Travelers Indemnity Co. v. Accurate Autobody, Inc.

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 19 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

TRAVELERS INDEMNITY
COMPANY,

Plaintiff-Appellee/
Cross-Appellant,
v. Nos. 02-5095 and 02-5104
ACCURATE AUTOBODY, INC. and
NATHAN JOEL HOSTETLER,

Defendants,

WILLIAM GARY SMITH,

Defendant-Appellant/
Cross-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. NO. 00-CV-9-K)

Aaron C. Peterson, Tulsa, Oklahoma, for Defendant-Appellant/Cross-Appellee.

Philip R. Richards (Thomas D. Hird, with him on the briefs), of Richards &
Connor, Tulsa, Oklahoma, for Plaintiff-Appellee/Cross-Appellant.

Before KELLY , HENRY , and HARTZ , Circuit Judges.

HARTZ , Circuit Judge.
In this declaratory-judgment action, the parties cross-appeal the district

court’s determination of their respective rights and obligations under a general

liability insurance policy. None of the parties thought it necessary, however, to

include that policy in the record on appeal. Collectively they have informed us of

only four words from the policy—“used in connection with.” A party who seeks

to reverse the decision of a district court must provide an adequate record for this

court to determine that error was committed. Given the deficient record here, we

summarily affirm on the appeal and cross-appeal.

This litigation arises out of a motor vehicle accident in which Defendant

Nathan Joel Hostetler’s car struck Defendant William Gary Smith and his

motorcycle, causing Mr. Smith severe injuries. Mr. Hostetler was the sole

shareholder of two companies—Accurate Auto Sales, Inc. (Auto Sales), a used car

lot, and Accurate Autobody, Inc. (Autobody), a body shop. Mr. Hostetler was not

involved in the day-to-day operations of Autobody, but was quite active in the

operations of Auto Sales. Plaintiff Travelers Indemnity Company was the general

liability insurer for Autobody but not for Auto Sales.

On the evening of the accident, Mr. Hostetler parked his personal car at

Auto Sales and headed for his home in a BMW owned by Auto Sales. He planned

to drive the BMW home for the evening and take it to Autobody the next morning

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for an estimate on a paint job. His home is located between Auto Sales and

Autobody. The accident occurred while he was driving home from Auto Sales.

Mr. Smith sued Mr. Hostetler, Autobody, and Auto Sales, among others.

He reached a settlement with Mr. Hostetler, Autobody, and Auto Sales under

which the liability insurer for Auto Sales would pay its policy limits, Auto Sales

and Mr. Hostetler would obtain a full release, and Autobody would be released

except to the extent of coverage under its policy with Travelers.

Travelers filed this diversity action, seeking a declaration that it owed no

duty to indemnify or defend with respect to Mr. Smith’s claim. Mr. Smith was

also joined as a Defendant (his counsel is prosecuting this appeal). After a bench

trial the district court ruled that Travelers did not have a duty to indemnify

Autobody or Mr. Hostetler, but it did have a duty to defend them.

The parties then filed these cross-appeals. In support of his appeal,

Defendant designated an appellate appendix of 60 pages, including (1) the

district court docket sheet, (2) the complaint, (3) the district court’s findings of

fact and conclusions of law, (4) the district court’s judgment, (5) the accident

report, and (6) 22 pages of excerpts from the transcript of the bench trial. Neither

the insurance policy nor any of the district court pleadings (other than the

complaint) were included in the appendix. Travelers did not designate either an

appendix for its cross-appeal or a supplemental appendix for Defendant’s appeal.

On appeal Defendant claims that Travelers has a duty to indemnify, and

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Travelers argues that it has no duty to defend. The parties agree that Oklahoma

law applies.

An insurer’s duties to defend and indemnify arise from the insurance

policy. See First Bank of Turley v. Fid. & Dep. Ins. Co. of Md., 928 P.2d 298,

302 (Okla. 1996) (“The relationship between the insured and insurer is

contractual in nature. An insurer’s duty to defend claims against its insured is an

ex contractu obligation.”). Accordingly, the resolution of the parties’ claims

depends on the policy language.

The parties apparently believe that only four words of that policy language

are relevant to the appeal and cross-appeal before us. They quote the words “used

in connection with” and argue extensively about whether that phrase encompasses

what Mr. Hostetler was doing with the BMW at the time of the accident. They

fail, however, to tie their arguments to the structure of the insurance policy, its

purpose, or its definitions. We do not even have before us the language of the

sentence in which the four-word phrase appears.

