Judge John J. Kralik, Case Number: 24BBCV00357, Date: 2025-06-13 Tentative Ruling

Plaintiff Rudy Zetino (“Plaintiff”) alleges that he owns and operates his own towing service. He alleges that on April 7, 2023, he was operating a tow truck on which he and/or his towing service had an ownership interest. He alleges that he was unloading a vehicle from his tow truck, when Defendant Grant Mark Chiavassa (“Chiavassa”) was driving a vehicle and struck Plaintiff, which caused Plaintiff to fly several feet and ultimately strike the concrete floor with high force. Plaintiff alleges that he suffered substantial injuries to his head, back, hips, legs, ankles, and more.

Plaintiff alleges that on April 13, 2022, Defendant The Progressive Corporation (“Progressive”) issued a commercial auto policy, which was valid and enforceable by Plaintiff until April 13, 2023. Plaintiff alleges that he contacted Progressive to receive coverage for all or part of his loss resulting from the collision. However, on January 10, 2024, Progressive refused to provide coverage for Plaintiff’s loss resulting from the collision, reasoning that: (1) Plaintiff was an employee of a third-party providing Plaintiff coverage under workers’ compensation benefits; and (2) Plaintiff was not “occupying” the vehicle listed in the insurance policy. Plaintiff alleges that the conclusions were erroneous because: (1) he was self-employed and did not have workers’ compensation benefits; and (2) he was “occupying” the tow truck listed on the insurance policy as he was in a reasonably close proximity to the tow truck and suffered injuries based on a causal connection with his use of the tow truck.

The complaint, filed February 13, 2024, alleges causes of action for: (1) negligence – motor vehicle against Chiavassa; (2) gross negligence – motor vehicle against Chiavassa; and (3) declaratory relief against Progressive.

On July 10, 2024, Chiavassa was dismissed without prejudice based on the oral request of Plaintiff’s counsel.

On January 31, 2025, Plaintiff filed a motion for summary adjudication, seeking a judicial declaration interpreting the obligations of Progressive pursuant to the terms of its insurance policy.

On June 2, 2025, Plaintiff filed a reply brief. On July 3, 2025, Plaintiff filed a responsive separate statement to Progressive’s additional material facts.

With the opposition papers, Progressive filed a request for judicial notice of Exhibits: (3) the complaint filed on February 13, 2024; and (4) Progressive first amended answer filed on June 27, 2024. The request for judicial notice of Exhibits 3 and 4 is granted. (Evid. Code, § 452(d).)

With the opposition papers, Progressive submitted objections to Plaintiff’s evidence. The Court rules as follows:

· The Declaration of Plaintiff Rudy Zetino at paragraph 9: Objection no. 1 is sustained as hearsay.

· Exhibit B, the Traffic Crash Report: Objection nos. 3-6 regarding the Traffic Crash Report and the officer’s opinions regarding sobriety of Party 1 (Grant Mark-Allan Chiavassa) are overruled. The Court notes that it was not necessary for the Court to rely on the Report or statements of Chiavassa’s inebriated state for the purposes of this motion.

Plaintiff moves for summary adjudication on the sole remaining cause of action for declaratory judgment alleged against Progressive only.

Specifically, in the 3^rd cause of action for declaratory relief, Plaintiff alleges that (1) he was self-employed and/or an independent contractor, such that he was not eligible for worker’s compensation coverage; and (2) he was “occupying” the tow truck at the time of the collision, such that Progressive was obligated to provide benefits and coverage for his injuries. (Compl., ¶¶34-35.) Plaintiff alleges that Progressive has refused to provide any benefits or coverage pursuant to the insurance policy for his injuries because Progressive erroneously asserts that Plaintiff has coverage pursuant to the workers’ compensation law and he was not occupying the tow truck at the time of the collision. (Id., ¶36.) Thus, Plaintiff alleges a controversy exists, such that he seeks a judicial declaration that he is not covered by any workers’ compensation law and that he was occupying the tow truck at the time of the collision. (Id., ¶¶37-38.) He seeks to ascertain the benefits and coverages from Progressive pursuant to the insurance policy. (Id., ¶39.)

