Encompass Insurance Co. v. Coast National Insurance Co.Encompass Insurance Co. v. Coast National Insurance Co.
toward Holley and was aggressively coming at him when Holley fired the last four shots at Cletis. However, the paths of the two gunshot wounds in Cletis‘s forearms5 suggest Cletis‘s arms may have been raised in a defensive position when Holley shot him. Viewing the evidence in the light most favorable to Roseetta, a reasonable juror could find Cletis had been raising his arms to defend himself from Holley‘s gunshots rather than attacking as Holley described.
These inferences taken together would support a reasonable conclusion Cletis was not the threat Holley described and Holley‘s use of lethal force against Cletis was unreasonable. Accordingly, the district court did not err in denying Holley‘s motion for summary judgment on the excessive force claim with regard to Holley‘s use of lethal force.6
III
The judgment of the district court is affirmed.
Limor Lehavi (argued) and Mariyetta A. Meyers-Lopez, Archer Norris, APLC, Newport Beach, CA, for Defendants-Appellees.
* The Honorable Michael R. Murphy, Senior Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
** Judge Berzon was originally a member of the panel, but recused herself after oral argument. Judge N.R. Smith was drawn to replace her. He has read the briefs, reviewed the record, and listened to the audio recording of oral argument.
OPINION
PREGERSON, Circuit Judge:
We must decide whether unloading an injured passenger from a motor vehicle constitutes “use” of that motor vehicle, under California law. We conclude that it does.
BACKGROUND
This case arises out of an automobile accident. Alexandra Van Horn was a passenger in a car driven by a man named Anthony Glen Watson. Watson lost control of his vehicle; the car ran off the road and crashed into a light pole. A second car, which was not involved in the crash, stopped at the scene of the accident to render aid. A woman named Lisa Torti was a passenger in the second car. Torti saw Van Horn inside the wrecked car, and allegedly feared that Van Horn might be in danger. (Torti later testified that Watson‘s car was smoking and leaking fluid, causing her to fear that the car might catch fire or explode.) Torti grabbed Van Horn and physically removed her from Watson‘s car.
Van Horn suffered severe spinal injuries after the car accident, and became a paraplegic. Van Horn sued Torti in California
At the time of the accident, Torti was insured under a “Package Policy“—including car insurance, homeowners insurance, and personal excess liability insurance—issued by Encompass Insurance Company.2 Torti tendered her defense against Van Horn‘s lawsuit to Encompass. Encompass accepted the tender, and assumed responsibility for Torti‘s defense.
Torti also sought to tender her defense to two additional insurance companies—Mid-Century Insurance Company and Coast National Insurance Company.
Mid-Century had issued a car insurance policy to Torti. The Mid-Century policy covered “damages for which an insured person is legally liable because of bodily injury to any person ... arising out of the ... use of a private passenger car....” Though Torti obtained the Mid-Century policy in connection with her own car (which was not involved in the accident), the policy also covered Torti‘s “use” of “any other private passenger car“—if such “use” was “with the permission of the owner.” Thus, if Torti “used” Watson‘s car with Watson‘s permission when she removed Van Horn from Watson‘s car, the Mid-Century policy covered Torti.
Coast National had issued a car insurance policy to Watson, the driver of the car that crashed. The Coast National policy covered liability for personal injuries “for which any ‘insured’ becomes legally responsible because of an accident.” The policy insured not only Watson, but also “[a]ny person using ‘[Watson‘s] covered auto’ with [Watson‘s] permission.” Thus, if Torti “used” Watson‘s car with Watson‘s permission when she removed Van Horn from Watson‘s car, the Coast National policy also covered Torti.
Both Mid-Century and Coast National rejected Torti‘s tender, refusing to accept any responsibility for her legal defense. Encompass continued to bear sole responsibility for Torti‘s defense, and ultimately settled Van Horn‘s claims against Torti for $4 million.
