Tri-State Ins. Co. of Minn. v. H.D.W. Enterprises
| Decision Date | 05 December 2001 |
| Docket Number | No. 00-4020-SAC.,00-4020-SAC. |
| Parties | TRI-STATE INSURANCE COMPANY OF MINNESOTA, Plaintiff, v. H.D.W. ENTERPRISES, INC., Amy Lynn Criqui, Individually and as Mother and Next Friend of Corvin Lee Criqui, a minor child, and Berkley Danielle Criqui, a minor child, and Timothy M. Acton, Defendants. |
| Court | U.S. District Court — District of Kansas |
Mark A. Buck, Nathan Burghart, Topeka, KS, for plaintiff.
Kent M. Bevan, John F. Wilcox, Jr., Dysart, Taylor, Lay, Cotter & McMonigle, P.C., Ronald L. Holt, Watkins, Boulware, Lucas, Miner, Murphy & Taylor, LLP, Kansas City, MO, for HDW Enterprises Inc.
David R. Morris, Kansas City, MO, for Amy Lynn Criqui.
Jennifer L. Groover, Shook, Hardy & Bacon L.L.P., Dana M. Harris, Harris, McCausland & Schmitt, P.C., Kansas City, MO, for Timothy M. Acton.
This declaratory judgment case based upon diversity jurisdiction comes before the court on Tri-State Insurance Company of Minnesota's (hereinafter "Tri-State") motion for summary judgment. The fundamental issue posed by the parties is whether any material issue of fact precludes a determination of insurance coverage for a certain bus which was involved in a fatality accident in Kansas on September 27, 1999. Defendant Timothy Acton was driving the bus at the time of the accident in which defendant Amy Criqui's husband, the father of Corvin and Berkley Criqui, was killed. Defendant H.D.W. Enterprises, Inc., (hereinafter "HDW"), a Missouri corporation, allegedly owned the bus at the time, and had a written policy of automobile insurance from Tri-State, a Minnesota corporation.
A court grants a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure if a genuine issue of material fact does not exist and if the movant is entitled to judgment as a matter of law. The court is to determine "whether there is the need for a trial — whether, in other words, 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). "Only disputes over facts that might affect the outcome of the suit under the governing law will ... preclude summary judgment." Id. There are no genuine issues for trial if the record taken as a whole would not persuade a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "[T]here are cases where the evidence is so weak that the case does not raise a genuine issue of fact." Burnette v. Dow Chemical Co., 849 F.2d 1269, 1273 (10th Cir.1988).
The initial burden is with the movant to "point to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, 506 U.S. 1013, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992). If this burden is met, the nonmovant must "come forward with specific facts showing that there is a genuine issue for trial as to elements essential to" the nonmovant's claim or position. Martin v. Nannie and Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir.1993) (citations omitted). The non-movant's burden is more than a simple showing of "some metaphysical doubt as to the material facts," Matsushita, 475 U.S. at 586, 106 S.Ct. 1348; it requires "`present[ing] sufficient evidence in specific, factual form for a jury to return a verdict in that party's favor.'" Thomas v. International Business Machines, 48 F.3d 478, 484 (10th Cir.1995) (quoting Bacchus Industries, Inc. v. Arvin Industries, Inc., 939 F.2d 887, 891 (10th Cir.1991)).
The court views the evidence of record and draws all reasonable inferences in the light most favorable to the nonmovant. Id. A party relying on only conclusory allegations cannot defeat a properly supported motion for summary judgment. White v. York Intern. Corp., 45 F.3d 357, 363 (10th Cir.1995).
More than a "disfavored procedural shortcut," summary judgment is an important procedure Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265(1986). At the same time, a summary judgment motion does not empower a court to act as the jury and determine witness credibility, weigh the evidence, or choose between competing inferences. Windon Third Oil and Gas Drilling Partnership v. Federal Deposit Ins. Corp., 805 F.2d 342, 346 (10th Cir. 1986), cert. denied, 480 U.S. 947, 107 S.Ct. 1605, 94 L.Ed.2d 791(1987).