As an initial matter, in the opposition papers, Progressive argues that summary adjudication is proper because the motion does not dispose of entire cause of action, defense, or issue of duty. The Court disagrees. The notice of motion and motion papers state that Plaintiff is seeking summary adjudication in the form of a judicial declaration interpreting the obligations of Progressive pursuant to the terms of its insurance policy. There is only one remaining cause of action in the complaint as Chiavassa was dismissed from the action. Declaratory relief is proper with respect to questions regarding the parties’ rights or duties under a written instrument or contract. (CCP § 1060.) Thus, the Court does not find that the motion is procedurally improper.

In support of the motion, Plaintiff provides the following material facts. Plaintiff was an operator of a large multi-vehicle tow truck that was insured under Progressive’s insurance policy. (Pl.’s Fact 1.) Plaintiff was expressly named as a driver of the tow truck that was covered by the terms of the insurance policy. (Pl.’s Fact 2.) The insured tow truck was a large vehicle that could tow or carry up to 4 standard size automobiles. (Pl.’s Fact 3.) On April 7, 2023, Plaintiff was operating the tow truck to deliver 4 separate automobiles to 4 different locations. (Pl.’s Fact 4.) After delivering the first automobile, Plaintiff proceeded to deliver the second automobile during which he sustained injuries. (Pl.’s Fact 5, 9.) As Plaintiff was delivering the second automobile, he parked the tow truck on the roadway in front of the delivery location and exited the tow truck to unload the second automobile. (Pl.’s Fact 6-7.) As he was in the process of unloading the second automobile, he stood “a few feet away” from the back of the tow truck next to the vehicle he was unloading when he was struck and injured by another vehicle driven by an uninsured driver who was under the influence of drugs and was subsequently arrested by law enforcement. (Pl.’s Fact 8-12.) Upon filing an insurance claim for his injuries pursuant to the terms of Progressive’s insurance policy, Progressive refused to provide coverage for Plaintiff’s injuries, reasoning that “Zetino was not in the process of occupying” the insured tow truck at the time of his injuries. (Pl.’s Fact 13-14.)

The insurance policy at issue is attached as Exhibit A to the moving papers. The policy is on Progressive Commercial letterhead, is underwritten by United Financial Cas Co, and names Hector R Giron of Giron Trucking as the named insured.[1] (Mot., Ex. A [Insurance Coverage Summary at p.1].) The “Rated drivers” are identified as Hector R Giron, Manuel Cardenas, and Rudy Zetino. (Id. at p.2.) The insured vehicles include: (1) 2009 Ptrb 384; (2) 1999 Boyd Trailer; and (3) 2011 Frht 16M. (Reply Brief Ex. A [Insurance Coverage Summary at page 3].)[2] The Insurance Policy Endorsement identifies United Financial Cas Co as the insurer. (Mot., Ex. A [Insurance Policy Endorsement].) The attached Commercial Auto Policy defines “occupying” as “in, on, entering or exiting.” (Pl.’s Fact 16 [emphasis added].) Mot., Ex. A [Commercial Auto Policy at p.5, § 11].) The Uninsured/Underinsured Motorist Bodily Injury Coverage Endorsement defines “Insured” to mean: “if the name insured shown on the declarations page is a natural person: … (ii) any person occupying your insured auto…” (Pl.’s Fact 15; Mot., Ex. A [Uninsured/Underinsured Motorist Bodily Injury Coverage Endorsement at p.36 at Additional Definitions, § 1].) Plaintiff states that at the time of sustaining his injuries, he was not in, entering, or exiting the tow truck. (Pl.’s Fact 17-19.)

