United States District Court, E.D. Washington
MEMORANDUM OPINION AND ORDER RE: MOTIONS FOR SUMMARY
L. QUACKENBUSH SENIOR UNITED STATES DISTRICT JUDGE
THE COURT is: (1) Third-Party Defendant Metropolitan Group
Property and Casualty Insurance Company's Motion for
Summary Judgment (ECF No. 44); (2) Plaintiff Scottsdale's
Motion for Summary Judgment (ECF No. 48); (3) Defendants
Season Hamilton, Glenn Thornton, and Estate of E.T.'s
Motion for Summary Judgment (ECF No. 49); and (4) Defendant
Lee and Julie Thornton's Amended Motion for Summary
Judgment (ECF No. 53). Plaintiff and all Defendants filed
Response briefs to Plaintiff and Defendants' Motions.
(ECF No. 59); (ECF No. 63); (ECF No. 67). Plaintiff and all
Defendants filed Reply briefs. (ECF No. 68); (ECF No. 69);
(ECF No. 70). Plaintiff took no position on Met Life's
Motion (ECF No. 58), and Defendants stated they had no
objection to that Motion (ECF No. 73), (ECF No. 74). All
Motions were submitted for decision without oral argument.
This Order memorializes the court's ruling on the
MetLife Policy provided coverage only for the Toyota
Highlander. Metlife asserts its Policy provides no coverage
for the U-Haul truck or the U-Haul operation. (ECF No. 44 at
5). The parties do not oppose MetLife's Motion. The court
finds there is no genuine issue of fact that the MetLife
Policy does not provide coverage for the U-Haul accident and
summary judgment is appropriate.
material times, Defendant Lee Thornton owned and operated the
Malo Store, located at 17510 N. Highway 21, Malo, Washington
99150. (ECF No. 64 at ¶2). He had run the Malo Store
since September 2003. (ECF No. 64 at ¶3). As part of the
Malo Store operation, Lee Thornton was, since January, 2003,
a registered agent of U-Haul to rent, receive, and display
U-Haul trucks. (ECF No. 64 at ¶4).
Scottsdale Insurance Company (“Plaintiff” or
“Scottsdale”) issued Commercial General Liability
policy No. CPS2343072 (“Scottsdale Policy”) to
the Malo Store which had a policy period of October 14, 2015,
to October 14, 2016. (ECF No. 51-1 at 4). The Malo Store
application listed “grocery” and “gas
pump” in the schedule of hazards (ECF No. 51-2 at 2).
The application did not disclose or seek insurance coverage
for a truck rental business. See (ECF No. 51-2). The
application answered “N[o]” when asked “DO
YOU RENT OR LOAN EQUIPMENT TO OTHERS” and “ANY
PARKING FACILITIES OWNED/RENTED.” (ECF No. 51-2 at 4).
The application was signed by Lee Thornton. (ECF No. 51-2 at
Scottsdale Policy excludes claims for “‘Bodily
injury' or ‘property damage' arising out of the
ownership, maintenance, use or entrustment to others of any
aircraft, ‘auto' or watercraft owned or operated by
or rented or loaned to any insured.” (ECF No. 51-1 at
15, § I(A)(2)(g)). This exclusion does not apply to
“[p]arking an ‘auto' on, or on the ways next
to, premises you own or rent, provided the ‘auto'
is not owned by or rented or loaned to you or the
insured.” (ECF No. 51-1 at 15, § I(A)(2)(g)(3)).
The Scottsdale Policy defines “auto” as:
a. A land motor vehicle, trailer or semitrailer designed for
travel on public roads, including any attached machinery or
b. Any other land vehicle that is subject to a compulsory or
financial responsibility law or other motor vehicle insurance
law where it is licensed or principally garaged. However,
“auto” does not include “mobile
(ECF No. 51-1 at 24, § V(2)).
December 7, 2015, the Malo Store entered into its then
current Agreement with U-Haul Company of Inland Northwest.
