Goddard v. S. Dakota Pub. Assurance Alliance

• Citation: 687 F.3d 965
• Decision Date: 03 August 2012
• Docket Number: No. 11–3330.,11–3330.
• Parties: Marnita GODDARD, Appellant, v. SOUTH DAKOTA PUBLIC ASSURANCE ALLIANCE, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

687 F.3d 965

Marnita GODDARD, Appellant,

v.SOUTH DAKOTA PUBLIC ASSURANCE ALLIANCE, Appellee.

No. 11–3330.

United States Court of Appeals, Eighth Circuit.

Submitted: June 14, 2012.

Filed: Aug. 3, 2012.

Michael Steven Beardsley, argued and on the brief, Steven Carson Beardsley, on the brief, Rapid City, SD, for Appellant.

Thomas E. Brady, argued and on the brief, Spearfish, SD, for Appellee.

Before MURPHY, BRIGHT, and COLLOTON, Circuit Judges.

MURPHY, Circuit Judge.

Marnita Goddard was injured while riding on a trolley operated by the city of Deadwood, South Dakota. Invoking diversity jurisdiction, Goddard sued the city for negligence and the South Dakota Public Assurance Alliance (SDPAA) for uninsured motorist coverage. After Goddard settled with the city, the district court ¹ granted summary judgment in favor of SDPAA, concluding that Goddard was not covered under the uninsured motorist provision in the city's agreement with SDPAA. Goddard appeals, and we affirm.

The city of Deadwood operates a daily trolley which makes 37 stops on its route around the city, from early morning until at least midnight. The trolley is powered by its own engine and runs without cables. Goddard, a resident of Nevada, paid the $1.00 fee to ride the trolley on an evening in August 2007. Goddard and other passengers were already seated inside the trolley when the driver came aboard at approximately 11:00 p.m. The record indicates that sometime after starting the route the trolley was driven off a ledge and onto a football field below. Goddard and other passengers claimed that they sustained injuries as a result of the accident. A government liability pool known as SDPAA provides liability coverage for the city's trolley operation under a Governmental Liability Coverage Agreement.

Goddard sued the city, alleging that the trolley driver had been negligent in driving the vehicle on the evening she was injured. During discovery the trolley driver testified that he had gone over the ledge after seeing a “light in [his] windshield” and swerving to “avoid a head-on collision.” After that testimony Goddard added SDPAA as a named defendant, alleging a right to recover under the uninsured and/or underinsured motorist provision in its agreement with the city. Goddard contended that since a phantom motorist had caused the accident, his vehicle qualified as an uninsured automobile under the agreement and she could recover under the uninsured motorist provision.

The agreement provides in section III(R) that uninsured motorist coverage is available for amounts

that a member is legally entitled to recover as damages from the owner or operator of an uninsured automobile.... The damages must result from injury sustained by the member and caused by an occurrence resulting from the ownership, maintenance or use of, or when struck by, an uninsured automobile.... Use includes operating the vehicle as well as getting into or out of, or being in or on the vehicle.

(some emphasis omitted).

Goddard argued that she was eligible for uninsured motorist coverage under the agreement between the city and SDPAA because she is a “member” under section II. That section defines member in four subparts. Section II(A)-(C) designate specific categories of persons or entities who are members, all of whom have direct ties to the city. Specific examples given for members are the city of Deadwood, any of its employees acting within the scope of employment, and any organization which the city acquires or forms and over which it maintains ownership or majority ownership interest. Section II(D) is more general. That section states that a member also includes “anyone else while using, with [the city's] permission, any automobile owned, hired or borrowed by [the city] ....” (emphasis omitted). Trolley passengers are not mentioned.

Defendant SDPAA moved for summary judgment, arguing that Goddard was not entitled to coverage under the uninsured motorist provision because the accident had been caused solely by the trolley driver's negligence, that she was not a member within the meaning of its agreement with the city, and that any recovery under the agreement would be duplicative. Goddard also moved for partial summary judgment, seeking a determination that there were “no issues regarding the actions of Plaintiff ... [and] no genuine issue about whether the Plaintiff was injured.” The district court referred the cross motions to a magistrate judge. While the motions were pending, the city and Goddard settled her negligence claim and the city was dismissed from the case with prejudice. The record does not indicate the basis of the settlement or the source of any payment to Goddard.²

After the city was dismissed from the case, the magistrate judge recommended granting SDPAA's motion for summary judgment and denying Goddard's motion as moot. The magistrate judge concluded that Goddard was not entitled to coverage under the uninsured motorist provision because she was not a covered member. The magistrate judge also noted that “the court has insufficient information to determine whether any prospective recovery from SDPAA” would be duplicative. The district court adopted the report and recommendation, concluding that the term memberwas “clear and unambiguous” and only referred to those performing a public service or acting in the same capacity as a city employee. Goddard was not eligible for uninsured motorist coverage and therefore any potential issue of duplicative recovery was moot. Goddard appeals, arguing only that she is a member under the agreement.

