Appellee Progressive Casualty Insurance Company issued Road Express, Inc. (Road Express) a commercial automobile insurance policy covering injuries arising out of the ownership, maintenance, or use of insured vehicles. The question on appeal is whether the policy Appellee issued covers severe and permanent injuries suffered by Appellant when a truck owned by Four Star Transport, Inc. (Four Star) backed over Appellant while he was fighting with Road Express employees. To clarify, only the vehicle liability policy of the company that employed the assailants is at issue; Four Star’s liability is not.
The policy issued by Appellee provides coverage for personal and property damages “caused by an ‘accident’ and resulting from the ownership, maintenance, or use of covered ‘autos’.” Aplt.App. at 144 (Policy). At trial, Appellee moved for summary judgment contending that Appellant’s injuries were not covered under its liability policy. The district court granted summary judgment in favor of Appellee,
The incidents that gave rise to this appeal occurred in Oklahoma City, Oklahoma, on June 8, 1996, at a crowded truck stop along Interstate 40. Appellant, a truck driver, exited the interstate around midnight. Traffic that night was especially congested, and there were long lines at every gas pump. Upon reaching the fuel pumps, Appellant discovered another truck driver washing his rig at the fuel island. Appellant approached the man and told him to “pull your truck forward, there’s trucks backed up all the way to interstate 40.” Aplt.App. at 106. The man responded that he would move his truck when he finished washing it. Appellant grabbed a brush from the man, who then accused Appellant of pushing him. Tensions escalated, but eventually the two truckers went their separate ways. See id. at 105-08.
As long as five to ten minutes after the original confrontation, the man who had been washing his truck, accompanied by two others, attacked Appellant as Appellant walked toward the fuel stop. Appellant’s lawsuit alleged that two of his assailants, including the man that was washing his truck at the fuel pump, were Road Express employees and the third was a passenger in the Road Express truck. See Aplt.App. at 10. Appellant attempted to flee, but his assailants continued to pursue him. The fight continued and ranged across much of the truck stop. Eventually, the three assailants knocked Appellant to the ground either behind or under the parked Four Star truck. With Appellant on the ground, his assailants kicked and punched him repeatedly. The altercation ended only when the driver of the Four Star truck unknowingly backed across Appellant, crushing his pelvis. See id. at 109-13.
It is well established that federal courts sitting in diversity apply the choice of law provisions of the forum state.
See Klaxon Co. v. Stentor Elec. Mfg. Co.,
When New Jersey’s highest court has not definitively decided the precise issue we must decide, we nonetheless must determine what decision that court would make if faced with the same facts and issues that are before us.
1
See Phillips v. State Farm Mut. Auto. Ins. Co.,
The district court determined that under New Jersey law the policy Ap-pellee issued does not cover Appellant’s injuries, because the connection between Appellant’s injuries and the ownership, maintenance, or use of the covered auto was not substantial. Because the district court made that determination on summary judgment, we review the decision de novo, applying the same legal standard used by the district court.
See Simms v. Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Servs.,
Appellant contends that his injuries stem from Road Express’s ownership, use, and maintenance of insured vehicles. To prevail, Appellant must show that the insured vehicle was “central to the incident.”
See Stevenson v. State Farm Indem. Co.,
After reviewing the existing case law, the district court expressly held that in this case the nexus was not substantial, adding that “[a]ny nexus between the maintenance of the Road Express truck and Defendant’s injuries was not substantial but tangential or remote.” ApltApp. at 268 (Order). Although the reason for Appellant’s original encounter with one of his assailants was arguably an issue of vehicle maintenance, Appellant’s injuries did not result from this encounter. The injuries sustained by the Appellant resulted from a fight occurring five to ten minutes after the original confrontation.
Appellee’s articulation that “[t]he fact that hostilities were created due to the use of an automobile does not bring a non-automobile related assault within the ‘operation, maintenance and use’ of an automobile,” accurately reflects the law that governs this type of situation. Aple. Br. at 13 (caps in original deleted);
see Foss v. Cignarella,
The district court remarked that “the question is admittedly close.” Aplt. App. at 264 (Order). We disagree with the district court on this point. If the case
Because the Appellant failed to establish substantial nexus between his injuries and the use of an insured vehicle, the order of the district court is AFFIRMED.
Notes
. Having carefully reviewed the relevant case law, we do not find a definitive decision on this issue. Further, we agree with the district court that this might be a case in which judicial economy would be served by certification of state law questions to the New Jersey Supreme Court "if its newly-enacted certification procedure, see NJ Rule 2:12A (effective January 3, 2000) permitted certification ... by courts other than the United States Court of Appeals for the Third Circuit." Aplt.App. at 264 (Order).