                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                            FEB 1 2000
                    UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                              Clerk


 JOHN GARDNER,

               Plaintiff - Appellant,                  No. 99-1015
          v.                                           (D. Colorado)
 CONTINENTAL WESTERN                           (D.C. No. 98-WY-367-WD)
 INSURANCE COMPANY,

               Defendant - Appellee.


                            ORDER AND JUDGMENT *


Before TACHA, McKAY, and ANDERSON, Circuit Judges.




      This is a diversity declaratory judgment action to determine, under

Colorado law, the applicability of certain uninsured automobile insurance

coverage to injuries sustained by the plaintiff-appellant John Gardner. The

injuries occurred when Mr. Gardner pulled out of traffic on Interstate 25 near the

location of an accident and left his vehicle to determine whether those involved in



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
the accident needed assistance. While standing in the highway median he was

struck and injured. The central policy coverage question is whether Mr. Gardner

was “using” his vehicle at the time he was injured. Alternatively, Mr. Gardner

contends that he is entitled to the broader coverage afforded under the policy to

the named insured or a family member of the named insured, since the policy was

issued to a corporation and such terms as “you” or a “family member” inject an

ambiguity that must be resolved in his favor. The district court granted the

insurance company’s motion for summary judgment against Mr. Gardner on both

of the issues described above. Mr. Gardner appeals on both questions and, in

addition, moves that we certify these questions to the Colorado Supreme Court.

For the reasons stated below, we decline to certify the issues, and affirm the

judgment of the district court.



                                  BACKGROUND

      As indicated, this action arises out of an injury sustained by Gardner at the

scene of a motor vehicle accident that occurred on November 27, 1996, on

Interstate 25 south of Colorado Springs. At the time of the accident Gardner was

employed by RGT Construction, Inc., and was traveling southbound in an RGT

truck en route to the company’s job site in Pueblo, Colorado. The vehicle was

insured by the defendant in this action, Continental Western Insurance Company,


                                         -2-
through a policy of insurance issued to RGT. The policy, as required by Colorado

law, included uninsured motorist coverage.

      The vehicles involved in the accident were off the snow-covered road and

in the median strip. As Gardner neared the vehicles, traffic slowed, apparently

because of another accident further down the highway. Eventually Gardner was

forced to stop his vehicle at a point adjacent to the accident in question but out of

the direct line of traffic. He then put on his emergency flashers, exited his truck

and walked to the cars in the median. While the parties have not stipulated to

Gardner’s purpose in exiting his vehicle, Gardner’s deposition testimony, which

was before the district court and has been provided to us, states that he exited the

truck to see if anyone needed assistance.

      While he was standing in the median between two cars, the driver of

another vehicle lost control, drove into the median and hit one of the cars. The

force of the impact pushed the first car into the other, crushing Gardner’s leg

between them. The driver of the car that caused Gardner’s injuries was

apparently uninsured. Subsequently, Gardner filed an insurance claim with

Continental Western, seeking to recover under the uninsured motorist (“UM”)

provisions of the policy issued to RGT. Continental Western denied coverage,

asserting that the policy did not apply under the circumstances of the accident.

Gardner then sued Continental Western in Colorado state court, and Continental


                                          -3-
Western removed the action to the United States District Court for the District of

Colorado. After the parties stipulated to the relevant facts, both parties moved for

summary judgment. After reviewing Colorado law and the insurance policy

terms, the district court granted Continental Western’s summary judgment motion,

ruling that Gardner was not covered under the policy because the insured vehicle

was not being used at the time of the accident and Gardner had essentially become

a pedestrian after he left his vehicle.



                                    DISCUSSION

      We review the district court’s grant of summary judgment de novo,

applying the same standard as the district court. 1 See UMLIC-Nine Corp. v.

Lipan Springs Dev. Corp., 168 F.3d 1173, 1176 (10th Cir.), cert. denied, 68

U.S.L.W. 3321 (U.S. Nov. 15, 1999) (No. 99-486). Under that standard, summary

judgment is appropriate when the evidence, taken as a whole, “show[s] that there

is no genuine issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law.” Id. (quoting Fed. R. Civ. P. 56(c)). Because the




      1
        While this is a diversity action, “as a matter of independent federal
procedure, we utilize the normal federal standards of appellate review to examine
the district court’s decision process.” Mid-America Pipeline Co. v. Lario Enters.,
Inc., 942 F.2d 1519, 1524 (10th Cir. 1991).

                                          -4-
parties have stipulated to virtually all of the relevant facts, we need only

determine whether the district court correctly applied the substantive law. See id.

