Alexander v. Erie Ins. Exchange, 91-3690

• Decision Date: 05 January 1993
• Docket Number: No. 91-3690,91-3690
• Citation: 982 F.2d 1153
• Parties: Bradley E. ALEXANDER, individually and as the assignee of Theodore E. Seifert, Plaintiff-Appellant, v. ERIE INSURANCE EXCHANGE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1153

982 F.2d 1153

Bradley E. ALEXANDER, individually and as the assignee of

Theodore E. Seifert, Plaintiff-Appellant, v. ERIE INSURANCE EXCHANGE, Defendant-Appellee.

No. 91-3690.

United States Court of Appeals, Seventh Circuit.

Argued May 27, 1992.

Decided Jan. 5, 1993.

Carl N. Martin, II (argued), Philadelphia, PA, John H. Caress, Indianapolis, IN, for plaintiff-appellant.

Robert A. Smith (argued), Michael P. Bishop, Bishop, Smith & Bishop, Indianapolis, IN, Walter J. Timby, Jr., Timby, Brown & Timby, Philadelphia, PA, for defendant-appellee.

Before BAUER, Chief Judge, RIPPLE, Circuit Judge, and WOOD, Jr., Senior Circuit Judge.

RIPPLE, Circuit Judge.

This is an appeal from a grant of summary judgment for the defendant, Erie Insurance Exchange (Erie), on a claim of improper failure to defend and indemnify under the provisions of an automobile insurance policy issued by Erie. The district court held that the plaintiff was not covered by the policy. For the reasons that follow, we affirm.

I BACKGROUND

On April 6, 1985, Theodore Seifert was driving his father's truck in Birmingham Township, Pennsylvania, when he lost control of the vehicle and struck a telephone pole. As a result of the accident, Bradley Alexander, who was a passenger in Seifert's truck at the time, suffered serious injuries. Subsequently, Mr. Alexander At the time of the accident, Seifert was living with his father in Pennsylvania. Seifert was under twenty-one years of age and, with the exception of the five months immediately prior to the accident, he had always lived with his mother in Indiana. ¹ After the accident, Seifert continued living with his father in Pennsylvania for two months. He then returned to live with his mother in Indiana. Seifert claims that he had always intended the stay with his father to be temporary. Seifert's federal and state income tax forms for the year 1985, which he filed in February 1986 after he moved back to his mother's home, claimed his residence as his mother's house in Carmel, Indiana. He notes that, during the time he lived with his father, he retained complete access to his mother's home and stayed in frequent contact with her. He visited Indiana only once during the five-month period. Additionally, Seifert had a full-time job and obtained a Pennsylvania driver's license while living with his father. Seifert's father carried insurance on the truck; however, the liability coverage for personal injuries was limited to $100,000. Therefore, in addition to notifying his father's insurance company, Seifert notified Erie, which was his mother's automobile insurance carrier in Indiana. Erie refused to defend the lawsuit on the ground that Seifert was not covered by the policy. The state civil action brought by Mr. Alexander was settled before trial and a judgment against Seifert was entered in the amount of four million dollars. Thereafter, Seifert assigned to Mr. Alexander all rights he had against Erie. Mr. Alexander initially filed the present action against Erie in the federal district court for the Eastern District of Pennsylvania. Invoking the diversity jurisdiction of the court under 28 U.S.C. § 1332, he alleged that Erie had negligently failed to settle his claim against Ted Seifert. See American Family Mut. Ins. Co. v. Kivela, 408 N.E.2d 805, 812-13 (Ind.App.1980) (absent fraud or collusion, if an insurance company wrongfully refuses coverage it may be held responsible for any underlying judgment resulting from the insured defending himself).

                brought a civil action against Seifert in the Court of Common Pleas of Delaware County, Pennsylvania.   He alleged that he was injured because of Seifert's negligence
                

Erie moved to have the trial transferred to Indiana. See 28 U.S.C. § 1404(a). It argued that the convenience of the parties and witnesses and the public interest would best be served by the transfer. Specifically, Erie noted that Indiana law governed the dispute, Seifert's physicians and medical records were in Indiana, and several key witnesses as to whether or not Ted Seifert was residing with his mother in Carmel, Indiana were in Indiana. The Pennsylvania district court granted the motion, 1990 WL 6127. Subsequently, the Indiana district court granted summary judgment for Erie. It determined that, as a matter of law, Seifert was not a resident of his mother's household and thus was not covered by the policy. ²

The policy in dispute was issued by Erie to Seifert's mother, Geraldine Seifert, and was in force when the accident injuring Mr. Alexander occurred. The policy provided coverage for the "named-insured" (Ms. Seifert), for "relatives," while they were driving a car insured by Erie, and for accidents involving "non-owned" vehicles ³ when "relatives" of the insured are driving them. Seifert was not driving a vehicle insured by Erie at the time of the accident. Thus, the issue of coverage turns upon whether Seifert was either a "named-insured" or a "relative" under the terms of the Erie policy. "Relative" is defined in the definitions section of the policy as a relative or ward "if a resident of [the policy holder's] household."

