19-857 (L)

Kellogg v. Mich. Millers Mut. Ins. Co.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER 

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. 

CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS 

PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE 

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A 

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY 

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE 

(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY 

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY 

COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, 

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 

New York, on the 9th day of October, two thousand and twenty.

Present:

ROBERT A. KATZMANN,

RICHARD C. WESLEY,

JOSEPH F. BIANCO,

Circuit Judges,

______________________

TROY D. KELLOGG, SHARON KELLOGG,

Plaintiffs-Appellees-Cross-Appellants,

v. 19-857-cv, 19-871-cv

MICHIGAN MILLERS MUTUAL INSURANCE 

COMPANY,

Defendant-Appellant-Cross-Appellee.†

† The Clerk of the Court is directed to amend the caption as set forth above.
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______________________

For Plaintiffs-Appellees-Cross-Appellants: MATTHEW F. BELANGER, Faraci 

Lange, LLP, Rochester, NY.

For Defendant-Appellant-Cross-Appellee: DAN D. KOHANE, Hurwitz & Fine, 

P.C., Buffalo, NY.

Appeal from the United States District Court for the Western District of New 

York (Payson, M.J.)

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment is VACATED IN PART, REVERSED IN PART, 

and AFFIRMED IN PART, and the case REMANDED.

The parties cross-appeal from a final Decision and Order dated March 7, 2019, in 

the United States District Court for the Western District of New York (Payson, M.J.), 

declaring that Troy Kellogg does not qualify for Personal Injury Protection (“PIP”) or 

Additional Personal Injury Protection (“APIP”) insurance coverage, but that he does 

qualify for Auto Medical Payments (“MedPay”) and Supplementary 

Uninsured/Underinsured Motorists Endorsement (“SUM”) insurance coverage. We 

assume the parties’ familiarity with the facts, the procedural context, and the issues on 

appeal. 

As an initial matter, although the parties continue to engage on the issue of 

Michigan Millers Mutual Insurance Company’s (“Michigan Mutual”) liability under the 

PIP policy, Michigan Mutual paid PIP benefits to Kellogg in the amount of $50,000 prior 
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to the district court’s decision. See Kellogg v. Mich. Millers Mut. Ins. Co., No. 17-cv-6242, 

2019 WL 1083026, at *3 n.2 (W.D.N.Y. Mar. 7, 2019). Because the coverage limit under the 

PIP policy at the time of the accident was $50,000, Kellogg received all the relief he 

ultimately sought under that policy. As a result, Kellogg’s claim regarding the PIP 

coverage is moot and the district court’s ruling as it pertains to the PIP coverage must be 

vacated.1

Turning to the APIP coverage, Kellogg’s eligibility under the APIP policy required 

that he “sustain[] personal injury arising out of the use or operation of the insured motor 

vehicle while occupying the insured motor vehicle.” J.A. 205.2 Because Michigan Mutual 

conceded that “for the purposes of . . . APIP coverage, whether Kellogg was ‘occupying’ 

the tow truck at the time of the accident is irrelevant,” Kellogg, 2019 WL 1083026, at *4 n.3, 

the only remaining issue is whether Kellogg’s injury arose out of his use or operation of 

the tow truck.

Kellogg argues that he was “using” the covered tow truck when he was injured, 

and thus is entitled to a payout under that policy. Kellogg Br. at 30. The district court 

agreed that Kellogg was using the tow truck in some capacity, but the district court 

nevertheless denied APIP coverage. Relying on Walton v. Lumbermens Mut. Cas. Co., 88 

1 Michigan Mutual does not seek return of the money from Kellogg but will attempt “to recoup 

that benefit through coverage litigation with the insurers of the other vehicles involved in the 

accident.” Kellogg, 2019 WL 1083026, at *3 n.2.

2 References to J.A. refer to the Joint Appendix.
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N.Y.2d 211 (1996), the court concluded that Kellogg failed to demonstrate that his use of 

the truck “was a proximate cause of his injuries or that it was the instrumentality that 

produced” his injuries. Kellogg, 2019 WL 1083026, at *6. In our view, the district court 

misapplied Walton.

In Walton, the plaintiff was injured by a “levelator”—a device that creates a ramp 

between a truck bed and a loading dock—as he was unloading his truck, and he sought 

to claim first-party no-fault benefits from the insurer of the truck. See 88 N.Y.2d at 213. 

The levelator was not part of the truck. Id. When the levelator tipped over, throwing the 

plaintiff to the ground, he was, in some sense, injured while using or operating the truck. 

See id. Nevertheless, the Court of Appeals concluded that, although someone who was

unloading a truck “may be using it within the meaning of the statute, . . . that does not 

necessarily mean that his or her injuries arose out of the use of the vehicle.” Id. at 216

(emphasis added).

Of particular relevance to the holding in Walton was the fact that the “plaintiff’s 

injury was caused by an instrumentality other than the insured vehicle,” meaning that 

the truck’s operation and use was not “a proximate cause of the injury.” Id. at 214, 216. 

This proximate-cause distinction recognized by the Court of Appeals reflected the 

legislature’s intention to “draw a line between motor vehicle accidents and all other types 

of torts.” Id. at 214. Ultimately, the Court of Appeals reasoned that “no-fault liability will 

not attach when the injury is caused by something other than a motor vehicle because in such 
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circumstances the incident cannot be considered an accident related to the use of the 

motor vehicle.” Id. at 215–16 (emphasis added).

The instant case presents a wholly different scenario than Walton, one that fits well 

within both the statutory language and the purpose of New York’s no-fault insurance 

law. At the time of the accident, Kellogg was using the tow truck’s winch cable to pull a

vehicle out of a ditch, an activity plainly related to the vehicular nature of the insured 

automobile. And the injury itself was caused by a third vehicle “that had lost control 

while exiting the Thruway at Exit 45.” Kellogg, 2019 WL 1083026, at *2. This, 

undoubtedly, was a “motor vehicle accident[]” covered under the APIP policy. Walton, 

88 N.Y.2d at 214. Kellogg is therefore entitled to APIP coverage, and we reverse the 

district court’s decision insofar as it is inconsistent with this conclusion.

Finally, as for Michigan Mutual’s contention that Kellogg was not “occupying” the 

covered tow truck within the meaning of the MedPay and SUM policies, the undisputed 

facts of the case prove otherwise. At all times leading up to the collision, Kellogg was in, 

around, next to, or using the covered tow truck. And the parties agree that at the specific 

moment of impact, Kellogg “was in the process of detaching the tow truck’s cable from 

the strap attached to the Liamero vehicle.” Kellogg, 2019 WL 1083026, at *9. At the very 

least, then, Kellogg was “vehicle oriented,” thus falling within the broad ambit of what it 

means to “occupy” a vehicle under the no-fault law. See Colon v. Aetna Cas. & Sur. Co., 48

N.Y.2d 570, 574 (1980) (citing cases). The district court was therefore correct in 
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concluding that Kellogg is entitled to coverage under the MedPay and SUM policies, and 

we affirm this portion of the district court’s order.

Accordingly, for the reasons set forth above, the order of the district court is 

VACATED IN PART, REVERSED IN PART, and AFFIRMED IN PART, with costs to 

plaintiffs-appellees-cross-appellants, and we REMAND with instructions to enter a 

declaratory order consistent with this opinion.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk