                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                         November 8, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
PROGRESSIVE NORTHWESTERN
INSURANCE COMPANY,

      Plaintiff - Appellee,

v.                                                          No. 16-3045
                                               (D.C. Nos. 2:15-CV-02324-JAR-TJJ &
BRENDA HANDSHUMAKER,                                 6:15-CV-01128-JAR-TJJ)
                                                             (D. Kan.)
      Defendant - Appellant,

and

ANGIE VANGILDER; GARY
VANGILDER,

      Defendants.
                         _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, GORSUCH, and MATHESON, Circuit Judges.
                  _________________________________

      Brenda Handshumaker appeals from the entry of summary judgment in favor

of Progressive Northwestern Insurance Company (Progressive) in this diversity

jurisdiction action to determine coverage under a motor vehicle insurance policy

      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
issued by Progressive. On de novo review, see Thomas v. Berry Plastics Corp., 803

F.3d 510, 514 (10th Cir. 2015), we affirm for substantially the reasons stated by the

district court.

       While driving a box truck rented by a third party from Budget Rental, Gary

Vangilder struck and injured Ms. Handshumaker, who obtained a $225,000 consent

judgment against him. After accepting $25,000 from Budget Rental reflecting the

limit of its policy on the truck, Ms. Handshumaker sought to recover the remainder

from Progressive on a policy issued to Angie Vangilder and, derivatively, her spouse

Gary. Progressive, which had earlier declined to defend Mr. Vangilder in the tort

case for lack of coverage under the policy, brought this declaratory judgment action

seeking a determination that it had no obligation to pay Ms. Handshumaker for the

same reason.1

       Progressive’s policy provided liability coverage (Part I of the policy) for

bodily injury “for which an insured person becomes legally responsible because of an

accident.” App. at 39. The policy defined “insured person” to include the named

insured and relatives “with respect to an accident arising out of the . . . use of an auto

or trailer.” Id. at 40 (emphasis added); see also id. at 38 (defining “covered auto”

also in terms derivative of definition of “auto”). The policy defined “auto” to

exclude “cargo cutaway vans or other vans with cabs separate from the cargo area.”

Id. at 38. The Budget Rental box truck driven by Mr. Vangilder did not meet this

       1
        Ms. Handshumaker also brought a state garnishment case against Progressive
that was removed to federal court and subsequently consolidated with Progressive’s
declaratory judgment action.
                                          -2-
definition of an auto because it fell within the exclusion. Accordingly, the district

court concluded “that the clear and unambiguous terms of the Policy demonstrate that

Mr. Vangilder was not an insured person under Part I of the Policy because he was

not using or operating a covered auto.” Id. at 170.2 We agree with this analysis.

      Ms. Handshumaker sought to avoid that straightforward conclusion by relying

on another provision in the policy, addressing “Other Insurance,” which stated:

      If there is any other applicable liability insurance or bond, we will pay only
      our share of the damages. Our share is the proportion that our limit of
      liability bears to the total of all applicable limits. However, any insurance
      we provide for a vehicle or trailer, other than a covered auto, will be excess
      over any other collectible insurance, self-insurance, or bond.
Id. at 42 (emphasis omitted). She contended the reference to “insurance we provide

for a vehicle” reflected Progressive’s assumption of an excess-coverage obligation

for accidents involving vehicles that did not necessarily meet the restrictive

definition of “auto” for primary coverage. Alternatively, she contended the provision

created an ambiguity, triggering the principle that “[i]f the terms of a policy of

insurance are ambiguous or obscure or susceptible of more than one construction, the

construction most favorable to the insured must prevail.” Bussman v. Safeco Ins. Co.

of Am., 317 P.3d 70, 77 (Kan. 2014) (internal quotation marks omitted); see also




      2
          Although the district court referred here only to the use of a “covered auto”
(i.e., an auto owned by the insured and listed on the policy’s declarations page or a
later substituted or added auto, see App. at 38-39), it is clear from the operative
provision quoted above that the policy covered an insured’s use of other autos. See
App. at 40. But the district court’s overarching point remains valid: coverage was in
any event limited to vehicles meeting the policy’s restrictive definition of “auto.”
                                           -3-
Bendis v. Fed. Ins. Co., 958 F.2d 960, 962 (10th Cir. 1991) (insurance policy is to be

construed by applying principles of state law).

