Seana Barber v. Encompass Indemnity Company

dissenting:

There is no need to guess how an Arizona court would resolve this case, because a state court opinion is directly on point: Westfield Ins. Co. v. Aetna Life & Cas. Co., 153 Ariz. 564 , 739 P.2d 218 (Ariz.Ct.App.1987). In that case, the Arizona Court of Appeals held that a car being towed by a tow truck was in “use” within the terms of the towed car’s insurance policy. Id. at 222. Broadly construing the concept of “using” an insured car, West-field held that the tow truck driver was “using” the car because he was (1) “operating the tow truck on the road for the purpose of transporting” the insured car, and (2) “actively controlling the movement *619 of both the tow truck and [the insured car].” Id.

Westfield is on all fours with this case. Here, a driver was (1) operating a truck and flatbed trailer for the purpose of transporting the insured car, and (2) actively controlling the movement of both his truck and the insured car. Under West-field, the insured car here was in “use” when it was being towed and therefore within the insurance policy’s omnibus coverage provision. That should be the end of the inquiry.

Yet the majority purports to distinguish Westfield on the…

MEMORANDUM **

In this diversity action involving insurance coverage for liability arising from an automobile accident, Plaintiffs Jason and Seana Barber appeal the trial court’s grant of summary judgment in favor of Defendant Encompass Indemnity Company. Applying Arizona law, Goldberg v. Pac. Indem. Co., 627 F.3d 752, 755 (9th Cir.2010), and reviewing de novo, Ferguson ex rel. McLeod v. Coregis Ins. Co., 527 F.3d 930, 932 (9th Cir.2008) (per curiam), we affirm.

The district court correctly concluded that the accident at issue — in which the insured vehicle’s involvement was limited to its presence on a towed flat-bed trailer — fell outside the general coverage definitions of Defendant’s insurance policy. That conclusion is correct both under the minimum liability requirements of Arizona automobile insurance law and under the text of the policy itself. Under Arizona law, “for coverage to exist, an insured must be using the car pursuant to the ‘inherent nature’ of the vehicle,” because the “ ‘arising out of the use ... of a car’ language implies that the ... injury occurs as a result of the operation of the car.” Benevides v. Ariz. Prop. & Cas. Ins. Guar. Fund, 184 Ariz. 610 , 911…

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT NOV 10 2011

MOLLY C. DWYER, CLERK

U.S . CO U RT OF AP PE A LS

JASON BARBER, husband; and SEANA No. 10-16710 BARBER, wife, D.C. No. 4:09-cv-00050-RCC Plaintiffs - Appellants,

v. MEMORANDUM *

ENCOMPASS INDEMNITY

COMPANY, an Illinois insurance company,

Defendant - Appellee.

Appeal from the United States District Court for the District of Arizona Raner C. Collins, District Judge, Presiding

Aruged and Submitted October 24, 2011 San Francisco, California

Before: GRABER and IKUTA, Circuit Judges, and KAPLAN,** Senior District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Lewis A. Kaplan, Senior United States District Judge for the Southern District of New Yorµ, sitting by designation. In this diversity action involving insurance coverage for liability arising

from an automobile accident, Plaintiffs Jason and Seana Barber appeal the trial

court's grant of summary judgment in favor of…