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

• Decision Date: 07 April 1995
• Docket Number: Civ. No. 94-1030 JP/WWD.
• Citation: 883 F. Supp. 583
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Plaintiff, v. Edmond and Barbara BLYSTRA, individually and as guardian of Kevin Blystra, a minor, Defendants/Third-Party Plaintiffs, v. FARMERS INSURANCE CO. OF ARIZONA, Third-Party Defendant.
• Court: U.S. District Court — District of New Mexico

883 F. Supp. 583

STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Plaintiff, v. Edmond and Barbara BLYSTRA, individually and as guardian of Kevin Blystra, a minor, Defendants/Third-Party Plaintiffs, v. FARMERS INSURANCE CO. OF ARIZONA, Third-Party Defendant.

Civ. No. 94-1030 JP/WWD.

United States District Court, D. New Mexico.

April 7, 1995.

Rudolph A. Lucero, Terri L. Sauer, Miller, Stratvert, Torgerson & Schlenker, Albuquerque, NM, for plaintiff.

Stephen F. Lawless, Thomas L. Grisham, Grisham & Lawless, Albuquerque, NM, for defendant.

James E. Lieuwen, Pelton & O'Brien, Albuquerque, NM, for third-party defendant.

MEMORANDUM OPINION AND ORDER

PARKER, District Judge.

The subjects of this Memorandum Opinion and Order are defendants'/third-party plaintiffs' ("Blystras'") October 6, 1994 motion for summary judgment and plaintiff State Farm Automobile Insurance Company's ("State Farm's") October 24, 1994 cross-motion for summary judgment, and third-party defendant Farmers Insurance Company's ("Farmers'") January 27, 1995 motion for summary judgment and the Blystras' February 10, 1995 cross-motion for summary judgment. After careful consideration of the pleadings, attached documentation, law and facts, I find State Farm's motion for summary judgment and Farmers' motion for summary judgment should be granted. The Blystras' motions for summary judgment should be denied.¹

On the morning of May 18, 1993, young Kevin Blystra was walking along the 1200 block of Easterday Road in Albuquerque. Either the driver or the passenger of a white Chevrolet truck shot Kevin Blystra in his leg with a pellet gun as the truck drove by. Neither the driver nor the owner of this truck has been identified. The Blystras have incurred substantial medical costs as a result of the shooting.

At the time of the shooting, the Blystras possessed two State Farm policies and three Farmers policies. These policies provided uninsured motorists coverage and medical payments coverage. No party disputes Kevin Blystra's status as an insured under these policies. The State Farm policies' uninsured motorists coverage states:

We will pay all damages for bodily injury or property damage an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury or property damage must be caused by accident arising out of the ownership, maintenance or use of an uninsured motor vehicle.

"Uninsured motor vehicle" includes "a `hit-and-run' motor vehicle whose owner or driver remains unknown and which was the proximate cause of bodily injury to an insured...." The Farmers uninsured motorists coverage is substantially similar, in that the insured's bodily injury must be "caused by accident" and "arise out of the ownership, maintenance or use of the uninsured motor vehicle." The Farmers policy defines "uninsured motor vehicle" in part as "a hit-and-run vehicle whose operator or owner has not been identified and which strikes ... you or any family member."

Both the State Farm and the Farmers policies also provided medical payments coverage, under the terms of which the insurer promised to pay reasonable medical expenses for bodily injury caused by accident. The State Farm medical payments coverage required that the injury occur either while the insured operated or occupied a covered vehicle or "through being struck as a pedestrian by a motor vehicle or trailer." Similarly, the term "insured person" is defined in the Farmers medical payments provisions as "you or any family member while occupying, or through being struck by, a motor vehicle...." As with the uninsured motorists coverages, the Farmers and the State Farm medical payments coverages required the occurrence of an accident.

Plaintiff State Farm brought this declaratory judgment action against the Blystras seeking a determination that it is not liable under its insurance contracts for Kevin Blystra's injuries. The Blystras filed a third-party complaint against Farmers on November 4, 1994 after Farmers denied coverage. The coverage issues are now ripe for summary adjudication.

Summary judgment is an integral part of the Federal Rules of Civil Procedure, which are intended to "`secure the just, speedy, and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 1). A motion for summary judgment may be granted only when "there is no genuine issue of material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "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 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Although the material submitted by the parties in support of and in opposition to the motion must be construed liberally in favor of the party opposing the motion, Harsha v. United States, 590 F.2d 884, 887 (10th Cir.1979), the burden on the moving party may be discharged by demonstrating the absence of evidence to support the non-moving party's case. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. In such a situation, the moving party is entitled to judgment as a matter of law "because the non-moving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Id. at 322, 106 S.Ct. at 2552.

