Chong v. National Continental Insurance Co.

          ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AT DOCKET 18 AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AT 23

          RALPH R. BEISTLINE, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         The estate of Yong Suk Chong ("the Estate") has filed the present action against National Continental Insurance Company (“NCIC”) seeking compensation from an automobile insurance policy's uninsured motorist coverage. NCIC filed a counterclaim for declaratory relief arguing that there was no uninsured motorist coverage applicable under the terms of the policy of insurance.

         NCIC has filed a Motion for Summary Judgment at Docket 18. The Estate opposes at Docket 22 and Defendant replies at Docket 27. Additionally, the Estate has filed a Cross-Motion for Summary Judgment With Respect to the Counter-Claim for Declaratory Relief at Docket 23. NCIC opposes at Docket 28 with the Estate replying at Docket 34.

         II. BACKGROUND

         Yong Suk Chong and Yun Yi were domestic partners living in Bethel, Alaska, where Mr. Yi owned and operated a taxi business with Ms. Chong employed as a cab driver. NCIC issued business automobile insurance policy number 71244561 (“the Policy”) to Mr. Yi and Ms. Chong was listed as an authorized driver on the Policy. The Policy was in effect at all times relevant to this matter.

         In the early morning hours of January 31, 2012, Kyle Motgin (“Motgin”) was in Bethel and called for a taxi to pick him up.^[1] Yong Suk Chong responded to the call, driving a 2005 Lexus ("the Taxicab") which was insured under the Policy. Motgin got into the front passenger seat and stated he wanted to be taken to Napakiak. Because the only way to travel by automobile to Napakiak from Bethel was on the frozen Kuskokwim River, which required a permit she did not possess, Ms. Chong informed Motgin that she could not take him to Napakiak. Motgin was angered by Ms. Chong’s refusal and an argument ensued. At some point Ms. Chong tried to push Motgin out of the Taxicab, and the situation became violent. Motgin used a knife in his possession to cut Ms. Chong, then pulled Ms. Chong across the passenger seat, and pushed her out of the door of the Taxicab. After Ms. Chong was outside the vehicle, Motgin exited the Taxicab and put Ms. Chong in the backseat. When this occurred, Motgin believes Ms. Chong was still alive. With Ms. Chong in the backseat of the vehicle, Motgin began driving the Taxicab to Napakiak. While he was traveling to Napakiak, Motgin stopped the vehicle to throw away an empty whiskey bottle and it is Motgin’s belief that Ms. Chong was still alive.

         On February 1, 2012, the Taxicab was located in Napakiak, Alaska, and Ms. Chong’s dead body was found in the backseat of the vehicle. Motgin was later arrested and pled guilty to murder in the second degree for killing Ms. Chong. He was sentenced to 80 years in prison with 35 years suspended.

         The Estate has brought the present suit seeking uninsured motorist coverage under the Policy covering Ms. Chong's Taxicab for damages the Estate suffered as a result of Motgin's actions. The Policy provides that NCIC will pay compensatory damages an insured is entitled to recover from the driver of an uninsured motor vehicle for injury or death when the liability for these damages results from the use of the vehicle.^[2]

         III. STANDARD OF REVIEW

         Summary judgment avoids unnecessary trials when there is no dispute as to the facts in the matter before the court.^[3] The evidence of the nonmoving party is to be believed and all reasonable inferences are drawn in his favor.^[4] Summary judgment is appropriate where "the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.”^[5] The opposing party must produce sufficient evidence to demonstrate that a triable issue of fact exists.^[6] However, once the moving party has met the initial responsibility, the opposing party cannot then meet its burden to show genuine disputed facts simply by offering conclusory statements unsupported by factual data.^[7]

         The Court recognizes that Alaska substantive law governs this diversity action. When interpreting an insurance policy, Alaska law instructs courts to look to the language of the disputed provision, other provisions in the policy, extrinsic evidence, and case law interpreting similar provisions.^[8] Insurance policies are construed in a manner that honors a lay insured's reasonable expectations.^[9] Any ambiguity should be construed in favor of the insured and against the insurer.^[10] Also, grants of coverage should be viewed broadly, while exclusions should be viewed narrowly.^[11] Yet where a reasonable lay interpretation of the policy would not encompass coverage under the circumstances, there is no ambiguity and therefore no coverage.^[12]

         IV. DISCUSSION

         As an initial matter, the Court finds there to be two separate acts at issue here. First, Motgin's assault on Ms. Chong with his knife ("the Assault") and second, his subsequent placement and transportation of her wounded body in back of the Taxicab ("the Transportation"). The Court finds that Motgin was not operating a vehicle during the Assault, nor did Ms. Chong suffer any further injuries at the hands of Motgin during the Transportation.^[13]

         A. Taxicab Was Not An "Uninsured Motor Vehicle" Under the Policy

         NCIC asserts that the Estate is not entitled to uninsured motorist benefits because language in the Policy provide that “an uninsured motor vehicle” means a vehicle for which no liability policy applies at the time of the accident. Because the Taxicab was insured for liability claims, NCIC argues it could not meet the definition of an “uninsured motor vehicle.”

         The Estate argues that because Motgin's use of the Taxicab was unauthorized, liability coverage would not apply. Accordingly, the Taxicab should therefore be considered an "uninsured motor vehicle." Moreover, the Estate argues that the only restriction on uninsured motorist coverage is that the party seeking coverage must be “an insured” who is injured by another who is not insured.

         However, in order to provide coverage, the uninsured party must also have been a motorist. As the Estate points out, AS 28.20.445 is entitled “Uninsured and underinsured motorists coverage, ” not uninsured and underinsured vehicle coverage.^[14] Because Ms. Chong remained in the driver's seat of the Taxicab during the entirety of the Assault, the Court cannot find that Motgin was a motorist at the time of the Assault. He was a passenger attacking a motorist. Motgin only took unauthorized control of the vehicle and became a motorist after Ms. Chong had already been stabbed and forcibly removed from the vehicle. There is no indication that Motgin was a motorist or operator of any vehicle during the Assault. He only became such during the Transportation. Even if the Taxicab was considered uninsured once Motgin took control and became a motorist, which NCIC disputes, the Taxicab remained an insured vehicle driven by Ms. Chong at ...