Zoller v. Zurich American Insurance Company et al

Filing 135

ORDER AND REASONS: IT IS HEREBY ORDERED that Hallmark Specialty Insurance Company's 86 Motion for Summary Judgment/Alternatively Motion for Declaratory Judgment is DENIED AS MOOT. Signed by Chief Judge Nannette Jolivette Brown on 12/10/2018. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RON ZOLLER

CIVIL ACTION

VERSUS

CASE NO. 16-1837

ZURICH AMERICAN INSURANCE
COMPANY, et al.

SECTION: “G”(4)

ORDER AND REASONS
Before the Court is Defendant Hallmark Specialty Insurance Company’s (“Hallmark”)
“Motion for Summary Judgment/Alternatively Motion for Declaratory Judgment.”1 The matter
involves a motor vehicle accident that allegedly occurred on February 8, 2015. In the petition for
damages, Plaintiff Ron Zoller (“Plaintiff”) alleged that Defendant Charles Nikolauzyk
(“Nikolauzyk”) rear-ended him while traveling westbound on Interstate-12 in St. Tammany Parish,
Louisiana.2 At the time of the incident, Plaintiff alleged that Nikolauzyk was driving a motor
vehicle owned by Defendants Larry Newsom and Linda Newsom (collectively, “the Newsoms”).3
At that time, Nikolauzyk was allegedly employed by Defendant Newsom Trucking, Inc (“Newsom
Trucking”).4 Plaintiff also alleged that at the time of the accident the motor vehicle Nikolauzyk
was driving was hauling a trailer (“the Trailer”) owned by either Schantz Manufacturing, Inc.
(“Schantz”) or Ray Cammack Shows (“RCS”).5

1

Rec. Doc. 86.

2

Rec. Doc. 1-4 at 2.

3

Id. at 2.

4

Rec. Doc. 5.

5

Rec. Doc. 59 at 3.

1

On February 2, 2016, Plaintiff filed a petition for damages against Nikolauzyk, the
Newsoms, and the Newsoms’ insurer Zurich American Insurance, Co. (“Zurich”) in the 22nd
Judicial District Court for the Parish of St. Tammany.6 On March 4, 2016, Nikolauzyk and Zurich
removed the case to this Court.7 On March 9, 2016, Plaintiff filed a first amending and
supplemental complaint naming Newsom Trucking as a defendant. 8 On November 7, 2016,
Plaintiff filed a second amending and supplemental complaint naming Hallmark as an insurer of
Newsom Trucking.9 On July 31, 2017, Plaintiff filed a third amending and supplemental complaint
alleging that T.H.E. Insurance Company (“T.H.E.”), the insurer of RCS, may have provided
insurance coverage for the trailer being pulled by Nikolauzyk.10 On November 21, 2017, Plaintiff
filed a fourth amending and supplemental complaint against RCS, Schantz, and Schantz’s insurer
Selective Insurance Company of South Carolina (“Selective”).11 On October 8, 2018, Hallmark
filed the instant motion for summary judgment.12
In the instant motion, Hallmark urges the Court to grant summary judgment or issue a
declaration finding that the Selective Policy or the T.H.E. Policy “must be exhausted before
Hallmark’s excess limits apply.”13 Hallmark’s motion for summary judgment is reliant upon the

6

Rec. Doc. 1-4 at 2.

7

Rec. Doc. 1.

8

Rec. Doc. 5.

Rec. Doc. 29. The second amending and supplemental complaint is incorrectly labeled as the “First Amending and
Supplemental Complaint.”
9

10

Rec. Doc. 42.

11

Rec. Doc. 59.

12

Rec. Doc. 86.

13

Rec. Doc. 86-2 at 1.

2

Court finding that either the Selective Policy or the T.H.E. Policy affords coverage for the
Newsoms, Newsom Trucking, and Nikolauzyk. In its prior orders, the Court ruled that neither the
Selective Policy nor the T.H.E. Policy provide coverage for the Newsoms, Newsom Trucking, or
Nikolauzyk. 14 The Court found that “[a] plain reading of the policy language establishes that the
trailer is ‘mobile equipment,’ which is expressly excluded from the definition of an ‘auto’ under
the terms of the Selective Policy. Therefore, any use of the food trailer cannot trigger ‘insured’
status for Newsom Trucking, the Newsoms, or Nikolauzyk.”15 Because neither the Selective Policy
nor the T.H.E. Policy afford coverage and both parties have been dismissed from the case,
Hallmark’s arguments in this motion are moot. Accordingly,
IT IS HEREBY ORDERED that Hallmark Specialty Insurance Company’s “Motion for
Summary Judgment/Alternatively Motion for Declaratory Judgment”16 is DENIED AS MOOT.
NEW ORLEANS, LOUISIANA, this 10th

day of December, 2018.

__________________________________
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

14

See Rec. Docs. 133, 134.

15

Rec. Doc. 133 at 21. The Court also drew this conclusion in finding that the T.H.E. Policy excluded coverage of
the food trailer. Rec. Doc. 134 at 22.
16

Rec. Doc. 86.

3