Allstate Insurance v. Universal Underwriters, Inc.

17 P.3d 106, 199 Ariz. 261, 337 Ariz. Adv. Rep. 38, 2000 Ariz. App. LEXIS 186
CourtCourt of Appeals of Arizona
DecidedDecember 26, 2000
DocketNo. 2 CA-CV 99-0139
StatusPublished
Cited by5 cases

This text of 17 P.3d 106 (Allstate Insurance v. Universal Underwriters, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allstate Insurance v. Universal Underwriters, Inc., 17 P.3d 106, 199 Ariz. 261, 337 Ariz. Adv. Rep. 38, 2000 Ariz. App. LEXIS 186 (Ark. Ct. App. 2000).

Opinion

OPINION

ESPINOSA, Chief Judge.

¶ 1 Appellee Allstate Insurance Co. brought this declaratory judgment action seeking a determination that it was the excess insurer and that defendant/appellant Universal Underwriters, Inc., was the primary insurer for damages resulting from an accident involving a vehicle Universal insured. Universal appeals the trial court’s orders granting Allstate’s motions for summary judgment and for attorney’s fees it incurred below. For the reasons set forth below, we affirm the court’s summary judgment order but vacate its order granting Allstate’s motion for attorney’s fees.

[263]*263Facts and Procedural History

¶ 2 The undisputed facts in this case are as follows. In January 1997, Domingo Orduno was involved in a two-car accident while driving a truck owned by his employer Phelps Ross, Inc. (Phelps), an automobile dealer, which had a “garagekeeper’s” automobile liability policy issued by Universal. Orduno had borrowed the vehicle solely for his personal use and was not engaged in any work-related activities for Phelps at the time of the accident.1 The occupants of the other vehicle submitted claims for the injuries they sustained to both Universal and Allstate, Orduno’s personal automobile liability insurer. Allstate subsequently brought this action against Universal seeking a determination of whether its policy or Universal’s should provide primary coverage for the accident. The parties filed cross-motions for summary judgment, each arguing that the other was the primary insurer for the accident under former A.R.S. § 28-1170.01(A). The trial court concluded that Universal’s policy was primary under subsection A and therefore granted summary judgment for Allstate. This appeal followed.

Standard of Review

¶ 3 On appeal from a trial court’s order granting summary judgment, we review de novo whether there are any genuine issues of material fact and whether the trial court erred in applying the law. Prince v. City of Apache Junction, 185 Ariz. 43, 912 P.2d 47 (App.1996). We also review de novo legal questions of statutory construction. Prudential v. Estate of Rojo-Pacheco, 192 Ariz. 139, 962 P.2d 213 (App.1997).

Statutory Liability

¶ 4 Section 28-1170.01 governs the allocation of coverage when two or more insurers issue motor vehicle liability policies that cover the same loss. See John Deere Ins. Co. v. West American Ins. Group, 175 Ariz. 215, 854 P.2d 1201 (App.1993). The general rule is prescribed in § 28-1170.01(B), which provides as follows:

Except as provided in subsection A of this section, if two or more policies affording valid and collectible liability insurance apply to the same motor vehicle in an occurrence out of which a liability loss shall arise, it shall be conclusively presumed that the insurance afforded by that policy in which such motor vehicle is described or rated as an owned automobile shall be primary and the insurance afforded by any other policy or policies shall be excess.

Thus, under subsection B, when an individual is driving another person’s vehicle, it is conclusively presumed that the policy' insuring the vehicle, rather than the policy insuring the driver, is primary. The trial court determined, however, that, because Orduno was driving a vehicle owed by an entity engaged in the business of selling automobiles, subsection A, not subsection B, controls here.

¶ 5 Subsection A provides as follows:

If two or more policies affording valid and collectible automobile liability insurance apply to the same motor vehicle in an occurrence out of which liability loss shall arise, and one of such policies affords coverage to a named insured engaged in the business of selling, repairing, servicing, delivering, testing, road testing, parking or storing motor vehicles, both of the following shall be conclusively presumed:
1. If, at the time of loss, the motor vehicle is being operated by any person engaged in any of such businesses, or by his employee or agent, the insurance afforded by the policy issued to the person engaged in such business shall be primary, and the insurance afforded by any other policy shall be excess.
2. If, at the time of loss, the motor vehicle is being operated by any person other than as described in paragraph 1, the insurance afforded by the policy issued to any person engaged in any of such businesses shall be excess over all other insurance available to [264]*264such operator as a named insured or otherwise.

Accordingly, subsection A, the so-called garagekeeper’s provision, presumes that a “named insured[’s]” coverage shall be primary, in contrast to the presumption in subsection B that the policy insuring the vehicle shall be primary.

¶ 6 Universal asserts that, although the trial court correctly concluded that subsection A controls here, it erred in determining the insurers’ respective obligation by applying subsection A(l) rather than A(2). Universal focuses on subsection A’s numerous references to a “named insured” or “person” who is “engaged in” an automobile business, arguing that the legislature intended each of those phrases to connote a person who is both employed in the automotive field and working during the course and in the scope of that employment at the time of loss. Accordingly, Universal maintains, because Orduno was not acting within the course and scope of his employment at the time of the accident, subsection A(2), not A(l), applies here.

¶ 7 The trial court concluded, however, that the legislature did not intend to limit the application of subsection A(l) to those situations in which a vehicle’s operator was “performing some function for the business at the time of the incident giving rise to the loss,” surmising that, had the legislature intended that result, it easily could have included such limiting language, which it did not do. Concluding therefore that subsection A(l) does not require that garagekeeper personnel be professionally engaged “at the moment of the event giving rise to the loss,” and noting that Orduno had been driving Phelps’s truck with Phelps’s permission at the time of the accident, the court concluded that Universal “should be primarily responsible for [Orduno’s] use of [the truck] during the period of time it was available to him” under subsection A(l). We agree.

¶ 8 The goal of statutory construction is to determine and give effect to the intent of the legislature. Centric-Jones Co. v. Town of Maraña, 188 Ariz. 464, 468, 937 P.2d 654, 658 (App.1996). Therefore, we look first “at the words of the statute itself, and if their meaning is clear, we accord the statute that plain meaning.” Id. Only if “an ambiguity exists such that the legislative intent cannot be ascertained from the statute, [may] we resort to [other] rules of statutory construction.” Id.

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Cite This Page — Counsel Stack

Bluebook (online)
17 P.3d 106, 199 Ariz. 261, 337 Ariz. Adv. Rep. 38, 2000 Ariz. App. LEXIS 186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allstate-insurance-v-universal-underwriters-inc-arizctapp-2000.