Kellogg v. Mich. Millers Mut. Ins. Co.

• Court: U.S. District Court — Western District of New York
• Writing for the Court: MARIAN W. PAYSON United States Magistrate Judge
• Decision Date: 07 March 2019
• Docket Number: 17-CV-6242P
• Citation: Kellogg v. Mich. Millers Mut. Ins. Co., 17-CV-6242P (W.D. N.Y. Mar 07, 2019)
• Parties: TROY D. KELLOGG and SHARON KELLOGG, Plaintiffs, v. MICHIGAN MILLERS MUTUAL INSURANCE COMPANY, Defendant.

TROY D. KELLOGG and SHARON KELLOGG, Plaintiffs, v. MICHIGAN MILLERS MUTUAL INSURANCE COMPANY, Defendant.

17-CV-6242P

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

March 7, 2019

DECISION & ORDER

PRELIMINARY STATEMENT

Plaintiffs Troy D. Kellogg and Sharon Kellogg ("plaintiffs") have sued defendant Michigan Millers Mutual Insurance Company ("Michigan Mutual") for breach of contract arising from Michigan Mutual's disclaimer of Personal Injury Protection Coverage ("PIP"), Additional Personal Injury Protection Coverage ("APIP"), Supplemental Uninsured/Underinsured Motorist Coverage ("SUM"), and Medical Payments Coverage ("Medical Payments") to Troy Kellogg for injuries resulting from a motor vehicle accident on December 6, 2016. (Docket # 1). Pursuant to 28 U.S.C. § 636(c), the parties have consented to the disposition of this case by a United States magistrate judge. (Docket # 12). Currently pending before the Court are the parties' cross-motions for judgment as a matter of law. (Docket ## 26, 27).

THE PARTIES' MOTIONS FOR SUMMARY JUDGMENT

Plaintiffs seek judgment declaring that the policy issued by Michigan Mutual to Joe Benson's Service, Inc. ("Benson's), a towing company owned and operated by Mr. Kellogg, provides PIP and APIP coverage to Mr. Kellogg for his injuries because he was "using" and/or "operating" an insured vehicle at the time of the accident. (Docket ## 26-25 at 4-8; 30 at 4-10). They also seek judgment declaring that the policy provides Medical Payments and SUM coverage to Mr. Kellogg for his injuries because he was "occupying" an insured vehicle at the time of the accident.¹ (Docket ## 26-25 at 9-20; 30 at 11-13).

Michigan Mutual opposes plaintiffs' motion and also moves for judgment in its favor dismissing the complaint in its entirety. (Docket ## 27, 32). Michigan Mutual maintains that it properly disclaimed PIP and APIP coverage under the policy because Mr. Kellogg's injuries were not caused by his use or operation of the insured tow truck. (Docket ## 27-3 at 6-13; 32-9 at 5-7). Michigan Mutual also contends that Mr. Kellogg is not entitled to SUM or Medical Payments coverage because he was not occupying the insured vehicle at the time of the accident. (Docket ## 27-3 at 13-20; 32-9 at 8-14).

Both parties agree that no issues of material fact exist to preclude summary resolution of the claims.

A. Factual Background

The following facts are undisputed unless otherwise noted. On December 6, 2016, at approximately 9:30 p.m., Matthew Liamero ("Liamero") lost control of his vehicle, a silver Ford Focus ("Ford Focus" or "Liamero vehicle"), while attempting to exit the westboundNew York State Thruway at Exit 45. (Docket ## 26-24 at ¶¶ 9, 11; 32-10 at ¶¶ 9, 11). The Ford Focus left the road, rotated, and ended up in a ditch facing oncoming traffic. (Docket ## 26-24 at ¶ 10; 32-10 at ¶ 10). Liamero called AAA, which dispatched Troy Kellogg ("Kellogg"), the owner and operator of Benson's, to respond to assist Liamero. (Docket ## 26-24 at ¶¶ 1, 7, 12-15; 32-10 at ¶¶ 1, 7, 12-15). Approximately 35 to 50 minutes later, Kellogg arrived at the scene in a 2004 Ford tow truck ("tow truck") owned by Benson's and insured by Michigan Mutual. (Docket ## 26-24 at ¶¶ 7-8, 13; 27-1 at ¶¶ 3, 5, 12; 31 at ¶¶ 3, 5, 12; 32-10 at ¶¶ 7-8, 13).

Kellogg explained to Liamero that he was going to attach a cloth strap to the right front tire of the Ford Focus, attach the strap to the winch, and use the tow truck's winch to pull the vehicle from the ditch. (Docket ## 26-24 at ¶ 18; 32-10 at ¶ 18). During the towing process, Kellogg directed Liamero when and how to turn his steering wheel, and Kellogg returned to the tow truck at least once in order to maneuver it to create a better angle to pull the Ford Focus from the ditch. (Docket ## 26-24 at ¶¶ 20-22; 32-10 at ¶¶ 20-22). Kellogg successfully pulled the Ford Focus onto the shoulder of the road directly behind the tow truck. (Docket ## 26-24 at ¶ 23; 32-10 at ¶ 23).

