19-857 (L)
Kellogg v. Mich. Millers Mut. Ins. Co.



                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
New York, on the 9th day of October, two thousand and twenty.

Present:
            ROBERT A. KATZMANN,
            RICHARD C. WESLEY,
            JOSEPH F. BIANCO,
                        Circuit Judges,
______________________

TROY D. KELLOGG, SHARON KELLOGG,

                                Plaintiffs-Appellees-Cross-Appellants,

                 v.                                                           19-857-cv, 19-871-cv

MICHIGAN MILLERS MUTUAL INSURANCE
COMPANY,

                                Defendant-Appellant-Cross-Appellee. †
†
    The Clerk of the Court is directed to amend the caption as set forth above.
______________________

For Plaintiffs-Appellees-Cross-Appellants:       MATTHEW F. BELANGER, Faraci
                                                 Lange, LLP, Rochester, NY.

For Defendant-Appellant-Cross-Appellee:          DAN D. KOHANE, Hurwitz & Fine,
                                                 P.C., Buffalo, NY.

      Appeal from the United States District Court for the Western District of New

York (Payson, M.J.)

      UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment is VACATED IN PART, REVERSED IN PART,

and AFFIRMED IN PART, and the case REMANDED.

      The parties cross-appeal from a final Decision and Order dated March 7, 2019, in

the United States District Court for the Western District of New York (Payson, M.J.),

declaring that Troy Kellogg does not qualify for Personal Injury Protection (“PIP”) or

Additional Personal Injury Protection (“APIP”) insurance coverage, but that he does

qualify   for   Auto     Medical     Payments      (“MedPay”)     and    Supplementary

Uninsured/Underinsured Motorists Endorsement (“SUM”) insurance coverage.             We

assume the parties’ familiarity with the facts, the procedural context, and the issues on

appeal.

      As an initial matter, although the parties continue to engage on the issue of

Michigan Millers Mutual Insurance Company’s (“Michigan Mutual”) liability under the

PIP policy, Michigan Mutual paid PIP benefits to Kellogg in the amount of $50,000 prior


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to the district court’s decision. See Kellogg v. Mich. Millers Mut. Ins. Co., No. 17-cv-6242,

, at *3 n.2 (W.D.N.Y. Mar. 7, 2019). Because the coverage limit under the

PIP policy at the time of the accident was $50,000, Kellogg received all the relief he

ultimately sought under that policy. As a result, Kellogg’s claim regarding the PIP

coverage is moot and the district court’s ruling as it pertains to the PIP coverage must be

vacated. 1

          Turning to the APIP coverage, Kellogg’s eligibility under the APIP policy required

that he “sustain[] personal injury arising out of the use or operation of the insured motor

vehicle while occupying the insured motor vehicle.” J.A. 205. 2 Because Michigan Mutual

conceded that “for the purposes of . . . APIP coverage, whether Kellogg was ‘occupying’

the tow truck at the time of the accident is irrelevant,” Kellogg, 

, at *4 n.3,

the only remaining issue is whether Kellogg’s injury arose out of his use or operation of

the tow truck.

          Kellogg argues that he was “using” the covered tow truck when he was injured,

and thus is entitled to a payout under that policy. Kellogg Br. at 30. The district court

agreed that Kellogg was using the tow truck in some capacity, but the district court

nevertheless denied APIP coverage. Relying on Walton v. Lumbermens Mut. Cas. Co., 88



1Michigan Mutual does not seek return of the money from Kellogg but will attempt “to recoup
that benefit through coverage litigation with the insurers of the other vehicles involved in the
accident.” Kellogg, 

, at *3 n.2.

2   References to J.A. refer to the Joint Appendix.
                                                      

(1996), the court concluded that Kellogg failed to demonstrate that his use of

the truck “was a proximate cause of his injuries or that it was the instrumentality that

produced” his injuries. Kellogg, 

, at *6. In our view, the district court

misapplied Walton.

       In Walton, the plaintiff was injured by a “levelator”—a device that creates a ramp

between a truck bed and a loading dock—as he was unloading his truck, and he sought

to claim first-party no-fault benefits from the insurer of the truck. 

.

The levelator was not part of the truck.

tipped over, throwing the

plaintiff to the ground, he was, in some sense, injured while using or operating the truck.

See

of Appeals concluded that, although someone who was

unloading a truck “may be using it within the meaning of the statute, . . . that does not

necessarily mean that his or her injuries arose out of the use of the vehicle.”

(emphasis added).

       Of particular relevance to the holding in Walton was the fact that the “plaintiff’s

injury was caused by an instrumentality other than the insured vehicle,” meaning that

the truck’s operation and use was not “a proximate cause of the injury.”

This proximate-cause distinction recognized by the Court of Appeals reflected the

legislature’s intention to “draw a line between motor vehicle accidents and all other types

of torts.”

Ultimately, the Court of Appeals reasoned that “no-fault liability will

not attach when the injury is caused by something other than a motor vehicle because in such


                                              4
circumstances the incident cannot be considered an accident related to the use of the

motor vehicle.”

(emphasis added).

       The instant case presents a wholly different scenario than Walton, one that fits well

within both the statutory language and the purpose of New York’s no-fault insurance

law. At the time of the accident, Kellogg was using the tow truck’s winch cable to pull a

vehicle out of a ditch, an activity plainly related to the vehicular nature of the insured

automobile. And the injury itself was caused by a third vehicle “that had lost control

while exiting the Thruway at Exit 45.”            Kellogg, 

, at *2.    This,

undoubtedly, was a “motor vehicle accident[]” covered under the APIP policy. 

. Kellogg is therefore entitled to APIP coverage, and we reverse the

district court’s decision insofar as it is inconsistent with this conclusion.

       Finally, as for Michigan Mutual’s contention that Kellogg was not “occupying” the

covered tow truck within the meaning of the MedPay and SUM policies, the undisputed

facts of the case prove otherwise. At all times leading up to the collision, Kellogg was in,

around, next to, or using the covered tow truck. And the parties agree that at the specific

moment of impact, Kellogg “was in the process of detaching the tow truck’s cable from

the strap attached to the Liamero vehicle.” Kellogg, 

, at *9. At the very

least, then, Kellogg was “vehicle oriented,” thus falling within the broad ambit of what it

means to “occupy” a vehicle under the no-fault law. See Colon v. Aetna Cas. & Sur. Co., 

, 574 (1980) (citing cases).       The district court was therefore correct in


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concluding that Kellogg is entitled to coverage under the MedPay and SUM policies, and

we affirm this portion of the district court’s order.

       Accordingly, for the reasons set forth above, the order of the district court is

VACATED IN PART, REVERSED IN PART, and AFFIRMED IN PART, with costs to

plaintiffs-appellees-cross-appellants, and we REMAND with instructions to enter a

declaratory order consistent with this opinion.



                                           FOR THE COURT:
                                           Catherine O’Hagan Wolfe, Clerk




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