Wincor Nixdorf Inc. v. Discover Property & Casualty Insurance

MEMORANDUM

This insurance case arises out of a dispute over whether an insured vehicle was in “use” when the insured’s employee got out of the vehicle, assaulted a pedestrian rendering him unconscious, and then dragged him to the side of the road before fleeing the scene of the altercation. The district court held it was not and dismissed the suit with prejudice under Federal Rule of Civil Procedure 12(b)(6). We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

Discover Property and Casualty Insurance Company (“Discover”) provided auto insurance coverage for Wincor Nixdorf, Inc. (“Wincor”) and its employees, including Robert Kane (“Kane”). Allianz Global Risks U.S. Insurance Company (“Allianz”) provided commercial general liability coverage for Wincor. On May 21, 2009, Kane was driving in the service of his employer when he came to a controlled intersection in downtown San Francisco. Although the traffic light was green for Kane, a pedestrian, Cameron Rodriguez (“Rodriguez”), crossed in front of his car and caused him to stop. Rodriguez and Kane traded verbal insults at which point Rodriguez gave Kane “the bird.” Kane then got out of his car and punched Rodriguez,…