VOYAGER INDEMNITY INSURANCE COMPANY v. MILLER (2023)

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

Regarding Docket Nos. 43, 48, 50

This matter comes before the Court upon consideration of the motion for summary judgment filed by Plaintiff Voyager Indemnity Insurance Company (“Voyager”) and the cross-motion for summary judgment filed by Defendant Crystal Miller (“Miller”). Having carefully considered the parties’ papers, relevant legal authority, and the record in the case, the Court hereby GRANTS Voyager's motion for summary judgment and DENIES Miller's cross-motion for the reasons set forth below. The Court GRANTS Voyager's motion for judicial notice and SUSTAINS Voyager's evidentiary objection to and, thus, EXCLUDES the declaration of Chantel Wilkinson.

BACKGROUND

A. The Accident.

Miller was working as a delivery operator for DoorDash on December 9, 2020. (Dkt. No. 48-2 (Declaration of Chrystal Miller (“Miller Decl.”)), ¶¶ 3-5); Dkt. No. 43-1 (Transcript of Deposition of Chrystal Miller (“Miller Depo.”) at 10:16-20). On that date, she accepted an order to pick up food from a McDonald's restaurant on Mendocino Avenue in Santa Rosa, California, and she drove there and parked her car in the parking lot across from the entrance. (Dkt. No. 48-2 (Miller Decl.), ¶¶ 5-6.) After she picked up the food and while she was “returning to [her] car with the food order,” Miller was “struck by a vehicle traveling in reverse.” (Dkt. No. 48-2 (Miller Decl.), ¶ 7.) Miller claims that, “[a]t the time of impact, [she] was facing [her] vehicle, approaching it with the food order, and within seconds of entering it.” (Dkt. No. 48-2 (Miller Decl.), ¶ 8.) The car struck Miller in the stomach and rolled over her foot. (Dkt. No. 48-2 (Miller Decl.), ¶ 9.) At the time the car struck her, Miller had just passed a grate and was standing about a foot or foot and a half away from it, closer to her car. (Dkt. No. 43-1 (Miller Depo.) at 14:8-21.) After the accident, Miller spoke with the police, who recorded the conversation. (Dkt. No. 43-1 (Miller Depo.) at 12:23-25.)

Later, Voyager's private investigator Marc Hinch reviewed the video footage of Miller's conversations with police officers on December 9, 2020, reviewed photographs taken by police officers of the McDonald's parking lot, reviewed video footage from McDonald's, and reviewed Miller's deposition video and read the transcript. (Dkt. No. 43-2) (Declaration of Marc Hinch (“Hinch Decl.”), ¶ 5.) He also visited the McDonald's parking lot on November 9, 2022, and measured various distances. (Dkt. No. 43-2 (Hinch Decl.), ¶¶ 4-7.) Hinch's own investigation, before reviewing Miller's deposition video and before reading the transcript of Miller's deposition, led him to the conclusion that Miller was standing 23 feet from her car when the other car struck her. (Dkt. No. 43-2 (Hinch Decl.), ¶ 5.) However, after reading the transcript of Miller's deposition, and watching the video of her deposition, Hinch took into consideration Miller's testimony that she was standing about a foot or foot and a half away from the grate closer to her car, and estimated that, if that statement was accurate, she was standing “about 13 feet” from her car when the car hit her. (Dkt. No. 43-2 (Hinch Decl.), ¶ 8.)

The videos show that the car that struck Miller drove away, and there is no indication that the police were able to identify or apprehend the driver of the car that struck Miller. (Dkt. No. 43-1) (Declaration of Isaac Walrath (“Walrath Decl.”), Exs. 2, 3, 6.)

B. The Policy.

Voyager issued a Fleet Auto Rental Insurance Commercial Auto Insurance Policy (the “Policy”) to DoorDash, Inc., policy number FAR1300006, for the policy period of September 1, 2020, to September 1, 2021. (Dkt. No. 1-3 (Complaint, Ex. 1).) The Policy provides uninsured motorist coverage to DoorDash's “employees or agents” by way of endorsement, in a form titled the “California Uninsured Motorists Coverage – Bodily Injury Endorsement.” (Id. at pp. 20-22.) The Endorsement, in a section titled “WHO IS AN INSURED” defines a “named insured” as “[a]nyone occupying a covered auto” where the named insured is a corporation. (Id. at 20 (emphasis in original).) The Policy defines the term “occupying” as the following: “Occupying means in, upon, getting in, on, out or off.” (Id. at 22 (emphasis in original).)