We are unwilling to reverse the decision of the district court based on a

guess—even what we may think to be an informed guess—regarding the content

of the policy. The party appealing a district court ruling has the burden to relieve

us of such guesswork by providing the necessary documents.

Tenth Circuit Rule 10.3, entitled “Content of record,” states:

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(A) Essential items. Counsel must designate a record on appeal
that is sufficient for considering and deciding the appellate issues.
Only essential parts of the district court record should be designated
for the record on appeal.

(B) Inadequate record. The court need not remedy any failure by
counsel to designate an adequate record. When the party asserting an
issue fails to provide a record sufficient for considering that issue,
the court may decline to consider it.

....

D. Additional record items.

....

(4) Other. Other items, such as trial exhibits and
transcript excerpts, must be included when they are
relevant to an issue raised on appeal and are referred to
in the brief.

Cf. Fed. R. App. Proc. 10(b)(2) (“If the appellant intends to urge on appeal that a

finding or conclusion is unsupported by the evidence or is contrary to the

evidence, the appellant must include in the record a transcript of all evidence

relevant to that finding or conclusion.”).

In this circuit the appendix often serves the purpose of the record on

appeal. Tenth Circuit Rule 30.1 states:

Appellant’s appendix. In appeals from a district court, except pro
se appeals and appeals in which an appellant is represented by
appointed counsel, the record on appeal is retained in the district
court. Instead of the Fed. R. App. P. 30(b) appendix, the appellant
must file an appendix containing record excerpts. . . .

Tenth Circuit Rule 30.1 (A) then specifies:

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(1) Appellant’s duty. The appellant must file an appendix sufficient
for considering and deciding the issues on appeal. The requirements
of Rule 10.3 for the contents of a record on appeal apply to
appellant’s appendix. . . .

....

(3) Court not obliged. The court need not remedy any failure of
counsel to provide an adequate appendix. See Rule 10.3(B).

These rules are not empty gestures. We have repeatedly enforced them.

See, e.g., Chasteen v. UNISIA JECS Corp., 216 F.3d 1212, 1221-22 (10th Cir.

2000) (quoting 10th Cir. R. 30.1(A)(1) and Fed. R. App. P. 10(b)(2) and then

holding that “[b]ecause Injection Research has failed to provide this court with a

sufficient record to determine the appropriateness of summary judgment on the

issue of whether, prior to October 1994, JECS withheld discovery documents

which it was legally required to produce, we cannot employ the doctrine of

equitable tolling to disturb the district court's judgment that Injection Research's

misappropriation of trade secrets claim against JECS was time-barred.”); Tilton v.

Capital Cities/ABC, Inc., 115 F.3d 1471, 1474 (10th Cir. 1997) (“In this circuit

and under the Federal Rules, the appellant bears the responsibility of providing

this court with an appendix sufficient for consideration and determination of the

issues on appeal . . . . Because the appellant’s appendix is insufficient to permit

assessment of this claim of error, we must affirm.” (internal quotation marks

omitted)); Dikeman v. Nat’l Educators, Inc., 81 F.3d 949, 954-55 (10th Cir. 1996)

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(“We find that the record on appeal is inadequate, and we are therefore unable to

review this issue. The documents which the plaintiffs submitted are incomplete in

that they do not fully detail the substance of this issue, nor do they sufficiently

convey all the facts which form the basis of the issue. Further, we are not

convinced that the plaintiffs adequately documented that this issue was preserved

for appeal, and we thus refrain from addressing the substance of the plaintiffs’

claim. An appellant who provides an inadequate record does so at his peril.”

(emphasis added)); see also Lakedreams v. Taylor, 932 F.2d 1103, 1108-09 (5th

record on appeal forecloses review of district court’s decision that item had been

copied).

The failure of both appellant and cross-appellant to include in the appendix

the document that controls the resolution of the issues on appeal—the Travelers

insurance policy issued to Autobody—deprives them of the right to challenge the

judgment of the district court. We summarily AFFIRM.

One final point. Baseless attacks on the integrity of the district court are

inappropriate even in offhand conversation. Here, Travelers’ brief could easily be

read as accusing the district court of misconduct, rather than simple legal error.

Travelers’ counsel must exercise greater care in the future. The record contains

nary a hint of impropriety by the trial judge.

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