A federal court sitting in diversity must apply the law of the forum state. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). Particularly, the federal court should look to the state supreme court's most recent statement of applicable law, Southwest Forest Industries, Inc. v. Sutton, 868 F.2d 352, 354 (10th Cir.1989), cert. denied, 494 U.S. 1017, 110 S.Ct. 1320, 108 L.Ed.2d 496 (1990), and if unavailing, to any state intermediate court's pronouncements. Daigle v. Shell Oil Co., 972 F.2d 1527, 1543 (10th Cir.1992). In predicting how the New Mexico Supreme Court would rule in this case, I am guided by "policies underlying the applicable legal principles, and the doctrinal trends indicated by these policies." Weiss v. United States, 787 F.2d 518, 525 (10th Cir.1986) (citation omitted). I may also take into consideration decisions from other jurisdictions and "the general weight and trend of authority." Armijo v. Ex Cam, Inc., 843 F.2d 406, 407 (10th Cir.1988).

In order for the Blystras to recover uninsured motorists benefits and medical payments, they must demonstrate that Kevin Blystra's injuries were the result of an accident or "caused by accident" as the policies specify. The term "accident" is defined as "an unexpected happening without intention or design which produces injury or damage." 12 George J. Couch et al., Couch on Insurance 2d § 45:34, at 266 (1981) (citations omitted). It should be self-evident that the plain meaning of the term "accident" does not encompass a criminal assault.

Insurance is fundamentally a matter of contract law. Stewart v. State Farm Mut. Auto. Ins. Co., 104 N.M. 744, 748, 726 P.2d 1374, 1378 (1986). "An insurance contract should be construed as a `complete and harmonious instrument designed to accomplish a reasonable end.'" Knowles v. United Servs. Auto. Ass'n, 113 N.M. 703, 705, 832 P.2d 394, 396 (1992) (quoting Safeco Ins. Co. of Am. v. McKenna, 90 N.M. 516, 520, 565 P.2d 1033, 1037 (1977)). The language the parties employed in their agreement "must be given its natural and ordinary meaning." Gamboa v. Allstate Ins. Co., 104 N.M. 756, 758, 726 P.2d 1386, 1388 (1986) (quoting Sears v. Wilson, 10 Kan.App.2d 494, 704 P.2d 389, 390 (1985)). Although ambiguities in a policy must be liberally construed in favor of the insured, Thompson v. Occidental Life Ins. Co., 90 N.M. 620, 621, 567 P.2d 62, 63 (Ct.App.), cert. denied, 91 N.M. 4, 569 P.2d 414 (1977), a clause is ambiguous only if it is "reasonably and fairly susceptible of different constructions." Knowles, 113 N.M. at 705, 832 P.2d at 396 (quoting Levenson v. Mobley, 106 N.M. 399, 401, 744 P.2d 174, 176 (1987)). "The courts should not resort to a strained construction of the policy for purposes of creating an ambiguity when no ambiguity in fact exists." Gamboa, 104 N.M. at 759, 726 P.2d at 1389 (citation omitted).

The phrase "caused by accident" is not ambiguous. Kevin Blystra was not a victim of an accident. He was the victim of a drive-by shooting, an intentional, deliberate, and criminal act. Nevertheless, the Blystras cite to decisions from other jurisdictions which state that the question of whether an occurrence was an "accident" must be analyzed from the perspective of the insured victim; and these courts hold that, from the insured's perspective, an assault is an accident. See, e.g., Davis v. State Farm Mut. Auto. Ins. Co., 264 Or. 547, 507 P.2d 9, 10 (1973):

Whether the occurrence is accidental depends entirely upon the point from which the question is viewed. If the occurrence is looked at from the point of view of the person who inflicts the harm ..., it is intentional. If the occurrence is looked at from the victim's standpoint, it is unforeseen, unintended, unexpected, and has every aspect of an accident as long as the occurrence was not provoked.

See also Nationwide Mut. Ins. Co. v. Knight, 34 N.C.App. 96, 237 S.E.2d 341, 343 (1977) ("From the point of view of the victim of an unexpected and unprovoked assault ..., his damages are just as accidental as if he had been negligently struck while crossing the street." (citation omitted)), rev. denied, 293 N.C. 589, 239 S.E.2d 263 (1977). This reasoning is, apparently, the majority view. See Willard v. Kelley, 803 P.2d 1124, 1128-29 and n. 7-8 (Okla.1990) (citing cases); State Farm Mut. Auto. Ins. Co. v. McMillan, No. 93-1721, 1994 WL 484963, at *5, ___ P.2d ___, ___ (Col.Ct.App. Sept. 8, 1994) (citing cases)....