We review de novo the district court's grant of summary judgment to SDPAA. Kroeplin Farms Gen. P'ship v. Heartland Crop Ins., Inc., 430 F.3d 906, 909 (8th Cir.2005). Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmovant, shows that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Id. Our interpretation of the SDPAA agreement is governed by South Dakota law. See O'Daniel v. NAU Country Ins. Co., 427 F.3d 1058, 1060 (8th Cir.2005).

Goddard argues that the SDPAA agreement is clear and unambiguous and that she is a member under it. She points to section II(D) which defines member to include “anyone else while using, with [the city's] permission, any automobile owned, hired or borrowed by [the city] ....” (emphasis omitted). She points out that she was using the trolley as a paying passenger on the night she was injured. SDPAA argues that Goddard cannot be considered a member because her interpretation of section II(D) would render other provisions meaningless and would contravene the contracting parties' understanding of the scope of coverage.

Whether Goddard is a member is a question of contract interpretation. Under South Dakota law, an insurance policy's unambiguous “terms are to be construed according to their plain and ordinary meaning.” Am. Family Mut. Ins. Co. v. Elliot, 523 N.W.2d 100, 102 (S.D.1994). Whether a term is ambiguous is determined in light of “the policy as a whole and the plain meaning and effect of its words.” Nat'l Sun Indus. v. S.D. Farm Bureau Ins. Co., 596 N.W.2d 45, 48 (S.D.1999) (citation omitted). Insurance policies should be given a “reasonable interpretation, in the context of the risks insured, without stretching terminology.” Opperman v. Heritage Mut. Ins. Co., 566 N.W.2d 487, 490 (S.D.1997). If a term “is fairly susceptible to two constructions,” Am. Family Mut. Ins. Grp. v. Kostaneski, 688 N.W.2d 410, 413 (S.D.2004) (citation omitted), it is ambiguous and we must adopt “the interpretation most favorable to the insured.” Roden v. Gen. Cas. Co. of Wisc., 671 N.W.2d 622, 625 (S.D.2003) (citation omitted).

The term member must be read in the context of the agreement as a whole. See Nat'l Sun Indus., 596 N.W.2d at 48. The relevant sections of the agreement include section I which provides definitions for the agreement's terms, section II which outlines “who receives coverages” under it by defining a “member,” and section III which provides the agreement's “coverages.” The coverages in section III of the agreement generally refer to obligations that SDPAA has toward members under the agreement, but that section also references payments that might be made to nonmembers—such as for liability under section III(J) or for medical expenses under section III(K).

Section II defines “member” in four subparts (A)-(D). Section II(A)-(C) define member to include the city of Deadwood and certain individuals and entities acting on its behalf, such as an elected or appointed official while acting on the city's behalf or an organization that the city has acquired or formed and over which it maintains an ownership or majority ownershipinterest. Section II(D), the contested section here, states that “member” includes “anyone else while using, with your permission, any automobile ....” (emphasis omitted). Section II(A)-(C) all define members as either the city or those acting on its behalf. It is therefore reasonable to conclude that section II(D)'s language, defining member as “anyone else” using the trolley with the city's permission, similarly requires a member to be affiliated or associated with the city. Cf. Nat'l Sun Indus., 596 N.W.2d at 48–49.

The lack of any reference to trolley passengers in the agreement's definition of member is also significant. Section II(A)-(D) of the agreement do not designate passengers or pedestrians as members. If SDPAA and the city had intended trolley passengers to be included as members, they could have easily been plainly designated in section II. Instead, section II(A)-(C) define member to include the city or one affiliated with it. Reading section II(D) to include passengers and others unaffiliated with the city as members would be an improper judicial enlargement of the agreement's term “member.” See Elliot, 523 N.W.2d at 102.

Goddard suggests that her...