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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kalenka v. Infinity Insurance Companies (10/14/2011) sp-6609
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
UWE KALENKA, as personal )
representative of the ESTATE OF ) Supreme Court No. S-13781
ERIC KALENKA, )
) Superior Court No. 3AN-04-07986 CI
Appellant, )
) O P I N I O N
v. )
) No. 6609 - October 14, 2011
INFINITY INSURANCE )
COMPANIES, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Peter G. Ashman, Judge pro
tem.
Appearances: Kenneth P. Jacobus, Kenneth P. Jacobus, P.C.,
Anchorage, for Appellant. Rebecca J. Hozubin, Wilkerson
Hozubin, Anchorage, for Appellee.
Before: Fabe, Winfree, and Stowers, Justices. [Carpeneti,
Chief Justice, and Christen, Justice, not participating.]
FABE, Justice.
I. INTRODUCTION
After a minor collision between two vehicles in the drive-through line of
a Taco Bell, Jack Morrell, the driver of one vehicle, stabbed and killed Eric Kalenka, the
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driver of the other vehicle. Morrell was uninsured and Kalenka's policy provided
coverage for liabilities arising out of the "ownership, maintenance, or use" of an
uninsured motor vehicle. Kalenka's automobile insurer filed an action in superior court,
seeking a declaration that Kalenka's policy did not provide coverage for Kalenka's
death. The superior court concluded that there was no general liability coverage under
the policy. Uwe Kalenka, the personal representative of Eric Kalenka's estate, appeals
the denial of liability coverage. We affirm the superior court's determination that
Kalenka's policy does not provide liability coverage.
II. FACTS AND PROCEEDINGS
A. Facts
Around 3:00 a.m. on February 27, 2004, Eric Kalenka was driving a rented
Subaru station wagon through the drive-through of a Taco Bell in the Mountain View
neighborhood of Anchorage. While Kalenka's car was in line, it was rear-ended by a
Chevrolet Suburban. Kalenka exited the car to assess the damage. The driver of the
Suburban, Jack Morrell, also exited and began arguing with Kalenka. Morrell threatened
Kalenka and Christine Montague, Kalenka's girlfriend and passenger. Kalenka returned
to his car and stood outside it. Kalenka called the police with his cell phone. Morrell
followed Kalenka to the Subaru and stood very close to Kalenka, yelling at Kalenka as
he placed the call. While Kalenka was leaning against the Subaru and speaking with the
police dispatcher, Morrell began shoving Kalenka. Kalenka handed the phone to
Montague through the driver's side window and told her to speak to the police. Kalenka
and Morrell scuffled, moving behind the Subaru and then in front of it. During this fight,
Morrell produced a knife and stabbed Kalenka multiple times. When the parties
separated, Kalenka returned to the driver's seat of the Subaru, sat down, and closed the
door. The police arrived very soon thereafter and apprehended Morrell. Kalenka was
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taken to Alaska Regional Hospital where he was pronounced dead. The Alaska medical
examiner determined that the cause of death was multiple stab wounds.
Though Morrell had been driving the Suburban, it was owned by Morrell's
cousin, William Wassili, who was in the passenger's seat at the time of the collision.
Paul Wassili, another cousin, was in the back seat of the Suburban. All three had been
at Chilkoot Charlie's, a bar in the Spenard neighborhood of Anchorage, until it closed
at 2:30 a.m. An officer who interrogated Morrell testified that he was able to smell
alcohol on Morrell's breath, and a blood test documented the presence of alcohol and
marijuana in Morrell's system. Morrell was later convicted of second-degree murder.1
B. Proceedings
On June 14, 2004, Infinity Property and Casualty Insurance Corporation
(Infinity), Kalenka's automobile insurer, filed an action in superior court seeking a
"declaration that there is no uninsured or medical payments coverage under the policy."
Uwe Kalenka, as personal representative of the estate of Eric Kalenka, filed a
counterclaim seeking money he alleged was owed to the Kalenka Estate under the terms
of Kalenka's policy.
