State Automobile v. Mamoe

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE AUTOMOBILE MUTUAL INSURANCE COMPANY, ) ) ) Plaintiff/Appellant, ) ) v. ) ) ERNEST S. MAMOE and CINDY Y. ) MAMOE, husband and wife, ) ) Defendants/Appellees. ) _______________________________ ) 1 CA-CV 10-0063 DIVISION ONE FILED: 12/28/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Procedure) Appeal from the Superior Court of Maricopa County Cause No. CV2008-013127 The Honorable Douglas L. Rayes, Judge AFFIRMED Thomas, Thomas & Markson, P.C. By Benjamin C. Thomas, Esq. And Neal B. Thomas, Esq. And Michael G. Kelley, Esq. Attorneys for Plaintiff/Appellant Phoenix Wallin Harrison P.L.C. By Steven E. Harrison, Esq. And N. Patrick Hall, Esq. Attorneys for Defendants/Appellees Gilbert T H O M P S O N, Judge ¶1 Plaintiff State Automobile Mutual Insurance Company (State Auto) appeals the trial court s grant of summary judgment in favor of defendants Ernest Mamoe and his wife Cindy Mamoe (collectively Mamoe), finding that Mamoe qualified as an insured under a business automobile insurance policy issued by State Auto to Mamoe s employer, B & F Contracting, Inc. (B & F). For the reasons that follow, we affirm. ¶2 Mamoe, an employee of B & F, was working near a manhole in Las Vegas, Nevada on September 5, 2007, when he was struck by an unidentified vehicle. Prior to the accident, Mamoe had parked his work vehicle, a truck owned by B & F, in the far left southbound lane of Nellis Boulevard, which was closed and marked off with barricades. Mamoe needed to access gauges which were located inside a manhole which was partially in the middle lane of the boulevard and approximately six to ten feet away from the manhole truck. and Mamoe turned on moved the some safety barricades lights of closer the to truck. the He proceeded to remove the manhole cover and removed the gauges from the manhole. As he laid the gauges on the ground next to the manhole in order to retrieve some tools from the truck, Mamoe was hit and injured by the unidentified driver. At the time he was struck, Mamoe was between six and ten feet from the truck. ¶3 Mamoe motorist and made medical a claim payment to State benefits 2 Auto pursuant for to uninsured B & F s business automobile insurance policy. State Auto denied the claim and filed a complaint for declaratory relief. State Auto then filed a motion for summary judgment, arguing that Mamoe did not qualify as an insured because he was not occupying the vehicle at the time of the accident. cross-motion for summary judgment. Mamoe filed a response and The trial court denied State Auto s motion for summary judgment and granted Mamoe s crossmotion for summary judgment. State Auto timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) § 12-2101(B)(2010). ¶4 Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. 56(c). Ariz. R. Civ. P. We review the grant of summary judgment de novo to determine whether any genuine issue of material fact exists, and we view the evidence and all reasonable inferences in favor of the nonmoving party. Chalpin v. Snyder, 220 Ariz. 413, 418, ¶ 17, 207 P.3d 666, 671 (App. 2008) (citation omitted). Summary judgment should be granted if the facts produced in support of [a] claim . . . have so little probative value, given the quantum of evidence required, that reasonable people could not agree with claim. . .. the conclusion advanced by the proponent of the Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). Here, at issue is the interpretation of an 3 insurance contract, a matter of law we review de novo. Tobel v. Travelers Ins. Co., 195 Ariz. 363, 366, 988 P.2d 148, 151 (App. 1999) (citing American States Ins. Co. v. C & G Contracting, Inc., 186 Ariz. 421, 423, 924 P.2d 111, 113 (App. 1996)). ¶5 On appeal, State Auto argues that because Mamoe was not occupying or upon the truck there was no coverage. The State Auto uninsured motorist coverage portion of the policy stated, in relevant part: B. Who is An Insured If the Named Insured is designated in the Declarations as: . . . 2. A partnership, limited liability company, corporation or any other form of organization, then the following are insureds : a. auto or Anyone occupying a covered a temporary substitute for a covered auto. . . . F. Additional Definitions As used in this endorsement: . . . 2. Occupying means in, upon, getting in, on, out or off. 4 3. Uninsured motor vehicle means a land motor vehicle or trailer : c. neither That is a hit-and-run vehicle and the identified. driver owner can be The vehicle must either: (1) auto nor or Hit a an insured , vehicle an a covered insured is occupying . . . . The trial court, citing Manning v. Summit Homes Ins. Co., 128 Ariz. 79, 623 occupying P.2d his 1235 work unidentified motorist. (App. truck 1980), when he found was that Mamoe struck by was the In Manning, the appellant was struck and injured by an uninsured motorist while standing near the covered vehicle waiting to assist the named insured with putting on tire chains. Id. at 79, 623 P.2d at 1235. of accident, the appellant s We held that at the time activities were in such close proximity to the car and so related to its operation and use as to be an integral part of her occupancy and use of the car. She was therefore upon the car within the meaning of the policy provision. ¶6 Id. at 83, 623 P.2d at 1239. In this case, Mamoe met the test set forth in Manning. Mamoe was between six and ten feet from the insured vehicle when he was struck. Mamoe s truck was specially equipped with lights and equipment for his work in and around manholes, and he was 5 using the truck for such purposes when he was hit. Manning has been the law in Arizona for thirty years; State Auto could have written its policy differently but did not do so. We find no error in the trial court s decision denying State Auto s motion for summary judgment and granting Mamoe s cross-motion for summary judgment. ¶7 Mamoe requests an award of attorneys fees and costs on appeal and in the trial court pursuant to A.R.S. §§ 12-341 (2010), -341.01(A)(2010), Arizona Rules acknowledged of -341.01(C)(2010), Civil below in Appellate their Notice and Procedure. Withdrawing Rule As 21(c), Mamoe Defendant s Application for Attorneys Fees and Statement of Costs, a fee request in a declaratory action is premature when the defendants have not yet shown that they are entitled to judgment on the merits of their underlying claim for personal injury damages. See Nationwide Mut. Ins. Co. v. Stevens, 166 Ariz. 372, 375, 802 P.2d 1071, 1074 (App. 1990) (upholding trial court s ruling that prevailing party in a declaratory action could not claim attorneys fees until after decision on the merits of underlying damages claim), overruled on other grounds by Deese v. State Farm Mut. Auto. Ins. Co., 172 Ariz. 504, 509, 838 P.2d 1265, 1270 (1992). We note that ARCAP 21(c) is not a substantive rule regarding a fee claim, it is a procedural rule. Mamoes request for attorneys fees and costs is denied, as is State Auto s. 6 The request pursuant to A.R.S. § 12-341.01(C) is also denied. ¶8 For the foregoing reasons, we affirm the grant of summary judgment in favor of Mamoe. /s/ ______________________________ JON W. THOMPSON, Judge /s/ ___________________________________ DONN KESSLER, Presiding Judge /s/ ___________________________________ DANIEL A. BARKER, Judge 7

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