One Call Med., Inc. v. Nat'l Fire & Marine Ins. Co.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Citation401 F.Supp.3d 994
Decision Date02 August 2019
Docket NumberNo. 2:17-cv-01385-KJM-CKD,2:17-cv-01385-KJM-CKD

401 F.Supp.3d 994

ONE CALL MEDICAL, INC., et al., Plaintiffs,

No. 2:17-cv-01385-KJM-CKD

United States District Court, E.D. California.

Signed August 2, 2019

401 F.Supp.3d 995

Benjamin J. Galloway, PHV, Mark E. Parsky, PHV, McVey & Parsky, LLC, Chicago, IL, Joshua S. Goodman, Goodman Neuman Hamilton, LLP, San Francisco, CA, for Plaintiffs.

Mark G. Bonino, Hayes Scott Bonino Ellingson Suslani Simonson & Clause, LLP, San Carlos, CA, Charles Edward Tillage, Hayes Scott Bonino Ellingson McLay LLP, Redwood City, CA, for Defendant.



401 F.Supp.3d 996

In this insurance coverage case, defendant moves for summary judgment of all of plaintiffs' claims. For the reasons below, the court GRANTS defendant's motion and DISMISSES the case.


Employers Insurance Group ("Employers") is an insurer that issues policies covering workers' compensation risks. Undisputed Material Fact (UMF) 1, ECF No. 17-2. Employers contracted with plaintiffs One Call Medical, Inc. and Zone Care USA of Delray, LLC (collectively "One Call") to have One Call provide workers' compensation services to Employers' clients, including the arrangement of transportation for injured workers. UMF No. 2. One Call's parent company, Coral Acquisition, Inc., purchased a managed care errors and omissions liability insurance policy for itself and its subsidiaries from defendant National Fire & Marine Insurance Company ("National Fire"). UMF No. 3.

On September 6, 2016, One Call arranged for Tyrone Shacklefoot, an injured worker covered under Employers, to be transported to his medical appointment in a Toyota Sienna van taxi ("the van"), pursuant to One Call's agreement with Employers. UMF No. 5–6. The van was neither owned nor operated by One Call. Opp'n, ECF No. 20, at 151 (citing Mot. at 1–2; UMF 6, 8, 14). While transporting Mr. Shacklefoot back home from his appointment, the van was involved in a five-vehicle collision; Mr. Shacklefoot was severely injured and rendered a quadriplegic as a result. See UMF No. 7–8; Employers Demand Letter at 55. Employers demanded indemnification from One Call with respect to the resulting costs (hereinafter the "Employers Claim"). Demand Letter at 55. Before the court is One Call's action against its insurer, National Fire, in which One Call claims National Fire is obligated to defend and indemnify One Call for the Employers Claim. Mot., ECF No. 17-1, at 7.

A. Employers' Demand Letter and Arbitration Claims Against One Call

On September 30, 2016, Employers sent a demand letter to One Call seeking "indemnification against all increased costs and benefits it is obligated to pay to Mr. Shacklefoot as a result of the injuries he sustained in the cab ride on September 6, 2016." Not. of Removal, ECF No. 1, Ex. 1 ("Compl.") ¶ 40; see also Mot., Ex. D, ECF No. 17-5 ("Demand Letter"), at 55. When One Call refused to meet Employers' demand, the parties entered arbitration over the dispute, as required by the "Master Services Agreement" between them. See Alternative Dispute Resolution Statement of Claim ("ADR Claim"), ECF No. 17-5, Ex. T. Employers' statement of its arbitration claim, dated August 2017, describes the Shacklefoot accident, ADR Claim ¶¶ 20– 24, and alleges the following claims against One Call: (1) fraudulent inducement, (2) negligent misrepresentation, (3) breach of contract for failure to indemnify,

401 F.Supp.3d 997

(4) breach of contract for failure to follow same service standards for all customers, (5) breach of contract for failure to permit audit, and (6) breach of contract for failure to maintain insurance coverage. ADR Claim ¶¶ 35–82.

