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Gambrell v. IDS Property Casualty Ins. Co.

Court of Appeals of Arizona, Second Division

September 9, 2015

FRANK AND BETTINA GAMBRELL, Plaintiffs/Appellants,
v.
IDS PROPERTY CASUALTY INSURANCE COMPANY, Defendant/Appellee

Appeal from the Superior Court in Pima County. No. C20124603. The Honorable Ted B. Borek, Judge. The Honorable D. Douglas Metcalf, Judge.

Goldberg & Osborne, By David J. Diamond and D. Greg Sakall, Tucson, Counsel for Plaintiffs/Appellants.

Jones, Skelton & Hochuli, PLC, By Charles M. Callahan, Jennifer B. Anderson, and Sean M. Moore, Phoenix, Counsel for Defendant/Appellee.

Presiding Judge Miller authored the opinion of the Court, in which Chief Judge Eckerstrom and Judge Espinosa concurred.

OPINION

MILLER, Presiding Judge:

[¶1] Frank and Bettina Gambrell appeal from the trial court's orders granting summary judgment in favor of defendants IDS Property Casualty Insurance Company and Stacey Harrish and denying the Gambrells'

Page 1222

motion for new trial. They contend the court erred by concluding A.R.S. § 20-259.01(C) permits insurers to exclude underinsured motorist coverage (UIM) when the insured is driving a large truck used in a business for transporting property. We affirm.

Factual and Procedural Background

[¶2] The following facts are undisputed. In 2011, Frank Gambrell was driving a semi-tractor tanker, transporting milk for his employer, when another driver lost control of his vehicle and crashed into the tanker. For Frank's serious injuries, he received $15,000 from the other driver's insurance policy and $100,000 in UIM coverage from his employer's policy. He then sought an additional $100,000 from the UIM coverage of his personal automobile liability insurance policy provided by IDS. IDS denied Frank's claim, concluding the UIM coverage did not apply to him while driving the milk truck. The UIM clause contained in Frank's automobile policy provided:

We will pay compensatory damages for bodily injury caused by accident which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle or underinsured motor vehicle. We will pay those damages for bodily injury an insured person suffers in a car accident while occupying a private passenger car or utility car, or as a pedestrian, subject to the limits of the policy.

" Utility car" was defined as one " not used in a business or occupation other than farming or ranching," " with a rated load capacity of 2,000 pounds or less of the pick-up, van or panel truck type." The Gambrells had not purchased a specific operator's policy for the milk truck.

[¶3] The Gambrells' complaint against IDS alleged breach of contract and bad faith, and later added claims adjuster Harrish as a defendant.[1] The defendants filed a joint motion for summary judgment on the contract claim. The trial court granted the motion and dismissed the bad faith claim, concluding it was " intertwined" with the breach of contract claim.

[¶4] The Gambrells filed a motion for new trial, restating the arguments made in their response to the motion for summary judgment.[2] The trial court denied the motion and this appeal followed. We review the denial of a motion for new trial for an abuse of discretion, but we review de novo a trial court's ruling on a motion for summary judgment. Jackson v. ...


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