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.

Charter Oak Fire Insurance Co. v. Hovlik

United States District Court, D. New Mexico

December 6, 2017

CHARTER OAK FIRE INSURANCE COMPANY, TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, Plaintiffs,
v.
STEPHANIE HOVLIK, as Personal Representative of the Estate of Salvador Garcia, ROBERT A. GARCIA, GABRIELLA P. GARCIA, and FRANCISCO GARCIA, Defendants.

          MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

         THIS MATTER comes before the Court upon a Motion for Summary Judgment by Defendants, filed on June 30, 2017 (Doc. 33), and a Motion for Summary Judgment by Plaintiffs filed on October 25, 2017 (Doc. 51). Having reviewed the parties' pleadings and the applicable law, the Court finds that Plaintiffs' motion is well taken and, therefore, is granted.

         BACKGROUND

         Plaintiffs are two insurers who issued two separate policies to Don Curry Housemoving (the “Insured”). Travelers Property Casualty Company of America (“Travelers”) issued a general liability policy, and Charter Oak Fire Insurance Company (“Charter Oak”), an affiliate of Travelers, issued an automobile policy. Plaintiffs filed this declaratory action pursuant to 28 U.S.C. § 2201(a) seeking to determine whether Charter Oak's liability under an insurance policy is limited to $500, 000, or whether the policy should be reformed to meet minimum statutory liability amounts in New Mexico's Motor Carrier Act. Plaintiffs further seek a declaration whether an automobile exclusion in the Travelers general liability policy is void.[1]

         The Defendants are the representative and family members of Salvador Garcia, a victim of a drunk driving accident involving Randolph Curry, an employee of the insured. The insured, Don Curry Housemoving, is not a party to this case. The parties have apparently agreed that this accident is covered by the Charter Oak policy and have settled the issue of liability. They seek solely to determine the extent and amount of coverage.

         UNDISPUTED FACTS

         The parties have filed cross-motions for summary judgment. The Court will combine the facts presented by the parties and where necessary, point out those parts that are contested. The parties generally do not dispute the facts but rather contest the relevancy or legal significance of those facts. The Court will omit facts that are redundant, irrelevant, unsupported, or conclusory.

         On March 22, 2012, on NM 337 in Bernalillo County, New Mexico, Salvador Garcia was killed in a collision with Randolph Curry (the “Collision”). At the time, Randolph Curry was an employee of Don Curry Housemoving and was driving drunk. The parties stipulated that Randolph Curry was acting in the scope of his employment at the time of the Collision. (Doc. 24).[2]

         At the time of the Collision, Randolph Curry was driving his personal 2004 GMC pickup. National General Insurance Company, a GMAC company, had a policy in effect insuring the 2004 GMC pickup. This policy provided liability coverage in the amount of $50, 000.00 per person and $100, 000 per accident. GMAC paid the $50, 000 policy limit to Defendants.

         The Defendants in this action filed a lawsuit against Randolph Curry; Cindy Dale, as Trustee of the Estate of Don C. Curry d/b/a Curry Housemoving; Terry A. Curry; Christopher J. Curry; and Freeway Liquors, Inc., in the First Judicial District Court, County of Santa Fe, State of New Mexico, Case No. D-101-CV-2015-00695, seeking to recover damages for the death of Salvador Garcia as a result of the Collision.

         Plaintiffs Travelers and Charter Oak insured Don Curry Housemoving's structural moving operations, from which Don Curry Housemoving reported it was earning $135, 000 per year.

         Charter Oak issued a commercial automobile liability insurance policy to Don Curry Housemoving, policy number BA-4a158207-11-GRP, with effective dates of July 20, 2011 to July 20, 2012, which has a liability coverage limit of $500, 000.00 (the “Charter Oak Policy”)

         Travelers issued a commercial general liability insurance policy to Don Curry Housemoving (hereafter, the “Insured”), policy number 660-4A856704-TIL-11, with effective dates of July 20, 2011 to July 20, 2012, which has a liability coverage limit of $1, 000, 000.00 (the “Travelers general liability policy”).

         The insurance policies issued by Travelers and Charter Oak were arranged by a broker, Maguire Agency.[3] Maguire Agency, and Charter Oak, knew they were insuring structural moving operations.

