UNITED STATES DISTRICT COURT NORTHERN DISTRICT ......Ins. Co. v. Travelers Ins. Co., 592 A.2d 51 (Pa.Super. 1991). And, under Kansas law, an ambiguity And, under Kansas law, an ambiguity

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

TAMMY DINGER, Individually and as )

Administratrix of the Estate of Darren Scott )

Dinger, Deceased, ) No. 1:18-cv-08390

)

Plaintiff/Counter-Defendant )

)

vs. ) Hon. Andrea R. Wood

)

CANDACE M. WISHKENO, )

)

Defendant, )

)

vs. )

) JURY TRIAL DEMANDED

ST. PAUL FIRE AND MARINE INSURANCE )

COMPANY, )

)

Garnishee/Counter-Plaintiff. )

__________________________________________)

PLAINTIFF (GARNISHOR)/COUNTER-DEFENDANT TAMMY DINGER'S

MEMORANDUM IN SUPPORT OF HER

MOTION FOR SUMMARY JUDGMENT

Respectfully submitted,

By: /s/ Gary D. McCallister

Gary D. McCallister

McCALLISTER LAW GROUP, LLC

200 N. LaSalle Street, Suite 2150

Chicago, IL 60601

(312) 345-0611 – Telephone

[email protected]

Eric I. Unrein

CAVANAUGH, BIGGS & LEMON, P.A.

2942A SW Wanamaker Dr., Suite 200

Topeka, KS 66614-4479

(785) 440-4000 - Telephone

[email protected]

Attorneys for Plaintiff (Garnishor)/

Counter-Defendant, Tammy Dinger

Case: 1:18-cv-08390 Document #: 74 Filed: 11/27/19 Page 1 of 29 PageID #:773

mailto:[email protected]:[email protected]

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................................................................................... i

INTRODUCTION............................................................................................................................2

SUMMARY JUDGMENT STANDARD........................................................................................2

UNDISPUTED MATERIAL FACTS ..............................................................................................3

ARGUMENT ...................................................................................................................................3

A. Wishkeno Is Covered by the Policy St. Paul Issued to the KTIK ..................................3

1. St. Paul Unequivocally Acknowledged that Wishkeno Was a “Protected

Person” Even Though She Was Driving Her Personal Vehicle ..........................4

2. St. Paul’s Policy is Ambiguous. Under Kansas Law, the Ambiguity Must

Be Resolved in Favor of Coverage ...................................................................11

a. Kansas Law Applies to the Interpretation of the Policy ........................11

b. The Operative Provisions of the St. Paul Policy ...................................13

c. St. Paul’s Interpretation Highlights a Conflict Between the Policy’s

“Nonowned Auto” and “Protected Person” Provisions and Renders the

Policy Ambiguous. ................................................................................16

d. St. Paul’s Interpretation Produces an Absurd Result, Which is Contrary

to Kansas Law.. .....................................................................................21

B. St. Paul Admitted Wishkeno Was a “Protected Person.” Its Admission

Distinguishes It from the Kansas Cases It Relies Upon with Respect to the Doctrines

of Waiver and Estoppel .................................................................................................22

CONCLUSION ..............................................................................................................................24


i

TABLE OF AUTHORITIES

Cases

Am. Family Mut. Ins. Co. v. Wilkins, 285 Kan. 1054, 1059, 179 P.3d 1104, 1109 (2008) ............13

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) ............................................................2

Bankwest v. Fidelity & Deposit Co. of Maryland, 63 F.3d 974, 978 (10th Cir. 1995),

Rehearing denied (Sept. 22, 1995) ..............................................................................................16

Brocknman v. Bd. Of Cty. Comm’rs, No. 07-4103-EFM, 2009 WL 175069, at *7 (D. Kan. Jan.

12, 2009), aff’d, 404 F.Appx. 271 (10th Cir. 2010) .....................................................................11

Brumley v. Lee, 265 Kan. 810, Syl. ¶ 3, 963 P.2d 1224, Syl. ¶ 3 (1998) .......................................16

Bussman v. Safeco Ins. Co. of America, 298 Kan. 700, 707, 317 P.3d 70, 77 (2014) ...................13

Catholic Diocese of Dodge City v. Raymer, 251 Kan. 689, 693, 840 P.2d 456, 459 (1992) ...12, 13

Celotex v. Catrett, 477 U.S. 317, 323 (1986) ..................................................................................2

Dinger v. United States, No. 12-4002-EFM, 2013 WL 1001444 (D.Kan. March 13, 2013) .........23

First Financial Ins. Co. v. Bugg, 265 Kan. 690, 694, 962 P.2d 515, 519 (1998) ..........................12

Fitzgerald v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013) ...............................................................2

Gilmore v. St. Paul Fire and Marine Ins. Co., 708 So.2d 679 (Fla.Dist.Ct.App. 1998) .....4, 18, 19

Hargrove v. Missouri Pac. R.R., 780 So.2d 454 (La.App. 2001) ..................................................14

Hernandez v. Farmers Insurance Company, Inc., 2017 WL 3321958, *2 (Kan.App. Aug. 4,

2017) ............................................................................................................................................13

Hotel 71 Mezz Lender LLC v. Nat’l Ret. Fund, 778 F.3d 593, 603 (7th Cir. 2015) ........................3

Johnson County Bank v. Ross, 28 Kan.App.2d 8, 10, 13 P.3d 351, 353 (2000) ............................22

Lee Builders, Inc. v. Farm Bureau Mut. Ins. Co., 281 Kan. 844, 858, 137 P.3d 486,

495 (2006) ....................................................................................................................................13

Levin v. Maw Oil & Gas, 290 Kan. 928, Syll. ¶ 3, 234 P.3d 805, Syll. ¶ 3 (2010)........................21

Nucap Indus., Inc. v. Robert Bosch LLC, 273 F.Supp 3d 986, 997-98 (N.D.Ill. 2017) ...................3


ii

O’Bryan v. Columbia Ins. Group, 274 Kan. 572, 575, 56 P.3d 789, 792 (2002) ..........................13

Patrons Mut. Ins. Ass’n v. Harmon, 240 Kan. 707, 710, 732 P.2d 741, 744 (1987) ...............10, 11

Payless Shoesource, Inc. v. Travelers Companies, Inc., 569 F. Supp.2d 1189, 1195 (D. Kan.

