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Gager v. Cincinnati Insurance Co.

United States District Court, W.D. Kentucky, Owensboro Division

March 27, 2015

PAUL GAGER, Plaintiff,
v.
CINCINNATI INSURANCE COMPANY, Defendant.

MEMORANDUM OPINION AND ORDER

JOSEPH H. McKINLEY, Jr., Chief District Judge.

This matter is before the Court on Plaintiff Paul Gager's Motion for Partial Summary Judgment [DN 16]. Fully briefed, this matter is ripe for decision. For the following reasons, the Motion for Partial Summary Judgment is DENIED.

I. BACKGROUND

On July 19, 2013, Plaintiff was operating a 2003 Yamaha Zuma YW50 on a public street in Henderson County, Kentucky, when he was struck by an automobile driven by Mary Toerne. (Police Traffic Collision Report [DN 16-4] 1-3.) Plaintiff sustained physical injuries as a result of the accident and as of September 5, 2013, asserts that he has incurred approximately $289.935.49 of medical expenses as a result of those injuries. (See Itemized Medical Bills [DN 16-5].) Plaintiff settled his bodily injury claim for the $50, 000.00 limit provided under the insurance contract between Toerne and her insurer, Travelers Home and Marine Insurance Company. (See Compl. [DN 1-2] ¶ 7.)

In this action, originally filed in state court on March 11, 2014, Plaintiff asserts a claim for underinsured motorist (UIM) benefits under an automobile insurance policy (the "Policy") issued by Defendant Cincinnati Insurance Company to Plaintiff's mother and stepfather, the Funks, with whom Plaintiff resides.[1] Pursuant to the UIM coverage provided by the Policy:

"We" [Defendant] will pay compensatory damages which a "covered person" is legally entitled to recover from the owner or operator of an "underinsured motor vehicle" because of "bodily injury" or death:
1. Sustained by a "covered person"; and
2. Caused by an accident.
....
"We" [Defendant] will pay under this endorsement if:
1. The limits of insurance under all applicable bodily injury liability bonds or policies have been exhausted by payments of judgments or settlements; or....

(UIM Endorsement [DN 16-7] 1.) "Covered persons" as used in the UIM endorsement includes the named insureds-the Funks-and any "family member." (Id.) "Family member" is defined in the Policy to include relatives living in the same household as the named insured. (Jan. 13, 2014 Letter from Donnie Munsey, Cincinnati Insurance Company, to Paul Gager c/o Moore, Malone and Saafred [DN 16-3] 1-2.) According to Mrs. Funk's undisputed affidavit, Plaintiff, Mrs. Funk's biological son, was living with her and Mr. Funk at the time of the accident. (See Virginia Funk Aff. [DN 16-8] ¶¶ 2, 4.)

The Policy excludes UIM coverage for bodily injury sustained by any person while operating or occupying a "motor vehicle" owned by a "covered person" if the "motor vehicle" is not specifically identified in the UIM endorsement. (UIM Endorsement [DN 16-7] 2.) The declarations pages of the Policy identify two vehicles for coverage under the Policy, a 2004 Chevrolet Impala and a 1997 Oldsmobile Eighty Eight. (Auto Declarations [DN 16-7] 2.) The Yamaha Zuma, which is owned by Plaintiff (see Certificate of Title [DN 16-9]), is not identified or mentioned in the Policy. It is on this exclusion that Defendant relies in maintaining that Plaintiff is not entitled to UIM benefits, asserting that the Yamaha Zuma is, under Kentucky law, a "motor vehicle" for purposes of the Policy's UIM coverage endorsement.

The Policy defines "motor vehicle, " in relevant part, as "[a] self-propelled vehicle designed for use and principally used on public roads, including an automobile, truck and motorcycle, " and expressly states that "motor vehicle" does not include a "trolley, streetcar, trailer', railroad engine, railroad car, motorized bicycle, golf cart, unless authorized by a local ordinance to be driven on a public roadway, off-road recreational vehicle, snowmobile, forklift, aircraft, watercraft, construction equipment, farm tractor or other vehicle designed and ...


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