1. The April 29, 2005 summary judgment ruling
On September 6, 2004, the Kalenka Estate filed a motion for summary
judgment. Infinity filed a cross-motion for summary judgment on January 12, 2005.
Superior Court Judge Morgan B. Christen ruled that there were genuine issues of
material fact as to whether Eric Kalenka was "occupying" the vehicle during the
stabbing. Kalenka's policy requires that the insured be "occupying" the vehicle to be
covered, and the policy defines "occupying" as "in, upon, entering into, or exiting from."
The superior court held that there was a controversy as to where Kalenka was located
1 Morrell v. State, 216 P.3d 574, 575 (Alaska App. 2009).
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when he was stabbed and whether or not he was "occupying" the vehicle. The superior
court also held that it could not determine as a matter of law whether Kalenka's injuries
were the product of an "accident," another prerequisite for coverage. At the time of the
superior court's ruling, Morrell had not yet been convicted of second-degree murder, and
the superior court concluded that it could not "determine as a matter of law whether
Mr. Morrell intentionally inflicted the bodily injury."
Kalenka's policy provides uninsured motorist coverage if the injury arose
out of the "ownership, maintenance, or use of the uninsured motor vehicle." The
superior court granted partial summary judgment to Infinity on the claim that Kalenka's
injuries did not arise out of the "use" of the Suburban, the vehicle Morrell was driving.
But the superior court ruled that it could not grant summary judgment on whether the
injuries arose out of the "ownership" or "maintenance" of the vehicle.
2. The September 15, 2005 summary judgment ruling
Infinity filed a second motion for summary judgment on July 13, 2005,
seeking a ruling that Kalenka's injuries did not arise out of the "ownership" or
"maintenance" of the vehicle driven by Morrell. Infinity attached the recording of
Christine Montague's 911 call to prove that Morrell "intentionally inflicted the bodily
injury." The Kalenka Estate filed an opposition, and the superior court denied the
motion on September 15, 2005.
3. The October 30, 2006 summary judgment ruling
Infinity filed a third motion for summary judgment on February 15, 2006.
In this motion, Infinity again sought a ruling that Kalenka's policy did not provide
coverage. Infinity emphasized the testimony before the grand jury that indicted Morrell.
Infinity argued that this testimony established that the stabbing had been intentional.
Infinity also reiterated the arguments from its first motion for summary judgment,
arguing again that (1) Kalenka was not "occupying" his vehicle at the time of his injuries
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and that (2) the incident did not constitute an "accident" within the meaning of the
policy. The Kalenka Estate opposed and filed a cross-motion for summary judgment on
August 15, 2006. The superior court held that since Kalenka was leaning against the
vehicle when the fight began, he was "occupying" the vehicle. But the superior court
otherwise denied the motion and cross-motion for summary judgment.
On February 27, 2006, the Kalenka Estate filed a wrongful death suit
against Morrell, William Wassili, Chilkoot Charlie's, and the Municipality of Anchorage.
4. The trial
A trial was conducted on March 28, 2008. In the superior court's words,
the trial was "unconventional" since both sides had submitted "prefiled testimony" and
were present only to deliver closing arguments. The superior court concluded that
coverage did exist under Part B, the portion of the policy covering medical expenses.
As to Part C, the portion of the policy covering liability caused by uninsured motorists,
which is the subject of this appeal, the superior court held that Kalenka's death did not
arise out of either the "use" or "maintenance" of the automobile Morrell was driving, but
his death could have arisen out of the "ownership" of the vehicle "if Mr. Kalenka's death
arose from negligent entrustment of the uninsured Suburban." But the superior court
held that "a preponderance of the evidence did not support a finding of negligent
entrustment."
