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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kalenka v. Infinity Insurance Companies (10/14/2011) sp-6609

Kalenka v. Infinity Insurance Companies (10/14/2011) sp-6609, 262 P3d 602

        Notice: This opinion is subject to correction before publication in the PACIFIC  REPORTER. 
        Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 
        303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 
        corrections@appellate.courts.state.ak.us. 

                THE SUPREME COURT OF THE STATE OF ALASKA 

UWE KALENKA, as personal                      ) 
representative of the ESTATE OF               )       Supreme Court No. S-13781 
ERIC KALENKA,                                 ) 
                                              )       Superior Court No. 3AN-04-07986 CI 
                       Appellant,             ) 
                                              )       O P I N I O N 
        v.                                    ) 
                                              )       No. 6609 - October 14, 2011 
INFINITY INSURANCE                            ) 
COMPANIES,                                    ) 
                                              ) 
                       Appellee.              ) 
                                              ) 

               Appeal from the Superior Court of the State of Alaska, Third 
               Judicial   District,   Anchorage,   Peter   G.   Ashman,   Judge   pro 
               tem. 

               Appearances: Kenneth P. Jacobus, Kenneth P. Jacobus, P.C., 
               Anchorage, for Appellant.        Rebecca J. Hozubin, Wilkerson 
               Hozubin, Anchorage, for Appellee. 

               Before:    Fabe, Winfree, and Stowers, Justices. [Carpeneti, 
               Chief Justice, and Christen, Justice, not participating.] 

               FABE, Justice. 

I.      INTRODUCTION 

               After a minor collision between two vehicles in the drive-through line of 

a Taco Bell, Jack Morrell, the driver of one vehicle, stabbed and killed Eric Kalenka, the 

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driver   of   the   other   vehicle. Morrell   was   uninsured   and   Kalenka's   policy   provided 

coverage   for   liabilities   arising  out   of   the   "ownership,   maintenance,   or   use"   of   an 

uninsured motor vehicle. Kalenka's automobile insurer filed an action in superior court, 

seeking   a   declaration   that   Kalenka's   policy   did   not   provide   coverage   for   Kalenka's 

death.  The superior court concluded that there was no general liability coverage under 

the policy.  Uwe Kalenka, the personal representative of Eric Kalenka's estate, appeals 

the   denial   of   liability   coverage. We   affirm   the   superior   court's   determination   that 

Kalenka's policy does not provide liability coverage. 

II.     FACTS AND PROCEEDINGS 

        A.      Facts 

                Around 3:00 a.m. on February 27, 2004, Eric Kalenka was driving a rented 

Subaru station wagon through the drive-through of a Taco Bell in the Mountain View 

neighborhood of Anchorage.           While Kalenka's car was in line, it was rear-ended by a 

Chevrolet Suburban.        Kalenka exited the car to assess the damage.            The driver of the 

Suburban, Jack Morrell, also exited and began arguing with Kalenka. Morrell threatened 

Kalenka and Christine Montague, Kalenka's girlfriend and passenger. Kalenka returned 

to his car and stood outside it.      Kalenka called the police with his cell phone.           Morrell 

followed Kalenka to the Subaru and stood very close to Kalenka, yelling at Kalenka as 

he placed the call.   While Kalenka was leaning against the Subaru and speaking with the 

police   dispatcher,   Morrell   began   shoving   Kalenka.        Kalenka   handed   the   phone   to 

Montague through the driver's side window and told her to speak to the police.                Kalenka 

and Morrell scuffled, moving behind the Subaru and then in front of it. During this fight, 

Morrell   produced   a   knife   and   stabbed   Kalenka   multiple   times.       When   the   parties 

separated, Kalenka returned to the driver's seat of the Subaru, sat down, and closed the 

door.    The police arrived very soon thereafter and apprehended Morrell.                Kalenka was 

                                                  -2-                                             6609
 

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taken to Alaska Regional Hospital where he was pronounced dead.  The Alaska medical 

examiner determined that the cause of death was multiple stab wounds. 

                Though Morrell had been driving the Suburban, it was owned by Morrell's 

cousin, William Wassili, who was in the passenger's seat at the time of the collision. 

Paul Wassili, another cousin, was in the back seat of the Suburban.               All three had been 

at Chilkoot Charlie's, a bar in the Spenard neighborhood of Anchorage, until it closed 

at 2:30 a.m.     An officer who interrogated   Morrell testified that he was able to smell 

alcohol on Morrell's breath, and a blood test documented the presence of alcohol and 
marijuana in Morrell's system.          Morrell was later convicted of second-degree murder.1 

        B.      Proceedings 

                On June 14, 2004, Infinity Property and Casualty Insurance Corporation 

(Infinity),   Kalenka's   automobile   insurer,   filed   an   action   in   superior   court   seeking   a 

"declaration that there is no uninsured or medical payments coverage under the policy." 

Uwe      Kalenka,    as  personal    representative    of   the  estate  of  Eric   Kalenka,    filed  a 

counterclaim seeking money he alleged was owed to the Kalenka Estate under the terms 

of Kalenka's policy. 

                1.      The April 29, 2005 summary judgment ruling 

                On September 6, 2004, the Kalenka Estate filed a motion for summary 

judgment.     Infinity filed a cross-motion for summary judgment on January 12, 2005. 

Superior   Court   Judge   Morgan   B.   Christen   ruled   that   there   were   genuine   issues   of 

material   fact   as   to   whether   Eric   Kalenka   was   "occupying"   the   vehicle   during   the 

stabbing.     Kalenka's policy requires that the insured be "occupying" the vehicle to be 

covered, and the policy defines "occupying" as "in, upon, entering into, or exiting from." 

The superior court held that there was a controversy as to where Kalenka was located 

        1       Morrell v. State, 216 P.3d 574, 575 (Alaska App. 2009). 

                                                  -3-                                               6609 

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when he was stabbed and whether or not he was "occupying" the vehicle.  The superior 

court also held that it could not determine as a matter of law whether Kalenka's injuries 

were the product of an "accident," another prerequisite for coverage.  At the time of the 

superior court's ruling, Morrell had not yet been convicted of second-degree murder, and 

the superior court concluded that it could not "determine as a matter of law whether 

Mr. Morrell intentionally inflicted the bodily injury." 

                 Kalenka's policy provides uninsured motorist coverage if the injury arose 

out   of   the   "ownership,   maintenance,   or   use   of   the   uninsured   motor   vehicle."      The 

superior court granted partial summary judgment to Infinity on the claim that Kalenka's 

injuries did not arise out of the "use" of the Suburban, the vehicle Morrell was driving. 

But the superior court ruled that it could not grant summary judgment on whether the 

injuries arose out of the "ownership" or "maintenance" of the vehicle. 

                 2.      The September 15, 2005 summary judgment ruling 

                 Infinity filed a second motion for summary judgment on July 13, 2005, 

seeking     a  ruling   that  Kalenka's     injuries   did   not  arise   out  of  the  "ownership"       or 

"maintenance"   of   the   vehicle   driven   by   Morrell.     Infinity   attached   the   recording   of 

Christine Montague's 911 call to prove that Morrell "intentionally inflicted the bodily 

injury."    The   Kalenka   Estate   filed   an   opposition,   and   the   superior   court   denied   the 

motion on September 15, 2005. 

                 3.      The October 30, 2006 summary judgment ruling 

                 Infinity filed a third motion for summary judgment on February 15, 2006. 

In   this   motion,   Infinity   again   sought   a   ruling   that   Kalenka's   policy   did   not   provide 

coverage.  Infinity emphasized the testimony before the grand jury that indicted Morrell. 

Infinity argued that this testimony established that the stabbing had been intentional. 

Infinity   also   reiterated   the   arguments   from   its   first   motion   for   summary   judgment, 

arguing again that (1) Kalenka was not "occupying" his vehicle at the time of his injuries 

                                                    -4-                                              6609
 

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and that (2) the incident did not constitute an   "accident" within the meaning of the 

policy.  The Kalenka Estate opposed and filed a cross-motion for summary judgment on 

August 15, 2006.       The superior court held that since Kalenka was leaning against the 

vehicle when the fight began, he was "occupying" the vehicle.                 But the superior court 

otherwise denied the motion and cross-motion for summary judgment. 

                On   February   27,   2006,   the   Kalenka   Estate   filed   a   wrongful   death   suit 

against Morrell, William Wassili, Chilkoot Charlie's, and the Municipality of Anchorage. 

                4.      The trial 

                A trial was conducted on March 28, 2008.             In the superior court's words, 

the trial was "unconventional" since both sides had submitted "prefiled testimony" and 

were   present   only   to   deliver   closing   arguments.   The   superior   court   concluded   that 

coverage did exist under Part B, the portion of the policy covering medical expenses. 

As to Part C, the portion of the policy covering liability caused by uninsured motorists, 

which is the subject of this appeal, the superior court held that Kalenka's death did not 

arise out of either the "use" or "maintenance" of the automobile Morrell was driving, but 

his death could have arisen out of the "ownership" of the vehicle "if Mr. Kalenka's death 

arose from negligent entrustment of the uninsured Suburban."                  But the superior court 

held   that   "a   preponderance   of   the   evidence   did   not   support   a   finding   of   negligent 

entrustment." 