(ECF No. 66 at 1). Pursuant to the Agreement, the U-Haul
equipment is “consigned to [Malo Store] and title to
the Equipment shall remain in U-Haul and/or one of its
affiliates at all times.” (ECF No. 66 at 1). The
Store's obligations to U-Haul included “prominently
displaying the Equipment, distributing the Equipment... [and]
dispatching and receiving the equipment.” (ECF No. 66
at 5). The Store was also obligated to complete “all
relevant inspections, inquiries and paperwork, checking and
correcting the tire pressure, fluid levels, non-functioning
lights, cleanliness and visible damage... [and] perform
repair work designated as minor maintenance on the
Equipment.” (ECF No. 66 at 5). U-Haul required the Malo
Store to “account for all odometer mileage accumulated
on the Equipment” and the Malo Store paid “for
any mileage not properly accounted for on a valid rental
contract.” (ECF No. 66 at 6).
Party Defendant Metropolitan Group Property and Casualty
Insurance Company (“MetLife”) issued Auto Policy
No. 161072257-0 (“MetLife Policy”) to Defendant
Julie Thornton with effective dates June 1, 2016 to December
1, 2016. (ECF No. 46-1 at 3). Julie Thornton is the wife of
Lee Thornton (collectively “Thornton
Defendants”). (ECF No. 1 at ¶3); (ECF No. 18 at
¶3). The MetLife Policy lists Julie and Lee Thornton as
household drivers. (ECF No. 46-1 at 4). The only insured
vehicle on the MetLife Policy is a 2009 Toyota Highlander.
(ECF No. 46-1 at 3).
December 5, 2016, Glenn Thornton and Season Hamilton,
individually and as co-administrators of the estate of E.T.
(collectively “Hamilton Defendants” in this
matter) filed a First Amended Complaint for Wrongful Death,
Pre-Death Pain and Suffering, Loss of Parent/Child Consortium
in case number 16-2-00083-9 in the Ferry County Superior
Court against, inter alia, Lee and Julie Thornton
and the Malo Store. (ECF No. 51-4). On May 23, 2017, the
Hamilton Defendants filed a Second Amended Complaint in the
Ferry County court. (ECF No. 51-5); see Thornton, et al.
v. Thornton, et al., No. 16-2-00083-9, Dkt. #30 (Ferry
County Superior Court) (“Ferry County lawsuit”).
The underlying facts as alleged in the Ferry County lawsuit,
are as follows.
9, 2016, customer Mike Seifried returned a rented U-Haul
truck to the Malo Store. (ECF No. 64 at ¶¶9, 12);
(ECF No. 51-5 at ¶2.9). Seifried parked the truck in
front of the Malo Store, entered the Store, returned the
keys, and asked for his deposit. (ECF No. 64 at
¶¶9-11). Lee Thornton returned the deposit, took
Seifried's paperwork, and set it on the counter because
Lee Thornton was assisting other customers. (ECF No. 64 at
¶¶11-12). Seifried left the Store. (ECF No. 64 at
¶13). Thereafter, Lee Thornton left the store to park
the returned U-Haul truck in the designated display area.
(ECF No. 64 at ¶15). When Lee Thornton went outside, his
two year old grandson, E.T., followed him. (ECF No. 51-5 at
¶2.17). E.T. was accidently knocked to the ground and
run over by the U-Haul truck driven by Lee Thornton, causing
E.T.'s death. (ECF No. 51-5 at ¶¶2.21, 2.22).
Ferry County lawsuit alleges Lee Thornton was negligent in
operating the U-Haul truck and failed to take precautions to
prevent two-year old E.T. from following him outside. (ECF
No. 51-5 at § III). The Thornton Defendants tendered the
Ferry County lawsuit to Scottsdale. (ECF No. 1 at ¶26);
(ECF No. 18 at ¶26). Scottsdale agreed to defend the