Chavez v. Arizona School Risk Retention Trust, Inc.

FILED BY CLERK
IN THE COURT OF APPEALS MAY 18 2011
STATE OF ARIZONA
DIVISION TWO COURT OF APPEALS
DIVISION TWO

JOAQUIN CHAVEZ and ELVIRA ) 2 CA-CV 2010-0112
CHAVEZ, as husband and wife in their ) DEPARTMENT A
capacity as the parents of JOAQUIN )
CHAVEZ, a minor; SANTIAGO VALLE ) OPINION
AND YOLBA VALLE, as husband and )
wife in their capacity as the parents of )
YURIEL VALLE, a minor, )
)
Plaintiffs/Appellants/Cross-Appellees, )
)
v. )
)
ARIZONA SCHOOL RISK RETENTION )
TRUST, INC., an Arizona corporation, )
)
Defendant/Appellee/Cross-Appellant. )
)

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. C20088353

Honorable Stephen C. Villarreal, Judge

REVERSED AND REMANDED

Barassi, Curl & Abraham, P.L.C.
By David L. Curl and Katrina M. Conway Tucson
Attorneys for Plaintiffs/Appellants/
Cross-Appellees

Holm Wright Hyde & Hays PLC
By Alan K. Hyde and J. Thomas Allen Phoenix
Attorneys for Defendant/Appellee/
Cross-Appellant

H O W A R D, Chief Judge.
¶1 Appellants Elvira and Joaquin Chavez, on behalf of their minor son, and

Yolba and Santiago Valle, on behalf of their minor son, challenge the trial court‟s grant

of summary judgment in favor of appellee Arizona School Risk Retention Trust, Inc.

(“the Trust”) in their action seeking judicial determination of their children‟s status as

insured parties under the underinsured motorist provision of a motor vehicle liability

policy provided by the Trust. Appellants argue here that both Arizona law and the

insurance policy require that the children be insured and, therefore, entitled to recovery.

For the following reasons, we reverse and remand.

Factual and Procedural Background

¶2 We view the facts and reasonable inferences from those facts in the light

most favorable to the party against whom summary judgment was granted. Andrews v.

Blake, 205 Ariz. 236, ¶ 12, 69 P.3d 7, 11 (2003). But most of the facts here are

undisputed. Appellants‟ minor children, students in the Marana Unified School District,

were waiting in line to board one of its school buses when a vehicle came from behind

the bus, colliding with the bus and then the students. The school district is insured with

the Trust for automobile liability insurance, which includes an underinsured motorist

(“UIM”) provision. The Trust denied that the students were insured under the UIM

provision. Appellants sued the Trust. Both parties moved for summary judgment, and

the trial court ultimately granted the Trust‟s motion. This appeal followed.1

1
The Trust filed a notice of cross-appeal challenging the trial court‟s denial of
attorney fees, but it stated in its brief that it was abandoning this challenge.
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 Discussion

¶3 Appellants contend they are entitled to UIM benefits under Arizona law.

They assert that because the students were using the bus with permission, as described in

A.R.S. § 28-4009(A)(2), they were insured for purposes of liability and entitled to UIM

benefits according to A.R.S. § 20-259.01(B). We review de novo a grant of summary

judgment. Valder Law Offices v. Keenan Law Firm, 212 Ariz. 244, ¶ 14, 129 P.3d 966,

971 (App. 2006).

¶4 Section 20-259.01(B) requires an insurer for automobile or motor vehicle

liability to offer UIM coverage to “all persons insured under the policy.” Under § 28-

4009(A)(2) a motor vehicle liability policy must insure the person named in the policy

and any other person “using the motor vehicle . . . with the express or implied permission

of the named insured” against liability “arising out of the ownership, maintenance or use”

of the vehicle. Thus, a UIM provision must insure a person using a vehicle with

permission. See Tobel v. Travelers Ins. Co., 195 Ariz. 363, ¶¶ 39-40, n.5, 988 P.2d 148,

155-56, 155 n.5 (App. 1999).