5. Motion for reconsideration
The Kalenka Estate then filed a motion for reconsideration, arguing that it
never sought a ruling on the underlying tort claim regarding whether there was negligent
entrustment or maintenance by Wassili. The superior court accordingly vacated its
"rulings on the underlying tort of negligent maintenance or negligent entrustment." The
court was "convinced that the Estate intended to preserve its opportunity to prove its
negligent entrustment claim in a separate action." The court held that if the Kalenka
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Estate "can prove that [Eric] Kalenka's injuries arose from the maintenance or ownership
of the uninsured vehicle, Part C of the policy will provide coverage." That is, if the
Kalenka Estate could prove in its suit against William Wassili that Wassili's negligent
entrustment or maintenance of his vehicle caused Kalenka's death, then Part C would
provide coverage.
6. The December 10, 2009 ruling on summary judgment
On March 26, 2009, Infinity filed another motion for summary judgment
on the Estate's negligent entrustment and maintenance claims. The Kalenka Estate filed
an opposition. On September 25, 2009, the court of appeals affirmed Morrell's
conviction for second-degree murder. The superior court case was reassigned to pro tem
Superior Court Judge Peter G. Ashman, who granted summary judgment for Infinity.
The superior court explained that the concerns prompting the court's earlier
reconsideration were no longer relevant: The earlier ruling on the maintenance and
entrustment claims "determined that neither party had requested a final ruling on their
merits" and therefore concluded summary judgment was inappropriate at that time. As
Infinity now sought a ruling on these claims, Judge Ashman concluded that judicial
resolution of those issues was appropriate. The superior court determined that the
Kalenka Estate had presented insufficient admissible evidence to defeat summary
judgment. The court also held that "Morrell's brutal and intentional assault of Eric
Kalenka broke the chain of causation between Wassili's entrustment of his vehicle to
Morrell and the damages suffered by Kalenka as a result of Morrell's actions."
The Kalenka Estate appeals the superior court's determination that
Kalenka's death did not arise out of the "ownership, maintenance, or use" of Morrell's
vehicle. The superior court's ruling that Part B of the policy provides coverage for
medical expenses is not at issue in this appeal.
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III. STANDARD OF REVIEW
We review a grant of summary judgment de novo, applying our
independent judgment.2 We will affirm if the record contains no genuine issue of
material fact, and the moving party is entitled to judgment as a matter of law.3 "A party
opposing summary judgment need not prove that it will prevail at trial, but only that
there is a triable issue of fact."4 "Any evidence sufficient to raise a genuine issue of
material fact, so long as it amounts to more than a scintilla of contrary evidence, is
sufficient to oppose summary judgment."5
We review factual findings by the trial court for clear error.6 "Clear error
exists when we are left with a definite and firm conviction that the superior court has
made a mistake."7 This court reviews conclusions of law de novo and will adopt the
"rule of law that is most persuasive in light of precedent, reason, and policy."8
2 Burnett v. Covell, 191 P.3d 985, 987 (Alaska 2008).
3 Shaw v. State Farm Mut. Auto. Ins. Cos., 19 P.3d 588, 589-90 (Alaska
2001).
4 Indus. Commercial Elec., Inc. v. McLees, 101 P.3d 593, 597 (Alaska 2004).
5 Beal v. McGuire, 216 P.3d 1154, 1161 (Alaska 2009) (internal quotation
marks omitted).
6 Winston J. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 134 P.3d 343, 345-46 (Alaska 2006).
7 Id. at 346 (internal quotation marks omitted).
8 Gilbert M. v. State, 139 P.3d 581, 586 (Alaska 2006) (quoting Guin v. Ha,
591 P.2d 1281, 1284 n.6 (Alaska 1979)).
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IV. DISCUSSION
A. Part C Of The Policy Does Not Provide Coverage.
Alaska Statute 21.42.230 provides that "[e]ach insurance contract shall be
construed according to the entirety of its terms and conditions as set out in the policy."
