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United States District Court, D. Arizona.

Bradley YOUNG, Plaintiff, v. OWNERS INSURANCE COMPANY, et al., Defendants.

No. CV-20-08077-PCT-DWL

Decided: December 17, 2021

Keith Randall Nelson, Riggs Ellsworth & Porter PLC, Queen Creek, AZ, Robert L. Greer, Riggs Ellsworth & Porter PLC, Mesa, AZ, for Plaintiff. Jennifer Marie Bahling, Kevin Charles Barrett, Barrett & Matura PC, Scottsdale, AZ, for Defendant Owners Insurance Company.


Plaintiff Bradley Young (“Plaintiff”) was walking home from a New Year's Eve party when he was struck by an uninsured motorcyclist. The accident, which caused Plaintiff to sustain serious injuries, occurred in an area known as the Imperial Sand Dunes. Following the accident, Plaintiff unsuccessfully sought uninsured motorist benefits from his insurer, Defendant Owners Insurance Company (“Defendant”). In the letter explaining the denial of benefits, Defendant emphasized that the term “uninsured motor vehicle” was defined in Plaintiff's policy to exclude “any vehicle designed for use mainly off public roads while not on public roads” and stated that Plaintiff was not entitled to coverage pursuant to this definition because the motorcycle that struck him was designed for use mainly off public roads and the accident did not occur on a public road.

Dissatisfied with this outcome, Plaintiff filed this action seeking declaratory relief as to Defendant's coverage obligations. Now pending before the Court are the parties’ cross-motions for summary judgment. (Docs. 66, 67.) For the following reasons, Defendant's motion is granted and Plaintiff's motion is denied.


I. Factual Background

The background facts below, which are uncontroverted, are taken from the parties’ summary judgment submissions. Additional facts bearing on the parties’ specific summary judgment arguments are addressed in later portions of this order.

At the time of the accident, Plaintiff ran a food truck business called “Daddy's Famous Foods.” (Doc. 66-2 at 19.) As part of that business, Plaintiff had “a 5,000-square-foot spot that [he] served food out of” in Glamis, California. (Id.) At least part of Glamis is located within the Imperial Sand Dunes, a federal recreation area administered by the Bureau of Land Management (“BLM”). (Doc. 66-2 at 42; Doc. 67-10.) Between October and April, Plaintiff typically stayed in Glamis “on the weekends” in a trailer attached to his food truck. (Doc. 66-2 at 19.)

On December 31, 2018, Plaintiff attended a New Year's Eve party at a friend's house in Glamis. (Doc. 66-2 at 2.) In the late evening, Plaintiff left the party and started to walk back to his camper trailer. (Id. at 4.) Plaintiff was in the vicinity of a route described by locals and law enforcement as a “sand highway.” (Doc. 66-2 at 8, 10, 48; Doc. 67-6 at 7 [“[T]hat's what everybody calls it.”]; Doc. 67-9 at 5.)

During his walk, Plaintiff was struck by David Gantz (“Gantz”), who was driving a Yamaha motorcycle. (Doc. 66-2 at 6.) Gantz had not insured the motorcycle. (Id. at 21.)

II. The Insurance Policy

On November 13, 2018, Defendant renewed a commercial automobile insurance policy (“the Policy”) issued to Brianna Young, Plaintiff's daughter, and Daddy's Famous Foods. (Id. at 23.) The Policy covered “[t]he Named Insured and any family members” (id. at 25), and it is undisputed that Plaintiff is a family member covered by the Policy.

The Policy included an endorsement entitled “Arizona—Uninsured Motorist Coverage.” (Doc. 67-4 at 36-38.) In general, this endorsement obligated Defendant to “pay all sums the insured is legally entitled to recover as compensatory damages from the owner or driver of an uninsured motor vehicle.” (Id. at 36.) However, in the “Additional Definitions” section of the endorsement, the term “uninsured motor vehicle” was defined as “not includ[ing] any vehicle designed for use mainly off public roads while not on public roads.” (Id. at 38.) The Policy did not further define the terms “public roads,” “designed for use,” or “mainly.”

