Winegeart v. American Alternative Insurance , 224 F. App'x 807 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
April 4, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
STEPHEN JAM ES WINEG EART,
Plaintiff-Appellant,
v. No. 06-8048
(D.C. No. 05-CV-227-ABJ)
A M ER ICAN A LTER NA TIV E (D . W yo.)
IN SU RAN CE C OR PO RA TIO N,
Defendant-Appellee.
OR D ER AND JUDGM ENT *
Before L UC ER O, BROR BY, and M cCO NNELL, Circuit Judges.
Stephen James W inegeart appeals the district court’s decision to deny him
summary judgment and instead grant summary judgment to American Alternative
Insurance Corporation (AAIC) in this insurance coverage dispute. W e have
jurisdiction under 28 U.S.C. § 1291, and we AFFIRM .
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I.
M r. W inegeart is a volunteer fireman for Laramie County Fire District #1.
In April 2004, he drove an official Chevrolet Suburban, which was covered by an
AAIC auto policy, to the site of an automobile accident. W hile he was walking
away from his vehicle toward the cars involved in the accident, he was struck and
injured by a passing car. After settling with the driver’s insurer for the limits of
her policy, he made a claim under the uninsured/underinsured motorist provisions
of the fire district’s AAIC policy. AAIC denied the claim, and M r. W inegeart
sued in W yoming state court. AAIC removed the case to federal district court,
and the parties each filed a motion for summary judgment.
The uninsured/underinsured motorist endorsement to the AAIC policy
provides coverage only to those persons who were “occupying” a covered vehicle.
Aplt. App. at 89-90, ¶ B.2.a. M r. W inegeart argued that W yoming law and public
policy required the district court to reform the policy to provide coverage
coextensive to that offered under the general portions of the policy, that is,
coverage for anyone “using” the covered vehicle with permission. Id. at 80,
¶ II.A.1.b. The district court declined to reform the policy because the applicable
statute, W yoming Stat. Ann. § 31-10-101, addresses only uninsured motorist
coverage and does not require underinsured motorist coverage. It further declined
to hold that the policy was ambiguous, which would allow M r. W inegeart to
invoke W yoming’s doctrine of reasonable expectations. Instead, it held that the
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plain language of the policy controlled, so that underinsured motorist coverage
was limited to persons “occupying” the insured vehicle. Because the court
concluded that M r. W inegeart was not “occupying” the vehicle when he was
injured, it denied his motion for summary judgment and granted A AIC’s summary
judgment motion. M r. W inegeart appeals.
II.
On appeal, M r. W inegeart requests that we certify the pertinent questions of
W yoming law to the W yoming Supreme Court. W e have noted, however, that
“[w]e generally will not certify questions to a state supreme court when the
requesting party seeks certification only after having received an adverse decision
from the district court.” M assengale v. Okla. Bd. Of Exam 'rs in O ptometry,
30 F.3d 1325, 1331 (10th Cir. 1994). M r. W inegeart did not seek certification
until after he reached this court, well after the district court’s decision. W e
conclude that certification is not merited here and deny the motion to certify.
In diversity cases, the substantive law of the forum state governs the
analysis of the underlying claims, but federal law controls the ultimate procedural
determination of the propriety of the district court’s grant of summary judgment.
Eck v. Parke, Davis & Co., 256 F.3d 1013, 1016 (10th Cir. 2001). Accordingly,
we apply W yoming law to the substantive issues on appeal, and we review the
district court’s grant of summary judgment de novo. M ena v. Safeco Ins. Co.,
412 F.3d 1159, 1163-64 (10th Cir. 2005).
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It is undisputed that the driver who injured M r. W inegeart was an
underinsured motorist. As he did in the district court, M r. W inegeart argues on
appeal that the AAIC policy lumps underinsured motorist coverage together with
uninsured motorist coverage and that under W yoming law and public policy,
AAIC cannot restrict uninsured motorist coverage to those persons “occupying”
the vehicle, but instead must offer such coverage for all persons insured under the
general liability portions of the policy. Therefore, he concludes, he is entitled to
underinsured motorist coverage, as he w as using the Suburban with the fire
district’s permission.