Generally, we determine the liability of an insurer by the terms of the policy the insurer
has issued.9 Because insurance policies are contracts of adhesion, we have held that we
will construe policies to match the insured's reasonable expectations.10 We have
explained that "[t]he objectively reasonable expectations of applicants and intended
beneficiaries regarding the terms of insurance contracts will be honored even though
painstaking study of the policy provisions would have negated those expectations."11
"[W]here a clause in an insurance policy is ambiguous in the sense that it is reasonably
susceptible to more than one interpretation, we accept the interpretation that most favors
the insured."12
1. The policy
Though Kalenka was driving a rental car on the day of his death, his
personal automobile policy still provided coverage. Part C of the policy provided for
uninsured or underinsured motorists coverage:
In exchange for your premium payment, we [Infinity] will
pay [damages] not exceeding the limits shown on the
Declarations Page, which an insured person is legally
9 Jones v. Horace Mann Ins. Co., 937 P.2d 1360, 1362 n.3 (Alaska 1997).
10 Bering Strait Sch. Dist. v. RLI Ins. Co., 873 P.2d 1292, 1294-95 (Alaska
1994).
11 Id. at 1295 (quoting ROBERT KEETON, BASIC TEXT ON INSURANCE LAW
§ 6.3(a), at 351 (1971)).
12 C.P. ex rel. M.L. v. Allstate Ins. Co., 996 P.2d 1216, 1222 (Alaska 2000).
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entitled to recover from the owner or operator of an
uninsured motor vehicle because of bodily injury caused
by an accident and sustained by such insured person. The
bodily injury must be caused by an accident and must arise
out of the ownership, maintenance, or use of the uninsured
motor vehicle.
The terms in bold are defined in the policy. "Uninsured motor vehicle" is defined as a
"vehicle . . . not insured by a liability bond or policy at the time of the accident." The
policy defines "accident" as "a sudden, unexpected, and unintended event causing bodily
injury or property damage, arising out of the ownership, maintenance, or use of an auto."
The policy also defines "use":
"Use"of an uninsured motor vehicle or an underinsured
motor vehicle means that such vehicle must be the main
cause of a bodily injury or property damage. The bodily
injury or property damage must not merely occur while the
uninsured motor vehicle or underinsured motor vehicle is
being used or operated. There must be an actual and causal
connection between the use or operation of the uninsured
motor vehicle or underinsured motor vehicle and the
bodily injury. The bodily injury or property damage must
not be expected nor intended from the standpoint of the
driver or a passenger of the uninsured motor vehicle or
underinsured motor vehicle.
Both the statement of coverage and the definition of "accident" require that covered
injuries or property damage result from the "ownership, maintenance, or use" of an
automobile. On April 29, 2005, Judge Christen granted partial summary judgment to
Infinity and held that Kalenka's injuries did not arise out of the "use" of Morrell's
automobile. On March 16, 2010, Judge Ashman granted summary judgment to Infinity
and held that Kalenka's injuries did not arise out of the "maintenance" or "ownership"
of the vehicle.
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2. "Use"
The superior court held that the policy did not provide coverage under the
word "use." The court emphasized the fact that the definition of "use" required the
vehicle to be the "main cause of a bodily injury." The court granted summary judgment
to Infinity and held that "the uncontested facts here would not allow reasonable jurors
to conclude that the uninsured vehicle was the main cause of Mr. Kalenka's bodily injury
claim." According to the superior court, even if the use of the uninsured vehicle was a
cause of Kalenka's injuries, the vehicle could not be said to be the "main cause."
The Kalenka Estate appeals this ruling and argues that Morrell's use of
Wassili's Suburban was the main cause of Kalenka's death. According to the Kalenka
Estate, Kalenka's injuries arose out of the use the Suburban because the collision of the
Suburban with Kalenka's Subaru triggered the confrontation which ended Kalenka's life.