                5.      Motion for reconsideration 

                The Kalenka Estate then filed a motion for reconsideration, arguing that it 

never sought a ruling on the underlying tort claim regarding whether there was negligent 

entrustment   or   maintenance   by   Wassili.      The   superior   court   accordingly   vacated   its 

"rulings on the underlying tort of negligent maintenance or negligent entrustment."  The 

court was "convinced that the Estate intended to preserve its opportunity to prove its 

negligent entrustment claim in a separate action."             The court held that if the Kalenka 

                                                   -5-                                             6609
 

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Estate "can prove that [Eric] Kalenka's injuries arose from the maintenance or ownership 

of the uninsured vehicle, Part C of the policy will provide coverage."                 That is, if the 

Kalenka Estate could prove in its suit against William Wassili that Wassili's negligent 

entrustment or maintenance of his vehicle caused Kalenka's death, then Part C would 

provide coverage. 

                6.      The December 10, 2009 ruling on summary judgment 

                On March 26, 2009, Infinity filed another motion for summary judgment 

on the Estate's negligent entrustment and maintenance claims.  The Kalenka Estate filed 

an    opposition.    On    September     25,  2009,   the  court   of  appeals   affirmed    Morrell's 

conviction for second-degree murder. The superior court case was reassigned to pro tem 

Superior Court Judge Peter G. Ashman, who granted summary judgment for Infinity. 

The     superior    court   explained     that  the   concerns    prompting      the  court's    earlier 

reconsideration were no longer relevant:            The earlier ruling on the maintenance and 

entrustment claims "determined that neither party had requested a final ruling on their 

merits" and therefore concluded summary judgment was inappropriate at that time.  As 

Infinity now sought a ruling on these claims, Judge Ashman concluded that judicial 

resolution   of   those   issues   was   appropriate.  The   superior   court   determined   that   the 

Kalenka      Estate  had   presented    insufficient   admissible    evidence    to  defeat   summary 

judgment.     The court also held that "Morrell's brutal   and intentional assault of Eric 

Kalenka broke the chain of causation between Wassili's entrustment of his vehicle to 

Morrell and the damages suffered by Kalenka as a result of Morrell's actions." 

                The    Kalenka     Estate   appeals    the  superior    court's   determination     that 

Kalenka's death did not arise out of the "ownership, maintenance, or use" of Morrell's 

vehicle.    The superior court's ruling that Part B of the policy provides coverage for 

medical expenses is not at issue in this appeal. 

                                                  -6-                                            6609
 

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III.     STANDARD OF REVIEW
 

                We     review    a  grant   of  summary      judgment     de  novo,    applying    our 
independent   judgment.2       We   will   affirm   if   the   record   contains   no   genuine   issue   of 

material fact, and the moving party is entitled to judgment as a matter of law.3            "A party 

opposing summary judgment need not prove that it will prevail at trial, but only that 
there is a triable issue of fact."4     "Any evidence sufficient to raise a genuine issue of 

material   fact,   so   long as it amounts to more than a scintilla of contrary evidence, is 
sufficient to oppose summary judgment."5 

                We review factual findings by the trial court for clear error.6         "Clear error 

exists when we are left with a definite and firm conviction that the superior court has 
made a mistake."7      This court reviews conclusions of law de novo and will adopt the 

"rule of law that is most persuasive in light of precedent, reason, and policy."8 

        2       Burnett v. Covell, 191 P.3d 985, 987 (Alaska 2008). 

        3       Shaw v. State Farm   Mut. Auto. Ins. Cos., 19 P.3d 588, 589-90 (Alaska 

2001). 

        4       Indus. Commercial Elec., Inc. v. McLees, 101 P.3d 593, 597 (Alaska 2004). 

        5       Beal v. McGuire, 216 P.3d 1154, 1161 (Alaska 2009) (internal quotation 

marks omitted). 

        6       Winston J. v. State, Dep't of Health & Soc. Servs., Office of Children's 

Servs., 134 P.3d 343, 345-46 (Alaska 2006). 

        7       Id. at 346 (internal quotation marks omitted). 

        8       Gilbert M. v. State, 139 P.3d 581, 586 (Alaska 2006) (quoting Guin v. Ha, 

591 P.2d 1281, 1284 n.6 (Alaska 1979)). 

                                                 -7-                                            6609
 

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IV.     DISCUSSION
 

        A.      Part C Of The Policy Does Not Provide Coverage. 

                Alaska Statute 21.42.230 provides that "[e]ach insurance contract shall be 

construed according to the entirety of its terms and conditions as set out in the policy." 