After settling Van Horn‘s lawsuit against Torti, Encompass brought this lawsuit against Mid-Century and Coast National. In this lawsuit, Encompass seeks contribution or subrogation for the expenses Encompass incurred in its defense and indemnification of Torti. Encompass argues that Mid-Century and Coast National had their own duty to defend and indemnify Torti: according to Encompass, the Mid-Century and Coast National insurance policies covered Torti when Torti removed Van Horn from Watson‘s car, because that act constituted permissive “use” of Watson‘s car. Mid-Century and Coast National deny that their insurance policies covered Torti, arguing that Torti did not engage in permissive “use” of Watson‘s car.
The district court entered judgment in favor of Mid-Century and Coast
The district court reasoned that Torti did not “use” Watson‘s car when she removed Van Horn from that car. The district court did not reach the issue of permission.
This appeal followed.
JURISDICTION
The district court had jurisdiction over this diversity action under
STANDARD OF REVIEW
“California‘s substantive insurance law governs in this diversity case.” West v. State Farm Fire & Cas. Co., 868 F.2d 348, 350 (9th Cir.1989). Whether an issue is a question of law or a question of fact is a substantive question, to which state law applies. See Wilcox v. Arpaio, 753 F.3d 872, 875 (9th Cir.2014). Once we determine whether an issue is a question of law or a question of fact, however, “the proper standard of review is a question of federal procedure and is governed by federal law.” West, 868 F.2d at 350.
“[I]nterpretation of an insurance policy is a question of law....” Ameron Int‘l Corp. v. Ins. Co. of State of Penn., 50 Cal. 4th 1370, 118 Cal.Rptr.3d 95, 242 P.3d 1020, 1024 (2010). We review questions of law de novo. Matter of McLinn, 739 F.2d 1395, 1403 (9th Cir.1984) (en banc).
DISCUSSION
We must decide whether Torti “used” Watson‘s car when she removed Van Horn from that car. The parties do not dispute that Torti “unloaded” Van Horn from Watson‘s car. Thus, we must decide whether “unloading” an injured passenger from an automobile constitutes “use” of that automobile, within the meaning of Mid-Century‘s and Coast National‘s insurance policies. We conclude that it does.
In this case, determining the meaning of the term “use” is an exercise in statutory construction. The relevant language in the Mid-Century and Coast National insurance policies is required by the California Insurance Code: “With some exceptions,
The text of the California Insurance Code makes clear that “unloading” a motor vehicle constitutes “use” of that motor vehicle. The California Insurance Code provides, in relevant part: “The term ‘use’ when applied to a motor vehicle shall only mean operating, maintaining, loading, or unloading a motor vehicle.”
As one would expect from the text of
Mid-Century and Coast National, for their part, argue that “unloading” a motor vehicle only constitutes “use” of that motor vehicle if the unloading is “integral to the function of the vehicle as a means of transport,” so that the person doing the unloading “gain[s] a benefit” from the vehicle. Mid-Century and Coast National point to Travelers Insurance Co. v. Northwestern Mutual Insurance Co., which held that performing maintenance on a motor vehicle (without more) was not necessarily “use” of the motor vehicle. 27 Cal. App. 3d 959, 104 Cal.Rptr. 283, 288 (1972). This argument fails, for two reasons.
