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Acuity, a Mutual Insurance Co. v. Johnson

United States Court of Appeals, Eighth Circuit

January 15, 2015

ACUITY, a Mutual Insurance Company, Plaintiff - Appellant
v.
Bryan C. Johnson, individually and doing business as BCJ; Western National Mutual Insurance Company, Defendants - Appellees

Submitted October 6, 2014

Page 589

Appeal from United States District Court for the District of Minnesota - Minneapolis.

For ACUITY, a Mutual Insurance Company, Plaintiff - Appellant: Beth Jenson-Prouty, James Franklin Mewborn, ARTHUR & CHAPMAN, Minneapolis, MN.

For Bryan C. Johnson, individually and, doing business as BCJ, Defendant - Appellee: Aaron Simon, Rolf E. Sonnesyn, TOMSCHE & SONNESYN, Minneapolis, MN.

For Western National Mutual Insurance Company, Defendant - Appellee: John M. Bjorkman, Paula Duggan Vraa, LARSON & KING, Saint Paul, MN.

Before MURPHY, SMITH, and GRUENDER, Circuit Judges.

OPINION

Page 590

SMITH, Circuit Judge.

Acuity, a Mutual Insurance Company (" Acuity" ), appeals from the district court's[1] judgment after a jury returned a verdict in favor of its opponents, Western

Page 591

National Mutual Insurance Company (" Western National" ) and Bryan Johnson. We find no error and affirm.

I. Background

Bryan Johnson owns and operates a small trucking business in Minnesota. During the relevant period, Johnson owned and operated 1986 and 1987 International semi-tractor trucks. Johnson insured his trucks through Acuity. However, Johnson only insured one truck at a time, depending on which truck he was actively driving.

On December 11, 2009, Johnson called Holden Agency, an agent of Acuity, and told them to switch insurance coverage from the 1986 to the 1987 truck. Inconveniently, the 1987 truck broke down the next day. On December 14, Johnson called Holden back and asked them to switch the insurance back to the 1986 truck.

Nearly a year later, on December 5, 2010, Johnson's 1986 truck, while pulling a trailer owned by J& B Trucking (" J& B" ), collided with a vehicle driven by Penny Marlow. The J& B trailer overturned and landed on top of Marlow's vehicle causing her death. Western National insured the trailer. Johnson called Holden to report the accident but was informed that the 1987 truck was covered and that the 1986 truck was not covered by the policy. According to Holden's records, Johnson had called them in February 2010 and requested to switch coverage from the 1986 to the 1987 truck, as he had done on December 11, 2009. Johnson denied ever having made such a request. At trial, Johnson pointed to the irrationality of making such a change because the 1987 truck remained inoperable and Johnson operated the 1986 truck throughout 2010. Johnson also highlighted several pieces of evidence that made it unlikely that he would make such a change to the policy while he was actively driving the 1986 truck.[2]

Acuity's Business Auto Policy terms state that: " For any covered auto you [Bryan Johnson] own, this Coverage Form provides primary insurance." Under the policy, covered autos included trailers attached to owned semi-tractors described in the policy declarations. Thus, Johnson's policy would also provide primary insurance for damage caused by J& B's trailer if the Acuity policy covered the 1986 truck at the time of the accident. Additionally, the Acuity policy contains an endorsement commonly referred to as the MCS-90, which ...


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