2008) ............................................................................................................................................16

Pennsylvania Nat. Mut. Cas. Ins. Co. v. Travelers Ins. Co., 592 A.2d 51

(Pa.Super. 1991) .................................................................................................................4, 18, 20

Ramsey v. Lee Builders, Inc., 32 Kan.App.2d 1147, 1154, 95 P.3d 1033, 1038 (2004) ................11

Sturdy v. Allied Mutual Ins. Co., 203 Kan. 783, 792, 457 P.2d 34, 41 (1969) ..............................13

Weber v. Tillman, 259 Kan. 457, 476, 913 P.2d 84, 96-97 (1996) ................................................12

Statutes

FRCP 56...........................................................................................................................................2

FRCP 56(a) ..................................................................................................................................2, 3

FRCP 12(b)(1) ...............................................................................................................................23

Local Rules

L.R. 56.1(a)(3) ..................................................................................................................................3


1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

TAMMY DINGER, Individually and as )

Administratrix of the Estate of Darren Scott )

Dinger, Deceased, ) No. 1:18-cv-08390

)

Plaintiff/Counter-Defendant )

)

vs. ) Hon. Andrea R. Wood

)

CANDACE M. WISHKENO, )

)

Defendant, )

)

vs. )

) JURY TRIAL DEMANDED

ST. PAUL FIRE AND MARINE INSURANCE )

COMPANY, )

)

Garnishee/Counter-Plaintiff. )

__________________________________________)

PLAINTIFF (GARNISHOR)/COUNTER-DEFENDANT TAMMY DINGER'S

MEMORANDUM IN SUPPORT OF HER MOTION FOR SUMMARY JUDGMENT

Plaintiff(Garnishor)/Counter-Defendant, Tammy Dinger ("Dinger"), by and through her

undersigned attorneys, hereby submits this memorandum in support of her motion for summary

against Garnishee/Counter-Plaintiff, St. Paul Fire and Marine Insurance Company (“St. Paul”).

For the reasons set forth below Dinger requests that this Court enter summary judgment (1) in

Dinger’s favor, and against St. Paul, on her garnishment and counterclaim (ECF No. 1, Exhibit A

and ECF No. 23), and (2) in her favor, and against St. Paul, on St. Paul’s counterclaim (ECF No.

22).


2

INTRODUCTION

Candace Wishkeno (“Wishkeno”) struck and killed Dinger’s husband while driving her

personal vehicle in the course of her employment with the KTIK. At the time of the fatal collision,

St. Paul covered the KTIK under a policy providing Auto Liability Protection and Umbrella Excess

Liability Protection. Wishkeno was covered under the policy. Through its own affirmative actions

and representations, St. Paul has acknowledged that Wishkeno was a “protected person” at the

time of the collision, even though she was driving her personal vehicle. By now contradicting its

earlier admissions, St. Paul also demonstrates that the policy is ambiguous, at best, and must be

interpreted to extend coverage to Wishkeno. Consequently, based on the law and the material facts,

the Court should grant Dinger’s motion for summary judgment.

SUMMARY JUDGMENT STANDARD

Under FRCP 56, a “court shall grant summary judgment if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” FRCP 56(a). The court may grant summary judgment on “each claim or defense—or [on]

part of each claim or defense.” Id. In evaluating a summary judgment motion, the nonmoving

party’s evidence “is to be believed, and all justifiable inferences are to be drawn in his favor.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). But “favor toward the nonmoving party

does not extend to drawing inferences that are supported by only speculation or conjecture.”

Fitzgerald v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013)(internal citation and quotation marks

omitted). “The moving party is ‘entitled to a judgment as a matter of law’ [where] the nonmoving

party has failed to make a sufficient showing on an essential element of [its] case with respect to

which [it] has the burden of proof.” Celotex v. Catrett, 477 U.S. 317, 323 (1986).


3

The parties have filed cross-motions for summary judgment. See (ECF No. 57 (St. Paul’s

motion for summary judgment). Regarding the parties’ factual contentions, the Court adopts “a

dual, Janus-like perspective on cross motions aimed at the same claim or defense.) Hotel 71 Mezz

Lender LLC v. Nat’l Ret. Fund, 778 F.3d 593, 603 (7th Cir. 2015)(internal quotation marks

omitted). On one motion, the Court views the facts and inferences in the light most favorable to

the nonmovant, but if summary judgment is not warranted, the Court gives the unsuccessful

movant “all of the favorable factual inferences that it has just given to the movant’s opponent.”

Id.; see, e.g., Nucap Indus., Inc. v. Robert Bosch LLC, 273 F.Supp.3d 986, 997-98 (N.D.Ill.

2017)(evaluating opposing parties’ cross motions for summary judgment).

UNDISPUTED MATERIAL FACTS

Dinger incorporates by reference, as if more fully set forth herein, the material facts in her

statement of material facts as to which there is no genuine issue, see L. R. 56.1(a)(3).

ARGUMENT

Summary judgment for Dinger is appropriate because there is no genuine dispute as to any

material fact and Dinger is entitled to judgment as a matter of law. See FRCP 56(a).

A. Wishkeno is Covered by the Policy St. Paul Issued to the KTIK.

The material facts demonstrate that St. Paul, through its actions and representations,

unequivocally acknowledged that Wishkeno was a “protected person,” even though she was

driving her personal vehicle; it memorialized that determination in its own records; it based its

coverage denial on that determination (citing an endorsement that limits coverage for certain

“protected persons”); it communicated that determination to counsel for Wishkeno’s personal

insurer; and it communicated that determination to Dinger’s counsel.


4

Notwithstanding these unequivocal actions and representations, St. Paul now contends that

Wishkeno is not a “protected person.” (ECF No. 58, pp. 6-8). St. Paul’s interpretation of the policy

illustrates an inherent conflict in its provisions, particularly those relating to a “non-owned auto”

and a “protected person,” rendering the policy ambiguous. At least one other court has found

strikingly similar policy provisions to be ambiguous when St. Paul tried to deny coverage under

much the same interpretation it offers here. See Gilmore v. St. Paul Fire and Marine Ins. Co., 708

So.2d 679 (Fla.Dist.Ct.App. 1998). Other courts also have found that this interpretation creates an

ambiguity that must be resolved against the drafter (the insurer). See Pennsylvania Nat. Mut. Cas.

Ins. Co. v. Travelers Ins. Co., 592 A.2d 51 (Pa.Super. 1991). And, under Kansas law, an ambiguity

in an insurance contract must be resolved against the drafter (the insurer) and in favor of coverage.

1. St. Paul Unequivocally Acknowledged that Wishkeno Was a “Protected Person” Even Though She Was Driving Her Personal Vehicle.

St. Paul described its reasons for denying coverage to Wishkeno in a letter written by Tom

Wright, “2VP-Complex Claim Unit,” to Tom Doofe, a representative employed by Safeco,

Wishkeno’s personal insurer. Dinger Amended Counterclaim, Ex. 3, (ECF No. 60, p. 3, Wright

Ex.12). Wright explained that St. Paul “will not [sic] providing coverage for this claim under a

defense or indemnity obligation. I will outline in the following paragraphs the basis for this

position.” Id., p. 1.