First, Travelers can tell us nothing about the definition of “use” under
Second, and more fundamentally, there is no conflict between Travelers and the idea that “unloading” a vehicle constitutes “use” of that vehicle. Even if Travelers does limit the circumstances under which “maintaining” a vehicle constitutes “use” of that vehicle, Travelers imposes no such limitations on “unloading.” On the contrary, Travelers itself accepted the observation that “‘use’ has also been defined to mean loading and unloading of a motor vehicle.” Travelers, 104 Cal.Rptr. at 286 (quoting Yandle v. Hardware Mut. Ins. Co., 314 F.2d 435, 437 (9th Cir.1963)). Indeed, even before the enactment of
Defendants’ attempt to distinguish Argonaut falls short. Even if the alleged tortfeasor in Argonaut did “gain[] a benefit” from the use of the vehicle as a means of transportation, that fact played no role in the California Supreme Court‘s decision. Nor was the court concerned with whether a nexus existed between the unloading and the individual‘s operation of the vehicle. Dissenting Opinion at 17. Instead, Argonaut examined only whether the person unloading the vehicle “was actually doing the unloading“—whether he was “actively
The dissent seeks to draw a distinction between commercial vehicles (for example, the truck in Argonaut) and other kinds of vehicles—suggesting that unloading the former is “use,” but that unloading the latter may not be. See Dissenting Opinion at 15. We are not convinced. The text of
Nor do the California courts seem to have adopted the dissent‘s distinction between commercial and noncommercial vehicles, in the context of unloading. In at least two cases, California courts have held that unloading noncommercial vehicles constituted “use” of those vehicles. In one case, a dog “unloading itself” from a “fourdoor sedan” constituted “use” of that sedan. Hartford Accident & Indem. Co. v. Civil Serv. Emps. Ins. Co., 33 Cal. App. 3d 26, 108 Cal.Rptr. 737, 739, 742 (1973). In another case, “the process of unloading a child” from a two-door sedan likewise constituted “use.” Nat‘l Indem. Co. v. Farmers Home Mut. Ins. Co., 95 Cal. App. 3d 102, 157 Cal.Rptr. 98, 99-101 (1979).
In short, the plain text of
There is no merit to the suggestion that this definition of “use” produces absurd results. Mid-Century and Coast National warn that, if “unloading” a vehicle constitutes “use” of that vehicle, “a person breaking a car window and stealing a purse would be ‘using’ the car....” As an initial matter, it does not seem absurd to suggest that a burglar has “used” the car he burgles: the burglar has certainly “availed [him]self of” the car, or “exploit[ed]” the car. Use, Merriam-Webster, http://www.merriam-webster.com/dictionary/use (last visited August 5, 2014). More to the point, the mere fact that a burglar might be said to “use” the car he burgles does not mean that the burglar would be covered by a California car insurance policy. Even if the insurance policy did not otherwise limit its “unloading” coverage to certain persons (which it would be free to do under California law, see
To be sure, the idea that Torti “used” Watson‘s car is counterintuitive: unloading an injured passenger is not the way most people “use” a car. But we are not asked to decide what “use” of a car means to most people: we are asked to decide what “use” of a car means in the
As used in Mid-Century‘s and Coast National‘s insurance policies, the term “use” is defined by
CONCLUSION
We conclude that unloading an injured passenger from an automobile constitutes “use” of that automobile, under California law. Thus, we reverse the judgment of the district court, and remand for further proceedings consistent with this opinion.
REVERSED and REMANDED.
MURPHY, Circuit Judge, dissenting:
I respectfully dissent from the majority‘s conclusion that Torti was using Watson‘s vehicle when she unloaded Van Horn.
The insurance policies at issue do not define the term “use.” Merriam-Webster defines “use,” in relevant part, as “to put into action or service,” to “avail onself of,” “to carry out a purpose or action by means of.” Use Definition, Merriam-Webster.com, http://www.merriam-webster.com/dictionary/use (last visited August 5, 2014). This definition suggests that an individual does not use a motor vehicle unless she employs it as a vehicle. See Waller v. Truck Ins. Exch., Inc., 11 Cal. 4th 1, 44 Cal.Rptr.2d 370, 900 P.2d 619, 627 (1995) (holding the interpretation of an insurance contract is a question of law which requires a court to “look first to the language of the contract in order to ascertain its plain meaning“). In the context of statutorily mandated permissive use coverage, the California Insurance Code defines use to “only mean operating, maintaining, loading, or unloading a motor vehicle.”