On February 20, 2020, in response to a demand letter from Plaintiff's counsel, Defendant advised that it would “respectfully decline [Plaintiff's] demand for payment” based on the aforementioned policy language. (Doc. 66-2 at 65.) Specifically, Defendant asserted that “[i]t appears that the dirt bike involved in this accident was not an ‘uninsured motor vehicle’ as that term is defined in the [Policy]. It is a vehicle designed for use mainly off public roads. In fact, it appears the dirt bike was not registered to be driven on public roads. In addition, this accident did not occur on a public road. As a result, the uninsured motorist coverage does not apply.” (Id. at 66-67.)

III. Procedural Background

On April 8, 2020, Plaintiff initiated this action by filing a complaint that named Defendant and Progressive Casualty Insurance Company (“Progressive”) as defendants. (Doc. 1.)

On April 14, 2020, the Court ordered Plaintiff to file an amended complaint properly alleging the citizenship of each party. (Doc. 6.)

On April 23, 2020, Plaintiff filed the first amended complaint. (Doc. 7.)

On April 27, 2020, the Court ordered Plaintiff to amend the complaint for a second time to properly allege Defendant's and Progressive's places of incorporation. (Doc. 8.)

On April 28, 2020, Plaintiff filed the second amended complaint. (Doc. 9.)

On June 29, 2020, Plaintiff filed the third amended complaint, adding Commerce Insurance Company (“Commerce”) as a defendant. (Doc. 18.)

On October 28, 2020, the Court severed Plaintiff's claims against Progressive and Commerce and ordered those claims transferred to the District of Massachusetts. (Doc. 41.) The Court retained jurisdiction over Plaintiff's claim against Defendant. (Id.)

On July 1, 2021, each side moved for summary judgment. (Docs. 66, 67.)1

On July 30, 2021, Plaintiff filed a response. (Doc. 68.)

On August 2, 2021, Defendant filed a response. (Doc. 69.)

On August 9, 2021, Plaintiff filed a reply. (Doc. 70.)

On August 16, 2021, Defendant filed a reply. (Doc. 71.)


I. Legal Standard—Summary Judgment

“The court shall grant summary judgment if [a] movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ only if it might affect the outcome of the case, and a dispute is ‘genuine’ only if a reasonable trier of fact could resolve the issue in the non-movant's favor.” Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2014). The court “must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inference in the nonmoving party's favor.” Rookaird v. BNSF Ry. Co., 908 F.3d 451, 459 (9th Cir. 2018). “Summary judgment is improper where divergent ultimate inferences may reasonably be drawn from the undisputed facts.” Fresno Motors, 771 F.3d at 1125 (internal quotation marks omitted).

A party moving for summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “[T]o carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). “If ․ [the] moving party carries its burden of production, the nonmoving party must produce evidence to support its claim or defense.” Id. at 1103. Summary judgment is appropriate against a party that “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

“[W]hen parties submit cross-motions for summary judgment, [e]ach motion must be considered on its own merits,” but the Court must consider all evidence submitted in support of both cross-motions when separately reviewing the merits of each motion. Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001) (quotation marks omitted).

II. Legal Standard—Undefined Contractual Terms Under Arizona Law

The parties agree that Arizona law applies here. (Doc. 66 at 7; Doc. 69 at 7.) Under Arizona law, an insurance policy “must be read as a whole, so as to give a reasonable and harmonious effect to all of its provisions.” Charbonneau v. Blue Cross, 130 Ariz. 160, 634 P.2d 972, 975 (Ariz. Ct. App. 2007).

“In the insurer/insured context, ․ Arizona's public policy favors insureds. Hence Arizona law requires that undefined terms be given the meaning used by laypeople in everyday usage and that terms and provisions that remain ambiguous after all relevant considerations be interpreted in favor of coverage and against the insurer.” Equity Income Partners, LP v. Chicago Title Ins. Co., 241 Ariz. 334, 387 P.3d 1263, 1268 (2017). “Provisions of insurance policies are to be construed in a manner according to their plain and ordinary meaning.” Sparks v. Republic Nat. Life Ins. Co., 132 Ariz. 529, 647 P.2d 1127, 1132 (1982). When the language of the policy is clear, the Court must “afford it its plain and ordinary meaning and apply it as written.” Liberty Ins. Underwriters, Inc. v. Weitz Co., LLC, 215 Ariz. 80, 158 P.3d 209, 212 (Ariz. Ct. App. 2007).