Wright began by describing the relevant facts surrounding the collision in which Wishkeno

struck and killed Dinger’s husband. Dinger Amended Counterclaim, Ex. 3, (ECF No. 60, p. 3,

Wright Ex.12). He explained that Wishkeno, acting in her role as the KTIK’s Native Employment

Works Program Coordinator, was driving her personal vehicle while transporting three tribal

students following their completion of an employment tour at a local job corps facility. Id., pp. 1-


5

2. In fact, Wright notes that Wishkeno was driving her personal vehicle at least three different

times while outlining St. Paul’s position. Id., pp. 1-2.

Wright acknowledged that St. Paul [Travelers] provided coverage to the KTIK. Dinger

Amended Counterclaim, Ex. 3, p. 2 (ECF No. 60, p. 3, Wright Ex.12, p. 2). He observed that the

collision occurred during the effective dates of the St. Paul policy, but he also noted that the policy

included an endorsement, PSS Indian Tribe—Federal Tort Claims Act Limitation. Id. Relying

solely on this endorsement, he concluded that St Paul had “no obligation to provide Wishkeno

defense or indemnity relating to this matter and any claim presented outside the limits of coverage

provided by Safeco should be processed with the federal government as outlined above.” Id., p. 6

(emphasis added). (As is clear from this statement, St. Paul was aware that Dinger’s claims

exceeded the amount of Wishkeno’s personal coverage).

The endorsement Wright cited to deny coverage applied to limit coverage otherwise

available on claims made by a “protected person.” Dinger Amended Counterclaim, Ex. 3, p. 2

(ECF No. 60, p. 3, Wright Ex.12, pp. 2-3). More specifically, in order to invoke the limitation set

out in the endorsement, St. Paul first had to make a threshold determination that the claim involved

a “protected person.” Id.

The endorsement, as quoted by Wright, reads as follows:

PUBLIC SECTOR SERVICES

INDIAN TRIBES – FEDERAL TORT CLAIMS ACT LIMITATION

ENDORSEMENT

This endorsement changes your policy

_________________________________________________

How Coverage Is Changed

The following is added to the What This Agreement Covers section of each

liability insuring agreement in your policy. This change limits coverage.


6

We won’t apply this agreement to the tort liability of any protected person

that results from the performance of, or failure to perform, duties within the

scope of a contract or agreement authorized by the Indian Self-

Determination and Education Assistance Act, or any of its amendments, if

the protected person:

i. is subject to protection from such tort liability under the Federal Tort Claims Act, or any of its amendments; or

ii. would have been subject to protection from such liability under the Federal Tort Claims Act, or any of its

amendments, but isn’t only because the procedural

requirements for that protection under the Act weren’t

fulfilled.

The Indian Self-Determination and Education Assistance Act begins at

Section 450 of Tile 25 of the United States Code. The Federal Tort Claims

Act is located at Sections 1346(b), 2401 and 2671-2680 of Title 28 of the

United States Code.

Tort liability means liability that would be imposed by law without any

contract or agreement.

Dinger Amended Counterclaim, Ex. 3, pp. 2-3 (ECF No. 60, p. 3, Wright Ex.12, pp. 2-3) (Emphasis

added as to “protected person”).

Indeed, not only did Wright deny coverage based upon a policy endorsement that applied

where a claim first is made against a “protected person,” he unequivocally stated as follows:

Ms. Wishkeno would normally be provided excess or umbrella coverage

under the Kickapoo Tribe’s insurance policy and would be considered a “protected person” under the policy, but for the fact this matter

involves a 638 Contract with the Federal Government and this requires that

any claim be brought under the Federal Tort Claim Act protections.

Dinger Amended Counterclaim, Ex. 3, p. 2 (ECF No. 60, p 3, Wright Ex. 12, p. 2)(emphasis

added). In representing that, “but for” the endorsement, Wishkeno would be both a “protected

person” and covered for excess or umbrella benefits under the policy, Wright also explicitly

acknowledged that she was driving her personal vehicle at the time of the collision. Id.


7

In his deposition, Wright explained the reasonable and straightforward manner in which he

performed his coverage analysis with reference to his own notes, which read, in pertinent part, as

follows:

Coverage review and review of the preliminary facts leaves two basic

questions. Was Wishkeno a permissive user of the vehicle and was she in

the course and scope of business interest of the Kickapoo Tribe at the time

of the accident? Since Wishkeno was the owner of the Dodge Durango she

was clearly a permissive user of the vehicle. The second issue is whether

Wishkeno was in the course of a business pursuit for the Kickapoo Tribe at

the time of the accident? The answer is yes, but it was to service a 638

contract and the policy excludes coverage in such situations.

Wright (2019) Dep., pp. 61: 8 – 64: 25; (ECF No. 60, p. 3 (Wright Ex. 11 at STP 002938))

(emphasis added).

Neither Wright nor St. Paul ever communicated a different position to Dinger or her

counsel. In fact, Dinger’s counsel wrote Wright a letter on April 20, 2011, making a policy limits

demand on the St. Paul policy, informing Wright that he had received a copy of Wright’s January

21, 2010, letter to Dinger’s insurer, and stating as follows:

As we have discussed by telephone, I have reviewed your letter dated

January 21, 2010, in which you set forth Traveler’s [St. Paul’s] denial of

coverage in this case. However, in the event that Ms. Wishkeno is

determined to not be entitled to protection under the Federal Tort Claims

Act, the Dinger family will, of course, look to Safeco and Travelers [St.

Paul] to satisfy their claim.

Dinger Amended Counterclaim, Ex. 4, (ECF No. 60, p. 4 (Olsen letter to Wright)). Wright

responded by letter dated April 20, 2011, in which he acknowledged receipt of Dinger’s counsel

letter, observed that Dinger had made a claim with the United States pursuant to the FTCA (as

Wright outlined in his January 21, 2010, letter to Dinger’s personal insurer), and stated as follows:

This letter is to acknowledge receipt of your March 25, 2011, letter wherein

you confirmed that you filed the Standard Form 95 Claim with the Office

of the Solicitor, U.S. Department of the Interior pursuant to the Federal Tort

Claim Act based on Candace Wishkeno’s status and actions as the Native


8

Employment Works Program Coordinator, doing business pursuant to the

Flint Hills Job Corps Project, which is part of the Indian Self-Determination

and Education Assistance Act.

It is understood that in the event that Ms. Wishkeno is determined to

not be entitled to protection under the Federal Tort Claim Act, the

Dinger family will, of course, look to Travelers [St. Paul] to satisfy their

claim that is in excess of the Safeco policy limits.

Dinger’s Amended Counterclaim, Ex. 5, (ECF No. 60, p. 3, Wright Ex. 20)(emphasis added).