¶5 In addressing a previous version of § 28-4009, our supreme court decided

the term “use” included loading and unloading the vehicle.2 Mission Ins. Co. v. Aid Ins.

Servs., 120 Ariz. 220, 221-22, 585 P.2d 240, 241-42 (1978) (negligently closing valve on

storage tank during unloading oil, allowing hot oil to spray on plaintiff, within “use” of

vehicle). And, the term “use” of a vehicle in an insurance liability contract included

2
The relevant portion of the statute remains substantially the same. Compare
Mission Ins. Co. v. Aid Ins. Servs., 120 Ariz. 220, 221, 585 P.2d 240, 241 (1978), with
§ 28-4009(A)(2).
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failing to close a window properly to secure a dog. Farmers Ins. Co. of Ariz. v. Till, 170

Ariz. 429, 431-32, 825 P.2d 954, 956-57 (App. 1991) (putting dog in back of

pickup/camper “use” of inherent design of vehicle).

¶6 Furthermore, when a vehicle is “intended to be used as more than a means

of transportation,” it is a specialized vehicle and its use may depend on the nature of the

owner‟s business and “the specialized nature and function of the vehicle involved.”

Tobel, 195 Ariz. 363, ¶¶ 20, 31, 988 P.2d at 152, 154. In Tobel, the underinsured

claimant was an employee of a traffic barricade company who was away from his truck

carrying a barricade to another location when he was hit. Id. ¶¶ 3, 7. The court found the

truck was equipped with specialized safety equipment, was intended as a safety device,

and the driver was using it as such. Id. ¶ 31. Therefore, the driver was covered by the

policy‟s UIM provision. Id. ¶¶ 1, 32.

¶7 A school bus is equipped with flashing safety lights and a stop sign in order

to allow school children to board or exit the bus safely and cross the street. It is intended

not only to transport students but also to allow them to navigate the streets safely before

and after riding the bus. Therefore, a school bus is a specialized vehicle. See id. n.4, 988

P.2d at 154 n.4 (implicitly relying on school bus being specialized vehicle). The Marana

Unified School District, which is in the business of educating students, uses its buses to

board the students safely, transport them from the bus stop to school and back, unload

them, and aid them in crossing the street if necessary.

¶8 Here, the students were waiting in line to board the school bus when the

accident occurred. The bus had the “lights and haz[]a[r]ds” on. Thus, the bus was

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functioning to protect the students‟ safety at the time of the accident, and the students

were using the bus‟s safety functions to board it for purposes of § 28-4009(A)(2). See

Tobel, 195 Ariz. 363, n.4, 988 P.2d at 154 n.4 (relying on Newman v. Erie Ins. Exch., 507

S.E.2d 348 (Va. 1998)); see also Newman, 507 S.E.2d at 349, 352 (student hit crossing

highway “using” school bus under UIM statute when using bus‟s safety equipment and

intending to become passenger); cf. Georgia Farm Bureau Mut. Ins. Co. v. Greene, 329

S.E.2d 204, 208 (Ga. App. 1985) (under liability policy “use” continues “[w]hile the bus

is standing guard with its lights flashing, its stop signals on and all visual signals

functioning . . . [and] does not conclude until the bus stops operating as a school bus in

relation to that child [and] . . . until each one has crossed any immediate road and is in a

place of safety in a direction towards their home”); Eden Prairie Indep. Sch. Dist. 272 v.

Auto-Owners Ins. Co., 279 N.W.2d 358, 359-60 (Minn. 1979) (loading under liability

policy “commences when the driver properly turns on the amber prewarning signals as he

approaches the boarding point . . . [and] terminates when he properly retracts the stop arm

and extinguishes the flashing red lights”). But see First Sec. Bank of Searcy v. Doe, 760

S.W.2d 863, 868 (Ark. 1988) (distinguishing between “user” protected under uninsured

statute and unprotected passenger).

