Nikki David v. Jerry Tanksley

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-3625
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Nikki David, formerly Walker, *
*
Plaintiff/Appellant, *
*
v. *
*
Jerry Tanksley, Kay Tanksley, *
husband and wife, both jointly *
and severally, * Appeal from the United States
* District Court for the
Defendants/Appellants, * Western District of Arkansas.
*
v. *
*
St. Paul Mercury Insurance Company, *
*
Third Party Defendant, *
*
United States Fidelity and Guaranty *
Company, *
*
Third Party Defendant/ *
Appellee. *
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Submitted: April 13, 2000
Filed: July 28, 2000
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Before WOLLMAN, Chief Judge, BEAM, Circuit Judge, and FRANK,1 District
Judge.
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WOLLMAN, Chief Judge.
Nikki David, Jerry Tanksley, and Kay Tanksley appeal from the district court’s2
entry of summary judgment in favor of United States Fidelity and Guaranty Company
(USF&G) on their claim for coverage under a homeowner’s insurance policy purchased
from USF&G. We affirm.
I.
In 1986, Jerry and Kay Tanksley purchased a 1965 Chevrolet Impala for
personal transportation use. They used the car in this capacity until September of 1990,
at which time they parked it in a storage shed on their property and allowed its license
and registration to expire. From September of 1990 to June 14, 1995, the Tanksleys
never drove the Impala either on their property or on public roads. The Tanksleys did
little to maintain the car during this time, twice charging its battery and once starting
its engine but otherwise performing no maintenance on the vehicle.
On June 15, 1995, the Tanksleys were contacted by Jonathan David, Nikki
David’s then-fiancé, about purchasing the Impala. The Tanksleys told him that he
could stop by to see the car later that day, and in preparation for his visit Jerry Tanksley
drove the Impala from its storage area to the driveway in front of the Tanksleys’ house.
1
The Honorable Donovan W. Frank, United States District Judge for the District
of Minnesota, sitting by designation.
2
The Honorable H. Franklin Waters, United States District Judge for the Western
District of Arkansas.
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Shortly thereafter, Jonathan David arrived with Nikki David and asked to hear the car’s
engine run. After several unsuccessful attempts to start the engine, Jerry asked Kay to
engage the starter and pump the accelerator. As Kay was doing so, Jerry poured some
gasoline from a can into the carburetor. The engine backfired, and as Jerry jerked back
from the car he inadvertently threw the remaining gasoline onto Nikki David, where it
was ignited by flames shooting from the carburetor, resulting in severe burns to her.
On June 11, 1998, Nikki David (hereinafter David) filed suit against the
Tanksleys, claiming that they negligently caused the fire that injured her. The
Tanksleys, in turn, filed a third party action against USF&G,3 contending that David’s
injuries were covered by a homeowner’s insurance policy that they had purchased from
USF&G. The district court granted summary judgment in favor of USF&G. The court
reasoned that David’s injuries were not within the purview of the homeowner’s policy
because the vehicle that caused the injuries was not in “dead storage” at the time of
accident, as is required for coverage under the policy. Shortly thereafter, David and
the Tanksleys entered into a court-approved agreed judgment of $500,000 against the
Tanksleys.
David and the Tanksleys now jointly appeal the district court’s summary
judgment ruling in favor of USF&G, asking us to find that the damages suffered by
David are covered by the Tanksleys’ homeowner’s policy. We review the court’s grant
of summary judgment de novo. See Spears v. Missouri Dep’t of Corrections & Human
Resources, 210 F.3d 850, 853 (8th Cir. 2000). Summary judgment is proper where the
evidence, when viewed in the light most favorable to the nonmoving party, indicates
that no genuine issue of material fact exists and that the moving party is entitled to
judgment as a matter of law. See id., Fed.R.Civ.P. 56(c).
3
The Tanksleys’ homeowner’s policy was originally issued by St. Paul Mercury
Insurance Company, but between the June 15, 1995, accident and the filing of the
complaint by David, St. Paul merged with USF&G.
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II.
The Tanksleys’ homeowner’s policy excludes from coverage any “bodily injury
or property damage arising out of the ownership, maintenance, use, loading or
unloading of motor vehicles.” The policy also provides, however, that this exclusion
does not apply to “a vehicle . . . not subject to motor vehicle registration which is . . .
in dead storage on an insured location.” The parties agree that the Tanksleys’ Impala
was not subject to Arkansas registration requirements because the car was not driven
on public highways. See Ark. Code Ann. § 27-14-703 (1994). Thus, the only issue
before us is whether the Tanksleys’ Impala was in “dead storage” on June 15, 1995.
If so, the motor vehicle exclusion does not apply and USF&G is liable under the
homeowner’s policy for the injuries suffered by David. If not, the motor vehicle
exclusion is effective and USF&G is not responsible for David’s injuries.
The construction of an insurance policy is governed by state law. See Bell v.
Allstate Life Ins. Co., 160 F.3d 452, 455 (8th Cir. 1998). We review the district
court’s interpretation of state law--in this case, Arkansas law--de novo. See Burlington
Northern R. Co. v. Farmers Union Oil Co. of Rolla, 207 F.3d 526, 534 (8th Cir. 2000).
Like the district court, our duty is to “ascertain and apply” Arkansas law, “not to
formulate the legal mind of the state.” R.W. Murray Co. v. Shatterproof Glass Corp.,
697 F.2d 818, 826 (8th Cir.1983) (quoting Aguilar v. Flores, 549 F.2d 1161, 1163 (8th
Cir. 1977)). In doing so, we are bound by the decisions of the Arkansas Supreme
Court. See Bass v. General Motors Corp., 150 F.3d 842, 847 (8th Cir. 1998). When
that court has not clearly spoken on an issue, we may consider “relevant state
precedent, analogous decisions, considered dicta, . . . and any other reliable data.” Id.