Kellogg approached the open passenger's window of the Ford Focus and told Liamero that he was going to detach the tow truck from the Ford Focus so that both vehicles could be moved to a safer location to complete paperwork. (Docket ## 26-24 at ¶ 24; 32-10 at ¶ 24). Kellogg got onto his knees in order to detach the cloth strap from the right front tire of the Ford Focus, which he had earlier attached to the winch cable of his truck in order to tow the Ford out of the ditch. (Docket ## 26-24 at ¶ 25; 32-10 at ¶ 25). While he was in that position, the Ford Focus was struck from the rear by another vehicle driven by Carey Gainey ("Gainey") thathad lost control while exiting the Thruway at Exit 45. (Docket ## 26-24 at ¶¶ 26-28, 30; 32-10 at ¶¶ 26-28, 30). The parties dispute whether Kellogg was touching or handling either the cloth strap or the tow truck's winch cable at the moment of impact, but do not dispute that Kellogg had not completed the act of detaching the cloth strap from the Ford Focus. (Docket ## 26-24 at ¶¶ 29-31, 40-42; 32-10 at ¶¶ 29-31, 40-42).

The force of the impact of Gainey's car caused the Ford Focus to propel forward and rotate; as it did, the Ford struck Kellogg and the tow truck. (Docket ## 26-24 at ¶¶ 28, 32-33; 32-10 at ¶¶ 28, 32-33). Kellogg landed in a gully approximately ten yards from the road and was found unresponsive. (Docket ## 26-24 at ¶¶ 34-35; 32-10 at ¶¶ 34-35).

At the time of the accident, the tow truck was insured by Michigan Mutual under a policy of insurance issued to Benson's. (Docket ## 26-24 at ¶ 6; 32-10 at ¶ 6). In relevant part, the policy provided $50,000 limits for PIP coverage, $100,000 limits for APIP coverage, $5,000 limits for Medical Payments coverage, and $1,000,000 limits for SUM coverage. (Docket ## 26-24 at ¶ 3; 32-10 at ¶ 3). Benson's paid separate annual premiums for each of the coverages. (Docket ## 26-24 at ¶ 4; 32-10 at ¶ 4). Following the accident, plaintiffs submitted a claim under the policy for PIP, APIP, Medical Payments, and SUM coverage for Kellogg's injuries. (Docket ## 26-24 at ¶¶ 46, 57; 32-10 at ¶¶ 46, 57). Michigan Mutual denied the claim for each type of coverage. (Docket ## 26-24 at ¶¶ 51-54, 61-62; 32-10 at ¶¶ 51-54, 61-62).

The relevant endorsements in the policy provide as follows. The "New York Mandatory Personal Injury Protection [PIP] Endorsement" provides in relevant part:

Section I

Mandatory Personal Injury Protection

The Company will pay first-party benefits to reimburse for basic economic loss sustained by aneligible injured person on account of personal injuries caused by an accident arising out of the use or operation of a motor vehicle.

Eligible Injured Person

Subject to the exclusions and conditions set forth below, an eligible injured person is:

* * *

(c) Any other person who sustains personal injury arising out of the use or operation of the insured motor vehicle in the State of New York while not occupying another motor vehicle.

(Docket # 26-23 at 70-71).

The "Additional Personal Injury Protection [APIP] (New York)" Endorsement provides in relevant part:

Additional Personal Injury Protection

The Company will pay additional first party benefits to reimburse for extended economic loss on account of personal injuries sustained by an eligible injured person and caused by an accident arising out of the use or operation of a motor vehicle.

Eligible Injured Person

Subject to the exclusions set forth below, an eligible injured person is:

* * *

(c) Any other person who sustains personal injury arising out of the use or operation of the insured motor vehicle while occupying the insured motor vehicle.

(Id. at 87).

The "Auto Medical Payments Coverage" Endorsement provides in relevant part:

A. Coverage

We will pay reasonable expenses incurred for necessary medical and funeral services to or for an "insured" who sustains "bodily injury" caused by "accident."

B. Who is Insured

* * *

3. Anyone else "occupying" a covered "auto" or a temporary substitute for a covered "auto."

* * *

F. Additional Definitions

* * *

2. "Occupying" means in, upon, getting in, on, out or off.

(Id. at 103-04).

The "New York Supplementary Uninsured/Underinsured Motorists [SUM] Endorsement" provides in relevant part:

INSURING AGREEMENTS

1. Definitions

For the purposes of this SUM endorsement, the following terms have the following meanings.

a. Insured

* * *

(2) Any other person while occupying:

(a) A motor vehicle insured for SUM under this policy.

* * *

d. Occupying

The term "occupying" means in, upon, entering into, or exiting from a motor vehicle.

* * *

2. Damages For Bodily Injury Caused By Uninsured Motor Vehicles

We will pay all sums that the insured or the insured's legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured, caused by an accident arising out of such uninsured motor vehicle's ownership, maintenance or use, subject to the Exclusions, Conditions, Limits or other provisions of this SUM endorsement.

(Id. at 99-100).

On March 4, 2017, Michigan Mutual issued a denial of coverage letter to Kellogg disclaiming coverage for SUM benefits. (Docket ## 26-22; 26-24 at ¶ 61; 32-10 at ¶ 61). The letter stated that Kellogg was not entitled to coverage because he did not meet the definition of an insured in the SUM endorsement. (Docket ## 26-22; 26-24 at ¶ 62; 32-10 at ¶ 62).

On March 30, 2017, Michigan Mutual issued a second denial of coverage letter to Kellogg, disclaiming coverage for PIP, APIP, and Medical Payments benefits. (Docket ## 26-24 at ¶ 51; 32-10 at ¶ 51). With respect to PIP and APIP coverage, Michigan Mutual disclaimed coverage on the grounds that Kellogg was not "using or operating" the tow truck at the time of the accident.² (Docket ## 26-16; 26-24 at ¶¶ 52-53; 32-10 at ¶¶ 52-53). With respect to the Medical Payments coverage, Michigan Mutual disclaimed on the grounds that Kellogg was not"occupying" the tow truck at the time of the incident. (Docket ##...