      In response to the first argument, the district court held that the Other

Insurance provision did not affect coverage. Reading the provision as addressing the

contingency of Progressive’s shared coverage with another entity, the district court

held that it had no application where, as here, the policy did not provide coverage in

the first place. As it explained:

      The Court reads the Policy as a whole, as it must, and finds this Other
      Insurance provision does not provide an independent basis for coverage
      where the Policy otherwise disclaims coverage in the same part. As
      Progressive correctly explains, the Other Insurance provision merely sets
      forth priority when there is more than one policy that provides coverage for
      a loss. Priority only comes into play where two or more policies provide
      coverage. As explained above, the plain terms of the Progressive Policy do
      not provide coverage for bodily injury unless an ‘insured person becomes
      legally responsible because of an accident.’ Mr. Vangilder is not an insured
      person under the Policy because he was using a vehicle that does not meet
      the definition of ‘auto’ under the plain terms of the Policy.
App. at 171 (footnotes omitted). We agree. The Other Insurance provision provides

that when the policy and another policy both afford coverage, Progressive’s

obligation is limited to excess coverage unless a “covered auto” is involved—i.e., an

auto listed on the declarations page (or one substituted or added later), see supra note

2. But we do not face this situation here. The Progressive policy did not provide

coverage because the Budget Rental truck that Mr. Vangilder had been driving was




                                          -4-
not an “auto” under the Progressive policy. Nothing Ms. Handshumaker argues on

appeal effectively challenges this analysis.3

       In response to Ms. Handshumaker’s contention that, regardless of whether the

Other Insurance provision actually applies to the facts, use of the undefined term

“vehicle” therein creates an ambiguity in the policy, the district concluded: “Reading

the Other Insurance provision along with the coverage provisions in Part I, the Court

finds no ambiguity that the Budget Rental Box Truck was not covered by the Policy.”

App. at 171. We agree. With respect to the dispositive issue of coverage (governed

by the clearly defined term “auto”), the policy is not ambiguous, and the Other

Insurance provision does not render it so.

       Ms. Handshumaker cites two cases she claims support her contrary position,

but neither is germane to the operative provisions here. The first involved a

homeowner’s policy that excluded coverage for intentional acts of any insured but

also provided that the policy “applie[d] separately to each insured.” Catholic

Diocese of Dodge City v. Raymer, 840 P.2d 456, 458-59 (Kan. 1992). After

prevailing on a negligent-supervision claim against the policy-holding parents for

       3
         She contends her position is supported by Farm Bureau Mutual Insurance
Co. v. Enterprise Leasing Co., 58 P.3d 751, 754-55 (Kan. Ct. App. 2002), in which
an auto insurance policy was found to provide primary coverage for an insured’s use
of a leased truck. The district court found Farm Bureau inapposite, because in that
case “the central dispute was whether the driver’s insurance policy or the rental
company’s insurance policy provided primary or excess coverage under an Other
Insurance provision” and “[t]here was no question that the [driver’s] policy covered
the vehicle in question in the first place.” App. at 171 n.29. Ms. Handshumaker
insists “the issue of coverage in the first place is [also] not an issue in the current
case,” Aplt. Br. at 7, but that denies the very crux of the district court’s analysis that
we affirm above.
                                           -5-
vandalism committed by their child, the plaintiff sought recovery under the policy.

Although the intentional-act exclusion applied because the child was an insured and

had acted intentionally, the court held that the separate-application provision

rendered the exclusion ambiguous with respect to the negligence claim pursued

separately against the parents and allowed recovery under the policy. Id. at 459, 462.

That holding—recognizing the ambiguous effect of a separate-application provision

on an exclusion triggered by intentional conduct of an insured other than the insured

being sued—has no relevance here. It does illustrate one instance of an ambiguity

resulting from the combination of two policy provisions, but it throws no light on the

particular combination of provisions involved in this case.

      The same is true of the other case relied on by Ms. Handshumaker. In Narron

v. Cincinnati Insurance Co., 97 P.3d 1042 (Kan. 2004), an injured driver sought

recovery of underinsured motorist benefits under excess coverage provided by her

insurer after she obtained a limited uninsured-motorist benefit under another policy

(which had to be split with a passenger who died in the accident). The dispositive

issue was the meaning of the phrase “collectible insurance,” used to limit the driver’s

excess coverage by setting off amounts collectible from other insurers. Id. at

1047-48. The driver’s insurer contended that because the uninsured-motorist benefit

in the other policy was equal to the limit of its excess obligation to her—even though

she actually received only a fraction of that benefit—no excess obligation remained

to be paid. The court regarded the undefined phrase “collectible insurance” as

ambiguous, id. at 1048, and ultimately construed it in favor of the driver so as to

                                          -6-
limit the set-off against her excess coverage to the fractional benefit she actually

recovered from the other insurer. See id. at 1050. In short, Ms. Handshumaker has

offered another illustration of an ambiguity construed against an insurer, but one that

is not germane to the analysis of her policy.

      Ms. Handshumaker has failed to demonstrate any error in the disposition of

this case. We therefore affirm the judgment of the district court.


                                            ENTERED FOR THE COURT,


                                            Scott M. Matheson, Jr.
                                            Circuit Judge




                                          -7-
