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Oregon Mutual Insurance Co. v. National General Insurance Co.

April 5, 2010

OREGON MUTUAL INSURANCE COMPANY, AN OREGON CORPORATION, PLAINTIFF,
v.
NATIONAL GENERAL INSURANCE COMPANY, A MISSOURI CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

(Doc. Nos. 18, 20)

This is an insurance coverage dispute between Plaintiff Oregon Mutual Insurance Co. ("Oregon") and Defendant National General Insurance Co. ("National"). Oregon issued a homeowner's insurance policy to the insureds, and National issued an automobile insurance policy to the insureds. Oregon settled a lawsuit brought against the insureds after National refused the tender. Both parties now move for summary judgment on whether the National automobile policy provided coverage for the insureds. The parties have submitted stipulated undisputed facts,*fn1 and there are no disputed issues of fact. After reviewing the cross motions of the parties, the Court will grant National's motion and deny Oregon's motion.

FACTUAL BACKGROUND

The subject vehicle is a 1989 Toyota pickup truck ("the Pickup Truck"), and is owned by James Shaw ("Shaw") and his grandmother, Lucille Shaw. See Facts 1, 12. On January 27, 2007, Shaw drove the Pickup Truck to the Valley IGA Deli & Bakery, located in Waterford, California. See Fact 2. Shaw's male English mastiff ("the Dog") rode unrestrained in the bed of the Pickup Truck. See Fact 3. The Pickup Truck's bed was open, with no cover, camper, or canopy. See Fact 4. Shaw legally parked and exited the vehicle to go inside the IGA, leaving the Dog unrestrained in the bed of the Pickup Truck. See Fact 5.

While Shaw was inside the IGA, Donald Collins ("Collins") approached the Pickup Truck. See Fact 6. Three witnesses all saw Collins lean into the Pickup Truck's open bed. See Fact 7. Witness Gonzales stated that Collins leaned into the bed of the Pickup Truck and made a vocal noise at the Dog that sounded similar to "boo" or "boy." See Fact 8. The Dog suddenly jumped up and bit Collins in the face, causing a severe injury.*fn2 See Fact 9. When Collins withdrew from the Pickup Truck, the Dog sat back down in the bed. See Fact 10. At no time did the Dog leave the bed of the Pickup Truck. See Fact 11.

Collins sued, and Oregon tendered Collins's claim against the Shaws to National on August 29, 2007. See Fact 22. National denied coverage for Collins's claim on October 3, 2007. See Fact 23. On September 15, 2008, Oregon settled Collins's claim against the Shaws for $100,000.00. See Fact 24. National did not contribute to the settlement. See Fact 25.

The Pickup Truck was insured under a National policy, effective from January 2007 to July 2007. See Fact 13. The National policy provides $100,000.00 in bodily injury coverage per person. See Fact 15. The "Part A-Liability Coverage" portion of the National policy provides in part:

INSURING AGREEMENT

A. We will pay damages for "bodily injury" or "property damage" for which an "insured" becomes legally responsible because of an "auto accident." Damages include prejudgment interest awarded against the "insured." We will settle or defend, as we consider appropriate, any claim or suit asking for these damages. In addition to our limit of liability, we will pay all defense costs we incur. Our duty to settle or defense ends when our limit of liability for this coverage has been exhausted. We have no duty to defend any suit or settle any claim for "bodily injury" or "property damage" not covered under this policy.

B. "Insured" as used in this Part means:

1. You or any "family member" for the ownership, maintenance, or use of any auto or "trailer"

2. Any person using "your covered auto."

3. For "your covered auto," any person or organization but only with respect to legal responsibility for acts or omissions of a person for whom coverage is afforded under this Part.

See Fact 16.

Oregon provided a homeowner's policy to Shaw's grandparents, Floyd and Lucille Shaw, effective from October 2006 through October 2007. See Fact 17. The Oregon policy provides $100,000.00 of personal liability coverage per occurrence. See Fact 19. Under the section "Coverage L - Personal Liability," the Oregon policy provides:

We pay, up to our limit, for this coverage stated in the declarations, all sums, . . . for which an insured is legally liable because of bodily injury, . . . caused by an occurrence to which this coverage applies. If a suit is brought against the insured, we will defend the insured at our expense, . . . Provided the suit results from bodily injury, . . . caused by an occurrence to which this coverage applies.

See Fact 21. Additionally, in a separate section, the Oregon policy states that "Coverage L" is "excess over other valid and collectible insurance that applies to the loss or claim." See Fact 20.

Under the section "Coverage M - Medical Payments to Others," the Oregon policy provides:

We pay, up to our limit, for this coverage stated in the declarations, medical expenses incurred or determined within three years from the date an accident occurring during the policy period causing bodily injury to which this coverage applies. . . . This coverage applies only to . . . 2. a person away fom an insured premises if the bodily injury: . . . b. is caused by an activity of an insured; . . . d. is caused by an animal owned by or in the care of an insured.

See Fact 21.

Under the section "Incidental Liability Coverages," the Oregon policy provides, "We pay for the bodily injury . . . which . . . c. results from an insured's use of a recreational motor ...


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