Bradley Young v. Owners Insurance Company, a Michigan corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRADLEY YOUNG,
Plaintiff-Appellant,
v.
OWNERS INSURANCE COMPANY, a
Michigan corporation,
Defendant-Appellee,
and
PROGRESSIVE CASUALTY
INSURANCE COMPANY, an Ohio
corporation; PROGRESSIVE
CASUALTY INSURANCE COMPANY;
COMMERCE INSURANCE COMPANY,
a Massachusetts corporation,
Defendants.
No. 22-15070
D.C. No. 3:20-cv-08077-DWL
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Dominic Lanza, District Judge, Presiding
Argued and Submitted November 18, 2022
Phoenix, Arizona
FILED
DEC 1 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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Before: BYBEE, OWENS, and COLLINS, Circuit Judges.
Bradley Young appeals the district court’s grant of summary judgment for
Owners Insurance Company. We have jurisdiction under 28 U.S.C. § 1291 and
review a district court’s rulings on summary judgment de novo. Planet Aid, Inc. v.
Reveal, 44 F.4th 918, 923 (9th Cir. 2022). We vacate the order and remand.
After leaving a New Year’s Eve party in the Glamis Sand Dunes, Young was
struck from behind by an uninsured motorist. Owners denied coverage based on
an exclusion in its policy for damages caused by “any vehicle designed for use
mainly off public roads while not on public roads.” Young argued that the
collision occurred on a stretch of public land unofficially known as the “sand
highway,” and that this sand highway constitutes a public road.
At summary judgment, the district court sidestepped the question of whether
the sand highway is a public road under the policy. Instead, it determined that
Young had been struck in a pedestrian area next to the sand highway. Next,
relying on Gittings v. American Family Insurance Co., 888 P.2d 1363 (Ariz. Ct.
App. 1994), the district court concluded that this pedestrian area was not a public
road under the policy.
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We hold that the district court erred in its application of Gittings. Though
Gittings found that an area not being “intended for vehicular travel” was important
to its analysis, it “d[id] not find this factor dispositive.” Id. at 1369. Instead, the
Gittings court recognized that if, “through some mishap,” a vehicle “veer[s]” off
the public road on which it was traveling, causing an off-road collision, it may still
be said that the accident occurred on a public road. Id. In other words, if an
accident began on a public road, it could have occurred on a public road even if the
ultimate injury occurred off-road. Id. As the insurer, Owners bears the burden to
show that the accident did not occur while the motorbike was on a public road. See
Keggi v. Northbrook Property & Cas. Ins. Co., 13 P.3d 785, 788 (Ariz. Ct. App.
2000) (“[T]he insurer bears the burden to establish the applicability of any
exclusion.”). Without evidence of how the accident began—including the
motorbike’s location and path of travel prior to its collision with Young—Owners
cannot meet this burden. Thus, by granting summary judgment merely because the
ultimate collision occurred in the pedestrian area rather than the sand highway, the
district court erred.
We VACATE the order below and REMAND to the district court to
determine, in the first instance, whether the sand highway is a public road under
the insurance policy at issue. Each party shall bear its own costs.
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