Generally, we determine the liability of an insurer by the terms of the policy the insurer 
has issued.9   Because insurance policies are contracts of adhesion, we have held that we 

will   construe   policies   to   match   the   insured's   reasonable   expectations.10    We   have 

explained   that   "[t]he   objectively   reasonable   expectations   of   applicants   and   intended 

beneficiaries regarding the terms of insurance contracts will be honored even though 
painstaking study of the policy provisions would have negated those expectations."11 

"[W]here a clause in an insurance policy is ambiguous in the sense that it is reasonably 

susceptible to more than one interpretation, we accept the interpretation that most favors 
the insured."12 

                1.      The policy 

                Though   Kalenka   was   driving   a   rental   car   on   the   day   of   his   death,   his 

personal automobile policy still provided coverage.              Part C of the policy provided for 

uninsured or underinsured motorists coverage: 

                In exchange for your premium payment, we [Infinity] will 
                pay    [damages]     not   exceeding    the   limits  shown     on   the 
                Declarations      Page,   which     an  insured    person   is  legally 

        9       Jones v. Horace Mann Ins. Co., 937 P.2d 1360, 1362 n.3 (Alaska 1997). 

        10      Bering Strait Sch. Dist. v. RLI Ins. Co., 873 P.2d 1292, 1294-95 (Alaska 

1994). 

        11      Id. at 1295 (quoting ROBERT  KEETON, BASIC  TEXT ON  INSURANCE  LAW 

 6.3(a), at 351 (1971)). 

        12      C.P. ex rel. M.L. v. Allstate Ins. Co., 996 P.2d 1216, 1222 (Alaska 2000). 

                                                  -8-                                            6609
 

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                entitled    to  recover   from    the owner      or  operator    of  an 
                uninsured motor vehicle because of bodily injury caused 
                by an accident and sustained by such insured person. The 
                bodily injury must be caused by an accident and must arise 
                out of the ownership, maintenance, or use of the uninsured 
                motor vehicle. 

The terms in bold are defined in the policy.          "Uninsured motor vehicle" is defined as a 

"vehicle . . . not insured by a liability bond or policy at the time of the accident."  The 

policy defines "accident" as "a sudden, unexpected, and unintended event causing bodily 

injury or property damage, arising out of the ownership, maintenance, or use of an auto." 

The policy also defines "use": 

                "Use"of an uninsured motor vehicle or an  underinsured 
                motor   vehicle  means   that   such  vehicle   must   be   the   main 
                cause of a bodily injury or property damage.              The bodily 
                injury or property damage must not merely occur while the 
                uninsured motor vehicle or underinsured motor vehicle is 
                being used or operated.       There must be an actual and causal 
                connection between the use or operation of the  uninsured 
                motor     vehicle   or  underinsured       motor     vehicle  and    the 
                bodily injury. The bodily injury or property damage must 
                not   be   expected   nor   intended   from   the   standpoint   of   the 
                driver   or   a   passenger   of   the  uninsured   motor   vehicle   or 
                underinsured motor vehicle. 

Both the statement of coverage and the definition of "accident" require that covered 

injuries or property damage result from the "ownership, maintenance, or use" of an 

automobile.     On April 29, 2005, Judge Christen granted partial summary judgment to 

Infinity   and   held   that   Kalenka's   injuries   did   not   arise   out   of   the   "use"   of   Morrell's 

automobile.  On March 16, 2010, Judge Ashman granted summary judgment to Infinity 

and held that Kalenka's injuries did not arise out of the "maintenance" or "ownership" 

of the vehicle. 

                                                  -9-                                            6609
 

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                2.      "Use" 

                The superior court held that the policy did not provide coverage under the 

word "use."      The court emphasized the fact that the definition of "use" required the 

vehicle to be the "main cause of a bodily injury."   The court granted summary judgment 

to Infinity and held that "the uncontested facts here would not allow reasonable jurors 

to conclude that the uninsured vehicle was the main cause of Mr. Kalenka's bodily injury 

claim."   According to the superior court, even if the use of the uninsured vehicle was a 

cause of Kalenka's injuries, the vehicle could not be said to be the "main cause." 

                The Kalenka Estate appeals this ruling and argues that Morrell's use of 

Wassili's Suburban was the main cause of Kalenka's death.                  According to the Kalenka 

Estate, Kalenka's injuries arose out of the use the Suburban because the collision of the 

Suburban with Kalenka's Subaru triggered the confrontation which ended Kalenka's life. 

