Kipling v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 03 February 2016
• Docket Number: Civil Action No. 11-cv-01948-NYW-CBS
• Citation: 159 F.Supp.3d 1254
• Parties: Kathryn Kipling, Plaintiff, v. State Farm Mutual Automobile Insurance Company, doing business as, Minnesota Division of State Farm Mutual Automobile Insurance Company, Defendant.
• Court: U.S. District Court — District of Colorado

159 F.Supp.3d 1254

Kathryn Kipling, Plaintiff,

v.State Farm Mutual Automobile Insurance Company, doing business as, Minnesota Division of State Farm Mutual Automobile Insurance Company, Defendant.

Civil Action No. 11-cv-01948-NYW-CBS

United States District Court, D. Colorado.

Signed February 3, 2016

Bradley Aaron Levin, Kerri J. Atencio, Levin Rosenberg, P.C., Daniel J. Caplis, The Law Offices of Daniel J. Caplis, P.C., Stephen W. Wahlberg, Hillyard, Wahlberg, Kudla & Sloane, L.L.P., Thomas George Tasker, Hillyard, Wahlberg, Kudla, Sloane & Woodruff, L.L.P., Denver, CO, for Plaintiff.

Franklin D. Patterson, Katelyn Shea Werner, Frank Patterson & Asssociates, P.C., Greenwood Village, CO, for Defendant.

MEMORANDUM OPINION AND ORDER

Magistrate Judge Nina Y. Wang

This civil action is before the court on the following motions:

1. Defendant State Farm Mutual Automobile Insurance Company's (“State Farm” or “Defendant”) Motion for Summary Judgment on Remand [# 146, filed May 20, 2015]; 2. Plaintiff Kathryn Kipling's (“Ms. Kipling” or “Plaintiff”) Motion for Summary Judgment [# 149, filed May 22, 2015]; and

3. Plaintiff's Motion to Strike Portions of Defendant's Motion for Summary Judgment (“Motion to Strike”) [# 150, filed May 29, 2015].

These Motions are before me pursuant to 28 U.S.C. § 636(c)

, the Order of Reference dated January 26, 2012 [# 19], the Order of Reassignment dated February 10, 2015 [# 137], and D.C. COLO. LCivR 72.2. This court has carefully considered the Motions and related briefing, the comments offered by counsel at the July 10, 2015 and August 20, 2015 Motions Hearings, the entire case file, and the applicable case law, and is sufficiently advised in the premises. Based on that review, this court GRANTS Defendant's Motion for Summary Judgment, DENIES Plaintiff's Motion for Summary Judgment, and GRANTS IN PART and DENIES IN

PART Plaintiff's Motion to Strike.

FACTUAL BACKGROUND¹

The following facts are undisputed unless otherwise noted. This civil action arises out of a fatal car collision that occurred on July 27, 2009 on Colorado Highway 285 when Jose Sanchez (“Mr. Sanchez”), driving a Ford F350 owned by Pedro Cabral-Martinez, crashed into the side of the vehicle in which Ms. Kipling, her husband, Christopher Kipling, and her mother, Maureen Hamilton, were traveling. [# 1 at ¶¶ 1-4; # 26-2]. The impact of the crash forced the Kiplings' vehicle off the highway into an embankment causing it to roll onto its passenger side where it ultimately rested. [Id. at ¶ 5; # 26-2]. Mr. Kipling was fatally injured in the collision and Ms. Kipling was severely injured, and as a result, suffered a variety of non-economic and economic damages. [Id. at ¶¶ 7-9].

Mr. Sanchez was insured through the Cabral-Martinez vehicle by an American Family Insurance policy that provided for $100,000/300,000 bodily injury liability limits. The Kipling household maintained two auto insurance policies with State Farm. The Suburban was insured under policy number 0298-670-06F, which provided for $500,000/500,000 in uninsured motorist (“UIM”) coverage. The second policy was issued in Colorado by State Farm to Quicksilver Express Courier on a 2005 Ford pickup and provided for $250,000/500,000 in UIM coverage (collectively, “Colorado Policies”). [# 44-5]. Plaintiff settled her bodily injury liability claim against Mr. Sanchez and submitted a UIM claim with State Farm under the Colorado Policies. State Farm paid the limits of the UIM coverage under both policies, with a portion paid to Mrs. Hamilton.

At the time of his death, Mr. Kipling worked as an Office Manager for Quicksilver Express Courier of Colorado, Inc. [# 26-1 at ¶ 7]. Quicksilver Express Courier, Inc. (“Quicksilver”) originated as a Minnesota corporation in 1982. [Id. at ¶ 1; # 44-2]. Quicksilver operates as a holding company and, since its origination, has opened operating subsidiaries in Minnesota, Colorado, Wisconsin, Missouri, and Arizona. [# 47-2 at 7:14-17; # 26-1 at ¶ 4].²

Quicksilver originally conducted business only in Minnesota. [# 26-1 at ¶ 5]. In 1986, Quicksilver organized Quicksilver Express Courier of Colorado, Inc. (“Quicksilver Colorado”) as a wholly owned subsidiary. [# 26-1 at ¶ 5; compare # 44-3 with # 44-6]. Quicksilver purchases and titles the vehicles used by its employees according to state. [# 26-1 at ¶ 12]. Quicksilver pays for the insurance of each vehicle and those vehicles are titled in the state in which they are used; vehicles of one corporation are never used by another corporation. [Id. at ¶¶ 12, 13]. The individual employee is responsible for obtaining insurance for the vehicle from an agent in the state in which the vehicle is used. [Id. at ¶ 15]. Quicksilver then approves the coverage and pays for the business use portion of the premium. [Id. ] The individual employees are taxed the corresponding percentage for their personal use of the vehicles, including insurance and fuel and all other expenses. [Id. at ¶ 13]. Each vehicle is parked at the office or home of the employee who uses it. [Id. at ¶ 14].

