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Progressive Casualty Insurance Co. v. Soto

April 7, 2010

PROGRESSIVE CASUALTY INSURANCE COMPANY, PLAINTIFF,
v.
FRANCISCO SOTO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge

ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

[Docket No. 58]

This matter comes before the Court on Plaintiff's motion for summary judgment. Defendants Rebeca and Ruben Garcia filed an opposition to the motion, and Plaintiff filed a reply. The motion came on for hearing on April 2, 2010. Patrick Howe appeared on behalf of Plaintiff, and Dwight Ritter appeared and argued for Defendants Rebeca and Ruben Garcia. For the reasons discussed below, the Court grants Plaintiff's motion.

I. BACKGROUND

Plaintiff Progressive Casualty Insurance Company ("Plaintiff") issued an insurance policy to Defendants Omega Transport ("Omega") and Francisco Soto ("Soto"). Omega was conducted by a general partnership consisting of Soto, Defendant Connie Truc ("Truc") and Defendant Khiem Tran ("Tran"). (Pl.'s Index of Exhibits in Supp. of Mot., Ex. B.) The Policy provided coverage relating to certain vehicles, including a 1984 Peterbilt truck ("Peterbilt"), for the period January 31, 2006, through January 31, 2007. Specifically, the Policy provided: "We will pay damages, OTHER THAN PUNITIVE OR EXEMPLARY DAMAGES for which an insured is legally liable because of an accident." (Pl.'s Index of Exhibits in Supp. of Mot., Ex. D at 000019.) The Policy also contained a number of exclusions, including the following: "Coverage under this PART I and our duty to defend does not apply to: ...15. Bodily injury to you or an insured." (Id. at 000019-000022.) The Policy defines "insured" as used in this exclusion to include: "Any other person driving your insured auto with your permission and within the scope of that permission[.]" (Id. at 000020.)

On June 28, 2006, Defendant Ruben Garcia was working as an independent contractor for Defendants Omega, Soto, Truc and Tran. (Pl.'s Index of Exhibits in Supp. of Mot., Ex. L at 000080.) These Defendants "instructed" Mr. Garcia to transport sand using the Peterbilt and two attached trailers. (Id.) Mr. Garcia picked up the truck and trailers in El Cajon, drove them to Campo, delivered the sand to Miramar, and then drove back to Campo for another load of sand. (Pl.'s Index of Exhibits in Supp. of Mot., Ex. R at 000158.) After picking up his second load, and while driving back to Miramar, Mr. Garcia noticed smoke coming from the vehicle's brakes. (Id. at 000158-59.) He pulled to the side of the road and called Mr. Soto, who arrived on the scene about thirty minutes later. (Id. at 000159.) Mr. Soto checked the truck, and told Mr. Garcia to take it back to El Cajon. (Id. at 00160.) While Mr. Garcia was en route to El Cajon, Mr. Soto called him and told him to go ahead and take the load to Miramar. (Id.) Mr. Garcia did so, and Mr. Soto followed him in another vehicle. (Id. at 00161.) After they delivered the load of sand, Mr. Garcia and Mr. Soto pulled their vehicles to the side of the road. (Id.) Mr. Soto then proceeded to adjust the brakes on the truck and/or trailers. (Id.) When he was finished, Mr. Soto instructed Mr. Garcia to pick up another load and bring it back to Miramar. (Id. at 000162.) Mr. Garcia drove the truck back to Campo, picked up another load of sand, and continued back to Miramar. (Id.) While driving westbound on Interstate 8, Mr. Garcia applied the brakes, but they did not work. (Id. at 000164.) At that point, Mr. Garcia was traveling downhill. (Id.) He tried another set of brakes, but the truck did not slow. (Id.) Eventually, Mr. Garcia lost control of the truck and trailers and the vehicles flipped over, causing injury to Mr. Garcia.

On June 5, 2008, Defendant Garcia and his wife, Rebeca, filed a complaint in San Diego Superior Court alleging claims of negligence and loss of consortium arising out of the accident. That complaint names Carrizo Gorge International Aggregates, Inc., Carrizo Gorge Railway, Inc., Soto, Truc, Tran, Valente Uribe and Omega as Defendants. That case is currently pending.

On October 2, 2009, Plaintiff filed the present Complaint in this Court alleging a claim for declaratory relief. This Court has entered defaults against Defendants Carrizo Gorge International Aggregates, Inc., Carrizo Gorge Railway, Inc., Soto, Truc, Tran, Uribe and Omega. Defendants Ruben and Rebeca Garcia are the only remaining Defendants.

II. DISCUSSION

Plaintiff asserts there are no genuine issues of material fact in this case, and it is entitled to judgment as a matter of law in light of the exclusion in the Policy. Defendants dispute that there are no genuine issues of material fact, and that Plaintiff is entitled to judgment as a matter of law.

A. Standard of Review

Summary judgment is appropriate if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party has the initial burden of demonstrating that summary judgment is proper. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). The moving party must identify the pleadings, depositions, affidavits, or other evidence that it "believes demonstrates the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the parties' differing versions of the truth." S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir. 1982).

The burden then shifts to the opposing party to show that summary judgment is not appropriate. Celotex, 477 U.S. at 324. The opposing party's evidence is to be believed, and all justifiable inferences are to be drawn in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, to avoid summary judgment, the opposing party cannot rest solely on conclusory allegations. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). Instead, it must designate specific facts showing there is a genuine issue for trial. Id. See also Butler v. San Diego District Attorney's Office, 370 F.3d 956, 958 (9th Cir. 2004) (stating if defendant produces enough evidence to require plaintiff to go beyond pleadings, plaintiff must counter by producing ...


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