The parties have provided the court with an abundance of evidence and memoranda which the court has carefully reviewed. After so doing, the court is convinced that summary judgment in defendants' favor is appropriate and Tri-State's motion for summary judgment is denied.
The facts set forth in this section are intended to be a summary of the events which transpired. Other facts crucial to resolution of the issues are set forth in the analysis which follows.
HDW is in the business of sanitation and refuse hauling. On September 28, 1996, Harvey Williams, the principal shareholder of HDW, purchased a school bus at an auction, on behalf of HDW. Williams did not intend to use the bus in the business of HDW. The seller soon thereafter sent Williams the certificate of title for the bus, the back of which was signed by seller. The certificate did not indicate who the purchaser of the bus was, and neither Williams nor anyone else completed the assignment section of the certificate of title until after the bus accident. It was not until November 30, 1999, that the certificate of title for this bus was completed, and not until December of that year that legal title for this bus was issued to HDW.
In December of 1997, Williams' daughter, Kimberlie Allen, and her husband Terry, took over the management of HDW. In October of 1998, HDW applied for insurance through Doyle Buetzer, who had solicited their business. Buetzer's agency, Green Hills, had entered into an agency agreement with Tri-State in July of 1998. Buetzer acted as an agent for various other insurance companies, as well.
HDW received a commercial package policy, which included automobile coverage for certain vehicles listed in the schedule of the policy. The bus involved in the accident is not listed as a covered vehicle in the policy. It is disputed as to whether HDW revealed, at the time of its initial application for insurance with Tri-State, its ownership of vehicles that were not listed in the schedule of the policy, including the bus. Williams did not want to pay insurance premiums for vehicles not used in his business.
In late August 1999, Williams told Buetzer he needed to get insurance on the bus, and told Allen to get the proper insurance and license for the trip. Allen then spoke with Buetzer on one or more occasions to get insurance for the bus. Buetzer's note dated September 7, 1999, reflects that Kim Allen called Buetzer regarding insurance on the bus, and Buetzer noted the need to get the VIN number for the bus. On or about September 9, 1999, when Allen requested insurance for the bus, Buetzer replied "OK."
The record contains an endorsement memorandum from Buetzer to Tri-State requesting coverage for this bus, dated September 15, 1999. The parties dispute whether this memorandum was actually created on that date, however, because the person who signed it did not work on the 15th, and it contains a VIN number which Buetzer did not receive until after the accident, and which Buetzer erroneously recorded in the memo dated September 15th and on the insurance card he sent to HDW after the accident.
On September 27, 1999, the bus was involved in a fatality accident in Kansas while Tim Acton, an acquaintance of Williams', was driving. The following day, Buetzer notified Tri-State of the accident. On October 7, 1999, Buetzer met with Allen in her office and got the VIN number for the bus, but recorded one of its digits erroneously.
On October 19, 1999, Tri-State received the endorsement memorandum dated September 15, 1999, from Buetzer regarding bus coverage. Tri-State soon thereafter attempted to call Buetzer to decline coverage, but could not reach him, so notified him by memo dated October 21, 1999, that it preferred not to write insurance on this type of vehicle. This lawsuit regarding coverage of the bus followed.
In moving for summary judgment, plaintiffs first attempt to show that no written policy of insurance was established for the bus. It is undisputed that in November of 1998, Tri-State issued to H.D.W. a Commercial Package Policy, No. CPP 6948290-10, which included Commercial Auto coverage. (Dk. 136, Exh. 19). That policy does not purport to cover all vehicles then owned or after-acquired by H.D.W. Instead, the policy unambiguously restricts its coverage to certain vehicles listed by description and serial number in the policy declarations.
The policy shows a "symbol 7" to describe the coverage for the vehicles listed in the policy. (Id., Commercial Auto Policy, p. 1). The policy describes "Symbol 7" coverage as: (Id., Business Auto Coverage Form, p. 1 of 11). Item Three of the Declarations of the Business Auto Coverage Form lists 19 specific vehicles as covered under the policy. (Id., Business Auto Coverage Form Declarations, Schedule of Covered Autos, Item Three, p. 1-3). The parties agree that H.D.W.'s written policy of automobile insurance from Tri-State did not expressly...
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