      In this diversity case, the law controlling this insurance policy is the law of

Colorado as announced by that state’s highest court. See Wood v. Eli Lilly &

Co., 38 F.3d 510, 512 (10th Cir. 1994); see also Erie R. Co. v. Tompkins, 304

U.S. 64 (1938). Where the Colorado Supreme Court has not yet addressed an

issue, we seek to predict how that court would decide the question if faced with

it. See Farmers Alliance Mut. Ins. Co. v. Bakke, 619 F.2d 885, 888 (10th Cir.

1980). In our inquiry we may consider all resources available, including

decisions of Colorado, other states, and federal decisions, and the general weight

and trend of authority. See id. The district court's determination of state law is

subject to de novo review. See Salve Regina College v. Russell, 499 U.S. 225,

231 (1991).



                                          A.

      As to the first issue, the parties agree that the policy language we must

construe and apply extends coverage to “[a]nyone else while using with your

permission a covered ‘auto’.” Policy, Section II.A.1; Appellant’s App. at 33




                                          -5-
(emphasis added). 2 Thus, the question is whether Mr. Gardner was injured while

he was using his vehicle. He contends that he was using the vehicle in the broad

sense of that term because: (a) he would not have been at the location of the

accident but for the use of his vehicle, see Appellant’s Reply Br. at 4; and (b) he

was acting as a Good Samaritan and, as a matter of practicality and social policy,

rendering aid falls within the foreseeable use of a vehicle, see id. at 4-7.

      There are no Colorado cases directly on point. In Aetna Casualty & Surety

Co. v. McMichael, 906 P.2d 92 (Colo. 1995), the Colorado Supreme Court,

addressing the meaning of the term “use” in a policy similar to the one here,

stated as follows:

           As in the majority of other jurisdictions, we have required
      some causal relationship between the claimant’s injuries and the use


      2
       The actual uninsured motorist coverage section of the policy in this case
defines an insured as:

      B.     WHO     IS AN INSURED
             1.      You.
             2.      If you are an individual, any “family member”.
             3.      Anyone else “occupying” a covered “auto” or a temporary
                     substitute for a covered “auto”. . . .

Policy, Uninsured Motorists Endorsement, Section B; Appellant’s App. at 43
(emphasis added). However, in Aetna Cas. & Sur. Co. v. McMichael, 906 P.2d
92, 98 (Colo. 1995), the Colorado Supreme Court held that under Colorado law
uninsured motorist coverage in a policy must be coextensive with liability
coverage under the policy. Here, that coverage applies to others “while using”
the covered auto. Hence, as Continental Western concedes, that language, rather
than the “occupying” language, controls.

                                         -6-
      of the insured vehicle when evaluating claims for automobile
      insurance benefits. The reason for this causal requirement is to
      ensure that there is some nexus between the vehicle’s use and the
      injury. The nexus guarantees that the accident is within the kind of
      risks that the automobile insurance contract was meant to cover.

             . . . [W]e have interpreted the test as requiring the plaintiff to
      show only that the injury originated in, grew out of, or flowed from a
      use of a vehicle. Thus, the causation test does not require that the
      insured vehicle itself be the source of the injury, only that the use be
      integrally related to the claimant’s activities and the injury at the
      time of the accident.

Id. at 103 (citations omitted).

      The Colorado Supreme Court cases illustrate the court’s view of “use” that

is “integrally related” to the claimant’s activities at the time of an injury. For

example, in McMichael the plaintiff parked his company-owned truck in the

median of the roadway, positioning it between the oncoming traffic and the area

where he planned to work. The truck had been specially equipped with an

overhead beacon and emergency flashers, which he engaged before leaving the

truck to work on a concrete barrier in the median, where he was struck by a car.

Though he was away from his vehicle when injured, the court concluded that he

was using the truck as a barrier and a warning device – as it was designed to be

used – and that he was thus entitled to UM insurance coverage. Similarly, see

Kohl v. Union Ins. Co., 731 P.2d 134, 135-36 (Colo. 1986) (injury resulting from

accidental discharge of rifle when rifle was removed from four-wheel-drive

vehicle’s gun rack arose out of use of vehicle); Titan Constr. Co. v. Nolf, 515

                                          -7-
P.2d 1123, 1126 (Colo. 1973) (injury sustained during unloading of cement truck

when pipe connected to truck knocked brick off roof arose out of use of truck);

Trinity Universal Ins. Co. v. Hall, 690 P.2d 227, 231 (Colo. 1984) (injury to

customer when permanent awning of refreshment delivery truck collapsed arose

out of use of truck as refreshment stand).

