Artisan and Truckers Casualty Company et al v. John Zaccar Cranley Northwest Pilot Car Service et al

Filing 45

Opinion and Order: The Court DISMISSES Ford as a party pursuant to Federal Rule of Civil Procedure 21. The Court GRANTS in part and DENIES in part BNSF's Motion 14 for Summary Judgment joined by the Cranley Defendants and Defendants Williams and White and DECLARES Plaintiffs have a duty to defend Sue Cranley in Case No. 2011-44266 in the District Court of Harris County, Texas, 189th Judicial District. The Court, however, DENIES as premature BNSF's Motion 14 for Summary Judgment joined by the Cranley Defendants and Defendants Williams and White as to Plaintiffs' duty to indemnify Sue Cranley with leave to amend at a later date if appropriate. The Court also DENIES Plaintiffs' Cross-Motion 20 for Summa ry Judgment based on the same analysis. Finally, the Court STAYS this action until July 3, 2014, or until the underlying Texas litigation is resolved, whichever comes first. If the Texas litigation is resolved first, the parties shall advise the Court within ten days of resolution. Signed on 01/03/2014 by Judge Anna J. Brown. See attached 19 page Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

ARTISAN AND TRUCKERS CASUALTY COMPANY
and'~ROGRESSIVE INSURANCE GROUP,

3:13-cv-00389-BR
OPINION AND ORDER

Plaintiffs,

v.
JOHN ZACCAR CRANLEY NORTHWEST PILOT CAR
SERVICE; NORTHWEST PILOT CAR SERVICE;
LANDSTAR INWAY, INC.; LANDSTAR CARRIER
GR; SHONTA MONIQUE WILLIAMS;
CHRISTOPHER L. WHITE; BNSF RAILWAY
COMPANY; FORD MOTOR CREDIT; SUE
CRANLEY; and JOHN ZACCAR CRANLEY,
Defendants.

BNSF RAILWAY COMPANY, CHRISTOPHER L.
WHITE, and SHONTA MONIQUE WILLIAMS,
Counterclaimants,

v.
ARTISAN AND TRUCKERS CASUALTY COMPANY
and PROGRESSIVE INSURANCE GROUP,
Counterclaim Defendants.

1 - OPINION AND ORDER

MICHAEL T. STONE
Brisbee & Stockton, LLC
139 N.E. Lincoln Street
P.O. Box 567
Hillsboro, OR 97123
[phone]
Attorneys for Plaintiffs-Counterclaim Defendants
JAMES L. HILLER
Hitt Hiller & Monfils, LLP
411 S.W. Second Avenue
Suite 400
Portland, OR 97204
[phone]
Attorneys for Defendants John Zaccar Cranley
Northwest Pilot Car Service; Northwest Pilot
Car Service; Landstar Inway, Inc.; Landstar
Carrier GR; Sue Cranley; and John Zaccar Cranley
JOHNSTON A. MITCHELL
CHRISTINE COERS-MITCHELL
Coers Mitchell Law LLC
2100 N.E. Broadway Street
Suite 105
Portland, OR 97232
[phone]
Attorneys for Defendants-Counterclaimants
Shonta Monique Williams and Christopher L. White
DANIEL F. KNOX
DAVID ARDEN ANDERSON
NOAH JARRETT
Schwabe, Williamson & Wyatt, PC
1211 S.W. Fifth Avenue
Suites 1600-1900
Portland, OR 97204
[phone]
Attorneys for Defendant-Counterclaimant BNSF
Railway Company

2 - OPINION AND ORDER

CHELSEA S. LEWANDOWSKI
Weil & Lewandowski, LLP
One Lincoln Center
10300 S.W. Greenburg Road
Suite 430
Portland, OR 97223
[phone]
JOHN W. WEIL
Hooper, Englund & Weil, LLP
1001 S.W. Fifth Avenue
Suite 2150
Portland, OR 97204
[phone]

Attorneys for Defendant Ford Motor Credit

BROWN, Judge.

This matter comes before the Court on the following Motions:
1.

Motion (#14) for Summary Judgment filed by Defendant-

Counterclaimant BNSF Railway Company and joined by Defendants
John Zaccar Cranley Northwest Pilot Car Service; Northwest Pilot
Car Service; John Zaccar Cranley; Landstar Inway, Inc.; Landstar
Carrier GC; Sue Cranley (collectively referred to as Cranley
Defendants); and Defendants-Counterclaimants Christopher L. White
and Shonta Monique Williams and
2.

Cross-Motion (#20) for Summary Judgment filed by

Plaintiffs.
For the reasons that follow, the Court GRANTS in part and
DENIES in part BNSF's Motion for Summary Judgment joined by the

Cranley Defendants, Christopher L. White, and Shonta Monique
Williams and DENIES Plaintiffs' Cross-Motion for Summary
3 - OPINION AND ORDER

Judgment.

In addition, the Court DISMISSES Defendant Ford Motor

Credit from this action.

BACKGROUND

The following facts are undisputed and taken from the
parties' submissions on summary judgment.
Plaintiffs brought this action against Defendants seeking a
declaration that Plaintiffs have neither a duty to defend nor to
indemnify their insured, Defendant Sue Cranley, in an ongoing
Texas tort lawsuit.

With the exception of Ford, Defendants in

this action are the parties involved in the motor vehicle and
train accident that is the subject of the Texas lawsuit.
On June 3, 2011, Defendant Sue Cranley drove a pilot car for
Defendant John Cranley's tractor and flatbed trailer.