On the day of the accident, Mr. Kipling was driving a 2005 Chevy Suburban (the “Suburban”) that Quicksilver had provided him for his personal and business use. [# 26-1 at ¶¶ 21, 40, 41; # 26-2]. The Suburban was insured by State Farm in Colorado, titled to Quicksilver Colorado, and Quicksilver was the named insured. [# 26-1 at ¶ 21; # 26-12; # 149 at ¶ 12]. As Mr. Kipling's vehicle was covered by a State Farm policy in Colorado, employees of Quicksilver and the Quicksilver corporation in Minnesota were similarly covered by State Farm policies. Relevant here are four policies that pertained to four vehicles registered in the State of Minnesota and titled to Quicksilver in Minnesota: no. 0539-563-23E; no. 71 6391-A08-23G; no. 327 4806-A01-23H; and no. 330-0729-A03-3C (“Minnesota Policies”). [# 26-1 at ¶¶ 25-39]. The vehicle described in policy number 0539-563-23E is a 2006 Toyota Tacoma pickup truck. [# 26-3]. The vehicle described in policy number 71 6391-A08-23G is a 2008 Toyota Sequoia. [# 26-6]. The vehicle described in policy number 327 4806-A01-23H is a 2007 Toyota Camry. [# 26-10]. The vehicle described in policy number 330-0729-A03-3C is a 2008 Toyota Corolla. [# 26-8]. Michael Crary, Curt Sloan, Tony Gardner, and Dean Herbst are the four Quicksilver employees designated as the principal drivers of the four vehicles covered by the Minnesota Policies. [# 26-1 at ¶¶ 11, 25, 29, 33, 37]. Quicksilver was listed as a named insured under the Minnesota Policies “so as to receive the proper notification of coverage limits and time frames.” [# 26-1 at ¶ 27]. Mr. Crary drove the 2008 Toyota Sequoia; Mr. Sloan drove the 2008 Toyota Corolla; Mr. Gardner drove the 2008 Toyota Camry; and Mr. Herbst drove the 2006 Toyota Tacoma.

Mr. Crary is the company's founder and chief executive officer. [# 26-1 at ¶ 1]. Mr. Sloan has served as the corporate financial officer of Quicksilver since 1982 and owns 11 percent of the company's stock. [Id. at ¶ 9]. Mr. Herbst and Mr. Gardner have ownership interests of less than 6 percent each in Quicksilver stock. [Id. at ¶ 8]. Mr. Kipling had an ownership interest of 3 percent in the company stock. [Id. at ¶ 7]. The Minnesota Policies were obtained from a Minnesota State Farm agent, Tim Meyer, in Shoreview, Minnesota. See, e.g., [id. at ¶ 16; # 26-3; # 26-6; # 26-8; # 26-10]. The Minnesota addresses of Mr. Crary, Mr. Sloan, Mr. Gardner, and Mr. Herbst were used in determining the rates charged under the policies. [# 26-5; # 26-7; # 26-9; # 26-11]. State Farm is incorporated in Illinois [# 149 at 22, ¶ 5], and the Minnesota Policies were executed by State Farm in Illinois. [# 149-1 at 71, ¶ 10]. The State Farm agent who obtained the applications for and bound the Minnesota Policies, and the underwriters who reviewed and approved the applications, were located in Minnesota. [# 149 at 30, ¶ 3].

The four Minnesota vehicles were driven only in Minnesota, and the Minnesota Policies were maintained in the individuals' names as the principal drivers. [# 26-1 at ¶¶ 20, 24]. Neither Plaintiff nor her husband was the principal driver of any of the vehicles covered by the Minnesota policies; and those vehicles were never driven in Colorado. [Id. at ¶ 17]. On July 27, 2011, Ms. Kipling filed this lawsuit asserting one claim for breach of contract on the basis that State Farm has failed to pay benefits for uninsured/underinsured motorist coverage to which Ms. Kipling was entitled under the four Minnesota Policies, and seeking general and special damages plus interest. [# 1 at 4, ¶¶ 19-23].

PROCEDURAL HISTORY

I. District Court

State Farm filed an Answer on November 14, 2011. [# 10]. On December 14, 2011, the Honorable Boyd N. Boland presided over a Scheduling Conference and entered a Scheduling Order. [# 14, # 15]. On April 17, 2012, State Farm filed a Motion for Summary Judgment, arguing that the Complaint presented a question of contract interpretation; the court should apply Minnesota law; and, under Minnesota law, Plaintiff cannot stack the UIM benefits of the Minnesota Policies. [# 26]. Defendant first asserted that the contract governing the Minnesota policies contains a choice of law provision providing for Minnesota law, even under general conflict of law rules Minnesota law would apply, and Minnesota law does not permit the stacking of UIM policies. Defendant then argued that even if Minnesota law did not apply, Plaintiff is not entitled to the UIM benefits in the Minnesota Policies because the Suburban is not a covered vehicle pursuant to those policies and neither Plaintiff nor Mr. Kipling qualified as an insured as defined under the UIM vehicle coverage contained in the Minnesota Policies.

Following multiple requests for extensions of time that the court granted, Plaintiff filed a Response on September 11, 2012. [# 44]. Ms. Kipling countered that the sole claim for relief asserted in the Complaint sounds in tort; that in multi-tort...