Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Anczarski v. Travelers Indemnity Co.

United States District Court, D. New Mexico

July 17, 2017

JOHN J. ANCZARSKI, as biological parent of John R. Anczarski, deceased, and as Personal Representative for the Estate of John R. Anczarski, and JOYCE A. ANCZARSKI, biological parent of John R. Anczarski, deceased, Plaintiffs,
v.
THE TRAVELERS INDEMNITY COMPANY, Defendant.

          Nicholas Mendoza Nicholas Mendoza, Attorney at Law Tijeras, New Mexico and Cynthia Aragon Cynthia Aragon, Attorney at Law, LLC Albuquerque, New Mexico Attorneys for the Plaintiffs

          P. Scott Eaton Eaton Law Office PC Albuquerque, New Mexico Attorneys for the Defendant

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on: (i) the Defendant's The Travelers Indemnity Company's Motion for Summary Judgment, filed April 6, 2017 (Doc. 31)(“Motion”); and (ii) the Plaintiffs' Motion to Supplement the Record with Correct Information, filed June 28, 2017 (Doc. 46)(“Motion to Supplement Record”). The Court held a hearing on June 8, 2017. The primary issues are: (i) whether the Plaintiffs John J. Anczarski and Joyce A. Anczarski may supplement the record with the Certificate of Liability Insurance 2010 (executed January 2, 2010), filed April 36, 2017 (Doc. 46-1)(“2010 Certificate of Liability Insurance”), and John J. Anczarski's Amended Verification (sworn January 4, 2017), filed June 28, 2017 (Doc. 46-2)(“Amended Verification”), where the Anczarskis inadvertently had filed an immaterial Certificate of Liability Insurance 2004 (executed December 8, 2004), filed April 26, 2017 (Doc. 35-1)(“2004 Certificate of Liability Insurance”) that reflects Travelers Indemnity Company policies and where the Anczarskis inadvertently omitted to file a verification in support of John J. Anczarski's Supplemental Answers to Defendant's First Set of Interrogatories, filed April 26, 2017 (Doc. 35-3)(“John J. Anczarski's Supplemental Answers”); (ii) whether Pennsylvania or New Mexico law applies to the Anczarskis' breach-of-contract claim and uninsured or underinsured motorist claim against Travelers Indemnity, where Travelers Indemnity issued two insurance policies to Mark's Supply, which is a hardware store in Pennsylvania that the Anczarskis own, but where their son was fatally struck by a vehicle in New Mexico; and (iii) whether, in light of The Travelers Indemnity Company Certified Common Policy at 1-145, filed April 6, 2017 (Doc. 31-1)(“Travelers CGL Policy”), and The Travelers Indemnity Company Certified Commercial Excess Liability (Umbrella) Insurance Policy at 1-40, filed April 6, 2017 (Doc. 31-2)(“Travelers Excess Liability Policy”), which Travelers Indemnity issued to the Anczarskis, there is a genuine issue of material fact regarding the Anczarskis' breach-of-contract claim and uninsured or underinsured motorist claim that precludes Travelers Indemnity from seeking summary judgment. The Court concludes: (i) that the Anczarskis may supplement the record to include the 2010 Certificate of Liability Insurance, and John J. Anczarski's Amended Verification in support of his Supplemental Answers; (ii) that under New Mexico's lex loci contractus choice-of-law rule, Pennsylvania contract law applies to the Anczarskis' breach-of-contract claim and uninsured or underinsured motorist claim, because the commercial general liability and excess liability policies at issue were executed in Pennsylvania; and (iii) that, in light of the Travelers CGL Policy and the Travelers Excess Liability Policy at issue, there is no genuine issue of material fact whether Travelers Indemnity had an obligation to provide uninsured or underinsured motorist coverage to the Anczarskis or otherwise breached any contractual obligation owed to the Anczarskis under either insurance contract. Accordingly, the Court: (i) grants the Anczarskis' Motion to Supplement Record, (ii) grants Travelers Indemnity's Motion, and (iii) enters summary judgment in Travelers Indemnity's favor.

         FACTUAL BACKGROUND

         The Court draws its presentation of the facts from: (i) Travelers Indemnity's Statement of Material, Undisputed Facts, see Motion ¶¶ 1-16, at 3-6; and (ii) the Anczarskis' Statement of Undisputed Facts, see Plaintiff's [sic] Response to Defendant's Motion for Summary Judgment at 2, filed April 26, 2017 (Doc. 35)(“Response”). “John R. Anczarski, the son of Plaintiffs John J. Anczarski and Joyce A. Anczarski, died after being struck by a vehicle during a bicycle ride across the country for breast cancer awareness.” Motion ¶ 1, at 4 (stating this fact)(citing Plaintiff's Complaint for Underinsured/Uninsured Motorist Claim ¶¶ 3, 13, at 2-3 (filed in state court on June 17, 2016), filed in federal court on July 26, 2016 (Doc. 1-1)(“Complaint”)). See Response at 2 (not disputing this fact). “The bicycle ridden by the son was struck by a vehicle driven by Gilbert Waconda in Cibola County, New Mexico.” Motion ¶ 2, at 4 (stating this fact)(citing Complaint ¶ 4, at 2). See Response at 2 (not disputing this fact). “Waconda's negligence caused the collision and the death of the son.” Motion ¶ 3, at 4 (stating this fact)(citing Complaint ¶¶ 11-12, at 2). See Response at 2 (not disputing this fact).

         “Plaintiffs John J. Anczarski and Joyce Anczarski are residents of Pennsylvania and own and operate a business in Pennsylvania known as Mark's Supply.” Motion ¶ 4, at 4 (stating this fact)(citing Complaint ¶¶ 1, 5, at 2). See Response at 2 (not disputing this fact). “Mark's Supply is a sole proprietorship owned by the Anczarskis or by John J. Anczarski.” Motion ¶ 5, at 4 (stating this fact)(citing Complaint ¶ 5, at 2; John J. Anczarski's Answers to Defendant's Second Set of Interrogatories ¶ 17, at 5 filed April 6, 2017 (Doc. 31-5)(“John Anczarski's Second Interrogatory Answers”). See Response at 2 (not disputing this fact). “John J. Anczarski is the personal representative for the Estate of John R. Anczarski.” Motion ¶ 6, at 4 (stating this fact)(citing Complaint at 1). See Response at 2 (not disputing this fact).

