Markel Insurance Company v. Lillian Rau

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2433
MARKEL INSURANCE COMPANY,
Plaintiff-Appellee,
v.
LILLIAN MARLENE RAU, as Personal Representative of the Es-
tate of Decedent, CHESTER R. STOFKO,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:16-cv-220-HAB — Holly A. Brady, Judge.
____________________
ARGUED JANUARY 22, 2020 — DECIDED APRIL 9, 2020
____________________
Before WOOD, Chief Judge, and SYKES and HAMILTON, Cir-
cuit Judges.
WOOD, Chief Judge. United Emergency Medical Services,
LLC (“United”) owns a fleet of ambulances. In 2016, Chester
Stofko was driving his car when one of United’s ambulances
crashed into it; Stofko’s injuries were fatal. Lillian Rau, as per-
sonal representative of Stofko’s estate, filed a lawsuit in state
court against United and the driver to recover damages.
2 No. 19-2433
At the time of the accident, United was insured by Markel
Insurance Company. The particular ambulance that crashed,
however, was not listed on the policy. Rau argues that it was
nevertheless covered by the policy because before the crash
United sent Markel’s agent, Insurance Service Center (“Cen-
ter”), an email requesting that the vehicle be added to the pol-
icy. Markel insists that even if United had sent an email, it
never endorsed the change, which the policy requires, and so
it has no duty to indemnify United or the driver and no duty
to defend with respect to Rau’s suit.
Seeking a declaratory judgment to this effect, Markel filed
the present suit in federal court. On cross-motions for sum-
mary judgment, the district court found that Markel had no
obligation to United or its employee under the policy. We
agree with this conclusion, and so we affirm.
I
United’s Administrative Director, Steven Pavek, has
worked since 2007 with Center’s Jack Rosen to obtain insur-
ance for United’s fleet of ambulances. In insurance terminol-
ogy, Center is a producer for Markel, meaning Center acts as
a middleman that gathers applications for insurance, includ-
ing United’s applications for renewal, and sends them to Mar-
kel. United’s annual insurance renewal deadline was March
5.
For the 2014−2015 policy period, Rosen emailed Pavek in
January 2014 to remind him to complete an application for the
upcoming renewal. Rosen instructed Pavek to verify the vehi-
cle schedule and emphasized the importance of listing “every
operable [vehicle] on the policy,” because coverage extends
only to vehicles listed as “covered autos.” Pavek responded
No. 19-2433 3
twelve days later, stating that he had left Rosen several voice
messages and emails with no response. According to Rosen,
he never received any of these emails or calls. On March 4,
Rosen emailed Pavek and United owner Jason Blankinship
with further instructions for completing the required paper-
work to renew coverage. Pavek responded by email with the
required forms. The next day, Pavek emailed Rosen to check
if he had received the email and paperwork. Rosen responded
that he had not. Pavek emailed back once again, explaining
that United’s email server was “not pushing mail out some
times.” He also said, “I didn’t think you had it[.] I knew you
would have replied with a quick ‘got it’ or something.” Pavek
resent the paperwork and successfully renewed United’s cov-
erage.
As the next renewal anniversary approached, in January
2015, Rosen emailed Pavek to request that he send United’s
renewal paperwork by February 9. Rosen did not receive a re-
sponse within that time, and so he called Pavek to see whether
United wanted to renew its coverage. On February 10, Pavek
emailed Rosen, saying that he would send United’s paper-
work by the end of the day. Nothing showed up, however,
and so Rosen followed up again on February 13.
On February 23, Pavek emailed Rosen with the paperwork
and mentioned that he thought United was “having email is-
sues again” because he had “sent this twice.” Pavek also
wrote, “If I do not get a reply by the end of Business day I will
call to confirm and fax it instead. Please let me know you re-
ceived it.”
Still during the renewal process, on February 27, Pavek
emailed Rosen about two specific ambulances that had motor
problems. He thought one of them was “permanently done”
4 No. 19-2433
and should be removed from the policy. With respect to the
second one, Ford #4497 (the ambulance that later crashed),
Pavek told Rosen that he did not know if it was salvageable.
