion for summary judgment (ECF No. 44). For the reasons discussed below, both motions are DENIED.
The undisputed facts are as follows. Plaintiff Addison Insurance Company ("Addison") is an insurance corporation based in Iowa. ECF No. 1 at ¶1. Defendant Michael Veverka is an individual who resides in Colorado. Id. at ¶2. At the time of the events underlying this case, Mr. Veverka was the sole owner and sole employee of Veverka Company, Inc. ("VCI"), a Colorado corporation. ECF Nos. 25 at ¶10; 25-1 at ¶4. Addison issued an insurance policy, "Commercial Auto Coverage Part," which was effective from April 29, 2019 to April 29, 2020. ECF No. 43-1 at 1. Veverka Company, Inc. is listed as the "named insured" on the policy. Id. at 2.
On August 26, 2019 at 2:56pm Mr. Veverka deposited a check for $150.00 from Chris Loncarich to "Mike Veverka" at Grand Valley Bank in Fruita. ECF No. 43-6. Later that day, at approximately 7:45pm, Mr. Veverka was driving his personally owned 1982 Yamaha motorcycle. A negligent driver struck him from behind, which caused Mr. Veverka to fly off the motorcycle. ECF Nos. 25 at ¶¶5–6; 27 at ¶¶5–6. He sustained serious injuries, including road rash and broken bones, some of which were permanent. ECF Nos. 25 at ¶5; 25-1 at ¶7; 27 at ¶5; 43-4 at 5.
At the time of the accident, the insurance policy issued to VCI by Addison was in effect. ECF No. 43-1 at 1. Mr. Veverka's motorcycle was separately insured by Nationwide. ECF Nos. 1 at ¶15; 25 at ¶15. The negligent driver was insured by Progressive under an automobile policy with $25,000 per person liability. ECF Nos. 1 at ¶16; 25 at ¶16. Following the accident, Mr. Veverka settled with the negligent driver's insurance company for $25,000. He settled an underinsured motorist claim with his personal automobile carrier, Liberty Mutual, for $100,000. Finally, he settled an underinsured motorist claim with Nationwide, his motorcycle's insurer, for $300,000. ECF Nos. 39 at ¶¶8–10; 43 at ¶¶8–10. Mr. Veverka subsequently asserted a claim for underinsured motorist benefits under the Addison insurance policy issued to VCI. ECF Nos. 39 at ¶11; 43 at ¶11.
The insurance policy issued by Addison contains the following language relevant to the cross motions for summary judgment:
| Symbol | Description of Covered Auto Designation Symbols | |
| ... | ||
| 07 | Specifically Described "Autos" | Only those "autos" described in Item Three of the Declarations for which a premium charge is shown (and for Covered Autos Liability Coverage any "trailers" you don't own while attached to any power unit described in Item Three). |
ECF No. 43-1 at 5–6, 10–12, 17.
The Addison insurance policy also includes a Colorado-specific "endorsement" relevant to the motions for summary judgment:
The parties dispute a number of additional facts. I recite them here because these disputes are relevant to the outcome of the parties’ motions. Mr. Veverka states in his affidavit that on the day of the accident, he had been "dressing up washed out spots around culverts" and "hauled in a load of ¾ rock" with his dump truck. ECF No. 25-1 at ¶10. He states that he noticed the dump truck had a "dangerously low tire," "a leaky valve stem," and "a light bulb needing replacement." Id. at ¶11. He "hurried home" before the tire went flat. Id. He states that he returned the dump truck "to the parking lot where it is stored," and he then "traveled on the motorcycle to pick up parts for the repair so [he] could continue [his] jobs." Id. at ¶12. Addison denies all of the above allegations. ECF Nos. 25 at ¶¶7–8; 27 at ¶¶7–8. Besides the affidavit, neither party has presented evidence supporting or refuting any of these allegations.
In his response to Addison's motion for summary judgment, Mr. Veverka further stated that he was using the dump truck to deliver a load of rocks to Chris Loncarich. ECF No. 43 at 3. He wrote that he used his motorcycle to deposit the check from Mr. Loncarich. After that he drove the motorcycle to pick up truck repair parts, and the accident occurred. Id. Neither party has presented evidence on any of these statements.
Mr. Veverka claims that Addison never spoke to him before denying his claim, and that Addison's investigation was limited to one phone call to the office of plaintiff's then-counsel. ECF Nos. 25-1 at ¶15; 43 at ¶5. Addison denies these claims. ECF No. 46 at ¶¶4–7. A Claim File Detail Report from UFG Insurance has an entry from one Amy Erickson referring to Mr. Veverka that states, "[h]e was not in the course of his employment, he was heading home from work." ECF No. 43-4 at 5. A transcript from a phone call between Amy...
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