“In determining whether an ambiguity exists in a[n insurance] policy, the language should be examined from the viewpoint of one not trained in law or in the insurance business.” Sparks, 647 P.2d at 1132. Under Arizona law, “[l]anguage in a contract is ambiguous only when it can reasonably be construed to have more than one meaning.” In re Est. of Lamparella, 210 Ariz. 246, 109 P.3d 959, 963 (Ariz. Ct. App. 2005). That is, language is not ambiguous just because it is vague or general, but because it lends itself to two or more contradictory meanings. Cf. Taylor v. State Farm Mut. Auto. Ins. Co., 175 Ariz. 148, 854 P.2d 1134, 1140 (1993) (“[A] contract may be susceptible to multiple interpretations and therefore [be] truly ambiguous ․”).

“To determine the plain meaning of a term,” Arizona courts “refer to established and widely used dictionaries.” W. Corr. Grp., Inc. v. Tierney, 208 Ariz. 583, 96 P.3d 1070, 1074 (Ariz. Ct. App. 2004) (citing State v. Wise, 137 Ariz. 468, 671 P.2d 909, 911 n.3 (1983)). See also Aztar Corp. v. U.S. Fire Ins. Co., 223 Ariz. 463, 224 P.3d 960 (Ariz. Ct. App. 2010).

If the policy term is still ambiguous after considering the term's plain and ordinary meaning, Arizona courts may consider “legislative goals, social policy, and the transaction as a whole.” First Am. Title Ins. Co. v. Action Acquisitions, LLC, 218 Ariz. 394, 187 P.3d 1107, 1110 (2008). But if these interpretive guides fail to “elucidate a clause's meaning,” a court should construe the clause against the insurer. Id.

III. Discussion

The coverage dispute in this case turns on whether Gantz's motorcycle was “designed for use mainly off public roads” and whether the accident occurred “while not on public roads.” (Doc. 67-4 at 35.) The parties agree that both conditions must be satisfied to eliminate coverage. That is, if the accident occurred on a public road, the Policy would provide coverage regardless of the motorcycle's design characteristics. Alternatively, if the motorcycle was not designed for use mainly off public roads, the Policy would provide coverage regardless of the location of the accident.

A. “While Not On Public Roads”

1. The Parties’ Arguments

Plaintiff's overarching argument is that the decision in Gittings v. Am. Fam. Ins. Co., 181 Ariz. 176, 888 P.2d 1363 (Ariz. Ct. App. 1994), compels the conclusion that the accident in this case occurred on a “public road.” (Doc. 66 at 10-11; Doc. 68 at 6-10; Doc. 70 at 3-5.) According to Plaintiff, Gittings holds, as a matter of Arizona law, that a public road is any area that is “intended for vehicular travel.” (Id.) Plaintiff contends that the sand highway where he was struck necessarily qualifies as a public road under this definition because it “is on public land,” “is used by [off-highway vehicles], trucks and any type of vehicle,” and “camping is not permitted in the area where the accident occurred.” (Doc. 66 at 12-13.) In a related vein, Plaintiff emphasizes that, after the accident, members of the public and law enforcement used their vehicles to block travel on the sand highway, which suggests the route was “intended for vehicular traffic.” (Doc. 68 at 8.) Finally, Plaintiff argues that even if “public road” is ambiguous, under Arizona law, any ambiguity must be construed in his favor. (Doc. 66 at 14.)

Defendant disagrees. As an initial matter, Defendant accuses Plaintiff of “grossly misconstru[ing] the holding ․ in Gittings” and argues that Gittings, if anything, undermines Plaintiff's position. (Doc. 67 at 14-15; Doc. 69 at 10-11; Doc. 71 at 5-6.) On the merits, Defendant seems to identify four reasons why the location of the accident should not be considered a public road. First, Defendant looks to Arizona's and California's statutory definitions of the term “highway” and asserts that “it is clear that the area in which this accident occurred was not part of a ‘highway’ under any definition.” (Doc. 67 at 13-14; Doc. 69 at 13-14.) Second, Defendant identifies a pair of unpublished decisions from outside Arizona 2 in which courts concluded that somewhat analogous accidents did not occur on a public road. (Doc. 67 at 15; Doc. 69 at 14-15; Doc. 71 at 6.) Third, Defendant notes that, during his deposition in this case, Plaintiff gave the following testimony when asked to identify the specific location of the accident:

Q. Okay. And where—can you describe for me now again specifically where you were walking at the time you were struck?

A. In the sand line next to the fence.

Q. Is that, like, a pedestrian area?

A. Correct. That's where everybody walks.

(Doc. 67-3 at 9-10.) According to Defendant, this testimony qualifies as an admission that the accident did not “occur[ ] on a ‘road’ at all,” let alone on a public road, because it shows that Plaintiff was not on the sand highway at the time of the accident. (Doc. 67 at 15-16; Doc. 69 at 16.) Fourth, and alternatively, Defendant argues that even if Plaintiff was on the sand highway at the time of the accident, it does not qualify as a public road because it is not paved or graded, has no boundaries, markings, or official designations, is not covered by the regulations that the BLM has issued to regulate the “highways” and “roads” in the Imperial Sand Dunes, and “is simply an area that has become a ‘pathway’ for vehicle to use while travelling from the camping area in Glamis Flats out to the dunes.” (Doc. 67 at 16-17; Doc. 69 at 15; Doc. 71 at 7.)

2. Analysis

Whether the informal sand highway located in the Imperial Sand Dunes qualifies as a “public road” is an interesting and close question, but it is unnecessary to resolve that question here in light of Plaintiff's deposition testimony. When asked to identify “specifically where [he was] walking at the time [he was] struck,” Plaintiff admitted that he was “next to the fence” in “a pedestrian area” “where everybody walks.” (Doc. 67-3 at 9-10.) As discussed below, this testimony is fundamentally inconsistent with the notion that the accident occurred on a public road, because the area next to a road where pedestrians customarily walk is necessarily no longer part of the road. Thus, even assuming the sand highway itself could qualify as a public road, Plaintiff's deposition testimony establishes that he was not on a public road at the time of the accident.

The starting point for the analysis is Gittings. There, the plaintiff sought a declaration 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.” 888 P.2d at 1363. The coverage dispute in Gittings, like the dispute here, turned on “whether the vehicle was being used on ‘public roads’ at the time of the accident.” Id. at 1364. Although both sides agreed that the main, paved portion of Mountain Road qualified as a public road, they disagreed about whether the specific location where the accident occurred—“on an unpaved portion of the shoulder, in the opposite direction from the traffic of the road”—also qualified. Id. at 1368-69. The plaintiff argued that everything within the right-of-way boundary lines of Mountain Road (including the unpaved shoulder) should be considered a unitary public road but the Arizona Court of Appeals disagreed, holding that whether a particular location qualifies as a public road “depends on the circumstances of the accident” and that “no reasonable person using the highway, being cognizant of the conditions surrounding this accident, would conclude that the unpaved shoulder of Mountain Road, where a utility pole was located, was intended for vehicular travel in the opposite direction from the flow of the road traffic.” Id. at 1365, 1369. Although the court clarified that “we do not believe the average person would necessarily limit the term [public road] to only the main traveled portion of the road” in all cases, because “a reasonable person could, under some circumstances, consider the shoulder or berm as a part of the road,” the court concluded that the unpaved shoulder of Mountain Road could not be considered part of a public road in part because “a utility pole existed at the area at which the accident occurred” and, “because of this obstruction, the area could not be considered to be intended for vehicular travel.” Id. at 1368-69.

Notwithstanding all of this, Plaintiff argues that the “court-supplied determinative question” under Gittings is “whether a reasonable jury could conclude that the area in which the accident occurred was intended for vehicular travel.” (Doc. 68 at 7, emphasis added.) This argument is similar to the argument that the plaintiff in Gittings unsuccessfully made (i.e., everything falling within Mountain Road's right-of-way boundaries qualified as a public road), and it fails for the same reasons. Gittings recognizes that the boundaries of a public road must end somewhere and that, if the areas directly abutting a public road have features that are inconsistent with vehicular travel, those areas are no longer part of the public road.