M r. W inegeart seeks reformation of the policy in light of W yoming Stat.
Ann. § 31-10-101. If he had been struck by an uninsured motorist, his argument
might be persuasive, because § 31-10-101 does require insurers to offer uninsured
motorist coverage “for the protection of persons insured thereunder,” (that is,
persons insured under the policy). Other courts have construed similar language
as mandating uninsured/underinsured motorist coverage coextensive to the
coverage provided by the general liability portion of the policy and have held that
an insurer could not limit uninsured/underinsured motorist coverage to persons
“occupying” the insured vehicle. See Georgeson v. Fid. & Guar. Ins. Co.,
48 F. Supp. 2d 1262, 1266 (D. M ont. 1998); Allied Mut. Ins. Co. v. Action Elec.
Co., 593 N.W .2d 275, 280 (Neb. 1999); Aetna Cas. & Sur. Co. v. M cM ichael,
906 P.2d 92, 96 (Colo. 1995). But M r. W inegeart was injured by an underinsured
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motorist. Unlike many other states, W yoming does not require insurers to offer
underinsured motorist coverage, just uninsured motorist coverage. See W yo. Stat.
Ann. §§ 31-10-101 to 31-10-104; Farmers Ins. Exch. v. Williams, 823 F. Supp.
927, 931 (D . W yo. 1992), aff’d, No. 92-8052, 1993 W L 152695 (10th Cir.
M ay 10, 1993) (unpublished). This lack of statutory guidance distinguishes this
case from Action Electric Co. and M cM ichael, both of which were decided in
states that require insurers to offer underinsured motorist coverage as well as
uninsured motorist coverage. Action Elec. Co., 593 N.W .2d at 279; M cM ichael,
906 P.2d at 96 (citing Colo. Rev. Stat. § 10-4-609). Georgeson is inapplicable
factually, as it involved an uninsured motorist. 48 F. Supp. 2d at 1263.
In short, in contrast to its statutory mandate regarding uninsured motorist
coverage, W yoming has chosen to allow insurers to offer underinsured motorist
coverage on whatever terms that they see fit, or even not to offer such coverage at
all. In these circumstances, notwithstanding the policy’s inclusion of
underinsured motorist coverage with uninsured motorist coverage, there is no
basis for this court to reform the fire district’s policy and require AAIC to offer
coverage for injuries caused by an underinsured motorist on terms more generous
than those set forth in the endorsement. “If the legislature intends a contrary
result, it can supply the requirement by express statute, showing its clear intent,
and recognizing the underwriting principle and costs which result.” Comm. Union
Ins. Co. v. Stamper, 732 P.2d 534, 538 (W yo. 1987).
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The AAIC policy is not contrary to W yoming law or public policy, nor is it
ambiguous with regard to the scope of underinsured motorist coverage. Thus,
under W yoming law it should be enforced according to its terms. Id. at 538-39;
see also St. Paul Fire and M arine Ins. Co. v. Albany County Sch. Dist. No. 1,
763 P.2d 1255, 1262-63 (W yo. 1988) (declining to adopt the doctrine of
reasonable expectations where an insurance contract was not ambiguous). The
endorsement’s plain language indicates that where the “Named Insured” is an
entity, then the term “insured” includes “[a]nyone ‘occupying’ a covered ‘auto’.”
Aplt. App. at 89-90, ¶ B.2.a. The district court concluded that M r. W inegeart was
not “occupying” the Suburban at the time of the accident, and M r. W inegeart
makes no argument to the contrary on appeal. Thus, he has waived any such
argument. Coleman v. B-G M aint. M gmt. of Colo., Inc., 108 F.3d 1199, 1205
(10th Cir. 1997) (“Issues not raised in the opening brief are deemed abandoned or
waived.”). The district court’s decision shall stand.
III.
The M otion to C ertify Issue to the W yoming Supreme Court is DENIED .
The judgment of the district court is AFFIRMED.
Entered for the Court
W ade Brorby
Circuit Judge
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