                In  Criterion Insurance v. Velthouse, we considered an insurance policy 
similar to the one in this case.13     The policy in  Velthouseprovided coverage for "bodily 

injury   .   .   .   arising   out   of   the   ownership,   maintenance   or   use   of   the   owned   auto."14 

Velthouse,   the   insured,   was   sitting   in   his   car   and   picked   up   a   gun   he   believed   was 
unloaded.15     The   gun   was   in   fact   loaded,   and   Velthouse   accidentally   discharged   it, 

        13      751 P.2d 1 (Alaska 1986).         Alaska law generally requires Alaska drivers 

to carry automobile insurance. Progressive Ins. Co. v. Simmons, 953 P.2d 510, 521 n.13 
(Alaska     1998);  see    also 7A     COUCH     ON  INSURANCE         109:1   (3d   ed.   1995).    The 
automobile insurance statutes of most states, including Alaska, require that insurance 
policies cover damages arising from the "ownership, maintenance, or use" of the vehicle. 
AS 28.22.101; 1 IRVIN E. SCHERMER & WILLIAM J. SCHERMER, AUTOMOBILE LIABILITY 
INSURANCE  5:1 (2004). 

        14       Velthouse, 751 P.2d at 2. 

        15      Id. at 1. 

                                                  -10-                                             6609
 

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injuring   a   passenger.16     We   held   that,   since   the   "vehicle   was   the   mere   situs   of   the 

accident," the policy did not provide coverage.17              In Shaw v. State Farm Mutual Auto 

Insurance Co., we held that automobile insurance could cover an intentional assault.18 

Karel Shaw's ex-boyfriend shot her six times through his driver's side window.19                        Her 

insurance policy required that bodily injuries arise "out of the operation, maintenance, 
or use" of a vehicle.20      The superior court granted summary judgment to State Farm.21 

We reversed and remanded.22             We relied on  Velthouse for the proposition that "there 

must   be   some   causal   connection   between   the   'use'   of   the   vehicle   and   the   injury."23 

Again referring to  Velthouse, we noted that, when interpreting these provisions, courts 

in other states "do not require proximate cause in its strict legal sense; rather they only 

require that the vehicle be more than the mere situs of the accident and that the use of the 
vehicle relate to its inherent use as a motor vehicle."24              We also quoted three general 

        16       Id. at 1-2.
 

        17       Id. at 5.
 

        18       19 P.3d 588, 593 (Alaska 2001).
 

        19       Id. at 589.
 

        20       Id. at 591.
 

        21       Id. at 589.
 

        22       Id.
 

         23
     Id. at 591 (quoting Criterion Ins. Co. v. Velthouse, 751 P.2d 1, 3 (Alaska 

1986)) (internal quotation marks omitted). 

        24       Id. at 592 (quoting       Velthouse, 751 P.2d at 3) (internal quotation marks 

omitted). 

                                                    -11-                                               6609
 

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factors used by the Minnesota Supreme Court in Continental Western Insurance Co. v. 

Klug to determine when there was sufficient causation: 

                (1)     The extent of causation between the automobile and 
                the injury; 

                (2)     Whether an act of independent significance occurred, 
                breaking the causal link between "use" of the vehicle and the 
                injuries inflicted; and 
                (3)     What type of "use" of the automobile was involved.[25] 

In Shaw we concluded that the determination of whether there was "use" of the vehicle 

depended "to a great degree, on the particular facts of the case" and therefore held that 
summary judgment for the insurer was inappropriate.26 

                In Shaw we quoted Klug for the proposition that the vehicle must be an 

"active accessory" for there to be an adequate causal relationship (the first element of the 
Klug test).27  In Klug, the insured was driving home from work when a coworker drove 

up next to him and opened fire with a shotgun, hitting Klug in the arm.28               His coworker 

pursued Klug for two miles before Klug was able to escape.29               The Minnesota Supreme 

Court held that the coworker's vehicle was an "active accessory" to Klug's injuries.30 

Similarly, in Shaw, Shaw's ex-boyfriend may have used his vehicle to corner and trap 

Shaw, and we held that there was therefore a genuine issue of material fact as to whether 

        25      Id. at 592 (quoting Cont'l W. Ins. Co. v. Klug, 415 N.W.2d 876, 878 (Minn. 

1987)) (internal citations and quotation marks omitted). 

        26      Id. at 593. 

        27      Id. at 592, n.28 (quoting Klug, 415 N.W.2d at 878). 

        28      Klug, 415 N.W.2d at 877. 

        29      Id. at 878.
 

        30      Id.
 

                                                  -12-                                            6609
 

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there was coverage.31      Here, however, the vehicle driven by Morrell was not an "active 

accessory"   to   Kalenka's   injuries.    The   collision   between   Morrell's   and   Kalenka's 

vehicles was only the subject of their fight; the vehicles played no part in the fight itself. 