         “At the time of the collision and death of the son, there were in effect a commercial general liability (‘CGL') policy and a commercial excess liability policy issued by the Travelers Indemnity Company to ‘Mark's Supply' as the named insured.” Motion ¶ 7, at 4 (citing Joint Status Report and Provisional Discovery Plan, Stipulations ¶ 3, at 2, filed September 27, 2016 (Doc. 13)(“Joint Status Report Stipulations”)(asserting this fact). See Response at 2 (not disputing this fact). “The CGL policy and commercial excess liability policy were the only Travelers policies in effect at the time of the accident for any of the Anczarskis or Mark's Supply.” Motion ¶ 8, at 4 (citing Joint Status Report Stipulations ¶ 4, at 3)(asserting this fact). See Response at 2 (not disputing this fact). Travelers issued a “commercial general liability (‘CGL') policy . . . to Mark's Supply as the named insured in Frackville, Pennsylvania.” Motion ¶ 9, at 5 (citing Travelers CGL Policy at 1-145)(asserting this fact). See Response at 2 (not disputing this fact). Travelers issued “commercial excess liability policies . . . to Mark's Supply as the named insured at 1 S. Lehigh Ave., Frackville, Pennsylvania.” Motion ¶ 10, at 5 (citing Travelers Excess Liability Policy at 1-40)(asserting this fact). See Response at 2 (not disputing this fact). “The Travelers CGL and commercial excess liability policies were issued in the State of Pennsylvania to Mark's Supply as the named insured at 1 S. Lehigh Ave., Frackville, Pennsylvania.” Motion ¶ 11, at 5 (citing Travelers CGL Policy at 1-145; Travelers Excess Liability Policy at 1-40)(asserting this fact). See Response at 2 (not disputing this fact). “The CGL policy and the commercial excess liability policy were both issued for the policy period of 12-25-09 to 12-25-10, which included the date of the accident in this case.” Motion ¶ 12, at 5 (citing Travelers CGL Policy at 1-145; Travelers Excess Liability Policy at 1-40)(asserting this fact). See Response at 2 (not disputing this fact).

         “At the time of the collision and death of the son, Mark's Supply Company did not own, title or register any motor vehicles.” Motion ¶ 13, at 5 (citing John Anczarski's Second Interrogatory Answers ¶ 14, at 5; John J. Anczarski's Objections and Responses to Defendant's Second Set of Requests for Production ¶¶ 11-12, at 9, filed April 6, 2017 (Doc. 31-5). See Response at 2 (not disputing this fact). “Mark's Supply Company did not own, title or register any vehicles at any time from the year 2000 to the present.” Motion ¶ 14, at 5 (citing John Anczarski's Interrogatory Answers ¶ 16, at 5). See Response at 2 (not disputing this fact). “At the time of the accident and death of the son, the Anczarskis were insured under a motor vehicle liability insurance policy issued by Erie Insurance Exchange that contained uninsured/underinsured motorist coverage.” Motion ¶ 15, at 5-6 (citing John J. Anczarski's Answers to Defendant's Interrogatories ¶ 5, at 3, filed April 6, 2017 (Doc. 31-6)(“John Anczarski's Interrogatory Answers”); Erie Insurance Group Policy and Declarations at 1-23, filed April 6, 2017 (Doc. 31-3). See Response at 2 (not disputing this fact). “The Anczarskis made an underinsured motorist claim to Erie Insurance for the death of their son, which claim was paid by Erie Insurance.” Motion ¶ 15, at 6 (John Anczarski's Interrogatory Answers ¶ 5, at 3; Erie Insurance Exchange/Eire Insurance Company Release and Agreement at 4-5, filed April 6, 2017 (Doc. 31-4)). See Response at 2 (not disputing this fact). On December 8, 2004, Seabury & Smith, Inc. issued Mark's Supply a Certificate of Liability Insurance, under which The Travelers Indemnity Company provided Mark's Supply with coverage for commercial general liability, automobile liability for hired autos and non-owned autos, and excess liability, for the period commencing on December 25, 2004, and terminating on December 25, 2005. See Response at 3 (asserting this fact); Reply at 3 (not disputing this fact); 2004 Certificate of Liability Insurance.

         PROCEDURAL BACKGROUND

         On June 17, 2016, the Anczarskis filed the Plaintiff's [sic] Complaint for Underinsured/Uninsured Motorist Claim (filed in state court on June 17, 2016), filed in federal court on July 26, 2016 (Doc. 1-1)(“Complaint”), in which they alleged a claim “under the Underinsured/Uninsured Motorists provision” of certain Travelers Indemnity's business and automobile policies. Complaint ¶ 16, at 3. The Anczarskis seek “relief, general and special, at law or in equity, to which [they] are entitled including punitive damages, hedonic and all damages that Plaintiffs would be entitled to receive under New Mexico law.” Complaint at 3. Under 28 U.S.C. §§ 1332, 1441 & 1446, Travelers Indemnity filed a Notice of Removal, filed July 26, 2016 (Doc. 1)(“Notice of Removal”).

         The Anczarskis responded to Travelers Indemnity's Notice of Removal. See Plaintiff's [sic] Response Motion to Defendant's Notice of Removal, filed August 15, 2016 (Doc. 7)(“Response to Notice of Removal”). The Anczarskis argue that Travelers Indemnity's removal defectively alleges grounds for diversity jurisdiction, because Travelers Indemnity did not “allege its principal place of business” and the Anczarskis alleged that Travelers Indemnity's principal place of business is located in Pennsylvania, the state of which the Anczarskis are citizens. Response to Notice of Removal ¶ 3, at 2. Travelers Indemnity sought leave to amend its Notice of Removal. See Defendant's Motion to Amend Notice of Removal to Cure Defect in Allegations as to Principal Place of Business of Defendant at 1-7, filed August 16, 2016 (Doc. 8). The Court granted that motion. See Order Granting Motion to Amend Notice of Removal, filed November 21, 2016 (Doc. 23).

         On November 21, 2016, Travelers Indemnity filed an Amended Notice of Removal, filed November 21, 2016 (Doc. 24)(“Amended Notice of Removal”), in which Travelers Indemnity conceded that, in its Notice of Removal, it inadvertently omitted its principal place of business. See Amended Notice of Removal at 3. Travelers Indemnity corrected this omission, indicating that its principal place of business is Hartford, Connecticut. See Amended Notice of Removal ¶ 8, at 3 (citing Affidavit of Jonathan A. Decker in Support of Motion to Amend Notice of Removal ¶ 3, at 1 (executed August 16, 2016), filed August 16, 2016 (Doc. 8-1)(“The Travelers Indemnity Company has its principal place of business in Hartford, Connecticut.”)).