In Criterion Insurance v. Velthouse, we considered an insurance policy
similar to the one in this case.13 The policy in Velthouseprovided coverage for "bodily
injury . . . arising out of the ownership, maintenance or use of the owned auto."14
Velthouse, the insured, was sitting in his car and picked up a gun he believed was
unloaded.15 The gun was in fact loaded, and Velthouse accidentally discharged it,
13 751 P.2d 1 (Alaska 1986). Alaska law generally requires Alaska drivers
to carry automobile insurance. Progressive Ins. Co. v. Simmons, 953 P.2d 510, 521 n.13
(Alaska 1998); see also 7A COUCH ON INSURANCE § 109:1 (3d ed. 1995). The
automobile insurance statutes of most states, including Alaska, require that insurance
policies cover damages arising from the "ownership, maintenance, or use" of the vehicle.
AS 28.22.101; 1 IRVIN E. SCHERMER & WILLIAM J. SCHERMER, AUTOMOBILE LIABILITY
INSURANCE § 5:1 (2004).
14 Velthouse, 751 P.2d at 2.
15 Id. at 1.
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injuring a passenger.16 We held that, since the "vehicle was the mere situs of the
accident," the policy did not provide coverage.17 In Shaw v. State Farm Mutual Auto
Insurance Co., we held that automobile insurance could cover an intentional assault.18
Karel Shaw's ex-boyfriend shot her six times through his driver's side window.19 Her
insurance policy required that bodily injuries arise "out of the operation, maintenance,
or use" of a vehicle.20 The superior court granted summary judgment to State Farm.21
We reversed and remanded.22 We relied on Velthouse for the proposition that "there
must be some causal connection between the 'use' of the vehicle and the injury."23
Again referring to Velthouse, we noted that, when interpreting these provisions, courts
in other states "do not require proximate cause in its strict legal sense; rather they only
require that the vehicle be more than the mere situs of the accident and that the use of the
vehicle relate to its inherent use as a motor vehicle."24 We also quoted three general
16 Id. at 1-2.
17 Id. at 5.
18 19 P.3d 588, 593 (Alaska 2001).
19 Id. at 589.
20 Id. at 591.
21 Id. at 589.
22 Id.
23
Id. at 591 (quoting Criterion Ins. Co. v. Velthouse, 751 P.2d 1, 3 (Alaska
1986)) (internal quotation marks omitted).
24 Id. at 592 (quoting Velthouse, 751 P.2d at 3) (internal quotation marks
omitted).
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factors used by the Minnesota Supreme Court in Continental Western Insurance Co. v.
Klug to determine when there was sufficient causation:
(1) The extent of causation between the automobile and
the injury;
(2) Whether an act of independent significance occurred,
breaking the causal link between "use" of the vehicle and the
injuries inflicted; and
(3) What type of "use" of the automobile was involved.[25]
In Shaw we concluded that the determination of whether there was "use" of the vehicle
depended "to a great degree, on the particular facts of the case" and therefore held that
summary judgment for the insurer was inappropriate.26
In Shaw we quoted Klug for the proposition that the vehicle must be an
"active accessory" for there to be an adequate causal relationship (the first element of the
Klug test).27 In Klug, the insured was driving home from work when a coworker drove
up next to him and opened fire with a shotgun, hitting Klug in the arm.28 His coworker
pursued Klug for two miles before Klug was able to escape.29 The Minnesota Supreme
Court held that the coworker's vehicle was an "active accessory" to Klug's injuries.30
Similarly, in Shaw, Shaw's ex-boyfriend may have used his vehicle to corner and trap
Shaw, and we held that there was therefore a genuine issue of material fact as to whether
25 Id. at 592 (quoting Cont'l W. Ins. Co. v. Klug, 415 N.W.2d 876, 878 (Minn.
1987)) (internal citations and quotation marks omitted).
26 Id. at 593.
27 Id. at 592, n.28 (quoting Klug, 415 N.W.2d at 878).
28 Klug, 415 N.W.2d at 877.
29 Id. at 878.
30 Id.
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there was coverage.31 Here, however, the vehicle driven by Morrell was not an "active
accessory" to Kalenka's injuries. The collision between Morrell's and Kalenka's
vehicles was only the subject of their fight; the vehicles played no part in the fight itself.
Accordingly, there was insufficient causation for Kalenka's death to have arisen out of
the "use" of the vehicle Morrell was driving.