       Other jurisdictions have also focused on the directness of the relationship

between the vehicle and the injury. See Great Am. Ins. Co. v. Cassell, 389 S.E.2d

476, 477 (Va. 1990) (“Use of the fire truck to extinguish the fire, control traffic

and protect the fire fighters . . . was an integral part of the fire fighters’

mission.”); Monroe Guar. Ins. Co. v. Campos, 582 N.E.2d 865, 867 (Ind. Ct. App.

1991) (tow truck operator injured while engaged in activity essential to towing

process was using vehicle); Thibodeaux v. Burton, 538 So. 2d 1001, 1004-05 (La.

1989) (construction worker working in road and utilizing truck with flashing

yellow sign was using vehicle); but see Insurance Co. of North America v. Perry,

134 S.E.2d 418 (Va. 1964) (police officer who left vehicle to serve warrant not

using vehicle when injured).

       Mr. Gardner relies on two sources of authority for finding the required

relationship in this case. First, he cites a recent Colorado Court of Appeals

decision in Metropolitan Prop. & Cas. Ins. Co. v. Neubert, 969 P.2d 733 (Colo.

Ct. App. 1998), cert. denied (Colo. Jan. 19, 1999), in which an injured driver’s


                                            -8-
insurance was deemed to cover a pedestrian who was injured while attempting to

render assistance. The court reasoned that “a person’s rendering assistance to

victims of a car accident is a foreseeable event arising out of the use of the

vehicle.” Id. at 735.

      Of course, Neubert is distinguishable in the sense that it involved insurance

coverage relating to the individual needing assistance, not that of the one coming

to render aid. Under Mr. Gardner’s reasoning, in Neubert both policies would

apply; but the court did not address that scenario. More to the point, the court of

appeals had no power, through its language on foreseeability, to alter the test

articulated by the Colorado Supreme Court, and we are not persuaded that

Neubert can or should dictate the “integral relationship” analysis in this case.

      Next, and more central to Mr. Gardner’s position, he contends that the

public policy of Colorado requires us to extend him UM benefits because he was

a Good Samaritan who stopped to render aid to those in need of assistance. He

suggests that the principles of the Rescue Doctrine and Colorado’s Good

Samaritan statute together evidence a public policy and a legislative intent to

extend the definition of vehicle “use” to cover his injuries. 3 He cites no Colorado


      3
       Gardner points out that Colorado exempts from civil liability persons who
provide free emergency medical services (the “Good Samaritan” doctrine) and
also employs the Rescue Doctrine, whereby “one who has, through his negligence,
endangered safety of another may be held liable for injuries sustained by third
                                                                      (continued...)

                                          -9-
case on point for this proposition. He does cite four cases from other states that

are readily distinguishable either because of applicable state statutes or on other

grounds. 4

      3
        (...continued)
person who attempts to save other from injury.” Black’s Law Dictionary 1175
(5th ed. 1979) (citing National Dairy Prod. Corp. v. Freschi, 393 S.W.2d 48, 57
(Mo. Ct. App. 1965)). Neither doctrine applies directly to the facts of this case;
Gardner is not attempting to avoid his own liability, nor is he seeking, in this
action, to impose liability on a negligent party. However, we do not understand
Gardner to argue that either of these doctrines controls our decision, only that
these doctrines evidence Colorado courts’ view that rescue efforts are socially
beneficial and should be encouraged.
      4
        Of these cases, only Day v. Coca-Cola Bottling Co. contains policy
language limiting coverage to when the claimant is occupying or using the insured
vehicle. See 420 So. 2d at 518. However, in Day, the court’s brief discussion of
public policy focused not on whether the plaintiff was occupying his vehicle when
he was injured, but instead addressed the question of whether the plaintiff could
be found contributorily negligent in his rescue attempt. Day does not suggest that
the analysis of whether an individual is using or occupying a vehicle differs when
that individual is acting as a Good Samaritan.
       The other three cases cited by Gardner all involve specific state statutory
provisions. Additionally, these cases do not discuss policy language that limits
coverage to when the claimant is using or occupying the insured vehicles; instead,
they address the question of whether the plaintiff’s injuries arose out of the use of
a vehicle other than the insured’s. In Burns v. Market Transition Facility of New
Jersey, 657 A.2d 472 (N.J. Super. Ct. App. Div. 1995), a Good Samaritan was
awarded personal injury protection (PIP) benefits under a statute requiring
insurers to extend PIP coverage to named insureds who sustain bodily injury as a
result of an accident while occupying an automobile. Because the plaintiff, who
was injured when he climbed inside one of the vehicles involved in the accident,
was occupying an automobile when he was injured, the court awarded him PIP
insurance benefits. However, there was no policy or statutory requirement that, to
be covered, the plaintiff be using or occupying his own insured vehicle.
       Similarly, in Tornatore v. Selective Ins. Co., 695 A.2d 313 (N.J. Super. Ct.
App. Div. 1997), a Good Samaritan who stopped at an accident to render aid was
                                                                       (continued...)

