In 2009, Candace Wishkeno killed Darren Dinger in a motorcycle accident in Riley County, Kansas. Darren Dinger's widow, Tammy Dinger ("Dinger"), won a civil judgment against Wishkeno and subsequently sued St. Paul Fire and Marine Insurance Co. ("St. Paul"). It is a question of whether Wishkeno's verdict was covered by an insurance policy issued by St. Paul and was owned by the Kickapoo Tribe in Kansas. In Tammy Dinger vs. Candace Wishkeno vs. St. Paul Fire And Marine Insurance Co. No. 18-cv-08390, United States District Court of the Northern District of Illinois Eastern Division (November 30, 2020) decided on competing motions for the Summary Judgment.
Dinger tries to satisfy a $ 1.66 million verdict she has against Wishkeno. St. Paul filed a counterclaim and requested an explanatory judgment that St. Paul is not obliged to make any payment because Wishkeno was not insured under his policy. In turn, Dinger filed her own counterclaims for breach of contract and negligent unbelievable defense, which she later changed.
At the time of the accident, Wishkeno was driving her personal vehicle (owned by her and her mother) during her employment with the Kickapoo Tribe, which transports tribal youth. Wishkeno's use of her own vehicle complied with the Kickapoo Tribe policy – she had the tribe's permission to do so and was reimbursed by the tribe for mileage and associated costs. Wishkeno had planned to use a vehicle rented by the tribe but used his own car because the rented vehicle was not available.
Dinger sued Wishkeno and Kickapoo Tribe in Kansas State Court. The Kansas court issued a summary judgment in favor of the Kickapoo Tribe on the basis of sovereign immunity. Defended by his personal insurance company, Wishkeno paid Dinger the available limits of $ 100,000 to partially satisfy Dinger's claim. the underlying case. Dinger was subsequently sentenced to $ 1,662,628.39 against Wishkeno following a lawsuit in which Wishkeno was represented by a lawyer. Dinger and Wishkeno then signed an addendum to their settlement agreement stating that Wishkeno granted Dinger “all his claims. . . which can provide her with coverage for the incident that occurred on July 23, 2009 [the accident].
The Kickapoo Policy
The Kickapoo tribe had a policy ("Policy") issued by St. Paul who provided "Auto Liability Protection" up to $ 1,000,000 per accident and "Umbrella Cross Liability Protection" in the same amount. In a dispute with Wishkeno's personal insurance company, Safeco Insurance Company (which defended Wishkeno in the underlying lawsuit), St. Paul coverage to Wishkeno based on an exemption from the Federal Tort Claims Act ("FTCA"). Although Wishkeno would normally receive a surplus or umbrella coverage under Kickapoo Tribe's insurance and would be considered a "protected person" under the insurance, but in fact it is a 638 agreement with the federal government and this requires that all claims be brought under the protection of Federal Torts Claim Act.
Dinger pursued an FTCA claim, which was ultimately denied. Advisors to the Kickapoo tribe informed Dinger's advice that St. Paul had ruled that Wishkeno was not a "protected person" under the policy – a new ground for denial of coverage, separate from the FTCA exclusion. says: "We pay amount any protected person is obliged to pay" and is caused by an accident. "Policy defines several categories of" protected persons.
Wishkeno as a "protected person" under the policy
Dinger argued that the policy is ambiguous on this point and must be interpreted in favor of coverage. However, her position ignored the fact that the insurance cover only covers "protected persons", while clearly stating that employees driving their own vehicles are not "protected persons." . However, when an insurer claims an exemption under an insurance policy, the burden shifts to the insurer to show that the exemption applies by proving the facts that make the case fall within such a specified exemption. The relevant coverage provisions in the policy are not ambiguous or subject to dubious or conflicting significance.
Dinger claims that Wishkeno was covered under the "All Users Allowed" category. According to the express terms of the policy, a "permitted user" only includes persons who use a "covered car" that Kickapoo Tribe owns, rents, rents, rents or borrows. Thus, an employee of the Kickapoo Tribe is not a protected person under this clause when driving a "covered car" owned by the employee.
Wishkeno was not a protected person under the policy by reading the policy provisions. First, and most importantly, "any authorized user" does not expressly include Kickapoo Tribe employees who drive vehicles they own. In summary, since Wishkeno was driving a "non-owned car" at the time of the accident, she was not a permitted user and was therefore not covered by the policy.
Since there is unequivocally no coverage under the policy, there can be no breach of contract and no obligation to defend or resolve, judging Dinger's claim.
If there is no coverage under an insurance policy, there is no obligation to defend. Wishkeno was not unequivocally covered by the policy at the time of the accident. Consequently, St. Paul had no obligation to defend, let alone harm, and Dinger does not argue that an obligation to settle may arise where there is no obligation to injure or defend.
St. Paul has shown undisputed facts that Wishkeno was not covered by the policy. The court granted St. Paul's request for summary judgment and denied Dinger's request for summary judgment.
As I have said several times: to waive a judgment in exchange for an award of a right to sue the indemnity insurer without a clear interpretation by an insurance coverage expert that the insurer incorrectly denied coverage is a waste of time and money. If Wishkeno was convincing, the effort may have been worth the effort. Regardless, the court's decision made it clear that there was no coverage under the policy. The $ 1.66 million verdict can therefore be framed and hung on a wall but will never be collected in whole or in part.
© 2020 – Barry Zalma
Barry Zalma, Esq., CFE, now limits his practice of serving as an insurance consultant specializing in insurance coverage, insurance claims handling, cheating and insurance fraud almost equally for insurance companies. He also acts as an arbitrator or mediator for insurance-related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims lawyer and more than 52 years in the insurance business. He is available at http://www.zalma.com and firstname.lastname@example.org.
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