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Allocca v. York Insurance Co. of Maine

Superior Court of Maine, Cumberland

June 14, 2016

THERESA ALLOCCA, et al, Plaintiffs
v.
YORK INSURANCE CO. OF MAINE, et al, Defendants

          MARTICA DOUGLAS ESQ DOUGLAS DENHAM BUCCINA & ERNST.

          ORDER

          Thomas D. Warren Justice.

         Before the court are motions for summary judgment by defendants York Insurance Co. of Maine, Allstate Insurance Co., and Horace Mann Teachers Insurance Co. Plaintiffs Theresa Allocca and Timothy Davison contend that all three insurers are contractually liable to provide uninsured motorist (UM) coverage in connection with the death of their son, Timothy Austin Davison, known as "Asti, " who was murdered on Interstate 81 in Pennsylvania on January 4, 2014.

         Summary Judgment

         Summary judgment should be granted if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. In considering a motion for summary judgment, the court is required to consider only the portions of the record referred to and the material facts set forth in the parties' Rule 56(h) statements. E.g., Johnson v. McNeil, 2002 ME 99 ¶ 8, 800 A.2d 702. The facts must be considered in the light most favorable to the non-moving party. Id. Thus, for purposes of summary judgment, any factual disputes must be resolved against the movant. Nevertheless, when the facts offered by a party in opposition to summary judgment would not, if offered at trial, be sufficient to withstand a motion for judgment as a matter of law, summary judgment should be granted. Rodrigue v. Rodrigue, 1997 ME 99 ¶ 8, 694 A.2d 924.

         In this case all of the material facts necessary to decide the pending motions are undisputed for purposes of summary judgment. See Allstate SMF ¶¶ 12-10, 13-14 (admitted); York Insurance SMF ¶¶ 1-13 (admitted with two minor qualifications); Horace Mann SMF ¶¶ 1-5 (admitted).

         Undisputed Facts

         On January 4, 2014 Asti Davison was driving his father's SUV northbound on Interstate 81 in Maryland when he began to be pursued by an unknown assailant in a pickup truck. During the pursuit the unknown assailant fired shots at Asti's vehicle.

         The two vehicles crossed into Pennsylvania on Interstate 81, and the assailant rammed his truck into the SUV Asti was driving, pushing it off the road into the median strip. The assailant then reversed direction, approaching the SUV from the southbound lanes of Interstate 81, pulled his truck next to the SUV, fired several shots at Asti, and drove away. Asti subsequently died of gunshot wounds.

         The applicable automobile insurance policies (or relevant portions thereof) are contained in the summary judgment record.[1] York agrees that Asti was potentially qualified for UM coverage under a York automobile policy issued to his father that specifically listed the SUV which Asti was driving as a covered vehicle. Allstate does not dispute that Asti was potentially qualified for UM coverage under Allstate auto policies issued on Asti's car and motorcycle. Both York and Allstate contend, however, that plaintiffs' claims in this case do not fall within their policies' UM coverage because Asti's death was not an accident and because it did not arise out of the operation or use of a motor vehicle within the meaning of Maine's UM statute and the applicable policies.

         Horace Mann joins in the arguments raised by York and Allstate and raises an additional argument - that plaintiff Allocca is not entitled to UM coverage under the Horace Mann policy issued to Allocca because Asti, although a relative, no longer resided with her. For purposes of summary judgment Allocca concedes this fact[2] but nonetheless contends that she is entitled to recover under the policy as a beneficiary of Asti's estate.

         In addition to the undisputed facts, there is one aspect of the case that is or may be disputed but is not pertinent to the pending motions before the court. In passing, Allstate's SMF notes the September 21, 2015 filing of a criminal complaint by Pennsylvania authorities against John Strawser, who is alleged to be the assailant who pursued Asti, ran him off the road, and shot him. See Allstate SMF ¶¶ 11-12. If the driver responsible for Asti's death has been identified, this potentially raises other issues as to UM coverage, given that plaintiffs are currently proceeding on the theory that Asti was the victim of a hit and run vehicle whose operator cannot be identified.[3] At this point, however, the criminal complaint is hearsay, and none of the defendants are relying on the alleged identification of Strawser in connection with the pending motions. See Allstate Motion for Summary Judgment dated December 17, 2015 at 1 n.l ("For purposes of this motion, Defendants assume that Strawser was uninsured . . .").