Such is the case here. Even assuming that the main portion of the sand highway in the Glamis region of the Imperial Sand Dunes could qualify as a public road under Gittings—because it has evolved, despite its informal features and a lack of regulatory oversight, into an area intended for vehicular travel—it doesn't follow that everything in the general vicinity also qualifies as a public road. By his own admission,3 Plaintiff was not walking on the main portion of the sand highway at the time of the accident but was located “next to a fence” in “a pedestrian area” “where everybody walks.” This area is akin to the unpaved shoulder with a utility pole in Gittings—it may have been right next to a public road, but it had a dissimilar function that is inconsistent with an intent to encourage vehicular travel.

In this regard, this case is similar to Lally v. Automobile Mutual Insurance Co. of America, 114 R.I. 582, 337 A.2d 243 (1975), which Gittings cited with approval. In Lally, the plaintiff sought insurance coverage after “she was struck by an uninsured vehicle as she was walking on the sidewalk on Norwood Avenue.” Id. at 244. The coverage dispute turned on whether the “sidewalk [was] part of a ‘public road’ as that term is used in either the main portions or the provisos of the exclusionary clauses” of the insurance policy. Id. at 245. The Rhode Island Supreme Court ruled in the insurer's favor, concluding that “[u]sed in this context a ‘public road’ connotes that portion of the public way ordinarily used for vehicular traffic, in contradistinction to the ‘sidewalk’ area between the curb lines and adjacent property lines customarily designed for and used by pedestrians. In our view, this is undoubtedly the meaning that an average reader or purchaser of a policy like the one in issue would attribute to that term. Certainly, it is the one he would intend to convey if he told his child to walk on the sidewalk and stay out of the road. Accordingly, it is our conclusion that ․ the exclusions apply.” Id. Here, the same “contradistinction” is present. Plaintiff's own deposition testimony establishes that he was in an area “customarily ․ used by pedestrians” at the time of the accident.4

Finally, to the extent it is appropriate to consult dictionaries here (even though the Arizona courts have already construed the term “public road” in prior cases), they provide further support for the conclusion that the accident location was not a public road. The Oxford English Dictionary (“the OED”) does not define the term “public road,” but it does include individual definitions of the terms “public” and “road.” When interpreting a compound phrase such as “public road,” Arizona courts (as well as the average layperson) would view the adjective “public” as modifying the noun “road” and define them separately. Cf. Aztar Corp., 224 P.3d at 972 (interpreting “contributing property” by defining the terms “contributing” and “property” separately as an adjective-noun pairing). Thus, the Court begins by looking to the individual definitions of these terms.

The OED defines “public” as “in general, and in most of the senses, the opposite of ‘private.’ ” Public, Oxford English Dictionary, (last visited Dec. 14, 2021). Private, in turn, is defined as “restricted to one person or a few persons as opposed to the wider community,” “restricted to or for the use or enjoyment of a particular person or group of people; not open to the public,” “of or relating to a service provided on a paying basis, as opposed to through the State or another public body,” or “concerning, involving, or affecting a particular person from the general community; individual or personal.” Private, Oxford English Dictionary, (last visited Dec. 14, 2021). Thus defined, a layperson would unambiguously view the pedestrian area where Plaintiff was struck as being “public.” It is uncontested that this area is owned by the government, is visually and physically unobstructed, and does not require special permission or payment to access.

As for “road,” the OED defines it as “a path or way between different places” or “the part or surface of such a way intended for vehicles, especially in contrast to a verge or to a pavement or sidewalk for pedestrians.” Road, Oxford English Dictionary, (last visited Dec. 14, 2021). This definition mirrors the definitional approach in Lally—the road is the surface used by vehicles for travel, which stands in “contrast” with any nearby surface used by pedestrians. Here, because Plaintiff was in the pedestrian area, the OED underscores the conclusion that he was not on a public road at the time of accident.

B. “Vehicle Designed For Use Mainly Off Public Roads”

1. The Parties’ Arguments

Plaintiff's briefing largely focuses on the definition of “public road,” with little analysis devoted to the nature of Gantz's motorcycle. Plaintiff's only developed argument on this point seems to be that, because the motorcycle “had a ‘green’ sticker from California entitling off-highway use,” and because “there are numerous forest roads in Arizona that permit any Off-Highway vehicle to be driven without being ‘street legal,’ ” it follows that the motorcycle was designed for use on public roads, because “[u]nder Arizona law, ‘forest road[s]’ are intended for vehicular travel.” (Doc. 66 at 3-4, 11-12.)

