Gittings v. American Family Insurance

888 P.2d 1363, 181 Ariz. 176
CourtCourt of Appeals of Arizona
DecidedAugust 23, 1994
DocketNo. 1 CA-CV 92-0264
StatusPublished
Cited by5 cases

This text of 888 P.2d 1363 (Gittings v. American Family Insurance) 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
Gittings v. American Family Insurance, 888 P.2d 1363, 181 Ariz. 176 (Ark. Ct. App. 1994).

Opinion

OPINION

JACOBSON, Presiding Judge.

The issue raised in this appeal is whether an exclusion from uninsured motorist coverage of off-road vehicles involved in off-road accidents applies to an off-road vehicle that collided with a utility pole within the right-of-way of a public road. To decide this issue, we must define the term “public roads” as it appears in the policy’s exclusion.

FACTS AND PROCEDURAL HISTORY

Appellant Denise Gittings (plaintiff) brought this action for a declaratory judgment of insurance coverage for an accident in which her husband was killed while a passenger in an off-road vehicle that collided with a utility pole within the right-of-way of Mountain Road in Maricopa County. The parties [177]*177dispute whether the vehicle was being used on “public roads” at the time of the accident; if so, the parties agree that plaintiff was entitled to benefits under the uninsured motorist (UM) coverage provisions of her policy with appellee American Family Insurance Co. (defendant).

The parties stipulated to the following facts in their cross-motions for summary judgment:

1. On November 5, 1989, William Git-tings, deceased, was a passenger in an unlicensed sand rail type motor vehicle owned and operated by Jay Polk.
2. Mr. Polk collided head on with an SRP utility pole and William Gittings died as a result of injuries sustained from the collision with the utility pole.
3. The accident occurred on Mountain Road, .40 miles south of Elliot Road, Mari-copa County.
4. At the location and time relevant to this case, Mountain Road was a north/ south two lane asphalt road, and the area surrounding the road is open desert.
5. At the location and time relevant to this case, the right-of-way for Mountain Road was 60 feet, or 30 feet on either side of the centerline.
6. The centerline for Mountain Road is that line which bisects Section Thirteen (13), Township One (1) South, Range Seven (7) East, of the Gila and Salt River Base and Meridian, Maricopa County, Arizona.
7. The utility pole is located 14.4 feet from the edge of the pavement.
8. The utility pole is within the right-of-way for Mountain Road, approximately 1.85 feet from the right-of-way boundary.
9. The sand rail type vehicle was northbound when it struck the power pole.
10. For purposes of this Motion it is agreed that Mr. Polk had no liability insurance applicable for this accident.
11. Plaintiff Denise Gittings is the surviving spouse of William Gittings.
12. Plaintiff Denise Gittings and her deceased husband William Gittings were insured under three separate American Family Insurance policies----
13. All American Family policies included insured motorist coverage of $50,-000 each person, $100,000 each accident.
14. Under Part III of the subject policy entitled “Uninsured Motorist Coverage”, American Family agreed as follows:
We will pay compensatory damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle. The bodily injury must be caused by an accident and arise out of the use of the uninsured motor vehicle.
15. The Uninsured Motorist Coverage section of the American Family Policy contains the following additional definitions, including a definition for motor vehicle:
Motor vehicle means a land motor vehicle or trailer, but it does not mean a vehicle:
b. Which is a farm-type tractor or equipment designed for use mainly off public roads, while so used.
16. Plaintiff Denise Gittings submitted a claim for payment of the policy limits of the uninsured motorist benefits and medical expense benefits applicable to the American Family Insurance policies referenced above.
17. American Family Insurance denied Plaintiff Denise Gittings’ claims on the basis that the vehicle in which Mr. Gittings was riding at the time of the accident was not on a public roadway or being operated on a public roadway.
18. The parties agree that if the vehicle in which Mr. Gittings was riding at the time of the accident was being operated on a public road, there is coverage; conversely, if the sand rail type vehicle was not being operated on a public road, there is no coverage.
19. The attached Accident Report, # 89-23139-963A is a true and correct [178]*178copy of the report of the accident which is the subject of this litigation.

The attached accident report contained the following notation from one of the investigating officers: “Evidence at the scene indicated that the vehicle was north bound on the west road shoulder when it struck the power pole head on.”

The trial court granted defendant’s motion for summary judgment. Plaintiff filed a timely notice of appeal.

DISCUSSION

I. Standard of Review

Summary judgment should only be granted when the facts produced in support of the claim have so little probative value that reasonable persons would not agree with the proponent of the claim. Orme School v. Reeves, 166 Ariz. 301, 310, 802 P.2d 1000, 1009 (1990). We view the facts in a light most favorable to the party opposing the motion. Id.

II. Meaning of the Term “Public Roads”

The sole issue raised on appeal is whether the accident occurred on a public road so as to take this case out of the exclusion in the UM coverage in defendant’s policy. To answer this particular question, we must first determine the scope and the bounds of “public roads” as that term is used in the exclusion in the UM coverage in the pertinent policies. Plaintiff argues the term should encompass the entire right-of-way of the road. Plaintiff contends that we should follow the definition of “street” or “highway” in the definition section of Title 28, Arizona Revised Statutes, which deals with transportation. The relevant section provides:

“Street” or “highway” means the entire width between the boundary lines of every way when any part thereof is open to the use of the public for purposes of vehicular travel.

AR.S. § 28-101(63). Because the utility pole was within the right-of-way for Mountain Road, plaintiff contends, under this definition the vehicle would have been operated on a public road and thus was not subject to the policy’s exclusion for uninsured motor vehicles.

Defendant, on the other hand, urges us to adopt the narrower definition of “roadway” in the Uniform Act Regulating Traffic on Highways:

“Roadway” means that portion of a highway improved, designed or ordinarily used for vehicular travel, exclusive of the berm or shoulder----

AR.S. § 28-602(18).

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Bluebook (online)
888 P.2d 1363, 181 Ariz. 176, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gittings-v-american-family-insurance-arizctapp-1994.