         The Anczarskis then filed two motions to amend the Complaint. On December 5, 2016, the Anczarskis filed Plaintiffs [sic] Motion to Amend the Complaint and Join Additional Parties, filed December 5, 2016 (Doc. 25)(“First Motion to Amend”). Then, on April 6, 2017, the Anczarskis filed Plaintiffs [sic] Stipulated Motion to Amend the Complaint and Join Additional Parties, filed April 6, 2017 (Doc. 32)(“Second Motion to Amend”). In these motions, the Anczarskis seek to join “Hudson Insurance Company, Tribal Nation Insurance Services and Gilbert Waconda, in his Official Capacity” as Defendants. First Motion to Amend at 1. See Second Motion to Amend at 1. Travelers did not oppose the Anczarskis' motions to amend to join additional parties. See Second Motion to Amend at 2 (“Defendant's attorney did contact Counsel for Plaintiffs on December 13, 2017 and informed her that he did not oppose the filing of the Amended Complaint.”); Draft Transcript of Motion Proceedings at 2:24-3:3, taken June 8, 2017 (“Tr.”)[1](Court, Eaton)(Court: “I think there is a motion to amend the complaint and to join additional parties. It looked to me like that one was unopposed.” Eaton: “Yes, Your Honor.”). At the hearing the Anczarskis represented to the Court that they would not “join any additional parties.” Tr. at 3:6-7 (Aragon). The Anczarskis maintained, however, their interest “in amending the complaint, ” presumably to add either a breach-of-contract claim against Travelers Indemnity or a negligence claim against Travelers Indemnity's insured, Mark's Supply. Tr. at 3:7-8 (Aragon). See Plaintiff's Amended Complaint for Breach of Contract and Underinsured/Uninsured Motorist Claim ¶ 9, at 3, filed December 5, 2016 (Doc. 21-1)(“Amended Complaint”)(alleging that “Mark's Supply failed to research and plan the best route for the bicycle route”). The Court stated that the Anczarskis need not “file another motion” but only “a notice withdrawing” that part of the Motion to Amend to Join Additional Parties. Tr. at 3:15-17 (Court). See Tr. at 3:25-42 (Court). The Anczarskis have yet to file a notice withdrawing their intention to add additional party Defendants.

         1. Travelers Indemnity's Motion.

         Travelers Indemnity moves for summary judgment on the Anczarskis' uninsured/underinsured motorist claim, because Travelers Indemnity “did not issue any policy of motor vehicle liability insurance to Plaintiffs that would provide coverage for the death of the Plaintiff's son caused by the negligence of an underinsured motorist.” Motion at 1. Travelers Indemnity argues that, because it “did not issue a policy of motor vehicle liability insurance, it was not required to and did not offer uninsured/underinsured motorist (‘UM/UIM') coverage to Plaintiffs or their business, Mark's Supply.” Motion at 1. Travelers Indemnity also argues that it “was not required to offer UM/UIM coverage under the commercial excess policy and general commercial liability (‘CGL') policy that Travelers Indemnity had issued to Mark's Supply.” Motion at 1. In sum, Travelers Indemnity argues that the Court should grant summary judgment in its favor, because: (i) “Travelers did not issue a motor vehicle liability policy”; and (ii) “there is no UM/UIM coverage in either the commercial general liability policy or umbrella policy that were issued by Travelers to Mark's Supply.” Motion at 3.

         Travelers Indemnity indicates that there “were only two Travelers policies in existence for either Mark's Supply or the Anczarskis at the time of the accident and death of John J. Anczarski -- an excess liability policy and a commercial general liability policy.” Motion at 6 (citing Travelers CGL Policy at 1-145; Travelers Excess Liability Policy at 1-40). Travelers Indemnity maintains that the commercial general liability policy “provided business[]owners property coverage and commercial general liability coverage, ” containing “an ‘each occurrence' limit of $1 million.” Motion at 6 (citing Travelers CGL Policy at 1-145). Travelers Indemnity also asserts that “the declarations do not list any vehicles as insured under the policy.” Motion at 6. Turning to the excess liability policy, Travelers Indemnity argues that “[t]here is no indication that this . . . policy is anything other than an excess or umbrella policy that could provide liability coverage above certain specified underlying liability coverage.” Motion at 7 (citing Travelers Excess Liability Policy at 1-40). Travelers Indemnity also maintains that excess liability policy “specifically excludes coverage for any liability under any UM/UIM laws.” Motion at 7 (citing Travelers Excess Liability Policy at 11).

         Travelers Indemnity next addresses which law the Court should apply when interpreting the two insurance policies at issue. See Motion at 8-9. Travelers Indemnity states that the Court, when sitting in diversity, applies New Mexico choice-of-law principles to determine which state's substantive law to apply. See Motion at 8 (citing Sellers v. Allstate Ins. Co., 82 F.3d 350, 352 (10th Cir. 1996)). Travelers Indemnity then states:

Generally, in New Mexico, “in determining the appropriate law to apply when an accident occurs in one state and an insurance contract has been entered in another, the law of the place of the accident applies to determine the plaintiff's right to determine the plaintiff's right to recover from the negligent party, and the law of the place of the contract, the lex loci contractus, applies to interpret the terms of the contract.”

Motion at 8 (quoting Wilkerson v. State Farm Mutual Auto. Ins. Co., 2014-NMCA-077, ¶ 5, 329 P.3d 749, 750 (citing State Farm Auto. Ins. Co. v. Ovitz, 1994-NMSC-047, ¶ 8, 873 P.2d 979)). Travelers Indemnity then argues that Pennsylvania law applies to the two insurance policies at issue, because the “policies were issued in Pennsylvania to Mark's Supply, a sole proprietorship owned and operated in Pennsylvania by Pennsylvania residents John J. and Joyce Anczarski at a Pennsylvania address.” Motion at 8 (citing Travelers CGL Policy at 1-145; Travelers Excess Liability Policy at 1-40).

         Travelers Indemnity also argues that “Pennsylvania's statutes and case law that limit the requirement to offer UM/UIM coverage to a motor vehicle policy do not conflict in any way with New Mexico law or public policy, ” because, like Pennsylvania law, “New Mexico's uninsured/underinsured motorist statute specifically applies only to a ‘motor vehicle or automobile liability policy' that is delivered or issued in New Mexico.” Motion at 9 (quoting N.M. Stat. Ann. § 66-5-301). “Under both statutes, ” Travelers contends, “the obligation to over UM/UIM coverage applies only [to] a motor vehicle liability policy.” Motion at 9 (alteration added)(internal quotation marks omitted). Therefore, Travelers Indemnity argues, the application of Pennsylvania would not “‘result in a violation of fundamental principles of justice' of New Mexico[, ]” thereby, under New Mexico choice-of-law principles, requiring the application of New Mexico law. Motion at 9 (quoting State Farm Mut. Auto. Ins. Co. v. Ballard, 2002-NMSC-30, ¶ 9, 54 P.3d 537). Travelers Indemnity additionally notes that Pennsylvania and New Mexico law are in accord, because, like in Pennsylvania, “New Mexico courts have held that the UM/UIM statute does not extend its reach beyond a motorist's primary automobile liability insurance policy.” Motion at 9 (citing Archunde v. Intl. Surplus Lines Ins. Co., 1995-NMCA-110, 905 P.2d 1128)). Accordingly, Travelers Indemnity concludes that “Pennsylvania law would apply to insurance contracts issued to Pennsylvania residents in the State of Pennsylvania.” Motion at 9.