The requirement of some further association with the vehicle beyond mere loading or unloading is supported by the pre-
As the majority states, the Travelers court observed that “‘use’ has been defined to mean loading and unloading of a motor vehicle.” Id. at 286. But the majority fails to acknowledge that the cases cited by the Travelers court involved commercial vehicles. Id. Travelers specifically noted that “[t]he reasoning in those cases points to the function of the insured vehicle as a means of transporting goods and arrives at the conclusion that loading and unloading of a truck is integral to the mission of transporting.” Id. Torti was1 not engaged in the transportation of goods and her unloading of Van Horn was not integral to such transportation. Thus, the brief reference to loading and unloading in Travelers provides no support for the majority‘s conclusion.1
The cases on which the majority relies for the proposition that California courts have “consistently” equated unloading of a non-commercial vehicle, “without more” to be a “use” of the vehicle have not so held. None, in fact, even addressed the question of whether a non-commercial vehicle can be unloaded by a individual who is not also employing it as a vehicle. In Scottsdale Insurance Co. v. State Farm Mutual Automobile Insurance Co., the California Court of Appeals specifically refused to address the “unloading” argument, concluding it was not raised below. 130 Cal. App. 4th 890, 30 Cal.Rptr.3d 606, 614-15 (2005) (interpreting the term “operated by” in a matter involving an individual who was injured when the bucket of a cherry picker fell). In City of Los Angeles v. Allianz Insurance Co., the California Court of Appeals addressed whether the City of Los Angeles was the “borrower” of a commercial truck, describing the issue as “[t]he sole question in this case.” 125 Cal. App. 4th 287, 22 Cal.Rptr.3d 716, 719 (2004). National American Insurance Co. v. Coburn, involved the use of a van by the person who was also operating it. 209 Cal. App. 3d 914, 257 Cal.Rptr. 591, 595 (1989) (“All the alleged negligence arose from the ... auto-related conduct [of the operator of the vehicle], i.e., the use and loading of the van for the camping trip. It cannot be seriously argued that the parking,
Similarly, the majority‘s statement that California courts have twice “held that unloading non-commercial vehicles constituted ‘use’ of those vehicles,” Majority Opinion at 11, paints only half the picture. One case involved a passenger who was bitten by a dog as both exited a vehicle driven by the insured. Hartford Accident & Indemnity Co. v. Civil Service Employees Insurance Co., 33 Cal. App. 3d 26, 108 Cal.Rptr. 737, 739 (1973). The California Court of Appeals held that the transportation of the dog by the driver of the vehicle, was a use of the vehicle. Id. at 741-42. Coverage was also found in a situation where the insured, who was the driver of the vehicle, unloaded a child from the vehicle. National Indemnity Co. v. Farmers Home Mutual Insurance Co., 95 Cal. App. 3d 102, 157 Cal.Rptr. 98, 99-101 (1979). Thus, in both cases upon which the Majority relies, it was concluded the unloading of the vehicle constituted a use of that vehicle by the person operating it. The majority has not identified a single California case not involving the commercial transportation of goods in which an individual who was neither the driver of, nor a passenger in, a vehicle was ruled to be using the vehicle by unloading it.
Although Travelers addressed the issue of maintenance as a use, its reasoning is equally applicable to the unloading of a vehicle and it supports the conclusion that an individual is not “using” a vehicle for coverage purposes simply by unloading it unless there is a nexus between the unloading and the individual‘s operation of the vehicle. When the California legislature enacted
The policy provisions at issue in this matter, given their ordinary meaning and construed in the context of the contracts as a whole and the applicable statute and case law, are unambiguous and do not cover Torti‘s removal of Van Horn from Watson‘s vehicle. Torti‘s actions in unloading Van Horn do not constitute a use of Watson‘s vehicle because Torti did not avail herself of the vehicle simply by unloading it. Because Torti was not operating Watson‘s vehicle, or connected to the vehicle or the transportation of Van Horn in any way, she was not using Watson‘s vehicle in a manner contemplated by the policies when she unloaded Van Horn. Thus, Torti was not an insured under Watson‘s policy or her own motor vehicle policy.
Because Torti was not using Watson‘s vehicle, Encompass cannot show a potential for coverage under the Coast National and Mid-Century policies and the district court should be affirmed.