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Geico Indemnity Co. v. Portillo

United States District Court, D. Alaska

March 13, 2014



TIMOTHY M. BURGESS, District Judge.

Plaintiffs Geico Indemnity Company ("Geico Indemnity") and Geico Casualty Company ("Geico Casualty") (together "Plaintiffs") move for summary judgment in their action for a declaration that Defendants are not entitled to coverage.[1] Defendants did not file a response in opposition.[2] For the reasons stated below, Plaintiffs' motion to dismiss is GRANTED.


This is an action brought by Plaintiffs to declare that no insurance coverage exists under either insurance policy because the Defendants were racing at the time of the accident. Any potential coverage arises out of an October 21, 2011 fatal three-car collision on the Near Island Bridge between the city of Kodiak and Near Island.[3]

The Fred Zharoff Memorial Bridge is a two-lane bridge with designated northbound and southbound lanes separated by a double yellow line.[4] William Mecham ("Mecham") stated that as the parties turned onto the bridge, Markryan Portillo ("Portillo") slowed down and turned on his hazard lights.[5] Mecham stated that turning on his hazards, along with going very slow and dropping into gear, was a clear signal to race.[6] Mecham was driving a red 1995 Honda Civic heading south in the northbound lane of the bridge alongside Portillo.[7] Portillo was driving a white 1998 Acura Integra heading south in the southbound lane of the bridge.[8]

As they were driving across the bridge, Mecham, driving in the oncoming traffic lane, saw headlights.[9] He then applied his brakes and attempted to pull behind Portillo and avoid the oncoming vehicle.[10] But Portillo also braked, causing Mecham to hit Portillo's rear tire and forcing the front end of Portillo's vehicle to spin into the oncoming traffic lane.[11] At that point, a 1993 Chevrolet pickup driven by Monica McFarland (McFarland), which was traveling north in the northbound lane, struck Portillo's Acura.[12] The impact of the Chevrolet with the Acura rotated the Acura and caused it to strike the west wall of the bridge approximately 42 feet from the initial impact.[13] McFarland abandoned her Chevrolet approximately 836 feet north of the point of impact.[14] Mecham and his passenger, Kevin Long, were not injured and left the scene.[15] Portillo and his passenger, Austin Long, were transported to the hospital after the accident.[16] Austin Long was pronounced dead at the hospital.[17]

Mecham admitted that he and Portillo were racing when the accident occurred.[18] Portillo has not admitted to racing. Jaime Portillo, the policy holder and Portillo's father, discussed the accident in a recorded conversation taken by Geico Indemnity Company shortly after the accident.[19] Jaime Portillo said that his son told him they were racing when the accident occurred.[20] The Kodiak Police Department's investigation also concluded that the parties were racing at the time of the accident.[21]

Mecham and Portillo were later each indicted by the grand jury on charges of second-degree murder and first-degree assault.[22] During the grand jury's investigation, Kevin Long testified that they were racing immediately prior to the accident.[23] Mecham later plead guilty to criminally negligent homicide and second-degree assault.[24] Portillo plead guilty to criminally negligent homicide and third-degree assault.[25] At Portillo's sentencing, the Superior Court for the State of Alaska stated twice that Mecham and Portillo were drag racing at the time of the accident.[26]


Summary judgment is appropriate where, viewing the evidence in the light most favorable to the nonmoving party, [27] "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."[28] "When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the same evidence were to be uncontroverted at trial."[29] The non-moving party must then "respond... by setting out specific facts showing a genuine issue for trial."[30] Where no motion in opposition to summary judgment is filed, the Court will not grant the motion unless "satisfied that there are no disputed issues of material fact and that the moving party is entitled to the decision is a matter of law."[31]

In assessing whether there is a genuine dispute as to any material fact, materiality depends on "which facts are critical and which are irrelevant" under the substantive law governing a claim.[32] A "genuine" dispute is one where there is enough evidence for a reasonable jury to "return a verdict for the non-moving party."[33] The court must accordingly determine whether there is sufficient evidence supporting the alleged factual dispute to require the trier of fact "to resolve the parties' differing versions of the truth at trial."[34]


Plaintiffs argue that Portillo and Mecham are not entitled to coverage under their policies because both policies contain provisions excluding from coverage injuries and damages arising from street racing.[35 ...

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