         Travelers Indemnity then turns to its substantive argument that there is no viable underinsured/uninsured motorist claim for the death of John. R. Anczarski under the two Travelers Indemnity policies. See Motion at 10. Travelers Indemnity notes that, under Pennsylvania law, “‘[i]n actions arising under an insurance policy . . . it is a necessary prerequisite for the insured to establish that his claim falls within the coverage provided by the insurance policy.'” Motion at 10 (alterations added)(quoting Peters v. Nat'l Interstate Ins. Co., 108 A.3d 38, 43 (Pa. Super. Ct. 2014))(citing McEwing v. Lititz Mut. Ins. Co., 77 A.3d 639, 646 (Pa. Super. Ct. 2013)). Travelers Indemnity consequently states that, “[i]n order to make out a valid UM/UIM claim, it must be established that the injured person qualified as an insured under the UM/UIM coverage in question.” Motion at 10. Travelers Indemnity argues that, in this case, “there is no allegation that the son was an insured under the CGL and excess liability policies issued to Mark's Supply.” Motion at 10. Travelers Indemnity further maintains that “[t]here is no allegation that Travelers provided a motor vehicle liability insurance policy to Mark's Supply.” Motion at 11 (alteration added). Travelers Indemnity further asserts that “[t]here is no allegation that [it] was required to offer UM/UIM coverage in excess or commercial general liability policies.” Motion at 11 (alterations added). Consequently, Travelers Indemnity concludes that “there are no allegations in Plaintiff's Complaint . . . to support the element of any perceived UM/UIM claim.” Motion at 11 (alteration added).

         Travelers Indemnity next argues that Pennsylvania law “[d]id [n]ot and [d]oes [n]ot” require that it offer uninsured or underinsured motorist coverage under a commercial general liability or excess liability policy. Motion at 11 (alterations added). Travelers Indemnity adverts to Title 17, §1731 of the Pennsylvania Consolidate Statutes, which requires insurers offering motor vehicle liability insurance policies to also offer uninsured motorist and underinsured motorist coverage. See Motion at 11 (citing 17 Pa. Const. Stat. §1731 (1994)). Travelers Indemnity states that, at the time of the accident, Erie Insurance had issued to the Anczarskis a motor vehicle liability policy containing uninsured or underinsured motorist coverage. See Motion at 11. Travelers Indemnity also maintains that it did not “issue a motor vehicle liability policy, because Mark's Supply did not own or operate any motor vehicle at the time of this accident or for many years prior to the accident.” Motion at 11.

         Travelers Indemnity next states that, under Pennsylvania law, neither a commercial general liability policy nor an excess liability policy is a “motor vehicle liability policy” that implicates an insurer's requirement to offer uninsured or underinsured motorist coverage. Motion at 11. See Motion at 12-13 (citing Northern Ins. Co. of N.Y. v. Dottery, 43 F.Supp.2d 509, 513 (E.D. Pa. 1998)(Robreno, J.); Lonesathirath v. Avis Rent A Car Sys. Inc., 937 F.Supp. 367 (E.D. Pa. 1995)(Padova, J.); Stoumen v. Pub. Serv. Mut. Ins. Co., 834 F.Supp. 140 (E.D. Pa. 1993)(Hutton, J.); Been v. Empire Fire and Mar. Ins. Co., 751 A.2d 238 (Pa. Super. Ct. 2000); Ranocchia v. Erie Ins., No. 2166-MDA-2015, 2016 WL 5418191 (Pa. Super. Ct. Aug. 19, 2016)). Travelers Indemnity notes that New Mexico courts have reached the same conclusion. See Motion at 13 (citing Pielhau v. RLI Ins. Co., 2008-NMCA-099, 189 P.3d 687, overruled on other grounds by Progressive N.W. Ins. Co. v. Weed Warrior Services, 2010-NMSC-050, 245 P.3d 1209; Archunde v. Intl. Surplus Lines Ins. Co., 1995-NMCA-110, 905 P.2d 1128)).

         Travelers Indemnity presses that, in this case, “the Store PAC policy clearly is labeled as including commercial general liability coverage and not motor vehicle liability coverage.” Motion at 13 (internal quotation marks omitted)(citing Travelers CGL Policy at 1-145). Travelers Indemnity emphasizes that “[n]o vehicles are listed on the CGL declarations.” Motion at 13 (citing Travelers CGL Policy at 1-145). “The named insured is Mark's Supply, ” Travelers Indemnity states, and Mark's Supply “did not own any vehicles and had not owned any vehicles in many years.” Motion at 13. Turning to the excess liability policy, Travelers Indemnity asserts that it “specifically excludes coverage under any UM/UIM laws.” Motion at 13 (citing Travelers Excess Liability Policy at 11). Travelers Indemnity again maintains that the excess liability policy “does not list any vehicles on the declarations, nor does it contain any other features of a motor vehicle liability policy.” Motion at 13. Accordingly, Travelers Indemnity concludes that it “was not required under Pennsylvania law (or under New Mexico law) to offer UM/UIM coverage to Mark's Supply, and its policies do not provide such coverage.” Motion at 14.

         Last, Travelers Indemnity argues that, if the Anczarskis intend to allege a negligence claim against Mark's Supply, the applicable statute of limitations bars such claim. See Motion at 14. Travelers Indemnity states that John R. Anczarski was involved in an accident occurring on June 21, 2010, and died on June 22, 2010. See Motion at 14. Travelers Indemnity then argues that the “New Mexico statute of limitations for personal injuries or wrongful death ran out at least by 2013.” Motion at 14 (citing N.M. Stat. Ann. §§ 37-1-8, 41-2-2). Travelers Indemnity additionally maintains that, “[u]nder Pennsylvania law . . . the statute of limitations for a wrongful death and survival action is two years.” Motion at 14 (citing 42 Pa. Const. Stat. § 5524 (2001); Krapf v. St. Luke's Hospital, 4 A. 3d 642 (Pa. Super. Ct. 2010)). Travelers Indemnity concludes that the negligence claim that the Anczarskis seek to bring against its insured, Mark's Supply, is futile. See Motion at 14.