However, Plaintiff argues that he was “occupying” the vehicle when he was struck by the uninsured motorist because he was “on” the truck. (Mot. at 8:26-28.) He argues that “we do not usually say that a person is ‘on’ a vehicle. Thus, we cannot rely on ordinary or popular use of the term.” (Mot. at 9:25-26.) He then cites to the Merriam-Webster Dictionary for the definition of “on” as a preposition:

a à used as a function word to indicate position in contact with and supported by the top surface of

b à used as a function word to indicate position in or in contact with an outer surface

(Zetino Decl., Ex. D [Merriam-Webster Dictionary re “on” at p.1].) Plaintiff argues that the word “on” should not be confined to the phrase “on top of” and instead the word “‘on’ designates physical contact or close proximity to an object but not necessarily on top.” (Mot. at 10:9-10.) Plaintiff also relies on Cocking v. State Farm Mutual Automobile Insurance Company (1970) 6 Cal.App.3d 965 and Atlantic Mutual Insurance Company v. Ruiz (2004) 123 Cal.App.4th 1197, as well as out-of-state opinions, in support of his argument.

In Cocking, the plaintiff appealed a declaratory relief action which found that he was not an “insured” under the uninsured motorist provisions of the defendant’s insurance policy. The plaintiff had driven a Volkswagen owned by another person, which was insured by defendant. The plaintiff had pulled over to the side of the road in a stopping area to put tire chains on the car as snow and tire chains were required on all cars; while the plaintiff was standing 1 to 4 feet behind the car for about 2 minutes and no part of his body was touching the vehicle, an uninsured motorist drove up from behind and struck the plaintiff with his automobile. (Cocking, supra, 6 Cal.App.3d at 967.) The insurance policy defined “insured” to include any persons while occupying an insured automobile, and “occupying” was defined to mean “in or upon or entering into or alighting from.” (Id.) The Court of Appeal stated:

We note that the dictionary definition of the word “upon” includes “in or into close proximity.” (Webster's Third New Internat. Dict.) We do not, however, consider that the resolution of the issue turns solely upon the dictionary definition of the words used in the subject clause. That clause, in our judgment, must be read and interpreted in the light of the purpose of the uninsured motorist statute, the provisions of which are a part of the instant insurance policy. [Citations.] In the recent case of Barrera v. State Farm Mut. Auto. Ins. Co., 71 Cal.2d 659, 670-672 [79 Cal.Rptr. 106, 456 P.2d 674], the California Supreme Court observed that it is the policy of this state to provide compensation for those injured by the use of automobiles and through no fault of their own and that, accordingly, statutes applicable to automobile insurance policies, as well as contractual provisions in those policies, must be construed in the light of this public policy. [Citation.] With particular reference to the uninsured motorist coverage, there is ample and significant authority holding that the purpose of uninsured motorist statutes is to give monetary protection to persons who, while lawfully using highways themselves, suffer grave injury through the negligent use of those highways by others. [Citations.] Indeed, the pattern is clearly discernible: a desire on the part of the judiciary and the Legislature to not only prevent the astronomical accident toll in this state, but also to provide compensation for those injured through no fault of their own. [Citations.]

(Cocking, supra, 6 Cal.App.3d at 969 [citations omitted].) “In determining whether the person was in such a position in relation to the vehicle as to be injured in its use, consideration must be given, not only to what the person was doing upon injury, but also to his purpose and intent.” (Id. at 970.) The Court of Appeal cited to other cases discussing similar terms, noting that “the word ‘upon’ connoted some physical relationship enlarging the area defined by the words ‘entering or alighting’ and the word ‘in.’” (Id. [citing Wolf v. American Cas. Co. of Reading, Pa. (Ill. App. Ct. 1954) 118 N.E.2d 777, 780].) Thus, the Cocking Court concluded:

Under the agreed facts it is also evident that plaintiff was performing an act physically and directly related to the car. Since plaintiff was traveling under highway conditions requiring tire chains, his acts of stopping the vehicle to put chains on, and of undoing the bag containing the chains while in close proximity to the car, clearly suggest his intent to place those chains on the car's tires. Accordingly, we hold that plaintiff's position preparatory to placing the chains on the tires of the car put him in the requisite physical relationship to the car. His injury while in that position, therefore, occurred while he was “using” the car and while he was “upon” the Volkswagen within the meaning of the policy and [Insurance Code] section 11580.2.