                Prior to Seifert's stay in Pennsylvania, he was named in the Erie policy as a member of his mother's household.   A Revised Declarations Endorsement effective January 4, 1985 reflected Ms. Seifert's request to have her son's name removed from the policy, making her the sole named driver.   The change caused an annual reduction of thirty-seven dollars in Ms. Seifert's premium.   However, Mr. Alexander disputes the effect of the Revised Declaration Endorsement.   Specifically, he contends that there is a genuine issue of material fact whether it was signed by an authorized Erie agent
                

II DISTRICT COURT PROCEEDINGS

The district court for the Southern District of Indiana granted summary judgment for Erie. Applying Indiana law, the court noted that summary judgment cannot be granted if any genuine issue of material fact exists. The court then acknowledged that the linchpin of the present dispute is whether Seifert resided in his mother's household within the terms of the policy. Because Ted Seifert was not listed on the policy at the time of the accident and in fact had been specifically removed from the policy previously, the district court concluded that the burden to prove coverage was on Mr. Alexander. The district court set out the facts supporting the assertion that Seifert resided in his mother's home in Indiana and the facts supporting the assertion that he resided in Pennsylvania with his father. The court then engaged in a detailed analysis of the Indiana decisions directly on point and concluded:

Indiana ... determines residence by considering: (1) physical presence (intending to have a fixed abode for the time being, to dwell under the same roof and compose a family); (2) the unrestricted access to the insured's home and its contents; (3) the intent of the contracting parties to provide coverage; and (4) the totality of the evidence.

Mem.Op. at 19. Applying the facts to the above framework, the district court held that "considering the totality of the evidence, ... as a matter of law, the facts cannot support a finding that Seifert was a resident of his mother's household during the relevant time period." Mem.Op. at 2.

Mr. Alexander presently asserts three legal claims: (1) the district court in Pennsylvania erred in transferring the action to Indiana, (2) the Indiana district court erred in concluding that Ted Seifert had been effectively removed as a named-insured from the Erie policy, and (3) the Indiana district court erred in finding, as a matter of law, that Seifert was not a resident of his mother's household on the date the accident injuring Mr. Alexander occurred.

III ANALYSIS

A. Transfer under 28 U.S.C. § 1404(a)

As a preliminary matter, Mr. Alexander submits that the district court sitting in the Eastern District of Pennsylvania abused its discretion when it transferred the present action to the Southern District of Indiana. He argues that the plaintiff's choice of forum is entitled to great deference and should not have been disturbed. ⁴ We need not, and indeed cannot, reach the merits of this contention. Our case law makes clear that we cannot review the decision of a court in another circuit to transfer a case to a district court in this circuit. We may review such a transfer only if a party moves, in the transferee court in this circuit, to retransfer the case. National-Standard Co. v. Adamkus, 881 F.2d 352, 356 (7th Cir.1989); Illinois Tool Works, Inc. v. Sweetheart Plastics, 436 F.2d 1180, 1187-88 (7th Cir.), cert. dismissed, 403 U.S. 942, 91 S.Ct. 2270, 29 L.Ed.2d 722 (1971); Purex Corp. v. St. Louis Nat'l Stockyards Co., 374 F.2d 998, 999-1000 (7th Cir.), cert. denied, 389 U.S. 824, 88 S.Ct. 59, 19 L.Ed.2d 77 (1967). The record reflects that no such motion was made in the United States District Court for the Southern District of Indiana. Accordingly, the matter is beyond our review.

B. Summary Judgment

We review de novo a district court's decision to grant summary judgment. The evidence, when taken in the light most favorable to Mr. Alexander, the nonmovant, must be such that there is no genuine issue of fact and Erie is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Anderson v. Stauffer Chem. Co., 965 F.2d 397, 400 (7th Cir.1992). Both parties agree that Indiana law governs the interpretation of Ms. Seifert's insurance policy. Accordingly, we apply the substantive law of Indiana, the forum state. See TransAmerica Ins. Co. v. South, 975 F.2d 321, 327 (7th Cir.1992) (in diversity cases, absent party challenge to choice of law, governing law is that of the forum state); Wood v. Mid-Valley, Inc., 942 F.2d 425, 426-27 (7th Cir.1991) (same).

The insured has the initial burden of proving coverage under an insurance policy. South...