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State Auto Property & Casualty v. Lewis

United States District Court, D. Kansas

March 19, 2014

State Auto Property & Casualty, Plaintiff,
David Lewis, et al., Defendants

Decided March 18, 2014.

Page 1304

For State Auto Property and Casualty Insurance Company, Plaintiff: Bradley C. Nielsen, Nicholas P. Hillyard, LEAD ATTORNEYS, Franke Schultz & Mullen, PC, Kansas City, MO.

For David Lewis, Michelle Koelling, Defendants: Stephen W. Kessler, LEAD ATTORNEY, Topeka, KS.

For Shirley Bosworth, Defendant: Gary E. Laughlin, LEAD ATTORNEY, Hamilton Laughlin Barker Johnson & Jones, Topeka, KS.

For Debra Lowe, Kristopher Lowe, Defendants: Roger D. Fincher, LEAD ATTORNEY, Bryan, Lykins, Hejtmanek & Fincher, PA, Topeka, KS.


Page 1305



Joey Lowe was killed when the motorcycle he was riding struck a cow on Auburn Road in Shawnee County. The cow, which belonged to Shirley Bosworth, had escaped from pasture owned by David Lewis and Michelle Koelling and located in the vicinity of 7750 S.W. 61st Street in Topeka, Kansas. Individually and as the heirs at law of Joey Lowe, Debra Lowe and Kristopher Lowe filed a state court negligence action against Bosworth, Lewis and Koelling.

Plaintiff State Auto Property & Casualty subsequently brought this declaratory judgment action seeking a determination that the homeowners insurance policy issued to Lewis provides no coverage for the accident. The plaintiff has moved for summary judgment (Dkt. 29), which the court grants for the reasons provided herein.


As a preliminary matter, the court notes that it directed the parties to brief the jurisdiction of the court to hear the present action. After the summary judgment motion was filed, the United States Magistrate Judge entered the Pretrial Order indicating a lack of complete diversity, in that both State Auto and defendant Kristopher Lowe were residents of the State of Iowa.

Although the court directed " each party" to make as showing as to the court's jurisdiction (Dkt. 40), only State Auto has complied. (Dkt. 41). In its response, State Auto argues that the court should exercise its inherent authority to dismiss Kristopher Lowe as a party pursuant to Fed.R.Civ.Pr. 41(a)(1)(B). Although submitted as a brief, State Auto's submission is effectively a motion, since it formally requests the dismissal of Lowe. (Dkt. 41, at 9). None of the defendants have filed any response to this request, or otherwise objected to the result.

For good cause shown, the court finds that Kristopher Lowe is not an indispensable party within the meaning of Fed.R.Civ.Pr. 19 and 21. Kristopher Lowe's interests are identically aligned with Debra Lowe, who remains in the action. Under K.S.A. 60-1902, the underlying action on behalf of Joey Lowe can be advanced " by any one of the heirs" at law. Accordingly, dismissal will not directly imperil the substantial interests of any party. In contrast, a failure to dismiss Kristopher Lowe will deprive the court of jurisdiction, and State Auto of an effective forum for resolution of its declaratory judgment action. Finally, dismissal will serve the interests of judicial economy, as the legal issues in the case have been fully briefed and the court is ready to rule.

Summary Judgment

Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary

Page 1306

judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party need not disprove plaintiff's claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).

In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. " In the language of the Rule, the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita ). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The facts relating to State Auto's summary judgment motion are essentially uncontested. The land from which the Bosworth cow escaped is a 40 acre pasture located at the 7500 block of S.W. 61st Street, and owned by Lewis and Koelling by Warranty Deed. The pasture is improved with a fence and a 16 foot metal gate. Bosworth uses the land as pasture for her cattle.

It is uncontroverted that the pasture is approximately seven miles from defendant Lewis's residence at 3313 S.W. Clarhan Road in Topeka, Kansas. Lewis has lived at that address since 2000.

At the time of the accident, Lewis had a homeowner's " Personal Insurance Policy" from Farmers, Policy No. HKS 0015709. Under the Policy, Farmers agreed to defend Lewis at 3313 S.W. Clarhan Road in Topeka, Kansas. The limit of liability for personal liability is $300,000 each occurrence.

Section 6 of the Policy defines the " Insured location" to mean:

a. The " residence premises" ;
b. The part of other premises, other structures and grounds used by you as a residence; and
(1) Which is shown in the Declarations; or
(2) Which is acquired by you during the policy period for your use as a residence;
c. Any premises used by you in connection with a premises described ...

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