Fenkel v. St. Paul Mercury Insurance Company et al

Fenkel v. St. Paul Mercury Insurance Company et al
(November 2007)

Michael Sistrunk, Kyle Kirsch, and Matthew Garver secured a summary judgment in favor of United Services Automobile Association (USAA), which was upheld on appeal by the Fifth Circuit. In Fenkel, the plaintiff, a Colorado resident who was in Louisiana for a trade show and operating a rental vehicle, was severely injured by a drunk driver in an automobile accident when his vehicle was struck by a vehicle operated by an Illinois resident. Fenkel sought benefits from USAA under his UM coverage. The issue in this case was the choice of law to be applied to the USAA policy. If Colorado law was applied to the USAA policy, Fenkel would not be entitled to any UM benefits because Colorado law allows an insurer to offset any funds paid to the insured up to the underlying UM limits. If Louisiana law applied to the USAA policy, USAA would be liable for its policy limits. Michael Sistrunk, Kyle Kirsch, and Matthew Garver successfully argued in brief and oral arguments that Colorado law applied to the USAA policy and summary judgment was properly granted to USAA. The Fifth Circuit agreed, holding that the USAA policy was written and delivered in Colorado, Fenkel was a Colorado resident, the parties to the policy contemplated application of Colorado law, and that it was equally clear that neither party contemplated that another state’s laws would apply to the policy.