This portion of the Policy satisfies the requirement of California Insurance Code Section 11580.2, which requires that every policy must provide coverage “for all sums within the limits that” an insured “shall be legally entitled to recover as damages for bodily injury or wrongful death from the owner or operator of an uninsured motor vehicle.”

Miller made a claim with Voyager under the Policy. (Dkt. No. 1-5 (Complaint, Ex. 3).) On March 11, 2021, Voyager denied coverage for the claim. (Dkt. No. 1-6 (Complaint, Ex. 4).) The letter denying coverage stated in relevant part that there is no coverage because Miller “was not occupying a covered auto (as required by the policy) at the time of the incident[.]” (Dkt. No. 1-6 (Complaint, Ex. 4).) Voyager then filed this action for declaratory relief for a finding that there is no coverage under the Policy for Miller for the incident on December 9, 2020 and for a finding that: “The Policy does not allow arbitration of coverage disputes under its uninsured motorist endorsement.” (Dkt. No. 1 (Complaint, ¶ 23).)

ANALYSIS

A. Motion to Exclude Declaration of Chantel Wilkinson.

Voyager objects to the Declaration of Chantel Wilkinson (Dkt. No. 48-3) and moves to strike it because Miller failed to provide Wilkinson's name, address, and telephone number for her as required by Federal Rule of Civil Procedure 26(a) and/or failed to supplement her disclosure to identify her as required by Rule 26(e). In her initial disclosure under Rule 26, Miller identified as witnesses herself and the following:

A witness of unknown name who may reside on Burgundy South in Santa Rosa, California, (530) 559-4755. This witness may have information relevant to the nature, location, and timing of the accident.

(Dkt. No. 49-1 (Ex. B to the Declaration of Isaac Walrath).) In its Rule 26 disclosure on November 1, 2022, Voyager also identified as the following witness:

Witness Rhonda. Witness Rhonda may have knowledge of facts related to the incident that is the subject of this action. Witness Rhonda observed the incident and made statements to the Santa Rosa Police Department. Witness Rhonda's statements to the Santa Rosa Police Department were captured on body cam footage which has previously been produced to Defendant in this action. Witness Rhonda's full name and address are not known; her telephone number stated on body cam footage appears to be: (530) 559-4755.

(Dkt. No. 53-1 (Declaration of Sutton Shapiro, Ex. B).) Miller did not provide Wilkinson's name, address and telephone number in her Rule 26 disclosures on November 1, 2022, or in any other format at any other time. (Dkt. No. 49-1 (Walrath Decl.), ¶¶ 5-7 and Ex. B.)

On April 14, 2023, Miller submitted the Wilkinson declaration dated January 18, 2023, described above. (Dkt. No. 48-3.) Although Miller does not state when she learned of Wilkinson's accurate, full name, Miller clearly knew it as of January 18, 2023, the date she signed her declaration – almost four months before submitting the Wilkinson declaration to the Court. The deadline for factual discovery in this matter was initially January 6, 2023, and the Court extended the deadline to January 12, 2023, after the parties jointly requested an extension. (Dkt. Nos. 28, 42.) The first time Voyager learned of Wilkinson's name and testimony was when Miller filed Wilkinson's declaration in opposition to Voyager's motion, on April 14, 2023. (Dkt. No. 49-1 (Walrath Decl.), ¶¶ 4, 7.)

Rule 26(a)(1)(A)(i) requires a party to provide “the names, and if known, the addresses and telephone numbers of each individual likely to have discoverable information – along with the subjects of the information – that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.” Rule 26(e) requires a party to supplement or correct its disclosure if the information has not been provided to the opposing party through discovery. It is undisputed that Miller did not provide the name and address and did not supplement her disclosure to do so.

Miller argues that she did not provide Wilkinson's name, address, and telephone number because she did not learn it until a later, unidentified time, and because the police report listed Wilkinson as a witness, albeit by an incorrect, incomplete name (“Rhonda”), with her correct telephone number. Miller did not know of Wilkinson's true name at the time of the initial Rule 26 disclosure, but Miller is silent as to when she learned of Wilkinson's true name. (Dkt. No. 53-1 (Declaration of Sutton Shapiro), ¶¶ 10-11). That the police report in this case contained an incorrect, incomplete first name with a telephone number does not absolve Miller of her obligation to supplement her Rule 26 disclosure when she learned the correct full name of the witness, and, if known, the address, of the witness. Miller obviously learned that the first name listed on the police report was incorrect and yet did not update her Rule 26 disclosure with the correct name.