Although Wright clearly acknowledged that the Dinger family would look to St. Paul to

satisfy their claim in excess of the limits of Wishkeno’s personal insurance policy, his suggestion

that he still had questions about the application of the FTCA to Dinger’s claim is perplexing. A

little more than two months earlier, February 18, 2011, Ilse Smith, the KITK Tribal Attorney sent

Wright an e-mail in which she wrote, in pertinent part, as follows:

Good afternoon, Tom.

I recently discovered after much discussion with the Department of

Labor that Candace [Wishkeno] was not working under a 638 contract

but was operating under a grant from the Department of Health & Human

Services. I had our outside accounting firm provide me the award letter.

Unfortunately, I do not believe that the FTCA applies since it was a

grant rather than a contract that Candace was working under.

(ECF No. 60, p. 3, Wright Ex. 13)(emphasis added). Wright did not inform Dinger’s counsel of

this information, but he did inform others at St. Paul. (ECF No. 60, p.3, Wright Ex. 14).

Notwithstanding St. Paul’s failure to inform Dinger’s counsel of this information, or to

provide Wishkeno with a defense based on its weight, Dinger’s administrative claim continued to

be processed by the federal government. In a letter dated July 8, 2011, the Department of Health

and Human Services (“HHS”) informed Dinger’s counsel that his administrative tort claim for the

wrongful death of Dinger’s husband had been denied. (ECF No. 60, p. 2, Wright Ex. 17). HHS


9

determined that, on the date of the fatal collision, Wishkeno was not performing services for the

federal government under Section 638 Contract of the Indian Self Determination Act. Id., p. 1.1

By e-mail dated July 12, 2011, addressed to Wright, Dinger’s counsel forwarded to St. Paul

the HHS’s July 8, 2011, final determination letter. (ECF No. 60, p. 2, Wright Ex. 18). In his e-

mail, Dinger’s counsel wrote as follows:

Attached is a copy of the denial letter dated July 8, 2011 that I received from

the Department of Health & Human Services. As stated in your letter dated

April 20, 2011, the Dinger family will look to Travelers [St. Paul] for its

excess coverage if the HHS’s denial of Tammy Dinger’s FTCA claim is

unchallenged or upheld. From our past communications, I understand that

Travelers [St. Paul] will provide excess coverage because Candace

Wishkeno was a member of the Kickapoo Tribe in Kansas, and was “acting

within the scope of employment” when my client’s husband, Darren Scott

Dinger, was fatally injured.

Please contact me when you are prepared to discuss Travelers’ [St. Paul’s]

intentions in this matter.

Id.

Wright did not respond to Dinger’s counsel’s July 12, 2011, e-mail. However, counsel for

the KTIK, J. Steven Pigg, wrote Dinger’s counsel a letter dated November 4, 2011, in which he

expressed his opinion that Wishkeno was not a protected person” under the policy. Dinger

Amended Counterclaim, Ex. 6, (ECF No. 60, p. 3, Wright Ex. 19). At this time, Pigg was acting

on behalf of the KTIK, not St. Paul. And, in his letter, Pigg did not purport to represent St. Paul or

act on its behalf.

Moreover, nothing in the record establishes that St. Paul ever responded to Dinger’s

counsel’s policy limits demand after Wright’s April 20, 2011, or to his e-mail notifying Wright

1 Notwithstanding the denial letter from the HHS, Dinger commenced an action in the United

States District Court for the District of Kansas, seeking damages under the FTCA for damages

related to her husband’s wrongful death. See Complaint (Dinger v. United States, No. 12-4002-

EFM (D.Kan.)). She commenced her action by filing a complaint on January 3, 2012. Id.


10

that HHS had denied Dinger’s administrative claim. Even after the United States District Court for

the District of Kansas ultimately dismissed Dinger’s FTCA claim,2 which removed any basis for

St. Paul’s denial of coverage to Wishkeno, St. Paul remained silent in the face of Dinger’s

counsel’s demands—neither providing a defense nor making a settlement offer at or within policy

limits.

Consequently, Dinger’s wrongful death claim against Wishkeno proceeded in Kansas,

ultimately resulting in a judgment on July 8, 2014, for $1,662,628.39. See St. Paul’s SOF ¶ 6

(ECF No. 59, p. 2, ¶ 6). Since its entry on July 8, 2014, the judgment has been accruing statutory

and contractual interest. K.S.A. 16-204(d), (e); (ECF No. 60, p. 3)(Wright Ex. 2, p. 3 of 9); (ECF

No. 60, p. 3)(Wright Ex. 4 p. 7 of 24).

Not only do the material facts demonstrate that Wishkeno has coverage under the policy,

but they also demonstrate that St. Paul breached its contractual and common law duties to defend

Wishkeno in the Kansas wrongful death action. St. Paul’s policy describes its contractual duty to

defend, in pertinent part, as follows:

Right and duty to defend. We’ll have the right and duty to defend any

claim or suit for covered bodily injury, … made or brought against any

protected person.

We’ll do so even if any of the allegations of any such claim or suit are

groundless, false or fraudulent….

Dinger Amended Counterclaim, Ex. 2, p. 2 of 9 (ECF No. 60, p. 3)(Auto Liability

Protection)(Wright Ex. 2, p. 2 of 9); cf. (ECF No. 60, p. 3)(Umbrella Excess Liability

Protection)(Wright Ex., 4, p. 6 of 24). And, Kansas law describes the scope of St. Paul’s common

law duty to defend. See, e.g., Patrons Mut. Ins. Ass’n v. Harmon, 240 Kan. 707, 710, 732 P.2d

2 Dinger v. United States, No. 12-4002-EFM, 2013 WL 1001444 (D.Kan. March 13, 2013).


11

741, 744 (1987); Ramsey v. Lee Builders, Inc., 32 Kan.App.2d 1147, 1154, 95 P.3d 1033, 1038

(2004).

Under Kansas law, the duty to defend is separate and distinct from the obligation to provide

coverage under the policy. Ramsey, 32 Kan.App.2d at 1154, 95 P.3d at 1038. Naturally, “when

there is no coverage under an insurance contract, the insurer has no duty to defend.” Brocknman

v. Bd. Of Cty. Comm’rs, No. 07-4103-EFM, 2009 WL 175069, at *7 (D. Kan. Jan. 12,

2009)(applying Kansas law), aff’d, 404 F.App’x 271 (10th Cir. 2010). An insurer, however, “must

consider all the facts to determine if they present a potential of liability,” when analyzing its

obligation to defend its insured under the policy. Ramsey, 32 Kan.App.2d at 1154, 95 P.3d at 1038.