Plaintiff also cites to Atlantic Mutual Insurance Company v. Ruiz (2004) 123 Cal.App.4th 1997. In that case, a car struck Robert Ruiz’s truck and then struck a van owned by Group Manufacturing. (Atlantic Mutual, supra, 123 Cal.App.4th at 1200.) Ruiz had exited his employer’s truck, walked approximately 200 feet to the van to exchange information, and he intended to return to the truck after obtaining documents. (Id.) Ruiz was assisting the passenger out of the van, was approximately 1 foot from the passenger door, and was attempting to talk to the driver, when he was struck by an uninsured motorist who was driving a minivan. (Id. at 1201.) There were two insurance policies at issue: the one issued by Ruiz’s employer and the one issued by Group Manufacturing’s insurer.

Ruiz had not entered Group Manufacturing’s van. (Id.) Group Manufacturing’s insurance policy defined “insured” as anyone “occupying” a covered “auto”; “occupying” was defined as “in, upon, getting in, on, out or off.” (Id.) The Court of Appeal stated:

Since Ruiz was not “in” or “getting in, out or off” Group Manufacturing's van, we focus on the meaning of “upon.” In everyday speech, we do not usually say a person is “upon” a vehicle. Consequently, we cannot simply look to its ordinary and popular sense and must turn to the dictionary.

“Upon” in modern usage is the equivalent of “on.” (Merriam–Webster's Collegiate Dict. (10th ed. 2001) p. 1294 (Webster's); American Heritage College Dict. (3d ed.1998) p. 1482 (American Heritage); Compact Edition of the Oxford English Dict. (1971) vol. II, p. 3564 (Oxford Dictionary).) “Upon” is defined by Oxford Dictionary in regard to physical position (as opposed to usages involving immaterial or figurative relationships not relevant here) to mean: “Of local position outside of, but in contact with or close to, a surface.” (Oxford Dict., supra, vol. II, p. 3564.) “On” is similarly defined by Oxford Dictionary: “Of local position outside of, but close to or near, any surface.” (Oxford Dict., supra, vol. I, p.1987.) This general definition includes “[i]n proximity to; close to, beside, near, by, at; on the bank of (a river or lake), on the coast of (the sea).” (Id., p.1988.)

(Atlantic Mutual, supra, 123 Cal.App.4th at 1204.) The Court of Appeal further stated:

We agree with Cocking insofar as it interpreted the word “upon” in the light of the public policy underlying the uninsured motorist statute “to provide compensation for those injured [by the use of automobiles and] through no fault of their own ....” (Cocking, supra, 6 Cal.App.3d at p. 969, 86 Cal.Rptr. 193.) We agree that “upon” must be construed to mean something more than the other words used to define “occupying” since otherwise the word “upon” is rendered superfluous and every part of the policy is not given effect. (See AIU Ins. Co. v. Superior Court (1990) 51 Cal.3d 807, 827–828, 274 Cal.Rptr. 820, 799 P.2d 1253.) We also agree with its conclusion that “upon” means more than direct physical contact with the insured vehicle given the remedial purpose of the uninsured motorist coverage law.

In this case, Ruiz was positioned immediately adjacent to Group Manufacturing's van for reasons essentially related to the insured vehicle and its use on the highway. When struck by the underinsured vehicle, Ruiz was attempting to speak to the van's driver regarding the multivehicle accident that had just occurred and had just helped an injured passenger exit. In light of the principle that ambiguities in a policy are generally construed against the insurer (Palmer v. Truck Ins. Exchange, supra, 21 Cal.4th at p. 1115, 90 Cal.Rptr.2d 647, 988 P.2d 568) and the underlying public purpose of the uninsured motorist statute, we conclude that under the stipulated facts Ruiz, who was standing only about a foot from Group Manufacturing's van, was “upon” the van and qualified as an “insured” within the meaning of Atlantic Mutual's UM coverage provisions.