Federal Rule of Civil Procedure 37(c)(1) provides that a party who fails to disclose a witness as required by Rule 26(a) and 26(f), the party “is not allowed to use that ․ witness to supply evidence on a motion ․ unless the failure was substantially justified or harmless.” Here, the failure was not substantially justified. Although Voyager had the telephone number of the witness, Miller learned that the name was incorrect and failed to correct the name and provide the full name in a supplemental disclosure. Furthermore, the failure was not harmless. Voyager explained at hearing that its investigator called the number listed on Miller's Rule 26 disclosure (taken from the police report) but was told that the number was the wrong number, presumably because the investigator asked for “Rhonda.” Had Miller supplemented her disclosure when she learned that the name “Rhonda” was incorrect, Voyager would have been able to contact that witness. Instead, Voyager learned Wilkinson's name and her testimony only when Miller provided Wilkinson's declaration for these motions, four months after Wilkinson signed her declaration. Because discovery closed on January 12, 2023, Voyager was not able to take her deposition. The purpose of Rule 26 is to avoid the type of surprise that occurred in this case. Miller obtained information that she did not share as required by Rule 26, and that failure to do so prejudiced Voyager. For this reason, the Court SUSTAINS Voyager's objection to Wilkinson's Declaration and EXCLUDES her declaration under Rule 37 due to Miller's failure to supplement her Rule 26 disclosure.

B. Applicable Legal Standard on Motion for Summary Judgment.

A principal purpose of the summary judgment procedure is to identify and dispose of factually unsupported claims. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is proper “if the 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). “In considering a motion for summary judgment, the court may not weigh the evidence or make credibility determinations, and is required to draw all inferences in a light most favorable to the non-moving party.” Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997).

The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery, and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. An issue of fact is “genuine” only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is “material” if it may affect the outcome of the case. Id. at 248, 106 S.Ct. 2505. If the party moving for summary judgment does not have the ultimate burden of persuasion at trial, that party must produce evidence which either negates an essential element of the non-moving party's claims or that party must show that the non-moving 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).

Once the moving party meets his or her initial burden, the non-moving party must go beyond the pleadings and, by its own evidence, set forth specific facts showing that there is a genuine issue for trial. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). In order to make this showing, the non-moving party must “identify with reasonable particularity the evidence that precludes summary judgment.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). In addition, the party seeking to establish a genuine issue of material fact must take care to adequately point a court to the evidence precluding summary judgment because a court is “not required to comb the record to find some reason to deny a motion for summary judgment.” Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (citation omitted). If the non-moving party fails to point to evidence precluding summary judgment, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. 2548.

C. Parties’ Cross-Motions.

Voyager seeks a declaration that the Policy does not permit arbitration of this dispute. Miller does not contest the claim for declaratory relief that the Policy does not permit arbitration of this dispute. Because Miller does not oppose Voyager's claim for declaratory relief, the Court grants Voyager's motion for summary adjudication of that issue.

Voyager also moves for summary judgment for a declaration that the Policy provides no coverage for Miller for her accident on December 9, 2020. Voyager argues that there is no coverage for the accident because Miller was not in close proximity to her car when she was injured and that she was not performing an act physically and directly related to the car, as required for coverage. In contrast, Miller cross-moves for summary judgment for a declaration that the Policy does provide coverage and argues that she was “occupying” her car, even though she was standing outside her car, at the time of the accident, because the term “occupying” is defined by courts to include her actions at the time and that she was “upon” her insured car.

As noted above, the Policy provides coverage only for a person who is “occupying” an insured car, and the term “occupying” is defined as “in, upon, getting in, on, out or off.” The leading California case has defined the term “upon” as being in “close proximity” to the car. Cocking v. State Farm Mut. Auto. Inc. Co., 6 Cal. App. 3d 965, 969, 86 Cal.Rptr. 193 (1970). The test for whether a person is “occupying” an insured car also includes a test of whether “the person seeking recovery under the policy” was “using the vehicle, ․ and where he was in such a position in relation thereto as to be injured in its use.” Id. at 969-970, 86 Cal.Rptr. 193. In determining whether the person was using the car, the court must also consider not only what the person was doing when injured but also “his purpose and intent” – such that the action by the injured person was physically and directly related to the car.” Id. at 970-971, 86 Cal.Rptr. 193.

1. Close Proximity.

Voyager argues that Miller was not in close proximity to her car because she was 13 feet from her insured car when she was struck by another car. Miller argues that there is no case law defining an outer limit for proximity to the car. Miller also argues that the factual dispute about the actual distance from her car precludes summary judgment. Because the Court excludes the Wilkinson Declaration, the evidence shows that Miller was no closer than 13 feet to her car when the accident occurred.