If even a remote possibility of coverage exists, the “company owes the insured a defense.” Patrons,

240 Kan. at 710, 732 P.2d at 744.

The material facts demonstrate that when St. Paul evaluated its coverage for Dinger’s claim

against Wishkeno, it unequivocally determined that Wishkeno was a “protected person,” but

denied coverage only because St. Paul mistakenly concluded that she was covered by the FTCA.

After this determination, and following St. Paul’s instructions, Dinger’s counsel filed an

administrative claim with the HHS and, after that claim was denied, a lawsuit under the FTCA in

federal district court. (ECF No. 60, p. 2, Wright Ex. 17).

Dinger’s counsel informed St. Paul that the administrative claim had been denied, yet St.

Paul chose to remain silent. At this moment, it was clear that St. Paul’s sole basis to deny coverage

was groundless. St. Paul’s refusal to reverse course and provide a defense was a breach of its

contractual and common law duties. And, if there could be any doubt about the viability of St.

Paul’s coverage defense under the endorsement, that doubt was removed when Dinger’s federal


12

lawsuit was dismissed. Yet, St. Paul continued to act negligently and in bad faith, refusing to

provide a defense immediately after the dismissal of Dinger’s Federal Tort Claims Act claim.

2. St. Paul’s Policy is Ambiguous. Under Kansas Law, the Ambiguity Must Be Resolved in Favor of Coverage.

St. Paul’s interpretation illustrates a conflict between and among several of the policy’s

provisions. The conflict renders the policy ambiguous, which must be construed against St. Paul

and in favor of coverage.

a. Kansas Law Applies to the Interpretation of the Policy.3

Interpreting the policy under Kansas law requires the Court to determine whether the

instrument is ambiguous. See Weber v. Tillman, 259 Kan. 457, 476, 913 P.2d 84, 96-97 (1996).

“Whether an instrument is ambiguous is a matter of law to be decided by the court. As a general

rule, if the language of a written instrument is clear and can be carried out as written, there is no

room for construction.” Id. at 476, 913 P.2d at 96.

The language of an insurance policy, like any contract, must, if possible, be construed to

give effect to the parties’ intention. Catholic Diocese of Dodge City v. Raymer, 251 Kan. 689, 693,

840 P.2d 456, 459 (1992). However, the test in determining whether a policy is ambiguous is not

what the insurer intends the language to mean, but what a reasonably prudent insured would

understand the language to mean. First Financial Ins. Co. v. Bugg, 265 Kan. 690, 694, 962 P.2d

515, 519 (1998).

A contract is ambiguous when it contains “provisions or language of doubtful or conflicting

meaning, as gleaned from a natural and reasonable interpretation of its language.” Weber, 259 Kan.

3 The parties agree that Kansas law applies to the interpretation of the policy. See (ECF No.

58, pp. 5-6).


13

at 476, 913 P.2d at 96. Ambiguity appears when the Court is generally uncertain as to which of

multiple meanings is the proper meaning. Id.

When an insurance policy is ambiguous, the Court must interpret it by applying liberal

rules of construction. Am. Family Mut. Ins. Co. v. Wilkins, 285 Kan. 1054, 1059, 179 P.3d 1104,

1109 (2008). “Because the insurer prepares its own contracts, it has a duty to make the meaning

clear.” O’Bryan v. Columbia Ins. Group, 274 Kan. 572, 575, 56 P.3d 789, 792 (2002). If the insurer

intends to restrict or limit coverage, it must use clear and unambiguous language; otherwise, the

court will liberally construe the policy in favor of the insured. Catholic Diocese, 251 Kan. at 693,

840 P.2d at 459.

Where the terms of a policy are ambiguous or uncertain, conflicting or susceptible of more

than one interpretation, the interpretation most favorable to the insured must prevail. O’Bryan, 274

Kan. at 576, 56 P.3d at 792; Bussman v. Safeco Ins. Co. of America, 298 Kan. 700, 707, 317 P.3d

70, 77 (2014); Sturdy v. Allied Mutual Ins. Co., 203 Kan. 783, 792, 457 P.2d 34, 41 (1969); see

also Lee Builders, Inc. v. Farm Bureau Mut. Ins. Co., 281 Kan. 844, 858, 137 P.3d 486, 495

(2006)(“[A]ny ambiguity must be construed against the insurer”); Hernandez v. Farmers

Insurance Company, Inc., 2017 WL 3321958, *2 (Kan.App. Aug. 4, 2017)(“To the extent that an

insurance policy is ambiguous, the ambiguity is construed against the insurance company”).

b. The Operative Provisions of the St. Paul Policy.

The St. Paul policy contains an Auto Liability Protection with a limit of $1,000,000. (ECF

No. 59, p. 4, ¶ 18). It also includes an Umbrella Excess Protection with an additional $1,000,000.

(ECF No. 59, p. 4, ¶ 18). With respect to automobile-related claims, the Umbrella Excess Liability

Protection reads, in part, as follows:


14

Who Is Protected for Auto-Related Claims or Suits

Any person or organization that’s a protected person under your automobile

Basic Insurance for the use of an auto is a protected person under this

agreement for claims or suits for covered bodily injury or property damage

that results from the use of the auto.

(ECF No. 60, p. 3, Wright Ex. No. 4, p. 10 of 24).4

In determining a coverage question, such as Wishkeno’s, the Auto Liability Protection

section of the policy includes sections describing, among other things, (1) “What This Agreement

Covers,” (2) “Which Autos Are Covered”; and (3) “Who Is Protected Under This Agreement.”

(ECF No. 60, p. 3, Wright Ex. No. 2). Each of these sections includes various definitions,

explanations, and limitations. Id.

In pertinent part, the first of these sections, reads as follows:

What This Agreement Covers

Bodily injury and property damage liability

We’ll pay amounts any protected person is legally required to pay as

damages for covered bodily injury or property damage that:

results from the ownership, use, loading or unloading of a

covered auto; and….

(ECF No. 60, p.3, Wright Ex. 2, p. 1 of 9).

Protected person means any person or organization who qualifies as a

protected person under the Who is Protected Under This Agreement Section

Id.

Covered auto means the type of or types of autos shown in the Coverage

Summary and described in the Which Autos Are Covered section

4 In Hargrove v. Missouri Pac. R.R., 780 So.2d 454 (La.App. 2001), the court determined

that a repair shop acted as a co-lessee of a rental vehicle involved in a collision. 780 So. 2d at 458.

Because the repair shop was a co-lessee of the vehicle, the court further determined that St. Paul

had coverage under auto liability and umbrella excess sections of a garage policy issued by St.

Paul, which had virtually identical policy provisions and definitions (e.g., “covered auto” and

“protected person”) to the St. Paul policy issued to the KTIK in the instant case. Id.


15

Id., p. 2 of 9.