                                         -10-
      Clearly, we would be extending Colorado law if we were to accept

Mr. Gardner’s Good Samaritan argument. Furthermore, we would be doing so in

the face of the Colorado Supreme Court’s requirement that insurance contract

interpretation must be consistent with “the kind of risks that the automobile

insurance contract was meant to cover.” McMichael, 906 P.2d at 103. We are

unwilling to speak for the state as to whether the law relating to insurance

coverage should be extended in the manner sought here, and we find sufficient

guidance in existing state supreme court decisions to decline the invitation on the

merits.

      In sum, we agree with the district court that Mr. Gardner was not injured

“while using” his vehicle. Accordingly, the policy provision extending coverage

to anyone “while using” the insured vehicle does not cover his accident.



                                         B.



      4
        (...continued)
granted UM coverage under his personal auto insurance policy because his
injuries arose out of the use of the uninsured vehicle that caused the accident.
Presumably because plaintiff was the named insured under the policy, there was
no policy requirement that the plaintiff be using his own insured vehicle when
injured. See also Hollingsworth v. Schminkey, 553 N.W.2d 591 (Iowa 1996)
(named insured was entitled to have a fact-finder assess his claim for UM benefits
for injuries he received while dragging an uninsured motorist from his car, as
fact-finder might reasonably determine that plaintiff’s injuries “arose out of” the
maintenance or use of the uninsured motorist’s vehicle).

                                        -11-
      As indicated above, the policy in question defines an “insured” in three

categories:

B.    WHO IS AN INSURED
          1.   You.
          2.   If you are an individual, any “family member”.
          3.   Anyone else . . . [while using] a covered “auto” . . . . 5

Policy, Uninsured Motorists Endorsement, Section B; Appellant’s App. at 43.

      As his alternative argument, Mr. Gardner contends that even if he was not

using the vehicle at the time of his injury, he falls within either category 1

(“you”) or 2 (“family member”), both of which are entitled to broader coverage

than category 3 (“user”). 6 He reasons that because RGT Construction, Inc., the

named insured to which “you” refers, is a corporation that can neither be injured

nor have family members, such terms as “you” and “family member” are at the

very least ambiguous. He further contends that such ambiguity must be resolved

in favor of coverage; i.e. that in the corporate context the meanings of these terms

should be expanded to include corporate employees.




      5
          See supra note 2.
      6
        A named insured is generally entitled to uninsured motorist coverage even
when not occupying or using the insured vehicle at the time of the injury. See
Appellant’s Br. at 18-19; see also 9 Lee R. Russ et al., Couch on Ins. § 123:5 (3d
ed. 1996) (unlike permissive users, named insureds are “not required to be
associated with the insured auto at the time of the accident in order for coverage
to attach”).

                                         -12-
      The only Colorado authority Gardner cites in support of this proposition is

Hawkeye-Security Ins. Co. v. Lambrecht & Sons, Inc., 852 P.2d 1317 (Colo. Ct.

App. 1993), in which the Colorado Court of Appeals found UM coverage when

the wife of the corporation’s sole stockholder was injured in an accident unrelated

to the insured vehicle. However, Hawkeye involved a definitional section that

limited UM coverage to “you” or a “family member,” omitting language providing

UM coverage for permissive occupiers or users of insured vehicles. Because UM

coverage under that policy would be otherwise illusory, the court found coverage

for corporate employees in the terms “you” and “family member.” However,

differences in policy language distinguish Hawkeye from the case presently

before us, because here there is a third category explicitly covering “users.”

      Thus, this case is similar to General Insurance Co. v. Smith, 874 P.2d 412

(Colo. Ct. App. 1993), in which a later panel of the Colorado Court of Appeals

enforced identical language as that found in the Continental Western policy at

issue. The court found that, unlike the Hawkeye policy, 7 meaningful UM



      7
       Gardner suggests that the Hawkeye policy may have actually included
language extending UM coverage to persons occupying the insured vehicle,
despite the fact that the court never discussed such language. However, the
Hawkeye court stated that under the policy “only the corporation . . . or a person
who is ‘related’ to the corporation by ‘blood, marriage or adoption’ . . . may
recover such damages.” Hawkeye, 852 P.2d at 1319. This seemingly exclusive
statement, among others, convinced the Smith court that the Hawkeye policy
contained no such language, and we see no other plausible interpretation.