Defendant, in turn, identifies four reasons why Gantz's motorcycle should be considered “designed to be used mainly off-road.” (Doc. 67 at 11-13.) First, Defendant argues that the “manufacturer specifications” for the motorcycle “clearly identify it as an off-road model.” (Id. at 11, citing Doc. 67-15.) Second, Defendant argues that Gantz only registered the vehicle for off-road use, meaning it was “never made street-legal.” (Id.) Third, Defendant cites several cases that have “reached similar conclusions with respect to other types of vehicles.” (Id. at 11-12.) Fourth, Defendant cites Arizona's statutory definition of an “off highway vehicle” and argues that Gantz's motorcycle falls within this definition. (Id. at 13.)

2. Analysis

As an initial matter, neither party seriously disputes that Gantz's motorcycle qualifies as a “vehicle” (and the Court agrees it so qualifies). Thus, the dispute turns on whether the motorcycle was “designed for use mainly off public roads.” Although the discussion in Part III.A above addresses the meaning of the term “public roads,” that discussion does not touch upon the terms “designed for use” or “mainly.” And because those terms are not defined in the Policy, they must “be given the meaning used by laypeople in everyday usage.” Equity Income Partners, 387 P.3d at 1268.

The Court does not write on a blank slate when conducting this inquiry. In Hudnell v. Allstate Ins. Co., 190 Ariz. 52, 945 P.2d 363 (Ariz. Ct. App. 1997), the coverage dispute turned in part on whether the insured's vehicle, an “all-purpose dirt bike,” qualified as a vehicle “designed principally for recreational use off public roads.” Id. at 364.5 Even though “the dirt bike could be legally driven on public streets,” the appellate court affirmed the trial court's determination that the vehicle was designed principally for recreational use off public roads because (1) the owner testified that “he purchased [the vehicle] principally for recreational use off-road,” (2) the owner testified that “he would not often ride the bike on the street because it was not designed to give a ‘comfortable ride’ when driven on the road,” and (3) the owner identified “satisfactory technical reasons explaining why his dirt bike was not designed to ride on the street,” including “differences in the types of wheels, tires, headlights, tail lights, and engines” and the absence of a speedometer. Id. at 365. Notably, the appellate court determined that the owner's testimony on these points was alone sufficient, even though the plaintiff did not “provide[ ] evidence from other sources, such as the manufacturer, regarding the vehicle's principal use.” Id.

If the dirt bike in Hudnell was “designed principally for recreational use off public roads,” it is difficult to see how Gantz's motorcycle could not be considered “designed for use mainly off public roads.” There, the dirt bike was street legal, and the owner occasionally drove it on the road, yet the court still concluded that these occasional, lawful on-road uses did not undermine the conclusion that the vehicle was “principally” designed for recreational use off public roads. Here, Gantz's motorcycle was not street legal and there is no evidence that Gantz ever used it for traditional on-road purposes. At most, Plaintiff has shown that Gantz could have lawfully driven the motorcycle on forest roads (but there is no evidence he actually used it for this purpose).

In Hudnell, the court also found it significant that the dirt bike lacked certain design features that an on-road vehicle would be expected to have, such as a speedometer and headlights. Here, similarly, Gantz testified that his motorcycle did not have a rearview mirror or brake lights and did not have a headlight when he bought it. (Doc. 66-2 at 21.)

Finally, unlike in Hudnell, where there was apparently no direct evidence concerning the manufacturer's design specifications and intent when designing the vehicle, here Defendant has proffered evidence—which Plaintiff does not mention in his response brief, let alone dispute—that Gantz's motorcycle is considered an “Off-Road” vehicle under Yamaha's design specifications. (Doc. 67-15 at 6.) Additionally, the ADOT registration record associated with the vehicle reflects that its “Registration Use” is “Off Road.” (Doc. 67-13 at 2.) For these reasons, the Court has little difficulty concluding that Gantz's motorcycle was “designed for use mainly off public roads” and that no reasonable juror could conclude otherwise.



1. Plaintiff's motion for summary judgment (Doc. 66) is denied.

2. Defendant's motion for summary judgment (Doc. 67) is granted.


1.   Defendant requested oral argument, but this request is denied because the issues are fully briefed and argument would not aid the decisional process. See LRCiv 7.2(f).

