Filed: Oct. 01, 2007
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT OCTOBER 1, 2007 No. 07-11077 THOMAS K. KAHN Non-Argument Calendar CLERK _ D. C. Docket No. 06-00161-CV-BH-C KIMBERLY S. RIDGEWAY, Plaintiff-Appellant, versus PROGRESSIVE HALCYON INSURANCE COMPANY, Defendant-Appellee. _ Appeal from the United States District Court for the Southern District of Alabama _ (October 1, 2007) Before TJOFLAT, HULL and WILSON, Circuit Judges. PER
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT OCTOBER 1, 2007 No. 07-11077 THOMAS K. KAHN Non-Argument Calendar CLERK _ D. C. Docket No. 06-00161-CV-BH-C KIMBERLY S. RIDGEWAY, Plaintiff-Appellant, versus PROGRESSIVE HALCYON INSURANCE COMPANY, Defendant-Appellee. _ Appeal from the United States District Court for the Southern District of Alabama _ (October 1, 2007) Before TJOFLAT, HULL and WILSON, Circuit Judges. PER ..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 1, 2007
No. 07-11077 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00161-CV-BH-C
KIMBERLY S. RIDGEWAY,
Plaintiff-Appellant,
versus
PROGRESSIVE HALCYON INSURANCE COMPANY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(October 1, 2007)
Before TJOFLAT, HULL and WILSON, Circuit Judges.
PER CURIAM:
This appeal arises from a personal injury action brought by Kimberly
Ridgeway (“Ridgeway”) seeking to recover benefits under the
“Uninsured/Underinsured Boater Coverage” section of a Progressive Halcyon
(“Progressive”) watercraft insurance policy. The district court granted summary
judgment in favor of Progressive, finding that no coverage was due under the terms
of the policy.
Ridgeway alleges that two unidentified vessels acted negligently and
wantonly by driving too closely to the boat in which she was riding, and too fast
for the area and the crowded conditions. Ridgeway was severely injured when the
wake from the two boats caused her boat to rock, forcing her into the air and to
land hard on the seat of the boat. As a result of the fall, Ridgeway suffered
fractured vertebrae and partial paralysis from the waist down.
The boat in which Ridgeway was riding belonged to her husband, and was
covered by an Alabama Boat and Personal Watercraft Policy issued by
Progressive. Ridgeway was identified in the policy as a driver and household
resident. The policy includes coverage for up to $250,000 for uninsured boater
coverage. The policy also states that “any disputes as to the coverage provided or
the provisions of this policy shall be governed by the law of the state listed on
your application as your residence.” Ridgeway and her husband are both residents
and citizens of the State of Alabama.
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The Uninsured/Underinsured portion of the policy provides in pertinent part:
Subject to the limits of Liability, if you pay a premium for Uninsured
Boater Coverage, we will pay for the damages, other than punitive or
exemplary damages, which an insured person is entitled to recover
from the owner or operator of an uninsured watercraft because of
bodily injury:
1. sustained by an insured person
2. caused by an accident; and
3. arising out of the ownership maintenance or use of an
uninsured watercraft.
Under the “Additional Definitions” section of the policy, it defines “uninsured
watercraft” as a watercraft “that is a hit and run watercraft whose owner or
operator cannot be identified and which strikes” a covered individual or watercraft.
(emphasis added).
It is undisputed that neither of the unidentified boats made actual physical
contact with Ridgeway or the boat in which she was riding. Nonetheless, she
contends that the terms of the policy apply to her claim because Alabama law
makes clear that the uninsured boats “struck” the Ridgeway boat.
We review the district court's grant of summary judgment de novo, applying
the same standards as the district court. Nat'l Fire Ins. Co. of Hartford v. Fortune
Constr., 320 F.3d 1260, 1267 (11th Cir. 2003). A motion for summary judgment
should be granted when there is no issue as to any material fact and the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). We review
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the evidence and all reasonable inferences in the light most favorable to the
non-moving party. Nat'l Fire Ins., 320 F.3d at 1267.
The parties agree that Alabama law is the state law that is applicable in this
case. It is well-settled law in Alabama that an insurance contract will be construed
strictly against the insurer and liberally in favor of the insured. Taliaferro v.