California cases addressing this issue have found that people who were 50 feet and 200 feet away from the insured car were not in close proximity to the car. See, e.g., Mullins v. Mayflower Ins. Co., 9 Cal. App. 4th 416, 11 Cal.Rptr.2d 635 (1992) (50 feet away from car was not close proximity to car); Atlantic Mutual Ins. v. Ruiz, 123 Cal. App. 4th 1197, 20 Cal.Rptr.3d 628 (2004) (200 feet away from car was not close proximity to car).

California cases addressing this issue have found that people who were standing outside their cars but within four feet were in close proximity. See, e.g., Atlantic Mutual Ins., 123 Cal. App. 4th 1197, 20 Cal.Rptr.3d 628 (one foot outside car was close proximity); Utah Home Fire Ins. Co. v. Fireman's Fund Ins. Co., 14 Cal. App. 3d 50, 91 Cal.Rptr. 781 (1970) (person standing just outside car was in close proximity to car); Cocking, 6 Cal. App. 3d at 967-970, 86 Cal.Rptr. 193 (four feet from car was close proximity).

Here, although there is no bright line test, the Court finds that 13 feet is not in close proximity to meet the test for coverage under the Policy. If Miller had been standing within four feet of her car, as in Cocking, she would have been in close proximity to the car. And had Miller been standing 50 feet away, as in Mullins, she would not have been in close proximity. No case has found that a person standing 13 feet away from her car is in close proximity to her car, and the farthest distance from a car that has been deemed to be in close proximity is four feet. Given that the distance of 13 feet is more than three times as far as four feet, the Court cannot find that a distance of 13 feet away from a car is in close proximity to the car.

2. Acts Physically and Directly Related to Car.

Voyager argues that Miller was not in the midst of acts physically and directly related to the car when she was injured because walking to a car is not considered to be an act physically and directly related to the car. Voyager cites to one decision where the court found that there was no coverage for a person who was walking to the insured car after seeing a movie and was struck approximately 200 feet from the insured car. Menchaca v. Farmers Ins. Exchange, 59 Cal. App. 3d 117, 130 Cal.Rptr. 607 (1976). There, the court held the plaintiff's “injuries did not result from her being in close proximity to the car or from her performance of acts physically and directly related to the car or its use.” Id. at 129, 130 Cal.Rptr. 607 (internal citation and quotation omitted). Similarly, in Mullins, 9 Cal. App. 4th 416, 11 Cal.Rptr.2d 635 (1992), the court denied coverage for a passenger of an insured car who left the insured car and was struck by a passing car about 50 feet away from the insured car. Id. at 420, 11 Cal.Rptr.2d 635. The court there cited the same principles – that the injuries did not result from being in close proximity to the car or from the performance of acts physically and directly related to the car or its use. Id.

In cases where courts have found that the plaintiff was performing an act physically and directly related to the car, the actions were related to the car itself. For example, in Cocking, 6 Cal. App. 3d at 967-971, 86 Cal.Rptr. 193, the Court found that a policy provided coverage for an insured motorist who was standing one to four feet behind his car to put chains on the car. And in Atlantic Mutual Ins., 123 Cal. App. 4th at 1200-1201, 20 Cal.Rptr.3d 628, the court held that a driver was covered by a policy for another van when he left his truck to speak to the driver of the van to exchange information about insurance and drivers’ licenses after a multi-vehicle accident and after he opened the door of the passenger side of the insured van and helped a passenger out of the van.

Miller argues that she was in the midst of an act physically and directly related to the car because she was walking to her car with a delivery of food in hand – the intended purpose of her use of the car. Yet as the court in Truck Ins. Exch. v. Webb, 256 Cal. App.2d 140, 145, 63 Cal.Rptr. 791 (1967) cautioned: “The automobile is so much a part of the American life that there are few activities in which ‘the use of an automobile’ does not play a part somewhere in the chain of events.” Miller's argument is essentially that any time a person walks to her insured car, to use the car in the way she set out to do, that action is physically and directly related to the use of her car. For example, if a person drove a car to purchase any type of goods and then returned to the car with goods in hand, Plaintiff's interpretation of the Policy would provide coverage for an accident 13 feet away from the car. The policy and the cases interpreting similar policies do not support this broad interpretation. Therefore, the Court finds that the Policy does not provide coverage for Miller's accident on December 9, 2020.

CONCLUSION

For the foregoing reasons, the Court GRANTS Voyager's motion for summary judgment and DENIES Miller's cross-motion for summary judgment. The Court will issue a separate judgment.

IT IS SO ORDERED.

SALLIE KIM, United States Magistrate Judge