(citations and quotations omitted).
The Arkansas Supreme Court construed the phrase “dead storage” within a
homeowner’s policy in Holliman v. MFA Mutual Ins. Co., 711 S.W.2d 159 (Ark.
1986), the only reported Arkansas case construing this language. In Holliman, the
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insured purchased a used vehicle and drove it, unregistered, on public roads until the
car’s engine would no longer start. The insured then stored the car on his property,
largely untouched, for approximately one month, at which time he and his brother
attempted to start the vehicle by pouring gasoline into its carburetor. The gasoline
ignited and injured the insured’s brother. The insured sued for coverage under his
homeowner’s policy, claiming that the car was in dead storage and thus that the
policy’s motor vehicle exclusion was inapplicable.
The Arkansas Supreme Court rejected the insured’s claim. The court first
focused on the relationship between the terms “maintenance” and “dead storage” as
they were used, respectively, in the policy’s motor vehicle exclusion and its exception
to this exclusion. See Holliman, 711 S.W.2d at 161. Adopting the Alabama Supreme
Court’s reasoning in Broadway v. Great Am. Ins. Co., Inc., 465 So. 2d 1124 (Ala.
1985), the court determined that these terms were mutually exclusive, stating that “a
motor vehicle in dead storage is one which is not undergoing maintenance, while a
vehicle which is undergoing maintenance cannot be in dead storage.” See Holliman,
711 S.W.2d at 161 (quoting Broadway, 465 So. 2d at 1127). The court then concluded
that the insured’s car was “being maintained” at the time the accident occurred and thus
that the car was not in dead storage. See Holliman, 711 S.W.2d at 161-62.
We conclude that Holliman mandates a holding that the Tanksleys’ Impala was
not in dead storage. First, the relevant provisions of the Tanksleys’ homeowner’s
policy are substantively indistinguishable from those in Holliman. See id. at 160 (“This
policy does not apply to bodily injury or property damage arising out of the ownership,
maintenance, operation, use, loading or unloading [of] [a]ny motor vehicle . . . , but this
subdivision does not apply . . . if the motor vehicle is . . . kept in dead storage on the
residence premises.”). Thus, the mutual exclusivity of maintenance and dead storage
pronounced in Holliman is equally applicable to this case.
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Second, Holliman establishes that the pouring of gasoline into a car’s carburetor
in an attempt to start the vehicle constitutes “maintenance.” See id. at 161. Although
the car in Holliman had sat idle for one month, the court found that the vehicle was
being maintained, quoting a Florida court’s statement that “[t]he attempt to start the
truck by pouring gas into the carburetor, which resulted in the ignition of the gas,
involved the ‘maintenance’ of the vehicle within the terms of the exclusion.” See
Holliman, 711 S.W.2d at 161 (quoting Volkswagen Ins. Co. v. Dung Ba Nguyen, 405
So. 2d 190, 195 (Fla. Dist. Ct. App. 1981)). So also, the Tanksleys’ attempt to start the
Impala by pouring gasoline into its carburetor constituted maintenance, and thus the
Impala was not in dead storage within the meaning of the Tanksleys’ homeowner’s
policy.
David and the Tanksleys, however, attempt to distinguish Holliman from the
present case. They argue that Holliman’s determination that dead storage and
maintenance are mutually exclusive and that pouring gasoline into a carburetor
constitutes maintenance applies only in cases where the vehicle at issue is intended to
be used for transportation. Thus, they assert that although the pouring of gasoline into
a carburetor may have precluded a finding of dead storage in Holliman, where the
vehicle at issue was “merely . . . awaiting repairs” so that it could be driven again, see
Holliman, 711 S.W.2d at 160, the same action does not preclude a finding of dead
storage in this case in light of the fact that the vehicle had not been used for
transportation for nearly five years and was being held and sold as a collectible.
We disagree. In finding that the vehicle was not in dead storage, the Holliman
court did not consider the vehicle’s past use or intended future use, but rather focused
on how the vehicle was being used at the time of the accident at issue. See id. at 161.
Indeed, the court favorably quoted from Broadway, in which the the Alabama Supreme
Court stated that “[r]egardless of the status of the [vehicle] during the time it remained
in [the insured’s] garage untouched, it was undergoing maintenance at the time
Broadway’s injuries occurred; consequently it was not in dead storage.” Holliman, 711
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S.W.2d at 161 (quoting Broadway, 465 So. 2d at 1127). Thus, even assuming that the
Tanksleys’ Impala was not intended for transportation use, we believe that the
principles set forth in Holliman govern this case.
In sum, then, we conclude that the Tanksleys’ Impala was being maintained at
the time of the June 15, 1995, accident and that it was therefore not in dead storage
under the terms of the Tanksleys’ homeowner’s policy.4
The judgment is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
4
This conclusion is not only consistent with the Arkansas Supreme Court’s
reasoning in Holliman, it is also in accord with the conclusions reached by most other
courts that have construed the terms “maintenance” and “dead storage” within a
homeowner’s policy. See Broadway, 465 So. 2d at 1127-29; Mascair v. State Farm
Fire & Cas. Co., 619 So. 2d 108, 110 (La. Ct. App. 1993); Prudential Property & Cas.
Ins. Co. v. Allaire, 516 N.E.2d 179, 180-81 (Mass. App. Ct. 1987); but see Allstate
Ins. Co. v. Geiwitz, 587 A.2d 1185, 1188-89 (Md. Ct. Spec. App. 1991).
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