Progressive Specialty Ins. Co., 821 So. 2d 976, 980 (Ala. 2001). On the other
hand, we must give a term or phrases the meaning a person of ordinary intelligence
would reasonably give it or as it is defined within the contract and “enforce the
insurance policy as written if the terms are unambiguous.” Safeway Ins. Co. Of
Ala., Inc. v. Herrera,
912 So. 2d 1140, 1143 (Ala. 2005).
Alabama law makes clear that no physical contact is necessary for an
individual to have been “struck by an automobile,” where that phrase is used in an
insurance policy. See Tyler v. Ins. Co. Of North America, 331 So. 2d 641 (Ala.
1976). In Tyler, the Fifth Circuit certified to the Alabama Supreme Court the
question “[w]hether as a matter of Alabama law the word ‘struck’ . . . must be
construed as requiring some sudden impact rather than any contact resulting from
the motive force of the automobile and ending in injury.”
Id. at 644. The Alabama
Supreme Court held that the term “struck by any automobile” in an insurance
policy does not require actual physical contact.
Id. at 646. In that case, Mr. Tyler
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was killed when he was drug by a trailer rope attached to an automobile that
inadvertently became looped around his foot during the launch of a boat. Under
the facts of that case, the court found that Tyler had been “struck” by an
automobile for purposes of his limited accident insurance policy. Id. The court
held that “the words ‘struck by an automobile’ require either an impact between
the injured and the automobile, or between the injured and something set in motion
by the impact of the automobile upon it or between the injured and something set
in motion as a result of the automobile's force.”
Id. (emphasis added). The court
concluded “that a finding of contact with an object whose motive force is an
automobile is sufficient to bring the facts within the meaning of ‘struck by an
automobile’ as used in the contract of insurance in this case.”
Id.
Similarly, in State Farm Mut. Auto Ins. Co. v. Wright,
328 So. 2d 608 (Ala.
Civ. App. 1976), the Alabama Court of Civil Appeals held that the insured was
“struck by an automobile” because the automobile was the causative force behind
the injury, even where there was no actual contact between the two vehicles. In
that case, the insured, while acting as volunteer fireman, was pinned beneath a split
tree. The tree was subsequently struck by an automobile, knocking the tree into the
air. The tree fell back on top of the insured, resulting in his death. In finding that
the insured had been “struck by an automobile,” the court reasoned:
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[T]o say that a person so injured is not “struck by” an automobile
within the meaning of the policy provision, is to deprive the insured of
the protection which he would reasonably expect from that provision.
In such instances, the individual is struck by an automobile as surely
as if the vehicle had physically run him over.
Id. at 612.
Accordingly, Alabama law is clear that the term “struck,” as used in
insurance policies covering injuries caused by automobiles, does not require actual
physical contact. If contact is made “between the injured and something set in
motion as a result of the automobile's force,” the person has been “struck” by the
automobile under Alabama law. Tyler, 331 So. 2d at 646. We see no reason to
distinguish between the meaning of the word “struck” in cases involving
automobiles and the meaning of the word “struck” in the watercraft insurance
policy at issue in this case. Under Alabama law, a wake set in motion by another
boat, resulting in damages or injury to an insured vessel or individual, is a tangible
force sufficient to fit the definition of the term “strikes” in the insurance policy.
Progressive contends that this reading of the policy would lead to absurd
results because the word “‘strike’ may include any water movement vaguely,
possibly, or even indirectly caused by another” boat. This, they argue, is the very
risk inherent in taking any boat out on the water and which necessarily requires
skill in boating—not the risk insured against by uninsured boater coverage. We
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disagree. While the risks and dangers associated with operating a boat may in fact
be different from those associated with operating a car, the differences do not
compel us to interpret the term “strike” or “struck” in a different fashion in each
context. The injury caused by an uninsured boat was the peril that the policy
insured against. In this case, as was the case in Wright and Tyler, the uninsured
boat was the causative force behind the injury. Ridgeway was struck as surely as if
the vessel had run over her. See Wright, 328 So. 2d at 612.
In sum, we hold that the lack of actual physical contact by the uninsured,
unidentified boat does not prohibit Ridgeway from recovering under the policy as a
matter of law. However, we do not decide here whether she is ultimately entitled
to a recovery. That is a matter for trial. We reverse the district court’s grant of
summary judgment and remand for further proceedings consistent with this
opinion.
REVERSED AND REMANDED.
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