However, with respect to Ruiz’s employer’s insurance policy, the Court found:

In this case, as a result of the initial accident, Ruiz temporarily abandoned his employer's truck and intended to exchange information with the driver of Group Manufacturing's van before returning to the truck. The fact that he had good reason to leave the immediate vicinity of the truck does not support judicial expansion of the term “upon” beyond its commonsensical meaning.[]

At some distance, an individual who exits a vehicle is no longer “upon” the vehicle in even a physical sense. Ruiz was approximately 200 feet, about two-thirds of a football field, away from the truck at the time he was struck by the underinsured motorist. Such a distance in no way qualifies as close proximity to the Fast UnderCar truck and a contrary conclusion would strain the meaning of the word “upon.” “Words used in an insurance policy are to be interpreted according to the plain meaning which a layman would ordinarily attach to them. Courts will not adopt a strained or absurd interpretation in order to create an ambiguity where none exists. [Citations.]” (Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 807, 180 Cal.Rptr. 628, 640 P.2d 764.)

Ruiz was not an “insured” within the meaning of the American States' UM endorsement since he was neither a named insured nor a person “in, upon, getting in, on, out or off” the Fast UnderCar truck.

Plaintiff argues that, similar to these cases, he was within a reasonable proximity to the insured tow truck and his actions at the time he sustained the injuries were inextricably related to the operation of the tow truck, such that he was in a position in relation to the tow truck so as to be injured in its use. (Mot. at p.12.) He argues that he was directly behind the insured tow truck, just a few feet away, was not in physical contact with the truck but in reasonable proximity thereto, and he was unloading the second of four vehicles from the tow truck when the subject incident occurred.

However, Plaintiff has not provided any facts showing his distance from the tow truck. As such, the Court cannot evaluate whether this is a case that involves Plaintiff’s distance from the vehicle at something akin to 1 to 4 feet (like Cocking) or 200 feet away (like Atlantic Mutual regarding the plaintiff’s employer’s truck). It is Plaintiff’s burden on summary adjudication to provide the material facts that would support entry of judgment in his favor.

In opposition, Progressive argues that Plaintiff was not “occupying” the vehicle as he was not “on” the tow truck at the time of impact. Progressive argues that while Plaintiff testified in his deposition that he was approximately 12 feet from the back of the tow truck, Progressive’s private investigator conducted an investigation by measuring the distance based on the video footage, which shows that he was at least 36 feet away from the tow truck. (Progressive’s Additional Material Fact [AMF] 15.) According to Plaintiff’s deposition, he testified that he was 12 feet from the Honda Accord (the second vehicle he was unloading from the tow truck) at the time of unloading it. (Howe Decl., Ex. 1 [Pl.’s Depo. at 38:22-24].) Progressive provides the declaration of Michael Elly, an investigator, who visited the accident site on April 7, 2025 and took measurements at the site based on the Traffic Crash Report and the video (which Progressive states will be shown at the hearing). (Elly Decl., ¶¶1-3.) He states that he compared the video’s depictions of the men’s feet in the screen to the point where Plaintiff was seen being struck by a vehicle while standing next to the Honda and, using these points, he compared where the white divider lines in the two lanes were to determine that the total distance was 24 feet. (Id., ¶¶4-5.) Thus, Progressive argues that by taking the 12-foot estimate provided by Plaintiff regarding the distance of the Honda from the tow truck, plus Mr. Elly’s calculation of 24 feet from Plaintiff’s distance from the Honda, this amounts to approximately 36 feet between Plaintiff and the tow truck. Thus, Progressive argues that this case is dissimilar from Cocking since the plaintiff in the Cocking case was only about 1 to 4 feet away from the vehicle.

Progressive argues that this case is more akin to Voyager Indemnity Ins. Company v. Miller (N.D. Cal. May 26, 2023) 674 F.Supp.3d 765, where Chrystal Miller was struck by an uninsured vehicle 13 feet from her car, such that she was not considered to be in close proximity to her vehicle. Miller had parked her car to pick up food for a DoorDash delivery and was returning to her car, when she was hit by a vehicle. The District Court considered various cases where people who were 50 feet and 200 feet away from the insured car were not considered to be in close proximity to the car (Mullins v. Mayflower Ins. Co. (1992) 9 Cal.App.4th 416 [50 feet]; Atlantic Mutual, supra, 123 Cal.App.4th 1197 [200 feet]) versus 4 feet away (Cocking v. State Farm Mutual Automobile Insurance Company (1970) 6 Cal.App.3d 965; Utah Home Fire Ins. Co. v. Fireman’s Fund Ins. Co. (1970) 14 Cal.App.3d 50 [standing just outside car]). (Voyager, supra, 674 F.Supp.3d at 771.) In addition to proximity, the District Court considered whether Miller’s acts were physically and directly related to the car:

Voyager argues that Miller was not in the midst of acts physically and directly related to the car when she was injured because walking to a car is not considered to be an act physically and directly related to the car. Voyager cites to one decision where the court found that there was no coverage for a person who was walking to the insured car after seeing a movie and was struck approximately 200 feet from the insured car. Menchaca v. Farmers Ins. Exchange, 59 Cal. App. 3d 117, 130 Cal.Rptr. 607 (1976). There, the court held the plaintiff's “injuries did not result from her being in close proximity to the car or from her performance of acts physically and directly related to the car or its use.” Id. at 129, 130 Cal.Rptr. 607 (internal citation and quotation omitted). Similarly, in Mullins, 9 Cal. App. 4th 416, 11 Cal.Rptr.2d 635 (1992), the court denied coverage for a passenger of an insured car who left the insured car and was struck by a passing car about 50 feet away from the insured car. Id. at 420, 11 Cal.Rptr.2d 635. The court there cited the same principles – that the injuries did not result from being in close proximity to the car or from the performance of acts physically and directly related to the car or its use. Id.

In cases where courts have found that the plaintiff was performing an act physically and directly related to the car, the actions were related to the car itself. For example, in Cocking, 6 Cal. App. 3d at 967-971, 86 Cal.Rptr. 193, the Court found that a policy provided coverage for an insured motorist who was standing one to four feet behind his car to put chains on the car. And in Atlantic Mutual Ins., 123 Cal. App. 4th at 1200-1201, 20 Cal.Rptr.3d 628, the court held that a driver was covered by a policy for another van when he left his truck to speak to the driver of the van to exchange information about insurance and drivers’ licenses after a multi-vehicle accident and after he opened the door of the passenger side of the insured van and helped a passenger out of the van.

Miller argues that she was in the midst of an act physically and directly related to the car because she was walking to her car with a delivery of food in hand – the intended purpose of her use of the car. Yet as the court in Truck Ins. Exch. v. Webb, 256 Cal. App.2d 140, 145, 63 Cal.Rptr. 791 (1967) cautioned: “The automobile is so much a part of the American life that there are few activities in which ‘the use of an automobile’ does not play a part somewhere in the chain of events.” Miller's argument is essentially that any time a person walks to her insured car, to use the car in the way she set out to do, that action is physically and directly related to the use of her car. For example, if a person drove a car to purchase any type of goods and then returned to the car with goods in hand, Plaintiff's interpretation of the Policy would provide coverage for an accident 13 feet away from the car. The policy and the cases interpreting similar policies do not support this broad interpretation. Therefore, the Court finds that the Policy does not provide coverage for Miller's accident on December 9, 2020.

Plaintiff argues that his actions of unloading the second automobile was inextricably related to the use of the tow truck. This may very well be the case; additionally, Plaintiff may have been in the midst of performing his work duties at the time of the subject incident. In Plaintiff’s declaration submitted with his opposition papers, he states that he was “standing a few feet away from the back of the tow truck next to the vehicle [he] was unloading,” but Plaintiff did not provide whether he was in close proximity or farther way. (Pl.’s Decl., ¶8.) In opposition, Progressive provided opposing evidence showing that Plaintiff testified that he was 12 feet away from the Honda and an investigator’s testimony that Plaintiff was about 24 feet away from the Honda at the time of the accident—together, approximately 36 feet away from the tow truck. At a certain point, Plaintiff finished unloading the Honda from the tow truck and even testified that he was 12 feet away from the Honda, which had already been unloaded from the tow truck. Progressive’s evidence shows that Plaintiff was no longer engaged in acts that were physically or directly related to the tow truck itself (i.e., maintenance on the tow truck, gathering insurance information regarding the tow truck, etc.). There are triable issues of material fact regarding where Plaintiff was standing, his proximity to the tow truck, and whether his actions were related to the tow truck itself.