         1. Application of UM Coverage to Intentionally Inflicted Injury

         This case raises a fundamental question with respect to the applicability of UM coverage to deliberate acts intended to cause harm. That question has not been directly addressed by the Law Court. Aside from the particular facts of this case, this issue would arise in any situation where an innocent insured was injured when the insured's car was deliberately rammed by an uninsured driver in a road rage incident.

         As defendants note, the Law Court has frequently stated that the intent of the UM statute is to provide an insured with the same recovery which would have been available if the tortfeasor had been insured to the same extent as the injured party. E.g., Farthing v. Allstate Insurance Co., 2010 ME 131 ¶ 6, 10 A.3d 667; Tibbetts v. Dairyland Insurance Co., 2010 ME 61 ¶ 12, 999 A.2d 930. They point out that neither Asti nor his assailant would have been insured for intentional criminal acts and contend that UM coverage should therefore not be available here.

         Plaintiffs counter that the UM statute is remedial legislation and that both the UM statute and UM policies should be liberally construed in favor of insured victims. E.g., Beal v. Allstate Insurance Co., 2010 ME 20 ¶ 34, 989 A.2d 733. They argue that innocent insureds should not be denied coverage depending on whether uninsured tortfeasors intended to inflict harm as opposed to having acted negligently.

         To resolve this issue the court considers the language and purpose of the UM statute, the language of the relevant UM policies, and the prior decisions of the Law Court. As discussed below, those do not necessarily yield easy answers.

         2. "Caused by an Accident"

         All four UM policies at issue provide that the insurers will pay compensatory damages that the insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury "caused by an accident." See York policy Part C ¶ A(2) (Exhibit B to York SMF at 11, 18); Allstate auto policy as quoted in Allstate's memorandum of law at 3; Allstate motorcycle policy Part 3 (Exhibit C to complaint at 13); Horace Mann policy Section IV (Exhibit A to Donahue Affidavit at 29). All three defendants contend, based on the undisputed facts surrounding the death of Asti Davison, that his death was not "caused by an accident."

         On this issue plaintiffs argue at the outset that, by its terms, Maine's UM statute does not limit recovery to bodily injury "caused by an accident" and that insurers are not entitled to place limits on recovery that are not contained in the statute. 24-A M.R.S. § 2902(1) requires coverage for

persons insured under this policy who are legally entitled to recover damages from owners or operators of uninsured, underinsured or hit-and-run motor vehicles, for bodily injury, sickness, or disease, including death, sustained by an injured person resulting from the ownership, maintenance or use of such uninsured, underinsured or hit-and-run motor vehicle.

         Plaintiffs are correct that no reference to an "accident" is made in that subsection.

         Nevertheless, other subsections in the UM statute refer to the procedure to be followed when UM policies have a "per accident limit." 24-A M.R.S. §§ 2902(6)(A), (6)(B). Moreover, the Law Court has on numerous occasions explained that the intent of the UM statute is "to protect insured people injured in motor vehicle accidents caused by uninsured or underinsured drivers." Dickau v. Vermont Mutual Insurance Co., 2014 ME 158 ¶ 43, 107 A.3d 621 (emphasis added). Accord, Westcott v. Allstate Insurance, 397 A.2d 156 (Me. 1979):

The obvious design of our uninsured vehicle coverage statute is to protect a responsible insured motorist against the hazards presented by the operation of motor vehicles where injuries are inflicted in an accident with an irresponsible operator who is uninsured or has fled the scene and in most instances is financially unable ...

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