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Progressive Universal Insurance Co. v. John

United States District Court, D. Minnesota

September 18, 2014

Progressive Universal Insurance Co., Plaintiff,
v.
Donald John, Don John Construction, Erik Pavlicek, Ronald Fischer, and Jonathan Kent, Defendants.

Beth A. Jenson Prouty, Esq., and Stephen M. Warner, Esq., Arthur, Chapman, Kettering, Smetak & Pikala, P.A., counsel for Plaintiff Progressive Universal Insurance Company.

Brian A. Wood, Esq., Lind Jensen Sullivan & Peterson, P.A., counsel for Defendants Don John Construction and Donald John.

James S. Ballentine, Esq., and Mark H. Gruesner, Esq., Schwebel Goetz & Sieben, P.A., counsel for Defendant Ronald Fischer.

MEMORANDUM OPINION AND ORDER

DONOVAN W. FRANK, District Judge.

INTRODUCTION

This matter is before the Court on Plaintiff Progressive Universal Insurance Company's ("Progressive") Motion for Summary Judgment. (Doc. No. 34.) For the reasons set forth below, the Court grants Progressive's motion.

BACKGROUND

I. Factual Background

A. The Accident

On the evening of August 26, 2012, Defendant Erik Pavlicek ("Pavlicek") was loading tools onto a 2004 Ford pickup truck owned by Defendant Donald John ("John") at John's residence in Stacy, Minnesota, in preparation for a construction job that was to take place the next day. (Doc. No. 42 ("Prouty Aff.") ¶ 3, Ex. 1 at 79; Prouty Aff. ¶ 3, Ex. 5 at 96-97.) At approximately 7:00 p.m., John told Pavlicek that he was leaving to go to a casino with his wife and asked Pavlicek not to drive any of his vehicles while he was gone. (Prouty Aff. ¶ 3, Ex. 7 at 98-100.) John told Pavlicek not to drive his vehicles because he knew that Pavlicek had used several of his vehicles on previous occasions without his permission. ( Id. at 99-101.) John left the keys in all of his vehicles. ( Id. at 100.)

After John and his wife left, Pavlicek drove the pickup truck to Smitty's Bar in Chisago City, Minnesota, to show it off to patrons. (Prouty Aff. ¶ 3, Ex. 1 at 73, 79.) At Smitty's Bar, Pavlicek met Ronald Fischer ("Fischer") and Jonathan Kent ("Kent") and asked them if they wanted to go for a ride in the pickup truck, which Pavlicek claimed was his. ( Id. at 73.) Pavlicek, Fischer, and Kent drove to Al's Bar in Center City, Minnesota, where they each consumed four to five Long Island iced teas before driving to Osceola, Wisconsin. ( Id. )

At approximately 1:30 a.m. on August 27, 2012, the pickup truck was involved in a single-vehicle rollover accident near Osceola. (Prouty Aff. ¶ 3, Ex. 4 at 69.) At the time of the accident, Pavlicek was driving the pickup truck, Kent was sitting in the front passenger seat, and Fischer was asleep in the backseat.[1] ( Id. ; Prouty Aff. ¶ 3, Ex. 1 at 79.) When the police arrived at the scene of the accident, Pavlicek and Kent were attempting to pull Fischer out of the overturned pickup truck. ( Id. ) As a result of the accident, Fischer sustained serious injuries. (Prouty Aff. ¶ 3, Ex. 4 at 69-70.)

Following the accident, Osceola Police Officer Andrew Bach collected statements from all parties. ( See Prouty Aff., Ex. 1 at 79.) Based on these statements, Officer Bach determined in his incident report that Pavlicek took the pickup truck from John's residence without John's permission. ( Id. ) Officer Bach's report was supplemented by a motor vehicle theft report from the Isanti County Sheriff's Office, which listed Pavlicek as the suspect. (Prouty Aff. ¶ 3, Ex. 5 at 87.) The State of Wisconsin charged Pavlicek with a felony under Wisconsin Statute Section ...


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