In pertinent part, the second of these sections reads as follows:

Which Autos Are Covered

The Coverage Summary shows and the information in this section describes

the types or type of autos which are covered autos.

Any auto means any owned, rented, leased or borrowed auto. It

includes hired, nonowned, newly acquired, replacement and

temporary substitute autos.

* * *

Nonowned autos means any auto that:

you don’t own, hire, rent, lease or borrow; and

is used in the conduct of your business. It includes autos owned

by your employees or partners or members of their households.

But only while such autos are being used in the conduct of your

business.

(ECF No. 60, p.3, Wright Ex. 2, pp. 3-4 of 9).

In pertinent part, the second of these sections reads as follows:

Who Is Protected Under This Agreement

* * *

Corporation or other organization. If you are named in the

introduction as a corporation or other organization, you are a

protected person for the use of a covered auto. Also, your executive

officers and directors are protected persons. But only for the use of

a covered auto. Also, your stockholders are protected persons, but

only for their liability as your stockholders.

Any permitted user. Any person or organization to whom you’ve

given permission to use a covered auto you own, rent, lease, hire or

borrow is a protected person.

However, we won’t consider the following to be a protected person:

* * *

An employee of yours or a member of an employee’s household

if the covered auto is owned by that employee or that employee’s

household….


16

(ECF No. 60, p.3, Wright Ex. 2, pp. 4-5 of 9).

c. St. Paul’s Interpretation Highlights a Conflict Between the Policy’s “Nonowned Auto” and “Protected Person” Provisions and Renders the Policy

Ambiguous.5

St. Paul interprets its policy by isolating a single sentence in a single clause of the section

entitled “Who Is Protected Under This Agreement.” (ECF No. 58, pp. 7-8). This narrow reading

of the policy, isolating one sentence from the rest, is inconsistent with Kansas law. Under Kansas

law, “[a]ll pertinent provisions of an insurance policy must be considered together, rather than in

isolation, and given effect.” Brumley v. Lee, 265 Kan. 810, Syl. ¶ 3, 963 P.2d 1224, Syl. ¶ 3 (1998).

A court is to consider the policy ”as a whole, taking care not to fragment the various provisions

and endorsements.” Payless Shoesource, Inc. v. Travelers Companies, Inc., 569 F.Supp.2d 1189,

1195 (D.Kan. 2008).

When all pertinent provisions are considered together, it becomes clear that there is a

conflict between the “covered auto” and “protected person” provisions that renders the policy

ambiguous. At the time of the fatal collision, Wishkeno’s personal auto was a “covered auto”

because it satisfied the definition of “nonowned auto.” More specifically, it was owned by an

employee of the KTIK and it was being used in the conduct of the KTIK’s business at the time of

the collision. See (ECF No. 60, p.3, Wright Ex. 2, pp. 4 of 9)(Nonowned Autos). And, Wishkeno

was a “permitted user” of that “covered auto” because she was a person to whom the KTIK had

given permission to use the “covered auto.” See (ECF No. 60, p.3, Wright Ex. 2, pp. 5 of 9)(Any

Permitted User).

5 The policy’s ambiguity also implicates St. Paul’s duty to defend. “With regard to the

insurer’s duty to defend or indemnify, when ‘the terms … are ambiguous or uncertain, conflicting,

or susceptible of more than one construction, the construction most favorable to the insured must

prevail.’” Bankwest v. Fidelity & Deposit Co. of Maryland, 63 F.3d 974, 978 (10th Cir. 1995),

rehearing denied (Sept. 22, 1995).


17

The material facts demonstrate that when Wishkeno struck and killed Dinger’s husband (1)

she was driving a “covered auto,” (ECF No. 60, and (2) she was a “permitted user” of that “covered

auto.” On the day of the collision, Wishkeno was an employee of the KTIK and she was using her

personal vehicle in the conduct of the KTIK’s business and with its permission. (ECF No. 59, p.

3, ¶ 11). They also demonstrate that she was using her auto in a manner that was consistent with

the KTIK’s policies, see Wishkeno Dep., 53: 22-25, 54-56, 57: 1-4, 64: 3-13, 82: 9-15, 83: 1-10,

84: 1-8, as well as its common practice, see Whitebird Dep., 14: 5-25, 15-17, 18: 1-11.

The KTIK leased a few vehicles from the federal government’s General Services

Administration (“GSA”), which it made available for tribal employees to use in the conduct of

tribal business. See Wishkeno Dep., 14: 15-25, 15: 1-13. When these vehicles were unavailable or

in use, the KTIK, as part of its policy and common practice, permitted its tribal employees to use

their personal vehicles in the conduct of its business. Whitebird Dep., 14: 5-25, 15-17; Wishkeno

Dep., 56: 19-25, 57: 1-4, 64: 3-12, 82: 9-15, 83: 1-10, 84: 1-8. The tribal employee would then

submit a voucher for mileage and related expenses, and the KTIK would reimburse the employee

for the use of his or her personal vehicle. Whitebird Dep., 14: 5-25, 15-17, Ex. 1; Wishkeno Dep.,

82: 9-15, 83: 1-10, 84: 1-8, Ex. 11.

On the day of the fatal collision, Wishkeno had reserved one of the KTIK’s GSA vehicles

to transport the youth to their appointment. Wishkeno Dep., 55: 15-25, 56, 57: 1-4. However, the

vehicle was unavailable. Id. Consistent with the KTIK’s policy and common practice, and because

the vehicle she had reserved was unavailable, Wishkeno used her personal vehicle (which she had

done in the past with the KTIK’s knowledge and permission). Id. and 64: 3-13. She later submitted

a voucher, and the KTIK reimbursed her for her mileage and related expenses for the trip. Id. 82:

9-15, 83: 1-10, 84: 1-8.


18

However, St. Paul denied Wishkeno a defense or indemnity under the policy because

Wishkeno was driving her personal vehicle when she struck and killed Dinger’s husband. The very

same facts that made Wishkeno’s personal vehicle a “covered auto” under the policy—her

ownership of the vehicle, her employment by the KTIK, and her use of the vehicle in the conduct

of the KTIK’s business—also, and at the same time, deny her coverage under the policy. (ECF

No. 58, pp. 6-8). In other words, Wishkeno’s ownership of the vehicle was necessary for it to be a

“covered auto,” but it was sufficient to exclude her from coverage as a “protected person.” This is

a plain conflict between the policy’s provisions. And, under Kansas law, it is an ambiguity that

must be construed against St. Paul and in favor of coverage for Wishkeno.

Other courts have determined that similar conflicts between a “nonowned auto” provisions

and a “protection” provision render a policy ambiguous and require it to be construed in favor of

coverage. See Gilmore v. St. Paul Fire and Marine Ins. Co., 708 So.2d 679 (Fla.Dist.Ct.App.