For the time being, however, he asked that Ford #4497 be re-
moved from the policy, commenting that “[t]his unit is the
unit I am unsure of viability moving forward but it will [be]
some time before I do, say at least 60 days + repair time.” With
Ford #4497 off the policy, Pavek identified a third ambulance
to add in its place.
Rosen forwarded this email to Gladys Jara, one of his col-
leagues at Center. The accompanying message stated:
“United … will be renewing their program. Please see below
for changes that we will be making on their program Mon-
day.” On March 3, Jara emailed Markel asking that it bind
coverage effective March 5, 2015, with the requested
changes—the removal of two ambulances, including Ford
#4497, and the addition of another ambulance.
In keeping with Jara’s request, Markel renewed United’s
insurance for the 2015−2016 policy year, which ran from
March 5, 2015, to March 5, 2016 (“the Policy”). When the Pol-
icy was issued, the schedule of covered autos included five
ambulances; as agreed, Ford #4497 was not one of them. Cen-
ter mistakenly sent six auto ID cards for the renewal to
Pavek’s email; it included a card for each of the listed five am-
bulances and an extra card for Ford #4497.
Later in March, evidently not confused by the extra ID
card, United decided it wanted to put Ford #4497 back on the
Policy. The Policy permitted changes in certain circum-
stances:
No. 19-2433 5
This policy contains all the agreements between you
and us concerning the insurance afforded. [United] is
authorized to make changes in the terms of this policy
with [Markel’s] consent. This policy’s terms can be
amended or waived only by endorsement issued by
[Markel] and made a part of this policy.
To initiate changes, Center was required to send a written
request to Markel. That request would then be placed in Mar-
kel’s underwriting file. Center did not itself have the author-
ity to make changes. The Policy also stated, “Notice given by
or on behalf of [United] to any of [Markel’s] authorized agents
in Indiana, with particulars sufficient to identify the insured,
shall be considered to be notice to [Markel].”
On March 30, 2015, Pavek emailed Rosen to request that
Ford #4497 be added back on the Policy and that a different
ambulance be removed. He copied United’s owner,
Blankinship, on that email. In his request, he listed the specific
ambulances that he wanted on the Policy and stated, “Also
before I forget we took a truck off the policy a few months ago
for a transmission issue that was down for a few months. I’m
sure you recall this, I know Thomco doesn’t like us to add &
remove units like musical chairs … I can just write [it] in on
the state form and hopefully they [won’t] have a problem
with it.” Pavek never followed up on the March 30 email. Pre-
viously when United had emailed Center to add or remove
vehicles from its policy, United received an endorsement
from Markel that reflected the changes.
On January 2, 2016, Abraham Nadermohammadi, an am-
bulance driver for United, was driving Ford #4497 when he
struck a vehicle occupied by Stofko. Stofko suffered extensive
injuries that eventually led to his death about three months
6 No. 19-2433
later. It soon became apparent that Ford #4497 was never for-
mally added back on the Policy.
After the accident, Blankinship found his copy of the
March 30 email that requested Ford #4497 be put back on the
Policy. On January 4, 2016, Blankinship forwarded that email
to Pavek, who forwarded it to Rosen. Rosen asserted that this
was the first time he had seen it. Pavek explained that he had
worked with United’s mail host, Google, to restore all the
emails in its domain name, in order to enable United to locate
past messages. Pavek admitted that this search had not un-
covered any reply from Rosen regarding the March 30 email.
The district court found that Markel had no duty to defend
or indemnify United or Nadermohammadi with respect to
Rau’s suit. It accordingly denied both Rau’s and United’s
cross-motions for summary judgment against Markel.
United’s third-party claim against Center remains pending in
the district court, but the district court entered an order pur-
suant to Federal Rule of Civil Procedure 54(b) certifying that
the judgment in favor of Markel is final.