¶9 The Trust argues that a vehicle‟s passengers are never entitled to be insured

for liability purposes because “use” of the vehicle consists only of driving it. However,

the legislature did not limit the coverage to driving. See § 28-4009(A)(2). We presume

the legislature says what it means. See Turner v. City of Flagstaff, 226 Ariz. 341, ¶ 11,

247 P.3d 1011, 1013 (App. 2011). And the Trust cites to no Arizona case holding that

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passengers are not insured for liability purposes. To the contrary, our courts specifically

have interpreted “use” to include more than merely driving. See, e.g., Tobel, 195 Ariz.

363, ¶¶ 20, 31, 988 P.2d at 152, 154; Farmers Ins. Co. of Ariz., 170 Ariz. at 431-32, 825

P.2d at 956-57; Mission Ins. Co., 120 Ariz. at 222, 585 P.2d at 242; see also, Lee R. Russ

et al., Couch on Insurance § 111:31 (3d ed. 2005) (“The term „use‟ . . . is given broad

meaning . . . [and] includes more than driving or riding in an automobile; it extends to

utilizing the vehicle as an instrumental means to an end in any manner intended or

contemplated by the insured.”); cf. Nationwide Gen. Ins. Co. v. Gov’t Employees Ins. Co.,

566 A.2d 1117, 1124-25 (Md. Ct. Spec. App. 1989) (using car under policy included

“be[ing] a passenger in it”); Nationwide Mut. Ins. Co. v. Davis, 455 S.E.2d 892, 893, 895

(N.C. Ct. App. 1995) (van in “use” under policy when driver parked it and both driver

and passenger/victim walking toward supermarket). Because the students were using the

bus with permission and thus were insured for liability purposes as defined in § 28-

4009(A)(2), Arizona law requires they be afforded UIM benefits according to § 20-

259.01(B).3

¶10 Chavez further argues that the policy would cover the students by its own

terms. But the UIM statute is incorporated into every policy. See Progressive Cas. Ins.

Co. v. Estate of Palomera-Ruiz, 224 Ariz. 380, ¶¶ 10-11, 231 P.3d 384, 386-87 (App.

2010). Because we have concluded that §§ 28-4009(A)(2) and 20-259.01(B) required the

students be covered, we need not address this argument.

3
We need not determine today the extent of the liability coverage for the students
or when their acts arise from “the ownership, maintenance or use” of the school bus.

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¶11 The Trust nevertheless asserts that, even if the students were covered by

other provisions of the policy, the UIM provision does not extend to these students

because they were waiting to board and were not, therefore, “occupying” the bus, as the

insurance policy UIM provision requires. That provision defines occupying as “being in

or being in physical contact with a covered Automobile, including while getting into or

getting out of that covered Automobile.” We need not decide this issue because the

Trust‟s interpretation of the policy provision would exclude the students from UIM

coverage required by §§ 28-4009(A)(2) and 20-259.01(B). Courts “will not interline the

UM [(uninsured motorist)] and UIM statutes to permit exclusions that have not been

mentioned by the legislature.” Taylor v. Travelers Indem. Co. of Am., 198 Ariz. 310,

¶¶ 21-22, 9 P.3d 1049, 1056-57 (2000); see Lowing v. Allstate Ins. Co., 176 Ariz. 101,

104, 859 P.2d 724, 727 (1993) (“Exclusions and limitations on coverage are generally

invalid unless contemplated by the statute.”). The Trust has not shown that the statute

contemplates excluding students who are using the bus but are not in physical contact

with it. Consequently, summary judgment in favor of the Trust was improper.

Attorney Fees

¶12 Both parties request attorney fees on appeal. Pursuant to A.R.S. § 12-

341.01(A), we award attorney fees to appellants, as the prevailing party, upon their

compliance with Rule 21, Ariz. R. Civ. App. P. Conversely, the Trust‟s request for fees

is denied.

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 Conclusion

¶13 In light of the foregoing, we reverse the trial court‟s grant of summary

judgment in favor of the Trust and remand to the trial court for further proceedings.

/s/ Joseph W. Howard
JOSEPH W. HOWARD, Chief Judge

CONCURRING:

/s/ J. William Brammer, Jr.
J. WILLIAM BRAMMER, JR., Presiding Judge

/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge

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