         2. The Anczarskis' Response.

         The Anczarskis argue that the Court should deny summary judgment in Travelers Indemnity's favor. See Response at 1. The Anczarskis maintain that “they should recover from Travelers for the death of their son pursuant to the contractual provisions and/or uninsured/underinsured motorist coverage provided by [Travelers Indemnity].” Response at 1 (alterations added). The Anczarskis argue that Travelers Indemnity “did insure Mark's Supply under an automobile liability policy for hired and non-owned automobiles.” Response at 1.

         In their Response, the Anczarskis decline to cite any Pennsylvania law. See Response at 1-10. Rather, they exclusively rely on New Mexico cases. See Response at 4-10 (citing Gov't Emps. Ins. Co. v. Welch, 2004-NMSC-014, 90 P.3d 471; Ponder v. State Farm Mut. Auto. Ins. Co., 2000-NMSC-033, 12 P.3d 960). The Anczarskis state that to exclude the injuries pertaining to John R. Anczarski's death from coverage under either the commercial general liability policy or the excess liability policy “would be against New Mexico public policy.” Motion at 10.

         Turning to their substantive argument, the Anczarskis contend that, under both the commercial general liability policy and the excess liability policy, they should recover from Travelers Indemnity for the death of their son. See Motion at 3-10. The Anczarskis argue that the commercial general liability policy lists “hired auto and non-owned auto liability coverage . . . contrary to the defendant's claim that Travelers did not issue any policy of motor vehicle liability insurance.” Motion at 3 (citing Travelers CGL Policy at 1-145). Turning to the excess liability policy, the Anczarskis argue that, under that policy, “an insured is defined as ‘anyone using an auto you own, hire or borrow.'” Motion at 3 (citing Travelers Excess Liability Policy at 12). See Motion at 10 (citing Travelers Excess Liability Policy at 12). The Anczarskis contend that “[t]heir son was ‘anyone' using such an auto.” Motion at 10. Accordingly, the Anczarskis reasons that the decedent, John R. Anczarski, “was an insured according to the provisions of the policies . . . .” Motion at 4. Further, the Anczarskis contend that the excess liability policy covers the injuries related to John R. Anczarski's death, because the excess liability policy not only includes “death within the definition of bodily injury, ” but also states that it “‘applies to bodily injury or property damage from the ownership, operation and use of an auto.'” Motion at 3 (quoting Travelers Excess Liability Policy at 20). Furthermore, the Anczarskis reason that the insurance policies that Travelers issued to Mark's Supply include the damage resulting from the John R. Anczarski's death, because John R. Anczarski was “using a motor vehicle owned and registered to his father, John J. Anczarski, who loaned him the vehicle, sponsored and supported his ride across America . . . under the purview of the business, Mark's Supply.” Motion at 4.

         The Anczarskis next contend that “[t]he auto provisions as provided in the [excess liability] policy conflict with the provision that excludes coverage for liability [for] uninsured/underinsured motorist coverage.” Motion at 3 (alterations added). They note that “several separate sections of the Plaintiff's policy conflict with one another.” Motion at 7. The Anczarskis compare the 2004 Certificate of Liability Insurance, “which certifies coverage for automobile accidents involving hired or nonowned vehicles with a liability limit of $1, 000, 000, ” Motion at 7 (citing 2004 Certificate of Liability Insurance at 1), against their excess liability police, which “unambiguously excludes uninsured and underinsured motorist coverage, ” Motion at 7 (citing Travelers Excess Liability Policy at 1-40). In light of this alleged discrepancy, the Anczarskis argue “that the mere fact their umbrella policy does not include or does exclude UM and/or UIM coverage is not in and of itself determinative against them, ” because the Anczarskis' “umbrella policy in question includes coverage for motor vehicle accidents in excess of the limits required by law.” Motion at 5 (citing 2004 Certificate of Liability Insurance at 1). To bolster their argument that the Travelers' policies are ambiguous, the Anczarskis advert to John J. Anczarski's Supplemental Answers ¶ 12, at 3.[2] At John J. Anczarski states:

I am not able to recall specific details of discussions that I had with the Traveler's [sic] Indemnity Company that occurred years ago. I do contend that my purpose in buying insurance from Traveler's [sic] would have been to ensure that Mark's Supply was fully covered by insurance that would have protected Mark's Supply and my family. So I contend that I would have made this clear to whomever I spoke with at The Traveler's [sic] Indemnity Company. I contend that the reasons that I purchased the insurance coverage would have been based on the assurances from the Traveler's [sic] Indemnity Company that they were providing us with full insurance coverage to include uninsured/underinsured motorist coverage.

         Response at 7 (citing John J. Anczarski's Supplemental Answers ¶ 12, at 3). As a result, the Anczarskis contend that “[t]here is clearly a genuine issue of material fact[] and the Defendant is not entitled to a Judgment in their favor as a matter of law.” Motion at 10. Accordingly, the Anczarskis conclude that the Court should deny the Motion. See Motion at 10.

         3. Travelers Indemnity's Reply.

         In reply, Travelers Indemnity states that the Anczarskis “fail to identify a single word, sentence, paragraph or provision in either Travelers policy that provides uninsured (‘UM') or underinsured (‘UIM') motorist coverage.” The Travelers Indemnity Company's Reply to Plaintiffs' Response to Motion for Summary Judgment at 1, filed May 9, 2017 (Doc. 38)(“Reply”). Travelers Indemnity also maintains that the Anczarskis “fail to identify any contractual provisions of either liability policy that would provide coverage for the death of their son caused by a third party.” Reply at 1 (internal quotation marks omitted). Accordingly, Travelers Indemnity concludes that the Anczarskis “have failed to controvert the undisputed evidence that neither policy contains UM/UIM coverage or any other provisions that would provide coverage here.” Reply at 1.

         Travelers Indemnity notes that the Anczarskis “point out that the Travelers CGL policy contained an endorsement that could cover Mark's Supply Company for liability for injuries caused by Mark's Supply's use of nonowned or hired autos.” Reply at 1. Travelers Indemnity emphasizes, however, that “Plaintiffs offer no facts or arguments as to how that endorsement would apply.” Reply at 2. Travelers Indemnity notes that “Mark's Supply is not named as a defendant and has never been sued for causing or contributing to the death of John R. Anczarski.” Reply at 2.

