No. 1 CA-CV 20-0363
COUNSEL Ahwatukee Legal Office PC, Phoenix By David L. Abney Co-Counsel for Plaintiff/Appellant Mingus Mountain Law Group PLLC, Prescott Valley By Mark A. Kille Co-Counsel for Plaintiff/Appellant Richards Law Office PC, Phoenix By Charles F. Richards, Jr., Jami K. White Counsel for Defendant/Appellee
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Coconino County
The Honorable Dan R. Slayton, Judge
Ahwatukee Legal Office PC, Phoenix
By David L. Abney
Co-Counsel for Plaintiff/Appellant
Mingus Mountain Law Group PLLC, Prescott Valley
By Mark A. Kille
Co-Counsel for Plaintiff/Appellant
Richards Law Office PC, Phoenix
By Charles F. Richards, Jr., Jami K. White
Counsel for Defendant/Appellee
Judge Michael J. Brown delivered the decision of the Court, in which Presiding Judge David B. Gass and Judge David D. Weinzweig joined.
¶1 Stephanie Gonzalez appeals the superior court's order granting summary judgment in favor of United Financial Casualty Company ("UFCC") on her coverage claim relating to an underinsured motorist insurance policy ("Policy"). Because Gonzalez was not "occupying" the car covered by the Policy when she was injured, we affirm.
¶2 The relevant facts are undisputed. Gonzalez and several friends attended a college graduation in Flagstaff. Later that night, one of her friends ordered an Uber ride. While waiting for the ride, the group separated when two of them stopped to speak with an acquaintance. The other three, including Gonzalez, were on the north side of the street when the Uber driver arrived and parked on the south side.
¶3 Gonzalez walked across the street and approached the Uber car, driven by LaVerne McCabe. They said "hi" to each other, and Gonzalez looked back as though she expected someone would be following her. Gonzalez opened the back door but then quickly closed it. She told McCabe to "wait right here for me," while holding up her hand and moving it toward McCabe. McCabe replied, "I'll be right here waiting for you," pointing to her driver's seat. While this exchange was occurring, Gonzalez was walking backwards into the street, apparently searching for her friends. As she approached the dividing line between the two traffic lanes, a pickup truck crashed into Gonzalez, causing her to suffer serious injuries.
¶4 The auto insurer of the truck paid Gonzalez the $50,000 liability coverage limits. Gonzalez then filed this declaratory action against UFCC, the Uber's auto insurer, alleging she was entitled to underinsured motorist coverage under the Policy, which provided coverage for "[a]ny person while occupying an insured auto while that insured auto is engaged in a prearranged service." (Emphasis added.) The Policy defined "occupying" as "in, entering, or exiting."
¶5 After considering competing motions for summary judgment and oral argument on whether Gonzalez occupied the Uber car, the superior court ruled in favor of UFCC. The court explained in part that Gonzalez did not occupy the car because she "put the use of the car on hold while she went to go get her friends. And in that act, she was not entering. She was not exiting." Gonzalez timely appealed.
¶6 Summary judgment is proper when "there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a). We review the superior court's grant of summary judgment de novo, viewing the evidence and reasonable inferences in the light most favorable to the non-moving party. Ochser v. Funk, 228 Ariz. 365, 369, ¶ 11 (2011). We also review the interpretation of an insurance contract de novo. First Am. Title Ins. Co. v. Action Acquisitions, LLC, 218 Ariz. 394, 397, ¶ 8 (2008). And we will affirm the court's disposition if it is correct for any reason. Glaze v. Marcus, 151 Ariz. 538, 540 (App. 1986).
¶7 Gonzalez argues the "guiding precedent" to determine coverage here is Manning v. Summit Home Insurance Co., 128 Ariz. 79 (App. 1980), and she relies on similar cases from other jurisdictions. But to determine insurance coverage, our analysis must begin with the language of the policy at issue. See Aztar Corp. v. U.S. Fire Ins. Co., 223 Ariz. 463, 469, ¶ 18 (App. 2010). "We accord words used in policies their plain and ordinary meaning, examining the policy 'from the viewpoint of an individual untrained in law or business.'" Teufel v. Am. Fam. Mut. Ins. Co., 244 Ariz. 383, 385, ¶ 10 (2018) (citation omitted). A policy is ambiguous—and therefore construed against the insurer—if it is subject to conflicting reasonable interpretations. Id.
