United States District Court, E.D. Arkansas, Eastern Division
Marshall Jr., United States District Judge
was driving slowly in a line of cars on 1-55 between West
Memphis and Memphis, a never-identified car rear-ended
Lashanda Calvin's Altima and knocked it into the car in
front of her. Calvin's twenty-three-year-old son, Jasean
Smith, was a passenger in her back seat. Calvin and her son
were injured. Shelter insures Calvin and her car. The company
denied Smith's claim. Calvin and Smith filed this case
seeking $50, 000 each in uninsured coverage that may be
available under the policy. ARK. CODE ANN. § 23-89-403.
It's unclear what the parties dispute about Calvin's
claim. The case was removed here. Shelter says there's no
coverage for Smith. Calvin and Smith disagree. They say the
policy is ambiguous, material facts are disputed, and a jury
could conclude Smith is covered-either as Calvin's
relative or as someone who was using the vehicle. The
applicable policy terms are in the margin.[*]
of course, is related to his mother. But Shelter's policy
covers only certain relatives. At the threshold, Smith
doesn't qualify because he doesn't live with Calvin.
He moved out in 2013 after graduating from high school,
almost five years before this 2018 accident.
policy also includes what might be called a student
exception: It covers an unmarried and unemancipated child
away at school. This exception doesn't benefit Smith. The
Court is not convinced that Shelter's policy draws a hard
line at age eighteen, the age of majority in Arkansas. ARK.
CODE ANN. § 9-25-101; Toivery v. Towery, 285
Ark. 113, 114-15, 685 S.W.2d 155, 156 (1985). The policy
doesn't define "child," and in other places
refers to a "minor child," Nq 16-1 at 9,
which suggests a broader category here. When one speaks of
relatives, it's not unusual to say an adult is their
parents' child. And many young people in their late teens
and early twenties are away from home much of the year, at
school of some kind, unmarried, and still dependent on their
parents in most respects. This student exception covers a
child so situated.
case does not present one of those situations, though. Smith
is a student; he's studying education at Phillips County
Community College. He's unmarried. But he's not
"unemancipated" within the ordinary meaning of that
word. Philadelphia Indemnity Insurance Co. v.
Austin, 2011 Ark. 283, at 6, 383 S.W.3d 815, 819-20. He
works three part- time jobs while attending school. Smith
pastors two churches on alternating Sundays and assists in
funeral services on Saturdays. He hasn't lived with his
mother for several years. There's no evidence, for
example, that he has lived with her on and off between
college terms. And there's no evidence that Calvin was
supporting her son financially. This record would not support
a jury in reasonably concluding that Smith was unemancipated.
Smith an insured because he was "using"
Calvin's Altima while a passenger? Shelter's policy
ties use to physical control and emergency repairs on trips.
Smith wasn't involved in any repair when his mother's
car was rear ended. "Use means physically controlling,
or attempting to physically control, the movements of a
vehicle." Nq 16-1 at 10. Smith didn't use
Calvin's Altima in this sense; he was buckled in the back
seat. Calvin and Smith emphasize that this policy defines
use, not using. That creates some murkiness, they continue,
which favors their argument for coverage. The Court
respectfully disagrees. The gerund doesn't create
ambiguity. The policy also says "Words in bold type that
are derived from a defined word have the same root
meaning." Ns 16-1 at 7. "Using" is in
bold; it is derived from the defined term "use";
and therefore it has the same root meaning: physical control.
Smith wasn't in control of his mother's car when it
was rear-ended. Austin, 2011 Ark. at 6, 383 S.W.3d
the material facts are undisputed. Where some genuine dispute
exists, the Court has taken the record in the light most
favorable to Calvin and Smith. Raines v. Safeco Insurance
Co. of America, 637 F.3d 872, 874-75 (8th Cir. 2011).
No. patent or latent ambiguity exists in the applicable
policy provisions. The Court has been delayed in addressing
this motion, and oral argument would cause more delay, so the
request for it is denied. On this record, and the applicable
Arkansas law about insurance contracts, Shelter is entitled
to partial summary judgment on Smith's claims. The
motion, No. 9, is granted and his claim is dismissed with
prejudice. The Court would appreciate a joint status report
on Calvin's claim by 15 April 2019.
Words in bold type that are derived from a defined
word have the same root meaning.
(40) Relative means an individual related to you by
blood, marriage, or adoption, who is a resident of your
household. It includes your child who is away at school, if
that child is both unmarried and unemancipated....
(54) Use means physically controlling, or attempting
to physically control, the movements of a vehicle. It
includes any emergency repairs performed in the course of a
trip, if those repairs are necessary ...