United States District Court, D. Kansas
DIANAH GREENE, individually and On behalf of the heirs-at-law of EDWARD GREENE, deceased, Plaintiff,
CSAA FIRE & CASUALTY INSURANCE COMPANY d/b/a AAA Insurance,, Defendants.
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
matter comes before the court on two motions. Defendant CSAA
Fire and Casualty Insurance Company, doing business as AAA
Insurance (“CSAA”), has filed a Cross Motion for
Summary Judgment. Doc. 14. Defendant Safeco Insurance Company
of America (“Safeco”) also has filed a Motion for
Summary Judgment. Doc. 15. All parties have filed responses
and replies. For reasons explained below, the court grants
Safeco's Motion and denies CSAA's Motion.
parties have stipulated to the following uncontroverted
facts. See Doc. 13.
February 18, 2016, Marcos Adan Cruz, Jr. negligently drove
his car into a car driven by Jerry Griggs. Edward Greene was
riding as a passenger in Mr. Griggs's car. Mr. Cruz ran a
red light while evading law enforcement officers, colliding
with Mr. Griggs's car. Mr. Cruz carried insurance
covering the car he was driving, but his insurance company
denied coverage for the accident. Thus, for purposes of this
dispute, Mr. Greene was killed in an accident with a
negligent uninsured motorist.
insured Mr. Greene and his wife, Dianah Greene, under a
policy covering a car not involved in the accident.
Safeco's uninsured motorist coverage established a limit
of $100, 000 per person. This policy provides, “[A]ny
insurance we provide with respect to a vehicle you do not own
. . . shall be excess over any collectible insurance.”
Doc. 13-1 at 53. This coverage is commonly known as an
“excess-escape” clause. Safeco's policy also
provides that if Safeco provides coverage on a primary basis,
then Safeco only will pay “the proportion that our
limit of liability bears to the total of all applicable
limits of liability for coverage provided on a primary
insured Carol and Mr. Griggs on the car Mr. Griggs was
driving at the time of the accident. The uninsured motorist
coverage limit under their CSAA policy is $250, 000 per
person. The CSAA policy also provides, “[A]ny insurance
we provide with respect to a vehicle you do not own . . .
shall be excess over any collectible insurance.” Doc.
13-2 at 31. The CSAA policy also provides that if CSAA
provides coverage on a primary basis, then CSAA will only pay
“the proportion that our limit of liability bears to
the total of all applicable limits of liability for coverage
provided on a primary basis.” Id. at 31-32.
CSAA's policy covers Mr. Greene because he was a
passenger in Mr. Griggs's car when the accident occurred.
Id. at 27.
Dianah Greene, individually and on behalf of the heirs-at-law
of Mr. Greene, filed this diversity action for the wrongful
death of Mr. Greene. Plaintiff brings this suit against both
insurance carriers-CSAA and Safeco. Both insurers have filed
cross motions for summary judgment to determine how much each
insurance company owes plaintiff. Both defendants agree that
the maximum amount plaintiff can recover is $250,
CSAA argues that both policies are primary and thus the court
should divide any award on a pro-rata basis between CSAA and
Safeco. Doc. 14 at 3. Safeco argues that it is the
excess insurer and not liable for any amount due to
plaintiff. Doc. 16 at 7. For reasons stated below, the court
holds that Safeco is the excess insurer. The court thus
grants Safeco's motion and denies CSAA's motion.
Summary Judgment Standard
judgment is appropriate if the moving party demonstrates that
“no genuine dispute [about] any material fact”
exists and that it “is entitled to judgment as a matter
of law.” Fed.R.Civ.P. 56(a). The court applies this
same standard to cross motions for summary judgment. Each
party bears the burden of establishing that no genuine issue
of material fact exists and entitlement to judgment as a
matter of law. Atl. Richfield Co. v. Farm Credit Bank of
Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000). Cross
motions for summary judgment “are to be treated
separately; the denial of one does not require the grant of
another.” Buell Cabinet Co., Inc. v. Sudduth,
608 F.2d 431, 433 (10th Cir. 1979). But where the cross
motions overlap, the court may address the legal arguments
together. Berges v. Standard Ins. Co., 704 F.Supp.2d
1149, 1155 (D. Kan. 2010) (citation omitted).
neither party disputes the facts at this stage. The
interpretation of an insurance contract is a question of law.
Am. Media, Inc. v. Home Indem. Co., 658 P.2d 1015,
1018 (Kan. 1983). Thus, the court must decide which party
deserves judgment as a matter of law. See Great Plains
Ventures, Inc. v. Liberty Mut. Fire Ins. Co., 161
F.Supp.3d 970, 976 (D. Kan. 2016).
addressing defendants' arguments, the court must
determine which state's substantive law governs.
Rigby v. Clinical Reference Lab., Inc., 995 F.Supp.
1217, 1221 (D. Kan. 1998) (citing Erie R. Co. v.
Tompkins, 304 U.S. 64, 78 (1938)). Because the parties
are citizens of different states and the amount in
controversy exceeds $75, 000, the court has diversity subject
matter jurisdiction over this case. See 28 U.S.C.
§ 1332. In a diversity case, federal courts apply the
choice of law rules of the forum state. See Klaxon Co. v.
Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). Under
Kansas law, insurance contracts are governed by the law of
the state where the contract was made. Safeco Ins. Co. of
Am. v. Allen, 941 P.2d 1365, 1372 (Kan. 1997). Here, the
parties agree that Kansas law applies and no evidence
suggests that the insurance contracts were made outside
Kansas. Therefore, the court interprets the contract
according to Kansas substantive law. The substantive law is
determined by the state's highest court, although the
court may look to lower court decisions as persuasive
authority for what the highest court would hold unless
evidence suggests otherwise. Etherton v. Owners Ins.
Co, 829 F.3d 1209, 1223 (10th Cir. 2016).