2.   Those cases, which are discussed in more detail below, are Country Mutual Insurance Co. v. Leffler, 705 F. App'x 549 (9th Cir. 2017), and Walker v. State Farm Mutual Automobile Insurance Co., 259 F. Supp. 3d 1139 (D. Nev. 2017).

3.   There is no merit to Plaintiff's contention that Defendant “selectively” quoted from his deposition transcript for purposes of establishing this admission and that other portions of his deposition testimony (as well as a diagram of the area that he drew) show that he was not located in “a pedestrian only area” at the time of the accident but instead “was walking near the fence line, but still on the Sand Highway where vehicles traveled.” (Doc. 68 at 2-3.) The portions of Plaintiff's deposition testimony cited by Defendant are clear and unequivocal—when asked to identify “specifically where [he was] walking at the time” of the accident, Plaintiff answered “next to the fence,” then agreed with Defendant's counsel's suggestion that this was “a pedestrian area” and added that “[t]hat's where everybody walks.” (Doc. 67-3 at 9-10, emphasis added.) In contrast, in the deposition excerpts cited by Plaintiff, Plaintiff was asked to explain “just in general terms, why you believe where you were located was on a public road,” and Plaintiff responded by noting that “[t]here's no camping on that road”; that “[i]t's a throughway. They go back and forth. There's posts there”; that cars typically “come down the road to Wash Road ․ instead of going through the dunes”; and that “[c]ars drive on it. Trucks can drive on it․ It does have a speed limit.” (Doc. 68-2 at 4-5.) A reasonable juror could not construe this testimony, which was vague and seemed to be referring without differentiation to the entire vicinity of the sand highway, as establishing that vehicles customarily drive in the specific area where Plaintiff was walking at the moment of impact—the pedestrian area next to the fence where everybody walks. Nor could a reasonable juror interpret Plaintiff's diagram (Doc. 67-8 at 2) in this manner—to the extent it sheds any light on the issues, it seems to place the fence area (marked with red circles) outside the boundaries of the main road (denoted in red and blue parallel lines).

4.   Although the Court finds Lally pertinent here for the reasons discussed above, it views the two non-Arizona cases cited in Defendant's moving papers as less applicable. One of those cases concerned an ATV accident that occurred while the driver “was driving through an unpaved ditch situated between a paved roadway and a paved bike path.” Country Mut. Ins., 705 F. App'x at 550. Applying Alaska law, the Ninth Circuit agreed with the insurer that no coverage existed because the accident did not occur on a “public road,” explaining that “a layperson would understand the term ‘public road’ to exclude the off road terrain on which tractors and ATVs were designed to be used. Given that understanding, [plaintiff's] accident could not have occurred on a ‘public road’ because the ditch is suitable only for ATVs and snow machines, not ordinary vehicular traffic.” Id. But here, the issue is whether the specific accident location had features that were inconsistent with vehicular travel in general, as opposed to travel by particular types of vehicles. Meanwhile, although the other case also involved a coverage dispute in which the underlying policy “exclude[d] vehicles designed primarily for off-road use ․ unless the accident occurred on public roads,” it is not clear that the plaintiff in that case was even disputing the insurer's position that the accident location failed to qualify as a public road: “[A]ccording to plaintiff's own description, the accident occurred on the sand dunes, not along the sand dunes․ [And] the responding officer on the scene ․ reported that the accident was ‘approximately three-quarters of the way (3/4) up the mountain, the surface of which was made of soft, fine sand that made it difficult to move with ease.” Walker, 259 F. Supp. 3d at 1147.

5.   The policy in Hudnell was, in some ways, the mirror image of the Policy in this case—it generally excluded coverage for bodily injury arising from the use of a motor vehicle but created an exception to this exclusion for vehicles “designed principally for recreational use off public roads” when used on the insured's premises. 945 P.2d at 364. Thus, the plaintiff in Hudnell needed to show that the vehicle was designed principally for recreational use off public roads in order to qualify for coverage, whereas here, Plaintiff seeks to show that Gantz's motorcycle was not designed for use mainly off public roads.

Dominic W. Lanza, United States District Judge

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Docket No: No. CV-20-08077-PCT-DWL

Decided: December 17, 2021

Court: United States District Court, D. Arizona.

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