1998); Pennsylvania Nat. Mut. Cas. Ins. Co. v. Travelers Ins. Co., 592 A.2d 51 (Pa.Super. 1991).

It seems telling that both of these decisions were issued well before Wright wrote his letter

“outlining” the reasons for his coverage decision and concluding that Wishkeno was a “protected

person” under the policy, even though she was driving her personal vehicle. Dinger Amended

Counterclaim, Ex. 3, p. 2 (ECF No. 60, p 3, Wright Ex. 12, p. 2 (January 21, 2010 letter to Doofe)).

And, it is particularly telling that one of these decisions involved the Auto Liability Protection

portion of a St. Paul policy with relevant language almost identical to the policy here.

In Gilmore, an insured’s employee sought underinsured motorist benefits under employer’s

policy for injury while using her personal vehicle in the conduct of her employer’s business.

Gilmore, 708 So.2d 679. The court first noted that if the policy’s liability portions provided

coverage, the uninsured motorist provisions would provide coverage as well. Id. at 681.


19

The employer’s policy, also issued by St. Paul, provided “Auto Liability Protection” with

limits of $1,000,000. Gilmore, 708 So.2d at 681. The relevant provisions in the Auto Liability

Protection read almost identically to the relevant policy provisions at issue here, particularly the

provisions describing “nonowned autos”6 and “protected person”7. See id., at 681-82.

As it does here, St. Paul argued that the policy was unambiguous and did not cover the

employee because she was driving her own personal vehicle, even though in the conduct of her

employer’s business, at the time of the collision. The trial court agreed. However, the appellate

court rejected this argument, and reversed the trial court, holding that the conflict between the

“nonowned auto” and “protected person” provisions rendered the policy ambiguous, which

required it to construe the policy against St. Paul and in favor of coverage. Gilmore, 708 So. 2d at

682. Specifically, the court reasoned as follows:

Under the "Which Autos Are Covered" section, "Nonowned Autos" are

defined as autos owned by the corporation's employees "only while such

autos are being used in the conduct of your business." It is undisputed that

the appellant was using her auto in the conduct of the corporate employer's

business when the accident occurred. However, under the section captioned

"Who Is Protected Under This Agreement," the policy purports to exclude

an employee who owned the covered auto used in the conduct of the

employer's business from consideration as a protected person. Thus, the

"covered auto" section of the liability provisions of the policy conflict with

the "protected person" provisions of the same section, insofar as those

provisions pertain to an employee's nonowned auto while the auto is being

used in the conduct of the employers' business.

Id.

6 The policy defined “nonowned autos” to mean any auto that: you don’t own, hire, rent,

lease, or borrow; and is used in the conduct of your business. It includes autos owned by your

employees or partners or members of their households. But only while such autos are being used

in the conduct of your business.” 708 So. 2d at 681 (emphasis in the original). 7 The policy defined “protected person,” in pertinent part, as follows: “However, we won’t

consider the following to be a protected person: … An employee of yours or a member of an

employee’s household if the covered auto is owned by that employee or member of that

employee’s household.” Id. at 681-82.


20

Similarly, in Pennsylvania Nat., a pizza delivery driver collided with another motorist

while driving his personal vehicle in the conduct of his employer’s business. Pennsylvania Nat.,

592 A.2d 51. A coverage dispute ensued between insurers as to which was liable. Id. at 52-53. The

ultimate issue was whether the employer’s insured was liable; specifically, whether there was a

conflict between a “nonowner” provision and a protection provision. Id. at 54. The “nonowner”

provision provided coverage for an employee’s use of his own personal vehicle in the conduct of

his employer’s business, but the protection provision provided that coverage did not apply to the

owner of a nonowned vehicle. Id.

As does St. Paul here, the insurer in Pennsylvania Nat. argued that the policy was

unambiguous and the employee was not covered under the employer’s policy. The trial court

agreed. However, the appellate court rejected this argument, and reversed the trial court, holding

as follows:

We believe that the non-owner provision is ambiguous, as the two

paragraphs of that provision are plainly inconsistent with one another.

When read together, the two paragraphs of the non-owner provision afford

coverage to a very restricted group of persons. We agree with appellant that

the inconsistency within the non-owner provision creates an ambiguity

which the trial court should have construed against the insurer, Travelers,

thereby affording coverage to [the pizza delivery driver].

Pennsylvania Nat., 592 A.2d at 54. In reversing the trial court, the appellate court reasoned as

follows:

The first paragraph of the provision, providing coverage to the use in the

named insured's business of a non-owned automobile by any person other

than the named insured, undoubtedly affords coverage to Gossert under the

facts of the present case. The vehicle driven by Gossert was not owned by

the named insured and was being used by Gossert in the furtherance of the

named insured's business. The second paragraph, however, denies coverage

to the owner of a non-owned automobile, which would include Gossert.

When read in its entirety, it seems the non-owner provision would lead to

the anomalous conclusion of affording coverage only to persons, other than


21

the named insured, who use a vehicle owned by someone other than

themselves in furtherance of the named insured's business.

Id.

d. St. Paul’s Interpretation Produces an Absurd Result, Which is Contrary to Kansas Law.

St. Paul’s interpretation produces an absurd result. It draws a distinction between the owner

of a covered auto and any other permitted user that makes no sense. Under St. Paul’s interpretation,

an auto owned by a tribal employee may be a “covered” auto when used in the conduct of tribal

business because it qualifies as a “nonowned auto.” (ECF No. 60, p. 3,Wright Ex. 2, pp. 4 of 9

(Nonowned autos)). But, the employee-owner of that auto may not be a “protected person” if she

is involved in a collision while using that auto, with the KTIK’s knowledge and permission, in the

conduct of the KTIK’s business. Its interpretation, though, allows other employees using that same

auto for that same business to be considered “protected persons.”

Taking St. Paul’s interpretation to its logical end, if any tribal employee used Wishkeno’s

auto to transport the children to the job corps, and that employee had the same permission to use

the auto that the KTIK had granted Wishkeno, and that employee was involved in the same fatal

collision with Dinger’s husband, that employee would have been entitled to a defense and

indemnity. Put another way, if Wishkeno had used an auto owned by a fellow tribal employee,

with the same permission she had from the KTIK, and she was involved in the same fatal collision,

she would have been a “protected person” entitled to a defense and indemnity. In either instance,

Wishkeno’s auto is being used by a tribal employee in the conduct of the very same tribal business

with the very same knowledge of and permission from the KTIK.