¶8 The Policy covers any individual "occupying" an Uber car, defined as "in, entering, or exiting" the car. Gonzalez does not argue she was "in" or "exiting" the Uber car, but instead contends she was "entering" it. Because the Policy does not define "entering," we may look to dictionaries and caselaw for guidance. See Goldberger v. State Farm Fire & Cas. Co., 247 Ariz. 261, 264, ¶¶ 12-13 (App. 2019) (analyzing dictionary definitions and cases to determine meaning of insurance policy). The dictionary defines "entering" as "to come or go into." See Enter, Random House Webster's Unabridged Dictionary (2d ed. 2001); see also Enter, New Oxford American Dictionary (3rd ed. 2010) ("come or go into (a place)"). Courts in other jurisdictions have adopted similar meanings. See, e.g., Floyd
v. J.C. Penney Cas. Ins. Co., 387 S.E.2d 625, 626 (Ga. Ct. App. 1989) (describing "enter" as "[t]o . . . go into; to pass into the interior of; to pass within the outer cover or shell of"); Carter v. Travelers Indem. Co., 146 So. 2d 257, 259 (La. Ct. App. 1962) ("'[E]ntering' is said to be the equivalent of coming or going into; passing into the interior of; making or effecting an entrance, and obviously means going or moving into. [It] is therefore an affirmative act or movement to effect an entrance.").
¶9 Gonzalez contends the Policy should be interpreted to find coverage when someone is "in proximity to the insured vehicle and engaging in conduct centering on it," reasoning that the act of gathering her friends was necessary to the entering process. But Gonzalez still needed to cross the street, find her friends, ask them to come with her, and cross the street again. To define these collective actions as "entering" the car would extend coverage beyond the Policy's plain and ordinary meaning. See Cramer v. Nat'l Cas. Co., 690 Fed. App'x. 135, 137-39 (4th Cir. 2017) (ambulance driver who was returning to the ambulance after checking an accident was not covered because the driver "was not engaged in the completion of acts reasonably expected from one actually getting in a vehicle under similar conditions"); Ostendorf v. Arrow Ins. Co., 182 N.W.2d 190, 192 (Minn. 1970) (child who was running across the street from the car to a store and hit by a passing vehicle was not covered because the policy language was clear). We cannot agree the Policy's language at issue here is reasonably susceptible to Gonzalez's interpretation. See Teufel, 244 Ariz. at 385, ¶ 10. Viewing the word "entering" from the viewpoint of an ordinary person, it is not ambiguous. See id.
¶10 Manning does not change our analysis. See 128 Ariz. at 82. There, the plaintiff was a passenger who had exited the insured car to help install chains on its tires when a passing vehicle hit her, and the policy covered persons "in or upon or entering into or alighting from" the insured vehicle. Id. at 80-81 (emphasis added). At issue was whether the passenger "was 'upon' the vehicle at the time she was struck." Id. at 81. We reasoned that a person "may be said to be 'upon' the car" if her "activities are in such close proximity to the car and so related to its operation and use that they are an integral part of one's occupancy and use of the car." Id. at 82 (emphasis added). Gonzalez argues her actions were in close proximity and integral to occupancy. But the Policy does not define "entering" as being "upon" the car. See id.
¶11 Other cases on which Gonzalez relies from other jurisdictions are not persuasive because they do not involve the same language or they stray from the policy's plain language. See, e.g., Simpson v. U.S. Fid. & Guar.
Co., 562 N.W.2d 627, 631 (Iowa 1997) (focusing on the specialized nature of the truck involved and concluding "[t]he vehicle was not merely a means of transporting persons but was designed and equipped to aid with water valve inspection, cleanup, and repair"); Allstate Ins. Co. v. Flaumenbaum, 308 N.Y.S.2d 447, 462 (Sup. Ct. 1970) (concluding passenger outside of a cab paying the driver was covered by the policy because he had not stopped occupying the vehicle until his connection with it had been severed); Hudson v. Geico Ins. Agency, Inc., 161 A.3d 1150, 1156-57 (R.I. 2017) (noting the insured was acting as a Good Samaritan by helping someone after a crash).
¶12 In sum, we decline to stretch the word "entering" to encompass an activity that was unrelated to the common understanding of what it means to "enter" a car. Gonzalez argues for a "reasonable inference" that "someone who opens a door will usually pass through it." While that is generally true, there is no evidence Gonzalez placed any portion of her body inside the car. More importantly, she had closed the car door and taken several steps from it when she was hit by the truck. Under the plain and ordinary meaning of the Policy's language, Gonzalez did not occupy the car because she was not "entering" it when the accident occurred. See Mission Ins. Co. v. Nethers, 119 Ariz. 405, 408 (App. 1978) ("When an insurance policy's meaning and intent are clear, it is not the prerogative of the courts to rewrite the contract in attempting to avoid harsh results.").
¶13 We affirm the superior court's entry of summary judgment for UFCC. Both parties request attorneys' fees under A.R.S. § 12-341.01. Because Gonzalez has not prevailed on appeal, we deny her request. In our discretion, we award reasonable attorneys' fees to UFCC, as well as taxable costs, subject to compliance with ARCAP 21.