                                         -13-
coverage was still available for the corporation’s employees under the language

insuring permissive occupiers/users of the corporation’s vehicles. Furthermore,

the policy clearly stated (as does the Continental Western policy) that coverage

was provided to a “family member” only when the named insured was an

individual. Because the court found no ambiguity in these contract terms, it

enforced them as written. 8

      Reading Hawkeye and Smith together, it seems that in Colorado, coverage

extends to corporate employees under the terms “you” and “family member” only

where the contract is unavoidably ambiguous or illusory. Most other jurisdictions

are even more strict; the majority adhere to the simple principle that the term

“‘family member’ means nothing when ‘you’ is a corporation, and [] find no

coverage” on similar facts and language. American States Ins. Co. v. C&G

Contracting, Inc., 924 P.2d 111, 113 (Ariz. Ct. App. 1996) (citing Pearcy v.

Travelers Indem. Co., 429 So. 2d 1298, 1299 (Fla. Dist. Ct. App. 1983); Economy

Preferred Ins. v. Jersey County Constr., 615 N.E.2d 1290, 1293-94 (Ill. App. Ct.



      8
        Gardner errs when he suggests that Smith is no longer good law after
McMichael, which invalidated policy language limiting UM coverage to those
occupying insured vehicles. As detailed above, the effect of McMichael was not
to overrule Smith, but rather to extend UM coverage provided under that
provision to all permissive users while using the insured vehicle. In essence, the
McMichael decision makes the Smith case even more persuasive to our analysis,
as it expands, not eliminates, the meaningful coverage provided under that
provision.

                                        -14-
1993); Huebner v. MSI Ins. Co., 506 N.W.2d 438, 441 (Iowa 1993); Sears v.

Wilson, 704 P.2d 389, 392 (Kan. Ct. App. 1985); Langer v. United States Fidelity

& Guar. Co., 552 A.2d 20, 22 (Me. 1988); Cutter v. Maine Bonding & Cas. Co.,

579 A.2d 804, 807 (N.H. 1990); Buckner v. Motor Vehicle Accident Indem.

Corp., 486 N.E.2d 810, 812 (N.Y. 1985); Dixon v. Gunter, 636 S.W.2d 437, 441

(Tenn. Ct. App. 1982)).

      Accordingly, because this policy clearly and unambiguously provides UM

coverage to RGT’s corporate employees when they are using RGT’s insured

vehicles, we hold that Gardner is not entitled to coverage under policy terms

providing coverage to the named insured (“you”) and any “family member.”



                                CERTIFICATION

      Gardner asks us to certify both questions in this case, particularly the

question of whether Colorado public policy requires insurance companies to

provide uninsured motorist coverage to a Good Samaritan who is injured while

rendering aid to the victims of a motor vehicle accident. The problem with

certification in insurance coverage cases is reflected in the following statement of

the Colorado Supreme Court: “When determining the meaning of the term ‘use’

in an automobile insurance policy, a court must look to the factual circumstances




                                        -15-
in each case, including the particular characteristics of the vehicle and the

intention of the parties to the insurance contract.” McMichael, 906 P.2d at 102.

      A question of whether insurance coverage applies when a Good Samaritan

is injured is no less fact bound than any other coverage question. Gardner himself

injects critical factual elements into the analysis, such as the fact that the accident

occurred on a “limited access highway.” Appellant’s Reply Br. at 1. Indeed, the

number of factual scenarios one could imagine involving a Good Samaritan is

virtually limitless. Accordingly, because of the fact-intensive nature of these

cases, and because we find sufficient guidance from existing Colorado Supreme

Court precedents, we decline to certify this issue.

      With respect to the second issue, we conclude that the persuasive authority

from the Colorado courts is plain and that the contract unambiguously provides

coverage to individuals “while using” the insured vehicle. Accordingly, we

decline to certify this issue as well.



                                    CONCLUSION

      The district court’s opinion thoroughly and cogently analyzed and disposed

of the issues presented. As indicated above, we fully agree with the district court,




                                          -16-
and, accordingly, the judgment is AFFIRMED. The motion to certify is

DENIED.

                                            ENTERED FOR THE COURT


                                            Stephen H. Anderson
                                            Circuit Judge




                                     -17-