Accordingly, there was insufficient causation for Kalenka's death to have arisen out of 

the "use" of the vehicle Morrell was driving. 

                We also conclude that here there was an intervening "act of independent 

significance."    In Shaw, we clarified that an intentional act is not automatically an "act 
of independent significance."32      We held that a driver's use of a vehicle to trap and corner 

another driver did not necessarily constitute an "act of independent significance" even 
though it was intentional.33     In Klug, the Minnesota Supreme Court similarly held that 

even though Klug's assailant was acting intentionally, the assailant's actions did not 
constitute an "act of independent significance."34        The Minnesota Supreme Court stated 

that "[h]ad [the assailant] used his vehicle to drive ahead of Klug, left his vehicle, and 
shot Klug from the side of the road, we might have found an intervening act."35                 Here, 

Morrell did exit his vehicle prior to assaulting Kalenka and only attacked Kalenka after 

Kalenka began to call the police on his cell phone. 

                Infinity argues that the definition of "use" in the policy requires a stricter 

standard of causation than exists in our previous cases.             Kalenka's policy included a 

definition of "use" which provided that " '[u]se' of an uninsured motor vehicle or an 

        31      Shaw, 19 P.3d at 592-93. 

        32      Id. at 591-93. 

        33      Id. 

        34      Klug, 415 N.W.2d at 878. 

        35      Id. 

                                                 -13-                                           6609
 

----------------------- Page 14-----------------------

underinsured motor vehicle means that such vehicle must be the main cause of a bodily 

injury or property damage."  Infinity argues that the definition of "use" was narrower in 

Kalenka's policy than in the cases discussed above that found coverage existed.  But the 

phrase "ownership, maintenance, or use" is prescribed by statute; Alaska law requires 

that automobile insurance contracts must cover damages arising from the "ownership, 
maintenance, or use" of a vehicle.36        In Burton v. State Farm Fire & Casualty Co., we 

explained that "[i]nsurers are not permitted to issue policies containing provisions that 
reduce the scope of coverage below the legal minimum."37               Infinity cannot limit what 

constitutes "use" of a vehicle by defining that term more narrowly than it is defined in 

the statute. 

                3.      Negligent entrustment 

                The Kalenka Estate also argues that William Wassili, the owner of the 

Suburban   driven   by   Morrell,   negligently   entrusted   the   Suburban   to     Morrell.     The 

Kalenka Estate contends that "Wassili knew or should have known that Mr. Morrell was 

in no condition to drive his vehicle."       The policy provides coverage for injuries arising 

from the "ownership, maintenance, or use" of the vehicle, and the Kalenka Estate argues 
that this negligent entrustment falls within the meaning of "ownership."38 

        36      AS 28.22.101(a). 

        37      796 P.2d 1361, 1363 (Alaska 1990). 

        38      The   Kalenka   Estate   relies   on   the   word  "ownership"   for   its   negligent 

entrustment claim, but other courts, when examining whether such a claim is covered by 
an "ownership, maintenance, or use" clause, do not always focus exclusively on the word 
"ownership."     See, e.g., Dutton v. State Farm Mut. Auto. Ins. Co., 383 So. 2d 519, 521 
(Ala. 1980) (examining whether alleged negligent entrustment arose out of the "use" of 
the vehicle). 

                                                 -14-                                           6609
 

----------------------- Page 15-----------------------

                 We have defined what constitutes negligent entrustment:  "[T]he owner or 

other   person   in   control   of   a   vehicle   and   responsible   for   its   use   who   is   negligent   in 

knowingly supplying, entrusting, permitting or lending it to an incompetent or habitually 
careless driver is liable for negligent entrustment."39            In 2007 we stated: 

                         Alaska recognizes the common law tort of negligent 
                 entrustment   and   follows   the   definition   in   the   Restatement 
                 (Second) of Torts  390 (1965), which states: 

                         One who supplies directly or through a third 
                         person a chattel for the use of another whom the 
                         supplier   knows   or   has   reason   to   know   to   be 
                         likely   because   of   his   youth,   inexperience,   or 
                         otherwise,      to  use   it  in  a  manner    involving 
                         unreasonable risk of physical harm to himself 
                         and others whom the supplier should expect to 
                         share in or be endangered by its use, is subject 
                         to   liability   for   physical    harm     resulting    to 
                         them.[40] 