[1] In the opposition brief, Progressive argued that it was not the insurer on the insurance policy because the insurance contract named the insured as United Financial Casualty Company, who is not a party to the action. While the Insurance Policy Endorsement page identifies the insurer as United Financial Cas Co, the Commercial Auto Insurance Coverage Summary includes Progressive Commercial’s letterhead and identifies United Financial Cas Co as the underwriter. (Mot., Ex. A at Commercial Auto Insurance Coverage Summary and Insurance Policy Endorsement).) Similarly, in the “Claim Information” page, Progressive sent a letter to Plaintiff’s counsel (with a caption identifying United Financial Casualty company as the underwriter) stating that Plaintiff’s claim was “reported to United Casualty Insurance Company (hereinafter referred to as ‘Progressive’).” On January 10, 2024, Progressive denied Plaintiff’s claim of coverage because: (1) Plaintiff was not “occupying” the vehicle; and (2) “Progressive issued commercial auto policy #01581509-002 (Form 6912/Edition 02/19), amended by the California Um/UIM Motorist Coverage Endorsement (Form 2852/Edition 02/19) and California (Form 4757/Edition 02/19) to Hector Giron DBA Giron Trucking for the policy period April 13, 2022-April 13, 2023…”, Plaintiff was not working at the time of loss, and workers’ compensation benefits were available to him. (Mot., Ex. C [Claim Information at pp.1-2].) This document is signed by Kelly Laing, a Commercial Claims Representative of Progressive Casualty Insurance Company. (Id. at p.3.) Exhibit A of the motion papers includes the Commercial Auto Insurance Coverage Summary, which includes the policy number 01581509-2 for the policy period of April 13, 2022 to April 13, 2023 and includes Form 6912 (02/19) Commercial Auto Policy and Form 2852 CA (02/19) Uninsured/Underinsured Motorist Bodily Injury Coverage Endorsement. These are the same documents identified by Progressive itself in its January 10, 2024 denial letter. As such, Progressive identifies itself as the insurer on the insurance policy. With the reply papers, Plaintiff provides Progressive’s Annual Report, wherein it identified its insurance and non-insurance subsidiaries and affiliates—including United Financial Casualty Company—and referred to itself and its other subsidiaries and affiliates as “Progressive.” (See Reply at Ex. B [Progressives’ Annual Report at Ex. 21].) Thus, the Court finds that the insurance documents themselves and the SEC report confirm that Progressive was the insurer on the policy. Thus, Progressive has not raised a triable issue of material fact based on this argument.

[2] In the opposition brief, Progressive argued that Plaintiff was not on an “insured auto” at the time of the accident because only two pages of the Commercial Auto Insurance Coverage Summary was provided, which identified only the “2009 Ptrb 384” as the insured vehicle. Progressive argued that only the 2009 Peterbilt truck was identified in the Summary page provided by Plaintiff’s moving papers, but that Plaintiff testified in his deposition that he was using a 2011 Freightliner truck at the time of the incident and no proof of insurance on the Freightliner has been provided.

The motion at Exhibit A only included 2 of the 3 pages of the Insurance Coverage Summary. With the reply papers, Plaintiff provided the third page of the Summary, which identifies a “1999 Boyd Trailer” and “2011 Frht 16M” as the other two insured vehicles on the policy. (Plaintiff’s counsel Louis F. Teran states in his declaration that he inadvertently did not attach the third page of the Summary until it was brought to his attention in the opposition brief. [Teran Reply Decl., ¶¶2-4].) Although the page was inadvertently not attached to the motion papers, this was easily remedied. The Summary page itself is not in dispute by the parties and thus the Court will consider the full document provided with the reply papers. As the Freightliner is identified on the policy, the motion will not be denied on this basis.

Superior Court of California

County of Los Angeles

Department B