We also conclude that here there was an intervening "act of independent
significance." In Shaw, we clarified that an intentional act is not automatically an "act
of independent significance."32 We held that a driver's use of a vehicle to trap and corner
another driver did not necessarily constitute an "act of independent significance" even
though it was intentional.33 In Klug, the Minnesota Supreme Court similarly held that
even though Klug's assailant was acting intentionally, the assailant's actions did not
constitute an "act of independent significance."34 The Minnesota Supreme Court stated
that "[h]ad [the assailant] used his vehicle to drive ahead of Klug, left his vehicle, and
shot Klug from the side of the road, we might have found an intervening act."35 Here,
Morrell did exit his vehicle prior to assaulting Kalenka and only attacked Kalenka after
Kalenka began to call the police on his cell phone.
Infinity argues that the definition of "use" in the policy requires a stricter
standard of causation than exists in our previous cases. Kalenka's policy included a
definition of "use" which provided that " '[u]se' of an uninsured motor vehicle or an
31 Shaw, 19 P.3d at 592-93.
32 Id. at 591-93.
33 Id.
34 Klug, 415 N.W.2d at 878.
35 Id.
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underinsured motor vehicle means that such vehicle must be the main cause of a bodily
injury or property damage." Infinity argues that the definition of "use" was narrower in
Kalenka's policy than in the cases discussed above that found coverage existed. But the
phrase "ownership, maintenance, or use" is prescribed by statute; Alaska law requires
that automobile insurance contracts must cover damages arising from the "ownership,
maintenance, or use" of a vehicle.36 In Burton v. State Farm Fire & Casualty Co., we
explained that "[i]nsurers are not permitted to issue policies containing provisions that
reduce the scope of coverage below the legal minimum."37 Infinity cannot limit what
constitutes "use" of a vehicle by defining that term more narrowly than it is defined in
the statute.
3. Negligent entrustment
The Kalenka Estate also argues that William Wassili, the owner of the
Suburban driven by Morrell, negligently entrusted the Suburban to Morrell. The
Kalenka Estate contends that "Wassili knew or should have known that Mr. Morrell was
in no condition to drive his vehicle." The policy provides coverage for injuries arising
from the "ownership, maintenance, or use" of the vehicle, and the Kalenka Estate argues
that this negligent entrustment falls within the meaning of "ownership."38
36 AS 28.22.101(a).
37 796 P.2d 1361, 1363 (Alaska 1990).
38 The Kalenka Estate relies on the word "ownership" for its negligent
entrustment claim, but other courts, when examining whether such a claim is covered by
an "ownership, maintenance, or use" clause, do not always focus exclusively on the word
"ownership." See, e.g., Dutton v. State Farm Mut. Auto. Ins. Co., 383 So. 2d 519, 521
(Ala. 1980) (examining whether alleged negligent entrustment arose out of the "use" of
the vehicle).
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We have defined what constitutes negligent entrustment: "[T]he owner or
other person in control of a vehicle and responsible for its use who is negligent in
knowingly supplying, entrusting, permitting or lending it to an incompetent or habitually
careless driver is liable for negligent entrustment."39 In 2007 we stated:
Alaska recognizes the common law tort of negligent
entrustment and follows the definition in the Restatement
(Second) of Torts § 390 (1965), which states:
One who supplies directly or through a third
person a chattel for the use of another whom the
supplier knows or has reason to know to be
likely because of his youth, inexperience, or
otherwise, to use it in a manner involving
unreasonable risk of physical harm to himself
and others whom the supplier should expect to
share in or be endangered by its use, is subject
to liability for physical harm resulting to
them.[40]
For example, in Kroll v. Paul, a fisher was involved in a violent altercation with the crew
of another boat.41 We affirmed a negligent entrustment judgment against the lessor of
the fisher's boat because the lessor knew or should have known that the fisher had a
"tendency to use boats in an assaultive manner."42
The Kalenka Estate argues that Morrell was intoxicated and that it would
be "easy for the jury to infer that Mr. Wassili allowed Mr. Morrell to drive his car while
Mr. Morrell was under the influence of alcohol and marijuana." Infinity counters that