For example, in Kroll v. Paul, a fisher was involved in a violent altercation with the crew 
of another boat.41     We affirmed a negligent entrustment judgment against the lessor of 

the fisher's boat because the lessor knew or should have known that the fisher had a 
"tendency to use boats in an assaultive manner."42 

                 The Kalenka Estate argues that Morrell was intoxicated and that it would 

be "easy for the jury to infer that Mr. Wassili allowed Mr. Morrell to drive his car while 

Mr. Morrell was under the influence of alcohol and marijuana."                    Infinity counters that 

        39       Neary v. McDonald, 956 P.2d 1205, 1208 (Alaska 1998). 

        40       Nelson v. Progressive Cas. Ins. Co., 162 P.3d 1228, 1232 (Alaska 2007). 

        41       Mem. Op. & J. No. 682, 1993 WL 13563648, at *1 (Alaska, Oct. 6, 1993). 

        42       Id. at *8. 

                                                    -15-                                              6609
 

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there was no evidence that "Wassili knew Morrell was an incompetent driver and that 

he was likely to use the vehicle in an unreasonable manner." 

               We conclude that, whether or not Wassili knew or should have known that 

Morrell was too intoxicated to drive, there is no evidence in the record that Wassili knew 

or should have known that Morrell was likely to commit assault.   Some courts have held 

that there can be negligent entrustment liability for an intentional assault on a third party. 

For example, in Morin v. Moore, the Fifth Circuit reversed a 12(b)(6) dismissal for the 

defendant, a police officer, in a case where the police officer had allegedly negligently 
entrusted a government weapon to his mentally unstable son.43       But in those cases, there 

was evidence that entrusting the object would increase the likelihood of an assault.44 

Here, there is no such evidence. 

               4.     Negligent maintenance 

               The Kalenka Estate argues that William Wassili negligently maintained the 

brakes of his vehicle, and that this negligent maintenance caused the collision with the 

Subaru driven by Kalenka.       Infinity counters that "there was no evidence to support 

appellant's negligent maintenance claim." 

               The Kalenka Estate alleges the Suburban's "rear brakes were not adjusted 

properly, and that the rear wheels would spin while the vehicle was stopped."   The 

Kalenka Estate argues that "the correct focus is not whether the negligent maintenance 

was related to the stabbing" but rather that the "applicable focus is whether the negligent 

maintenance, which allowed the wheels to spin and propel the vehicle forward, was 

       43      309 F.3d 316, 325 (5th Cir. 2002); see also Byers v. Hubbard, 669 N.E.2d 

320, 323 (Ohio App. 1995) (holding that there was a triable issue of material fact as to 
whether plaintiff's injury was foreseeable where the defendant lent his wife a handgun 
after his wife had an argument with the plaintiff and the wife shot the plaintiff). 

       44      See Morin, 309 F.3d at 325. 

                                             -16-                                        6609
 

----------------------- Page 17-----------------------

related to the fact that the vehicle ran into the rear of the Kalenka vehicle."    Infinity 

counters that the allegation of negligent maintenance stems from one remark during 

Morrell's testimony at his trial in which Morrell commented that the brakes seemed to 

be faulty.   Infinity argues that Morrell did not indicate that faulty brakes were what had 

caused him to collide with the Subaru driven by Kalenka. 

              As with the negligent entrustment claim, even if there is evidence that 

Wassili knew or should have known that his brakes were malfunctioning, there is no 

evidence in the record that such negligent maintenance would increase the likelihood of 

Morrell's committing an assault. There is no evidence that Wassili knew or should have 

known that failing to adequately maintain his vehicle would cause Morrell to commit an 

assault after driving the vehicle. 

       B.	    Summary   Judgment   Was   Appropriate   On   The   "Ownership"   And 
              "Maintenance" Provisions. 

              After Superior Court Judge Christen ruled there were not sufficient facts 

alleged to support a claim of negligent entrustment, the Kalenka Estate filed a motion for 

reconsideration, and the superior court vacated its ruling on the merits of the negligent 

entrustment claim.    Judge Christen explained that she was "convinced that the Estate 

intended to preserve its opportunity to prove its negligent entrustment claim in a separate 

action."  Later, Infinity filed another motion for summary judgment, seeking a ruling on 

negligent entrustment.    The newly assigned judge, Judge Ashman, granted summary 

judgment for Infinity and gave several reasons why summary judgment was now proper. 