II
We review de novo a district court’s decisions on cross-mo-
tions for summary judgment. Exelon Generation Co., LLC v. Lo-
cal 15, Int’l Bhd. of Elec. Workers, AFL-CIO, 540 F.3d 640, 643
(7th Cir. 2008). “With cross summary judgment motions, we
construe all facts and inferences therefrom in favor of the
party against whom the motion under consideration is
made.” In re United Air Lines, Inc., 453 F.3d 463, 468 (7th Cir.
2006) (internal quotation marks omitted). Summary judgment
is appropriate where “there is no genuine dispute as to any
No. 19-2433 7
material fact and the movant is entitled to judgment as a mat-
ter of law.” FED. R. CIV. P. 56.
A
Rau raises several arguments on appeal. Her primary fo-
cus is on United’s March 30 email to Center; she argues that
despite Rosen’s denial, Center actually received the email but
failed to forward it to Markel. Rau cites Indiana’s Uniform
Electronic Transactions Act (“UETA”), IND. CODE § 26-2-8-101
et seq., to explain when emails are considered “sent” and “re-
ceived.” Under UETA, an email is sent “when the information
is addressed or otherwise directed properly to the recipient
and either: (1) enters an information processing system out-
side the control of the sender …; or (2) enters a region of an
information processing system that is under the control of the
recipient.” IND. CODE § 26-2-8-114(a). Similarly, an email is re-
ceived when “(1) it enters an information processing system
that the recipient has designated or uses for the purpose of
receiving [emails] …; and (2) the [email] is in a form capable
of being processed by that system.” Id. § 26-2-8-114(b).
Based on these definitions, Rau insists that, as a matter of
law, United’s March 30 email was “sent” by United and “re-
ceived” by Center. Moreover, she continues, Markel is re-
sponsible for Center’s failure to forward the email to Markel.
Rau cites two cases to support her theory: State Farm Mut.
Auto. Ins. Co. v. Oss, 127 Ill. App. 3d 119 (1984) and Wille v.
Farmers Equitable Ins. Co., 89 Ill. App. 2d 377 (1967).
Rau’s cases, however, are not based on Indiana law and
are distinguishable in other ways as well. In Oss, Oss sought
to obtain coverage for a recently purchased car owned and
driven by his son. 127 Ill. App. 3d at 120. To trigger the
8 No. 19-2433
coverage, Oss contacted an agent for the insurer via telephone
and was told that there was “no problem” with the coverage.
Id. Although the agent orally granted coverage for the car, the
agent did not advise Oss that her authority to bind the insurer
was limited to a 30-day period, during which the insured was
required to complete an application and pay the premium. Id.
at 121. Believing he had successfully obtained coverage based
on the telephone call with the agent, Oss did not complete an
application or pay any premium within the 30 days. Id. When
the car was involved in an accident more than a month later,
the insurer denied coverage, asserting that there was no con-
tract of insurance in place beyond the initial 30-day period. Id.
The court rejected the insurer’s position, holding instead that
it could not deny coverage because an oral contract of insur-
ance existed and the 30-day limitation was not communicated
to the insured. Id. at 122−23.
Here, unlike in Oss, Center in no way assured United that
Ford #4497 was covered. Moreover, as the district court
pointed out, the holding in Oss was dictated by the existence
of an oral contract. The contract in this case is the Policy,
which required more than notice before a change takes effect:
Markel also had to approve any such change. It is undisputed
that Markel did not approve the addition of Ford #4497.
In Wille, after an insurance carrier refused to provide in-
surance, the purported insured had a telephone conversation
with an agent who advised him that “he was covered” and
that “the agency was getting him insurance through another
company.” 89 Ill. App. 2d at 379. Although the agent applied
for insurance with the purported substitute insurer, no action
was taken by that insurer regarding the application. Id. The
purported insured was then involved in an accident for which
No. 19-2433 9
the insurer denied coverage, asserting that it had no record of
the application ever being submitted. Id. The court found that
the insurance company was liable based on an unreasonable
delay, whatever the cause, between the application for insur-
ance and the company’s response. Id. at 381−83.