39 Neary v. McDonald, 956 P.2d 1205, 1208 (Alaska 1998).
40 Nelson v. Progressive Cas. Ins. Co., 162 P.3d 1228, 1232 (Alaska 2007).
41 Mem. Op. & J. No. 682, 1993 WL 13563648, at *1 (Alaska, Oct. 6, 1993).
42 Id. at *8.
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there was no evidence that "Wassili knew Morrell was an incompetent driver and that
he was likely to use the vehicle in an unreasonable manner."
We conclude that, whether or not Wassili knew or should have known that
Morrell was too intoxicated to drive, there is no evidence in the record that Wassili knew
or should have known that Morrell was likely to commit assault. Some courts have held
that there can be negligent entrustment liability for an intentional assault on a third party.
For example, in Morin v. Moore, the Fifth Circuit reversed a 12(b)(6) dismissal for the
defendant, a police officer, in a case where the police officer had allegedly negligently
entrusted a government weapon to his mentally unstable son.43 But in those cases, there
was evidence that entrusting the object would increase the likelihood of an assault.44
Here, there is no such evidence.
4. Negligent maintenance
The Kalenka Estate argues that William Wassili negligently maintained the
brakes of his vehicle, and that this negligent maintenance caused the collision with the
Subaru driven by Kalenka. Infinity counters that "there was no evidence to support
appellant's negligent maintenance claim."
The Kalenka Estate alleges the Suburban's "rear brakes were not adjusted
properly, and that the rear wheels would spin while the vehicle was stopped." The
Kalenka Estate argues that "the correct focus is not whether the negligent maintenance
was related to the stabbing" but rather that the "applicable focus is whether the negligent
maintenance, which allowed the wheels to spin and propel the vehicle forward, was
43 309 F.3d 316, 325 (5th Cir. 2002); see also Byers v. Hubbard, 669 N.E.2d
320, 323 (Ohio App. 1995) (holding that there was a triable issue of material fact as to
whether plaintiff's injury was foreseeable where the defendant lent his wife a handgun
after his wife had an argument with the plaintiff and the wife shot the plaintiff).
44 See Morin, 309 F.3d at 325.
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related to the fact that the vehicle ran into the rear of the Kalenka vehicle." Infinity
counters that the allegation of negligent maintenance stems from one remark during
Morrell's testimony at his trial in which Morrell commented that the brakes seemed to
be faulty. Infinity argues that Morrell did not indicate that faulty brakes were what had
caused him to collide with the Subaru driven by Kalenka.
As with the negligent entrustment claim, even if there is evidence that
Wassili knew or should have known that his brakes were malfunctioning, there is no
evidence in the record that such negligent maintenance would increase the likelihood of
Morrell's committing an assault. There is no evidence that Wassili knew or should have
known that failing to adequately maintain his vehicle would cause Morrell to commit an
assault after driving the vehicle.
B. Summary Judgment Was Appropriate On The "Ownership" And
"Maintenance" Provisions.
After Superior Court Judge Christen ruled there were not sufficient facts
alleged to support a claim of negligent entrustment, the Kalenka Estate filed a motion for
reconsideration, and the superior court vacated its ruling on the merits of the negligent
entrustment claim. Judge Christen explained that she was "convinced that the Estate
intended to preserve its opportunity to prove its negligent entrustment claim in a separate
action." Later, Infinity filed another motion for summary judgment, seeking a ruling on
negligent entrustment. The newly assigned judge, Judge Ashman, granted summary
judgment for Infinity and gave several reasons why summary judgment was now proper.