              First, Judge Ashman explained that Judge Christen had reconsidered her 

"decision    on  [the  negligent  maintenance    and  entrustment   claims]  because   [she] 

determined that neither party had requested a final ruling on their merits."       Because 

Infinity had filed a new motion for summary judgment and affirmatively requested a 

ruling on the merits of these claims, Judge Ashman determined that a ruling was now 

                                            -17-	                                     6609
 

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appropriate.     Second, Judge Ashman reasoned that because the Kalenka Estate "could 

only raise such a claim against Wassili" and because the court presiding over the action 

between the Kalenka Estate and Wassili had already entered a default judgment against 

Wassili, "a ruling by this court now on negligent maintenance and entrustment would 

have little relevance to the underlying tort case." 

                 The Kalenka Estate argues that there "were genuine issues of material fact 

which needed to be resolved" in the suit against Wassili.   Infinity counters that "it filed 

its   Complaint   seeking   a   ruling   from   the   trial   court   that   there   was   'no   uninsured   or 

medical payments coverage under the policy.' "                  According to Infinity, the question 

"whether there is coverage for benefits sought under the terms of the policy is a matter 

between the parties to the contract."  Infinity argues that it therefore is entitled to a ruling 

on   those   issues,   whether   or   not   the   Kalenka   Estate   would   prefer   to   litigate   them   in 

another case. 

                 We agree with the Kalenka Estate that an injured party is generally allowed 

to choose the forum in which to litigate a tort claim. Other courts have denied requests 

by insurers for declaratory judgments on the ground that litigating those declaratory 

judgment actions would interfere with an injured party's tort relief.                   In  Cunningham 

Brothers, Inc. v. Bail, an alleged tortfeasor sought a declaratory judgment that it had not 
been  negligent.45      The   Seventh   Circuit   held   that   such   a   declaratory   judgment   was 

inconsistent with the federal declaratory judgment statute, explaining that "to compel 

potential personal injury plaintiffs to litigate their claims at a time and in a forum chosen 
by the alleged tort-feasor would be a perversion of the Declaratory Judgment Act."46  The 

Maryland Court of Appeals has similarly analyzed the interplay between declaratory 

         45      407 F.2d 1165 (7th Cir. 1969). 

         46      Id. at 1167. 

                                                    -18-                                                6609 

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judgment actions involving insurance coverage and separate suits alleging direct tort 

liability: 

                 [A] declaratory judgment action prior to the underlying tort 
                 trial   can   be  both    a  valuable    and   appropriate     means     of 
                 resolving questions of policy coverage when the question of 
                 policy coverage is independent and separable from the claims 
                 asserted in a pending suit by an injured third party.  When a 
                 question sought to be resolved in the declaratory judgment 
                 proceeding   would   be   decided   in   the   pending   tort   action, 
                 however, it is ordinarily inappropriate to grant a declaratory 
                 judgment prior to resolution of the underlying tort trial. [47] 

We agree that an insurer's interest in obtaining a declaratory judgment concerning its 

coverage should not displace an injured party's access to traditional tort relief. 

                 But in this case, there was no reason for Judge Ashman to decline to decide 

the issues of negligent entrustment and negligent maintenance.                    Infinity initiated this 

litigation by filing an action for declaratory judgment on the limited question whether its 

policy provided coverage.  It was the Kalenka Estate that elected to actively litigate the 

underlying tort issues in the declaratory   judgment action.                Indeed, in its response to 

Infinity's   declaratory   judgment   complaint,   the   Kalenka   Estate   filed   a   counterclaim 

seeking   the   money   it   alleged   was   owed   under   the   policy.     In   its   counterclaim,   the 

Kalenka Estate sought "the amount of the coverage limits of the . . . policy."                    And the 

Kalenka Estate did not alert Judge Christen to the existence of the   separate tort suit 

against Wassili until it filed a motion for reconsideration.                Judge Christen, out of an 

abundance   of   caution,   reconsidered   her   earlier   decision   on   these   issues   to   give   the 

Kalenka Estate a chance to preserve them for its direct tort litigation with Wassili.  But 

by the time Judge Ashman made his decision on these issues two things had changed. 

         47      Litz v. State Farm Fire & Cas. Co., 695 A.2d 566, 573-74 (Md. 1997) 

(internal citations and quotation marks omitted). 

                                                    -19-                                                6609 

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First, a default judgment had been entered against Wassili on the negligent entrustment 

claim against him.  Second, it became apparent that the Kalenka Estate had not actually 

raised a negligent maintenance claim in its suit against Wassili.  Thus, Judge Ashman's 

decision to resolve the negligent entrustment and negligent maintenance claims would 

not affect the Kalenka Estate's suit against Wassili.        We therefore conclude that Judge 

Ashman   did   not   abuse   his   discretion   by   granting   Infinity's   request   for   declaratory 

judgment. 

V.      CONCLUSION 

               We AFFIRM the judgment of the superior court. 

                                               -20-                                          6609
 
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