         Travelers Indemnity next turns to the Anczarskis' assertion that “one or both liability policies issued by Travelers to Mark's Supply Company contain UM/UIM coverage or that the liability coverages somehow apply . . . .” Reply at 4. Travelers Indemnity maintains that the Anczarskis “fail to point to any UM/UIM coverage provisions in either liability policy, other than an exclusion for UM/UIM benefits in the umbrella liability policy.” Reply at 5. Travelers Indemnity notes the Anczarskis' observation that the commercial general liability policy “contains an endorsement entitled ‘Hired Auto and Nonowned Auto Liability.'” Reply at 5 (citing Travelers CGL Policy at 1-145). Travelers Indemnity additionally notes the Anczarskis' observation of “provisions in the umbrella policy that refer to auto liability coverage if the underlying policy provides auto liability coverage.” Reply at 5. Travelers Indemnity emphasizes, however, that the Anczarskis do not “explain how or why [auto] liability coverage would apply here.” Reply at 5 (alteration added).

         Travelers Indemnity next walks through the commercial general liability policy that it issued to Mark's Supply. See Reply at 7. Travelers Indemnity explains that the commercial general liability policy “provides that: ‘We [Travelers Indemnity] will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury' or ‘property damage' to which this insurance applies.” Reply at 5 (alteration original)(quoting Travelers CGL Policy at 95). Travelers Indemnity explains that “if the insured, Mark's Supply, caused bodily injury to which the policy applied, it would provide coverage for Mark's Supply for such liability . . . .” Reply at 5. Travelers Indemnity argues that this provision is inapplicable, stating that “[n]either the Plaintiffs nor their business, Mark's Supply, are defendants, nor have they ever been sued for the death of John R. Anczarski . . . .” Reply at 5.

         Travelers Indemnity then addresses the commercial general liability policy's “‘Hired Auto and Nonowned Auto Liability Endorsement.'” Reply at 5 (quoting Travelers CGL Policy at 21). Travelers Indemnity explains that “[t]he endorsement expands the liability coverage of the CGL policy to apply to bodily injury ‘arising out of the maintenance or use of a hired auto or nonowned auto.'” Reply at 5 (alteration added)(quoting Travelers CGL Policy at 21). “[I]f Mark's Supply caused bodily injury arising out of Mark's Supply's use of a ‘hired auto' or ‘nonowned auto, '” Travelers reasons, “coverage may apply.” Reply at 5 (alteration added)(quoting Travelers CGL Policy at 21). Travelers Indemnity argues that “[t]here is no evidence that Mark's Supply was using a vehicle that it hired, rented or borrowed or that was being used in the course of Mark's Supply's business, or that any such vehicle caused or contributed to the death of John R. Anczarski.” Reply at 6. Travelers Indemnity contends that the Anczarskis'

Response nowhere suggests Plaintiffs are alleging that they, as the owners of Mark's Supply Company, should be liable for the death of their son. No suit has ever been filed against Mark's Supply Company or the Anczarskis for the death of their son. Even if such a claim were to be made now or in the future, it would be barred by the applicable statutes of limitations . . . .

         Reply at 6. In sum, Travelers Indemnity argues that the endorsement does not apply, not only because a “hired or nonowned auto did not cause or contribute to the death of John R. Anczarski, ” but also because “there is and has never been a suit or claim that the Plaintiffs, through their business Mark's Supply, caused bodily injuries to the death of John R. Anczarski through the use of a hired or nonowned auto.” Reply at 6. Accordingly, Travelers Indemnity concludes that “the CGL policy, even with the Hired and Nonowned Auto Liability endorsement, simply does not provide coverage for the Plaintiffs' claims that a third party caused the death of John R. Anczarski.” Reply at 7.

         Travelers Indemnity next addresses the excess liability policy's references to auto liability. See Reply at 7-9. Travelers Indemnity notes the Anczarskis' observation that “the umbrella policy contains an ‘Auto Liability - Following Form' and that the definition of insured includes ‘anyone using an auto you own, hire or borrow.'” Reply at 7 (quoting Travelers Excess Liability Policy at 12, 20). Travelers Indemnity indicates that the excess liability policy's auto liability provision applies “to liability for bodily injury arising out of the use of any auto, but only if such bodily injury ‘would be covered by underlying insurance shown in Item 6 SCHEDULE OF UNDERLYING INSURANCE of the Declarations . . . .'” Reply at 7 (quoting Travelers Excess Liability Policy at 20). Travelers Indemnity then states that “Item 6, [in] the Schedule of Underlying Insurance, shows the CGL policy as the underlying policy.” Reply at 7 (citing Travelers Excess Liability Policy at 20). Travelers Indemnity explains that, as a result of these provisions, “for the umbrella policy to apply, the underlying CGL policy must provide liability coverage for the bodily injury.” Reply at 7. Travelers then reemphasizes that “there is and has never been a claim or lawsuit against the insured, Mark's Supply, for the death of John R. Anczarski, nor is there any evidence to suggest that an auto used by Mark's Supply caused the death of the son.” Reply at 7.

         Travelers Indemnity also replies to the Anczarskis' contention that their son, John R. Anczarski, is an insured under the excess liability policy. See Reply at 7. Travelers Indemnity states that, “[w]ith regard to the definition of insured in the umbrella liability policy, the policy does not define insured, with respect to the auto hazard, as anyone using an auto you own, hire or borrow . . . .” Reply at 7 (internal quotation marks omitted)(citing Travelers Excess Liability Policy at 12). Travelers Indemnity explains that “the insuring agreement of the umbrella policy, similar to the CGL policy, provides liability coverage for an amount ‘which the insured becomes legally obligated to pay as damages because of bodily injury . . . to which this insurance applies.” Reply at 7 (alteration original)(quoting Travelers Excess Liability Policy at 7). Travelers Indemnity again restates that “[n]o vehicle that Mark's Supply owned, hired or borrowed caused or contributed to the death of John R. Anczarski, ” and, accordingly, concludes that “there is no basis for any liability coverage to apply in this case.” Reply at 8.

         Travelers Indemnity next turns to the Anczarskis' reliance on the 2004 Certificate of Liability Insurance and their corresponding Anczarskis' argument that Travelers Indemnity's insurance policies are somehow ambiguous or in conflict. See Reply at 8-9. Travelers Indemnity asserts that the 2004 Certificate of Liability Insurance is an unverified “2004 certificate of liability insurance for a policy period in 2004-2005.” Reply at 8 (citing 2004 Certificate of Liability Insurance at 1). Accordingly, Travelers Indemnity asserts that the 2004 Certificate of Liability Insurance “has no applicability to the instant case.” Reply at 8 (citing 2004 Certificate of Liability Insurance at 1).