First, Judge Ashman explained that Judge Christen had reconsidered her
"decision on [the negligent maintenance and entrustment claims] because [she]
determined that neither party had requested a final ruling on their merits." Because
Infinity had filed a new motion for summary judgment and affirmatively requested a
ruling on the merits of these claims, Judge Ashman determined that a ruling was now
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appropriate. Second, Judge Ashman reasoned that because the Kalenka Estate "could
only raise such a claim against Wassili" and because the court presiding over the action
between the Kalenka Estate and Wassili had already entered a default judgment against
Wassili, "a ruling by this court now on negligent maintenance and entrustment would
have little relevance to the underlying tort case."
The Kalenka Estate argues that there "were genuine issues of material fact
which needed to be resolved" in the suit against Wassili. Infinity counters that "it filed
its Complaint seeking a ruling from the trial court that there was 'no uninsured or
medical payments coverage under the policy.' " According to Infinity, the question
"whether there is coverage for benefits sought under the terms of the policy is a matter
between the parties to the contract." Infinity argues that it therefore is entitled to a ruling
on those issues, whether or not the Kalenka Estate would prefer to litigate them in
another case.
We agree with the Kalenka Estate that an injured party is generally allowed
to choose the forum in which to litigate a tort claim. Other courts have denied requests
by insurers for declaratory judgments on the ground that litigating those declaratory
judgment actions would interfere with an injured party's tort relief. In Cunningham
Brothers, Inc. v. Bail, an alleged tortfeasor sought a declaratory judgment that it had not
been negligent.45 The Seventh Circuit held that such a declaratory judgment was
inconsistent with the federal declaratory judgment statute, explaining that "to compel
potential personal injury plaintiffs to litigate their claims at a time and in a forum chosen
by the alleged tort-feasor would be a perversion of the Declaratory Judgment Act."46 The
Maryland Court of Appeals has similarly analyzed the interplay between declaratory
45 407 F.2d 1165 (7th Cir. 1969).
46 Id. at 1167.
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judgment actions involving insurance coverage and separate suits alleging direct tort
liability:
[A] declaratory judgment action prior to the underlying tort
trial can be both a valuable and appropriate means of
resolving questions of policy coverage when the question of
policy coverage is independent and separable from the claims
asserted in a pending suit by an injured third party. When a
question sought to be resolved in the declaratory judgment
proceeding would be decided in the pending tort action,
however, it is ordinarily inappropriate to grant a declaratory
judgment prior to resolution of the underlying tort trial. [47]
We agree that an insurer's interest in obtaining a declaratory judgment concerning its
coverage should not displace an injured party's access to traditional tort relief.
But in this case, there was no reason for Judge Ashman to decline to decide
the issues of negligent entrustment and negligent maintenance. Infinity initiated this
litigation by filing an action for declaratory judgment on the limited question whether its
policy provided coverage. It was the Kalenka Estate that elected to actively litigate the
underlying tort issues in the declaratory judgment action. Indeed, in its response to
Infinity's declaratory judgment complaint, the Kalenka Estate filed a counterclaim
seeking the money it alleged was owed under the policy. In its counterclaim, the
Kalenka Estate sought "the amount of the coverage limits of the . . . policy." And the
Kalenka Estate did not alert Judge Christen to the existence of the separate tort suit
against Wassili until it filed a motion for reconsideration. Judge Christen, out of an
abundance of caution, reconsidered her earlier decision on these issues to give the
Kalenka Estate a chance to preserve them for its direct tort litigation with Wassili. But
by the time Judge Ashman made his decision on these issues two things had changed.
47 Litz v. State Farm Fire & Cas. Co., 695 A.2d 566, 573-74 (Md. 1997)
(internal citations and quotation marks omitted).
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First, a default judgment had been entered against Wassili on the negligent entrustment
claim against him. Second, it became apparent that the Kalenka Estate had not actually
raised a negligent maintenance claim in its suit against Wassili. Thus, Judge Ashman's
decision to resolve the negligent entrustment and negligent maintenance claims would
not affect the Kalenka Estate's suit against Wassili. We therefore conclude that Judge
Ashman did not abuse his discretion by granting Infinity's request for declaratory
judgment.
V. CONCLUSION
We AFFIRM the judgment of the superior court.
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