         Charter Oak issued insurance cards to the Insured stating: “[t]he Vehicle described below is covered by a liability policy that meets New Mexico's insurance requirements.” The 2004 GMC pickup was not listed.

         On October 3, 1996, Insured was issued a Warrant for Transportation Services as an intrastate motor carrier of property, which remained in effect through the date of the Collision. The warrant specified “transportation of general commodities between points and places throughout the state of New Mexico.” The commodity description in the warrant provided: “transportation of undismantled houses, buildings and structures of every kind and character, from points and places in the state of New Mexico to points and places in the state of New Mexico.” The warrant was subject to revocation in 2014.

         Insured was never categorized by the New Mexico Public Regulation Commission as a motor carrier of household goods and was never issued a certificate to that effect.

         The Travelers general liability policy contains an exclusion for bodily injuries arising out of the use of an “auto.” Auto means “a land motor vehicle, trailer or semitrailer designed for travel on public roads.” The exclusion provides as follows:

2. Exclusions
This insurance does not apply to:
….
g. Aircraft, Auto Or Watercraft
“Bodily injury” or “property damage” arising out of the ownership, maintenance, use or entrustment to others of any aircraft, “auto” or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and “loading or unloading”. This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by that insured, if the “occurrence” which caused the “bodily injury” or “property damage” involved the ownership, maintenance, use or entrustment to others of any aircraft, “auto” or watercraft that is owned or operated by or rented or loaned to any insured.

         The amount of liability coverage provided by the Charter Oak Policy, $500, 000.00, was the amount requested by the Insured. After receiving a quote for an auto policy with liability limits of $750, 000.00, the Insured requested that the automobile liability limit be lowered to $500, 000.00. Plaintiffs assert in argument that Charter Oak initially offered a $750, 000 policy, but there is no evidence supporting that assertion. Instead, there is evidence that Bituminous Insurance Company (“Bituminous”) offered a $750, 000 policy.

         Insured did not request that Charter Oak or Travelers make a filing with the New Mexico Public Regulation Commission, or any other regulatory agency, in connection with its request for insurance. In its application, the Insured was asked whether any filings were necessary to comply with state or federal regulatory requirements. Specifically, the applications asked “ARE ICC, PUC or OTHER FILINGS REQUIRED?” The Insured answered “no.” It appears to be undisputed that Charter Oak did not file a Uniform Form E, which certifies to New Mexico that the policy met the requirements of the motor carrier statute and associated regulations.

         Don Curry Housemoving was insured by Bituminous in two separate policies, one from September 14, 2010 to September 13, 2011, and one from February 1, 2011 to February 1, 2012, for $750, 000. Bituminous filed a certificate of liability insurance (Uniform Form E) with the New Mexico Public Regulation Commission. This certificate of liability insurance was on file with the Public Regulation Commission at all relevant times. A cancellation form was not filed with the Public Regulation commission until March 6, 2017.

         Because of these filings by Bituminous, Plaintiffs assert that at the time the application was submitted by the Insured to Charter Oak, the Insured was in full compliance with the New Mexico financial responsibility requirements. Defendants assert there is no evidence that Charter Oak knew about these filings or relied on them. While Bituminous' certificate of liability insurance was on record as described, the Court does not rule on any legal implications thereto.

         Defendants asserted for the first time in a reply that Charter Oak did not advise the Insured that the limits were deficient. Defendants also later asserted this in a response to Plaintiffs' motion, but did not set this out as a separate additional fact that could be rebutted or disputed.[4] Therefore, the Court will not consider this fact.[5]

         Charter Oak has paid to Defendants the $500, 000 liability limit in the Charter Oak Policy, and the parties agreed to proceed with this declaratory judgment action to resolve remaining disputes regarding the extent of insurance coverage.

         LEGAL STANDARD

         Summary judgment is appropriate where no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Rule 56(a) of the Federal Rules of Civil Procedure provides that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Where there is an absence of evidence to support the nonmoving party's case, summary judgment is appropriate. See Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). A genuine issue of fact is one that “can be resolved only by a finder of fact because [it] may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Importantly, summary judgment is appropriate “unless there is ...


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.