Based on Wille, Rau argues that Markel should be respon-
sible for Center’s failure to forward the requested change in
the March 30 email. Wille is distinguishable, however, because
no one gave United assurances that Markel accepted the
change. Moreover, in Wille, there was again no written con-
tract.
We agree with the district court that we do not need to re-
solve exactly what happened to the March 30 email in order
to decide whether the Ford #4497 ambulance was covered by
the Policy. It is a well-settled principle of Indiana law that
courts “may not rewrite an insurance contract.” Keckler v. Me-
ridian Sec. Ins. Co., 967 N.E.2d 18, 28 (Ind. Ct. App. 2012). The
Policy states that its “terms can be amended or waived only
by endorsement issued by [Markel] and made a part of this
policy.” Regardless of whether or not the March 30 email was
sent or received, it is undisputed that neither Center nor Mar-
kel accepted or responded in any way to United’s request to
reinstate coverage for Ford #4497. Markel did not endorse any
such change to the Policy, and so Ford #4497 was not covered.
B
Rau next contends that Markel should be estopped from
denying coverage for Ford #4497 as a matter of public safety.
She contends that ambulance companies, such as United, op-
erate in the same way as commercial motor carriers, because
both have a fleet of vehicles and regularly take vehicles in and
10 No. 19-2433
out of use for repairs. Commercial motor vehicles are required
to have liability insurance coverage containing an MCS-90 En-
dorsement. See 49 C.F.R. § 387 et seq.; IND. CODE § 8-2.1-24-18.
The MCS-90 Endorsement mandates that a motor carrier’s in-
surer provide coverage for claims resulting from the negligent
operation of a commercial vehicle even if the negligently
driven vehicle is not specifically listed under a motor carrier’s
insurance policy. 49 C.F.R. § 387.15 (2018). But here’s the rub:
the regulations set forth a 10,001-pound minimum weight for
something to be deemed a “commercial motor vehicle.” See
49 U.S.C. §§ 31132(1)(A), 31101(1)(A), 49 C.F.R. § 390.5T; see
also IND. CODE § 8-2.1-24-18. United’s ambulances weigh less
than 10,001 pounds. Rau argues nevertheless that United’s
ambulances are just like commercial vehicles and the public
safety principles underlying the requirement for the MCS-90
Endorsement should apply to them equally.
Rau’s first problem is that she did not make this argument
before the district court, and so she may not raise it now for
the first time on appeal. Puffer v. Allstate Ins. Co., 675 F.3d 709,
718 (7th Cir. 2012). Moreover, waiver aside, it is uncontested
that United’s ambulances do not meet the threshold weight
limit to be considered commercial motor vehicles, and so the
regulations do not apply. “[A]rgument about what makes for
good public policy should be directed to Congress; the judici-
ary’s job is to enforce the law Congress enacted, not write a
different one that judges think superior.” Bethea v. Robert J.
Adams & Assocs., 352 F.3d 1125, 1127–28 (7th Cir. 2003). The
same principle applies to state legislatures.
C
Last, Rau argues that equity requires a finding of coverage
for Ford #4497. Markel always implemented United’s
No. 19-2433 11
requests for vehicle exchanges, Rau contends, and so United
was lulled into believing that its March 30 email was all that
was needed to effectuate the requested one-for-one vehicle ex-
change. Rau points out that the change did not affect the pre-
mium Markel would receive, and she concludes that equity
demands coverage.
Markel’s amenability to past changes, however, did not
mean that it was estopped from rejecting amendment re-
quests. Moreover, Pavek’s own testimony showed that he did
not believe his email request was sufficient. He testified that
someone on Markel’s end reviews requested changes, and he
admitted that he knew that Markel did not like to add and
remove vehicles “like musical chairs.” Rau’s argument that
equity requires coverage for Ford #4497 is not persuasive.
We therefore AFFIRM the district court’s judgment.