The opinion of the court was delivered by: Joyner, Judge.
This declaratory judgment action has been brought before the Court
on cross-motions of the parties for summary judgment. For the
reasons which follow, the Plaintiff's motion shall be granted and
the defendant's motion shall be denied.
On May 28, 1998, the defendant, Thomas A. Ridder, Jr. was injured
as the result of a motor vehicle accident which occurred when his
motorcycle collided with an uninsured motor vehicle. At the time
of the accident, the defendant's motorcycle was insured under a
policy with Progressive Insurance Company which provided
non-stacked uninsured motorist ("UM") coverage in the amount of
$15,000. Also at that time, Mr. Ridder and Marie B. Ridder had a
personal automobile policy with Nationwide Insurance Company
covering a 1989
Hyundai and a 1986 Ford Bronco carrying $100,000/$300,000 non-stacked
uninsured motorist benefits. Defendant had still a third, commercial,
insurance policy with Nationwide in his name and doing business
as Thomson Construction covering a 1996 Ford F150 truck. That
policy also carried an uninsured motorist benefit of $300,000.
Following the May, 1998 accident, Defendant made a claim for and
received the $15,000 UM benefit afforded under his policy with
Progressive. He thereafter made claim for UM benefits to
Nationwide under both his personal automobile and his commercial
policy. Nationwide denied those claims based upon the "Family
Member" Exclusions contained in both of its policies.
Specifically, the exclusion in the personal policy stated that:
This coverage does not apply to:
6. Bodily injury suffered while occupying a motor vehicle
owned by you or a relative but not insured for Uninsured
Motorists coverage under this policy; nor to bodily
injury from being hit by any such motor vehicle.
The Commercial policy had a similarly-worded exclusion:
This insurance does not apply to any of the following:
5. "Bodily injury" sustained by
a. You while "occupying" or when struck by any vehicle
owned by you that is not a covered "auto" for Uninsured
Motorists Coverage under this Coverage form.
Plaintiff then filed this action seeking a declaratory judgment
that it owed Defendant nothing under either of the two policies
since at the time of the accident in question, Mr. Ridder was
operating his own motor vehicle (the motorcycle) which was not
insured for uninsured motorist coverage under the Nationwide
policies. Defendant, in turn, contends that the exclusions upon
which Plaintiff relies should be declared null and void as against
Standards Governing Motions for Summary Judgment
The standards to be applied by the district courts in ruling on
motions for summary judgment are set forth in Fed.R.Civ.P. 56.
Under subsection (c) of that rule,
. . .The judgment sought shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show 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. A summary judgment, interlocutory ...