B. One Call's Claim Against National Fire

On May 11, 2017, One Call filed the operative complaint here, which alleges claims for declaratory relief and breach of contract against National Fire, and seeks legal defense costs and indemnity from National Fire for Employers' claim against One Call. Compl. at 12–14. One Call's complaint, filed before Employers' statement of arbitration existed, only refers to the claims made in the demand letter, which it terms the "Employers Claim." See Compl. ¶ 40 ("All claims asserted in the Demand Letter are hereinafter collectively referred to as the ‘Employers Claim.’ "). The more specific claims asserted in the arbitration—namely, fraudulent inducement, negligent misrepresentation, breach of contract for failure to follow same service standards for all customers, breach of contract for failure to permit audit, and breach of contract for failure to maintain insurance coverage—are not part of the "Employers Claim" as it is defined in the complaint. See id.

The complaint alleges that One Call forwarded Employers' demand letter to National Fire and requested coverage for the Employers Claim under the managed care and omissions liability insurance policy One Call purchased from National Fire ("the Berkshire policy"). Compl. ¶ 41. National Fire denied One Call's claim, citing the policy's automobile exclusion clause, which provides:

Section 9 Exclusions

The Insurer will not be liable to make any payment for Loss in connection with any Claim made against any Insured:


D. Motor Vehicle

based upon, arising out of, or attributable to, or directly or indirectly resulting from or in any way involving the actual or alleged ownership, operation, use, maintenance, loading or unloading of any motor vehicle, trailer, watercraft, aircraft or helipad.

UMF No. 12; Compl. ¶¶ 26, 43. One Call resubmitted its claim for coverage, asserting that the Employers Claim was "for negligent management of Mr. Shacklefoot's transportation," and therefore the exclusion did not apply. Compl. ¶ 44. National Fire denied the claim again. Id. ¶ 45.

Based on these facts, One Call pleaded the following claims against National Fire: (1) declaratory relief that "the Employers Claim qualifies for coverage under the Berkshire Policy" and

[t]he Motor Vehicle exclusion in the Berkshire Policy does not apply to exclude coverage because the Employers Claim is not one for negligent operation of motor vehicle. Instead, it alleges negligent management of Mr. Shacklefoot's transportation needs, a professional task encompassed by the Employers Contract.

Id. ¶¶ 48, 49,2 and (2) breach of the Berkshire policy contract, id. ¶ 56.

On October 17, 2018, National Fire moved for summary judgment on each of One Call's claims based on the application of the Motor Vehicle Exclusion contained in plaintiffs' policy. Mot. at 7–8. Plaintiffs opposed, ECF No. 20, and defendant filed a reply, ECF No. 23. The court heard oral argument on January 11, 2019. For the

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following reasons, the court GRANTS defendant's motion for summary judgment.


A court will grant summary judgment "if ... there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The "threshold inquiry" is whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).3

The moving party bears the initial burden of showing the district court "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the nonmoving party, which "must establish that there is a genuine issue of material fact ...." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 585, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In carrying their burdens, both parties must "cit[e] to particular parts of materials in the record ...; or show [ ] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1) ; see also Matsushita , 475 U.S. at 586, 106 S.Ct. 1348 ("[the nonmoving party] must do more than simply show that there is some metaphysical doubt as to the material facts"). Moreover, "the requirement is that there be no genuine issue of material fact .... Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson , 477 U.S. at 247–48, 106 S.Ct. 2505 (emphasis in original).

In deciding a motion for summary judgment, the court draws all inferences and views all evidence in the light most favorable to the nonmoving party. Matsushita , 475 U.S. at 587–88, 106 S.Ct. 1348 (citation omitted); Whitman v. Mineta , 541 F.3d 929, 931 (9th Cir. 2008). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ " Matsushita , 475 U.S. at 587, 106 S.Ct. 1348 (quoting First Nat'l Bank of Arizona v. Cities Serv. Co. , 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968) ).



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