         Travelers Indemnity then addresses the Anczarskis' reliance on John J. Anczarski's Supplemental Answers ¶ 12, at 3, and the Anczarskis' related argument that the coverage included within the Travelers Indemnity's policies is ambiguous. See Reply at 8. Travelers Indemnity notes that, under Pennsylvania law, a “court may consider the ‘reasonable expectations of the insured' when interpreting an ambiguous contract.” Reply at 8 (quoting Nationwide Mut. Co. v. Nixon, 682 A.2d 1310, 1313 (Pa. Super. Ct. 1996)). “However, ” Travelers Indemnity emphasizes, “‘[w]hen the language [of the contract] is clear and unambiguous, [a] court is required to give effect to that language.'” Reply at 8 (first alteration original, second and third alterations added)(quoting Standard Venetian Blind Co. v. Am. Empire Ins. Co., 469 A.2d 563, 566 (Pa. 1983)). Travelers Indemnity also maintains that “[t]he parties' reasonable expectations remain ‘best evidenced by the language of the insurance policy[.]'” Reply at 8-9 (second alteration original, first alteration added)(quoting Allstate Ins. Co. v. McGovern, No. 07-2486, 2008 WL 2120722, at *2 (E.D. Pa. May 20, 2008)(Kelly, J.)). Travelers Indemnity maintains that the Anczarskis “do not point to any ambiguities in the insurance policies themselves, nor are any apparent.” Reply at 9. “Simply put, ” Travelers Indemnity states “there is nothing in either the CGL liability policy or the umbrella liability policy that would suggest that either policy contains UM/UIM coverage. In fact, the umbrella liability policy contains a clear exclusion of UM/UIM coverage. Plaintiffs have offered not authority or reasons why the exclusion is not valid.” Reply at 9 (citation omitted). Travelers yet again presses that “Mark's Supply did not own any vehicles, and the Anczarskis did have motor vehicle liability coverage and UM/UIM coverage for their vehicles through a different insurer.” Reply at 9.

         Last, Travelers Indemnity contends that the Anczarskis do not state that Travelers Indemnity was required to provide uninsured or underinsured coverage. Reply at 9-11. Travelers Indemnity notes that the Anczarskis do not dispute Travelers Indemnity's contention that, under Pennsylvania law, “an insurer under an umbrella policy or commercial liability policy is not obligated to offer UM/UIM coverage.” Reply at 9. See Reply at 10 (citing Mulford v. Altria Grp., 242 F.R.D. 615, 622 n.5 (D.N.M. 2007)(Vasquez, J.)(“Failure to respond to an argument is generally deemed an acquiescence.”); D.N.M.LR-Civ. 7.1(b)(“The failure of a party to file and serve a response in opposition to a motion . . . constitutes consent to grant the motion.”)(alteration added)). Rather, according to Travelers Indemnity, the Anczarskis “allege that the CGL policy and umbrella liability policy somehow provide coverage for injuries caused not by fault of the insured but by the negligence of a third party.” Reply at 9. Travelers Indemnity replies that “neither the Travelers CGL policy nor the umbrella policy provides uninsured/underinsured motorist coverage or even mentions such coverage, other than the umbrella policy expressly excludes such coverage.” Reply at 10 (citing Travelers Excess Liability Policy at 11). Further, Travelers Indemnity maintains that “[i]t is absolutely clear under both Pennsylvania and New Mexico law that an insurer under an excess or umbrella policy is not required to offer UM/UIM coverage.” Reply at 11 (citing Northern Ins. Co. of N.Y. v. Dottery, 43 F.Supp.2d 509, 513 (E.D. Pa. 1998)(Robreno, J.); Archunde v. Intl. Surplus Lines Ins. Co., 1995-NMCA-110, 905 P.2d 1128)). Travelers Indemnity concludes that the Anczarskis

do not claim that UM/UIM coverage should have been offered. They do not point the Court to any provisions of either liability policy that provide UM/UIM coverage. They do not explain how liability coverage would apply when the acts of a negligent third party, nor the acts of an insured, caused the bodily injuries.

         Reply at 11. Accordingly, Travelers Indemnity requests the Court to enter summary judgment in its favor.

         4. The Hearing.

         The Court held a motion hearing on June 8, 2017. See Tr. at 1:22 (Court). Regarding the Motion, the Court began by asking the Anczarskis for their “best theory . . . against Travelers as to why they should pay.” Tr. at 4:6-7 (Court). The Anczarskis replied that Travelers Indemnity issued a “certificate of liability insurance, ” which “indicates that there is a commercial liability and general liability policy.” Tr. at 5:7-9 (Aragon). “[U]nder the general liability policy, ” the Anczarskis maintain, “there is an auto, nonowned auto provision that specifically indicates that they would be covered for a certain amount [because] at [that] point in time, Mr. Anczarski owns Mark's Supply.” Tr. at 5:10-14 (Aragon)(alterations added). The Anczarskis further stated the decedent was riding his bicycle in support of “a nonprofit that was funded and sponsored by Mark's Supply.” Tr. at 5:16-17 (Aragon). “The vehicle that was used during that trip, ” the Anczarskis additionally asserted, “was owned by Mr. Anczarski.” Tr. at 5:17-18 (Aragon). The Anczarskis concede that Mark's Supply did not own the bicycle that the decedent was riding when the injury occurred, but argue that “the provisions indicate that there is at least cover[age] under the bodily injury provision and is insured pursuant to the . . . owned car policy.” Tr. at 5:20-23 (Aragon)(alterations added).

         The Court expressed some skepticism of the Anczarskis' argument:

[I]f you were just to walk up and say to me we're talking about the nonowned provision of the general commercial liability policy, this is what I would think [we] would be . . . talking about[:] if Mr. Anczarski's company went out and bought, you know was using, say, a U-Haul vehicle or they rented a tractor or rented some equipment that would not be owned by the company but it would still provide some coverage if they were using it. Digging a hole, digging a ditch, driving something around and they hit somebody. That would be what I would think it would be. But this situation is that their son was hit by somebody else's vehicle so I'm having a hard time figuring out how the policy here would cover this incident rather than it being some other policy, the policy of the driver here, would be the one that's covering.

         Tr. at 5:25-6:16 (Court)(alteration added). The Court then asked the Anczarskis to respond to its impression. See Tr. at 6:16 (Court).

         The Anczarskis responded by emphasizing Mark's Supply's sponsorship of the bike ride:

[M]ark's Supply sponsored the bike ride. They provided the vehicles[;] they provided the insurance[;] they provided the gas[;] they paid for the trip[;] the paid for the stickers[;] they paid for the equipment[;] they maintained [the] vehicle[; . . .] and they used . . . the advertisement of this with stickers on their website. So they were involved in promoting this. . . . Mark's Supply was behind it.

Tr. at 6:18-7:1 (Aragon)(alterations added). The Court conveyed that it understood “the connection between the bike ride and the company.” Tr. at 7:4-5 (Court). The Court indicated that it was “struggling with the insurance policy, how, where the nonowned vehicle is.” Tr. at 7:5-7 (Court). The Court explained that it was “trying to figure out how that came into play here as far as the accident.” Tr. at 7:7-9 (Court).

         The Anczarskis responded that “the vehicle itself was not involved in the accident.” Tr. at 7:10-11 (Aragon). The Anczarskis explicated: “Johnny Anczarski was not hit by that vehicle. That vehicle was what they call a chaser vehicle that was used in the bike rides [that] went along with them, was the one[] that carried the supplies, worked along with them.” Tr. At 7:11-15 (Aragon)(alterations added). The Anczarskis then pivoted to the crux of their argument. See Tr. at 7:16-8:1 (Aragon)

I'm basing it based on the fact that there is ambiguity in regards to the insurance policy. The ambiguity states that underinsured, uninsured is excluded. However the other policies indicate[] that Johnny was an insured and that he was also covered. So I'm basing it on the fact that there [are] those requirements [and] that ambiguity in regards to the case and that if there is ambiguity it goes in favor of the party.

Tr. at 7:16-8:1 (Aragon)(alterations added). The Court interjected, inquiring whether “that [is] your biggest or best theory or is that your only theory that it comes within the nonowner coverage of the general commercial policy? Is that the ball game, deciding whether that coverage is available?” Tr. at 8:2-7 (Court)(alteration added). The Anczarskis answered that “the injury is covered in that . . . . [S]o based on that, yes . . ., all including that as the primary argument.” Tr. at 8:8-12 (Aragon)(alterations added). The Court then asked Travelers Indemnity for its argument. See Tr. at 13-16 (Court).

         Travelers began by reviewing the policies that it issued to Mark's Supply. See Tr. at 8:24-9:11 (Eaton).

So there were two policies issued by Travelers that were in effect at the time of this accident there. [One] was [a] business owner's policy that included the commercial general liability policy. And the endorsement that y'all were talking about is part of that CGL policy. Then there is a separate umbrella policy. Both of these are liability policies. So neither policy mentions uninsured motorist coverage. . . . [The] umbrella policy has a specific exclusion for uninsured motorist coverage. But there are no provisions in either policy that look like uninsured motorist coverage or purport to provide any uninsured motorist coverage.

Tr. at 8:24-9:11 (Eaton). The Court then asked for clarification whether the Anczarskis were “trying to get uninsured motorist coverage.” Tr. at 9:17-18 (Court). “Does that come from the complaint, ” the Court inquired. Tr. at 9:18-19 (Court).

         Travelers Indemnity explained: “Judge, it comes from the title of the complaint and from the title of this proposed amended complaint. But I agree, if you read the body of the complaint or the body of the proposed amended complaint it's not so clear.” Tr. at 9:20-24 (Eaton). Travelers Indemnity then provided its best interpretation of the Anczarskis' underinsured or uninsured motorist claim. See Tr. at 9:25-10:11 (Eaton).

So the complaint is titled plaintiff's complaint . . . underinsured/uninsured motorist claims, and then the relevant parts of the complaint are . . . paragraph 7, the son was operating a [bicycle] under the policies issued by Travelers. Mark's Supply was insured by Travelers, . . . [and] entitled to recover from Travelers the maximum amount recoverable under the respective policies of insurance . . . . [T]he complaint says plaintiffs are entitled to recover under the uninsured/underinsured provision of the Travelers indemnity policy . . . .

Tr. at 9:25-10:11 (Eaton). The Court interjected: “[A]nd you're telling me there is just not one there.” Tr. at 10:11-12 (Court). Travelers Indemnity responded in the affirmative and rehearsed the main of their argument. See Tr. at 10:13-11:6 (Eaton).

There is not an uninsured motorist policy. There is simply not and in the facts the plaintiffs haven't disputed the facts so I think the facts are clear. But so if we're talking about the liability policies and . . . specifically this nonowned auto endorsement. I mean they both are liability policies. And the umbrella policy only applies if the underlying [policy] applies. So [the] liability policy would protect Mark's Supply and its owners and employees, et cetera, if they injured somebody and were sued because of those injuries, I mean that's obviously what the liability policies do. And . . . Mark's Supply did not injury anybody, and the plaintiffs did not injure their son. And they have never been sued for the death of young Mr. Anczarski. And there is no claim against Mark's Supply or any of the Travelers insureds that they should be held liable for causing injuries to their son.

Tr. at 10:13-11:6 (Eaton). Travelers Indemnity further argued that “there can't be” a claim against Mark's Supply to recover for injuries relating to John R. Anczarski's death. Tr. at 11:7 (Eaton). Travelers Indemnity noted: “This accident happened in 2010. New Mexico has a three-year statute of limitations. Pennsylvania, where all of the insurance transactions occurred, has I believe a two-year statute of limitations. So, there is simply no legal way that today Mark's Supply and Mr. and Mrs. Anczarski could be sued . . . .” Tr. at 11:8-13 (Eaton). The Court asked whether any claims had been filed against Mark's Supply or the Anczarskis. See Tr. at 11:15 (Court). “They haven't been yet, ” Travelers Indemnity replied, elaborating that “they're not defendants in this case or any other case.” Tr. at 11:18 (Eaton). Travelers Indemnity stated that, “in terms of a liability policy[, ] . . . it doesn't apply.” Tr. at 11:19-20 (Eaton). Travelers Indemnity explained that “the policy kicks in when there is an action against the insured and the policy provides that a defense will be provided, and the insurance company will indemnify assuming its covered. But there has got to be a claim, a lawsuit, something against the insureds. And here there is simply not.” Tr. at 12:6-11 (Eaton). The Court then asked whether the Anczarskis were “trying to bring in the company with any of these amended motions.” Tr. at 12:12-13 (Court). Travelers Indemnity replied in the negative. See Tr. at 12:14 (Eaton). Travelers Indemnity concluded that “just on the basis of the undisputed facts on the pleadings there is nothing here to which a liability policy would apply.” Tr. at 12:22-25 (Eaton). Travelers Indemnity then offered to address “the uninsured motorist claim if there is such a claim.” Tr. at 12:25-13:1 (Eaton).

         The Court then asked the Anczarskis whether they “are trying to make at this point any sort of uninsured motorist claim or is that dropped out.” Tr. at 13:10-12 (Court). The Anczarskis replied that they “are trying to make an underinsured/uninsured motorist claim.” Tr. at 13:13-14 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.