St. Paul’s interpretation of the policy is inconsistent with Kansas law. Under Kansas law,

a court should not interpret a contractual provision merely by isolating one particular sentence or

provision. Levin v. Maw Oil & Gas, 290 Kan. 928, Syl. ¶ 3, 234 P.3d 805, Syl. ¶ 3 (2010); see


22

also Johnson County Bank v. Ross, 28 Kan.App.2d 8, 10, 13 P.3d 351, 353 (2000)(applying the

rule in the context of an insurance contract). “The law favors reasonable interpretations, and results

that vitiate the purpose of the terms of the agreement to an absurdity should be avoided.” Id.

B. St. Paul Admitted Wishkeno Was a “Protected Person.” Its Admission Distinguishes It from the Kansas Cases It Relies Upon with Respect to the Doctrines of Waiver and

Estoppel.

St. Paul is bound by its affirmative actions and representations regarding the scope of

coverage and, more particularly, that she was a “protected person” at the time she struck and killed

Dinger’s husband while driving her personal vehicle. St. Paul wrote Wishkeno’s personal insurer

a letter in which it explained that Wishkeno was a “protected person” under the St. Paul policy

and, as such, would normally be provided excess or umbrella coverage “but for” a separate

endorsement relieving St. Paul of the obligation to provide her with defense or indemnity. Dinger

Amended Counterclaim, Ex. 3, p. 2 (ECF No. 60, p 3, Wright Ex. 12, p. 2).8 At the time St. Paul

wrote this letter, it knew Wishkeno was driving her personal vehicle when she struck and killed

Dinger’s husband. Id. In fact, St. Paul’s letter refers to Wishkeno’s use of her personal vehicle no

fewer than three separate times. Dinger Amended Counterclaim, Ex. 3, p. 2 (ECF No. 60, p 3,

Wright Ex. 12, pp. 1-3). St. Paul’s own interpretation of its policy to extend coverage to Wishkeno

as a “protected person,” even though it knew then that she was driving her personal vehicle, belies

its claims in its memorandum that the exclusion was explicit and unambiguous.

The material facts in this case demonstrate that St. Paul affirmatively and unequivocally

acknowledged, through its actions and representations, that Wishkeno was a “protected person,”

8 In pertinent part, the letter reads “Ms. Wishkeno would normally be provided excess or

umbrella coverage under the Kickapoo Tribe’s insurance policy and would be considered a

‘protected person’ under the policy, but for the fact this matter involves a 638 Contract with the

Federal Government and this requires that any claim be brought under the Federal Tort Claim Act

protections.” Dinger Amended Counterclaim, Ex. 3, p. 2 (ECF No. 60, p 3, Wright Ex. 12, p. 2).


23

but nevertheless denied coverage for an entirely different, and flawed, reason (the application of

endorsement form D0115). The material facts also demonstrate that Dinger, through her counsel,

detrimentally relied upon St. Paul’s statements, as is evidenced by correspondence between her

counsel and St. Paul on this precise issue. Dinger Amended Counterclaim, Ex. 3, p. 2 (ECF No.

60, p 3, Wright Ex. 12, pp. 1-3).

The correspondence between Dinger’s counsel and St. Paul establishes that (1) Dinger’s

counsel acted in reliance on St. Paul’s affirmative actions and representatives, (2) St. Paul knew

Dinger’s counsel was acting in reliance on its actions and representations, and (3) it acknowledged

that, in the event Wishkeno was not covered by the Federal Tort Claims Act, Dinger would look

to St. Paul (and her personal insurer) to satisfy her claim. Dinger Amended Counterclaim, Ex. 4

(ECF No. 60, p.4 (Olsen letter to Wright dated March 25, 2011)). Indeed, each of these points is

highlighted in the letter St. Paul wrote to Dinger’s counsel in which it stated, without qualification

or equivocation, as follows:

It is understood that in the event that Ms. Wishkeno is determined to not be

entitled to protection under the Federal Tort Claim Act, the Dinger family,

of course, look to Travelers [St. Paul] to satisfy their claim that is in the

excess of the Safeco policy limits.

Dinger Amended Counterclaim, Ex. 5 (ECF No. 60, p 3, Wright Ex. 20 (Wright letter to Olsen

dated April 20, 2011)).

Dinger’s counsel’s detrimental reliance upon St. Paul’s affirmative actions and

representations resulted in ancillary litigation in the United States District Court for the District of

Kansas under the Federal Tort Claims Act that culminated in a FRCP 12(b)(1) dismissal of her

federal claim on March 13, 2013. Dinger v. United States, No. 12-4002-EFM, 2013 WL 1001444

(D.Kan. March 13, 2013). This litigation, which was initiated only because of St. Paul’s

affirmative actions and representations, both in its correspondence and its communications with


24

counsel, was entirely unnecessary and caused more than one year’s delay. As the United States

District Court ultimately determined, there was no basis to infer that Wishkeno was operating

under the type of contract that would afford her protection under the Federal Tort Claims Act and,

therefore, trigger the endorsement (Form D0115) invoked by St. Paul. Id.

CONCLUSION

For the reasons set forth above, the Court should grant Dinger's motion for summary

judgment. Specifically, the Court should enter summary judgment (1) in Dinger’s favor, and

against St. Paul, on her garnishment and counterclaim (ECF No. 1, Exhibit A and ECF No. 23),

and (2) in her favor, and against St. Paul, on St. Paul’s counterclaim (ECF No. 22).

Dated: November 27, 2019

Respectfully submitted,

By: /s/ Gary D. McCallister

Gary D. McCallister

McCALLISTER LAW GROUP, LLC

200 N. LaSalle Street, Suite 2150

Chicago, IL 60601

(312) 345-0611 – Telephone

(312) 345-0612 – Facsimile

[email protected]

Eric I. Unrein

CAVANAUGH, BIGGS & LEMON, P.A.

2942A SW Wanamaker Dr., Suite 200

Topeka, KS 66614-4479

(785) 440-4000 - Telephone

(785) 440-2900 – Facsimile

[email protected]

Attorneys for Plaintiff (Garnishor)/



mailto:[email protected]:[email protected]

25

CERTIFICATE OF SERVICE

I, Gary D. McCallister, an attorney of record in this matter, hereby certify that on the 27th

day of November, 2019, a true and correct copy of the foregoing document, PLAINTIFF

(GARNISHOR)/COUNTER-DEFENDANT TAMMY DINGER'S MEMORANDUM IN

SUPPORT OF HER MOTION FOR SUMMARY JUDGMENT, was electronically filed with this

Court and served on counsel for all parties properly registered to receive notice via the Court's

CM/ECF system.

_____/s/ Gary D. McCallister__________

One of the Attorneys for Plaintiff (Garnishor)/



Documents

UNITED STATES DISTRICT COURT NORTHERN DISTRICT ......Ins. Co. v. Travelers Ins. Co., 592 A.2d 51 (Pa.Super. 1991). And, under Kansas law, an ambiguity And, under Kansas law, an ambiguity