During the

trip, John Cranley's truck became stuck on a set of railroad
tracks.

The Cranleys' attempts to free the truck were

unsuccessful, and a train operated by BNSF and driven by
Defendants Williams and White crashed into John Cranley's truck.
Williams and White suffered injuries in the accident.

The pilot

car driven by Sue Cranley was not physically involved in the
accident.
Williams and White filed a complaint in Texas state court
alleging negligence on the part of the Cranleys, BNSF, and
Landstar Inway, Inc., the owner of the truck.

4 - OPINION AND ORDER

The plaintiffs in

the Texas action alleged Sue Cranley was "acting as a pilot car
driver" for John Cranley and even though her vehicle was not
physically involved in the accident, Sue Cranley was negligent
because she "failed to assist John Z. Cranley in complying with
applicable Texas Transportation Code provision [sic]."

Compl.

Ex. A at 3.
BNSF filed a crossclaim in the Texas action against Landstar
Inway and the Cranleys in which BNSF alleged the accident was
proximately caused by the negligence of the other defendants and
sought additional damages for property damage sustained by BNSF.
BNSF alleged Sue Cranley failed to:
(a)
(b)

(c)

(d)
(e)

(f)
(g)
(h)

scout the route in advance to determine any
areas where the low trailer may have issues
with clearance;
determine whether John Z. Cranley's vehicle
with the trailer as configured would clear
the crossing bef'.ore attempting to cross the
tracks;
provide BNSF with reasonable advance notice
prior to John Z. Cranley's attempt to cross
the tracks as required by Texas
Transportation Code 545.255;
instruct, direct or advise John Z. Cranley to
raise or elevate his low trailer before
attempting to cross the crossing in question;
immediately contact BNSF using the number
posted at the crossing when the trailer on
the vehicle she was piloting became disabled
on the crossing;
assist John Z. Cranley to take proper and
reasonable evasive action to avoid being
struck by the train;
act as a reasonable person of prudence would
have acted under the same or similar
circumstances;
direct John Z. Cranley to stop before
attempting to cross the tracks;

5 - OPINION AND ORDER

(I)
(j)
(k)
(1)

keep a proper lookout;
maintain proper piloting of the vehicle;
heed warning signs; and
determine the laws of the State of Texas that
would apply to John Z. Cranley and the
vehicle and trailer to aid with compliance of
the same.

BNSr Answer and Countercl., Ex. A at 3-4.
As noted, Plaintiffs insure the pilot car driven by Sue
Cranley and filed the action in this Court seeking a declaration
that Plaintiffs do not have a duty to defend Sue Cranley in the
Texas lawsuit or to indemnify her for any resultant damages.
BNSr, as well as Defendants White and Williams, filed
Counterclaims seeking a declaration that Plaintiffs have a duty
both to defend and to indemnify Sue Cranley.
Plaintiffs named rord as a defendant in this action even
though rord is not a party to the Texas litigation.

Ford is,

however, listed as a loss payee on the pilot vehicle's insurance
policy.
BNSF, joined by the Cranley Defendants as well as Defendants
White and Williams, move for summary judgment as to BNSF's
Counterclaim and against Plaintiffs' claims set out in their
Complaint on the grounds that Plaintiffs have a duty to defend
and to indemnify under the. insurance policy because the accident
arose "out of the ownership, maintenance or use" of the insured
automobile.

Plaintiffs, in turn, filed a Cross-Motion for

Summary Judgment in which they assert they do not have a duty to

6 - OPINION AND ORDER

defend or to indemnify because (1) Sue Cranley failed to provide
Plaintiffs with timely notice of her claim and (2) the accident
did not "arise out of the ownership, maintenance or usen of the
insured automobile.

Ford opposes Plaintiffs' Motion for Summary

Judgment in its own right on the ground that the Court lacks
subject-matter jurisdiction over Plaintiffs' claim for a
declaration as to Ford because no live case or controversy exists
between Plaintiffs and Ford.

STANDARDS

Summary judgment is appropriate when "there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.n

States, 636 F. 3d 1207, 1216
Civ. P. 56(a).

Washington Mut. Ins. v. United

(9~

Cir. 2011).

See also Fed. R.

The moving party must show the absence of a

dispute as to a material fact.
395 F. 3d 1142, 1146

(9~

Rivera v. Philip Morris, Inc.,

Cir. 2005).

In response to a properly

supported motion for summary judgment, the nonmoving party must
go beyond the pleadings and show there is a genuine dispute as to
a material fact for trial.

I d.

"This burden is not a light one.

The non-moving party must do more than show there is some
1

metaphysical doubt 1 as· to the material facts at issue."

Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)
(citation omitted).
7 - OPINION AND ORDER

In re

A dispute as to a material fact is genuine "if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party."

Villiarimo v. Aloha Island Air/ Inc., 281 F.3d

1054, 1061 (9th Cir. 2002) (quoting Anderson v. Liberty Lobby/

Inc., 477 U.S. 242, 248 (1986)).

The court must draw all

reasonable inferences in favor of the nonmoving party.

v. Verity/ Inc., 606 F.3d 584, 587 (9th Cir. 2010).

Sluimer

"Summary

judgment cannot be granted where contrary inferences may be drawn
from the evidence as to material issues."
381 F. 3d 948,

957

Easter v. Am. W.

(9th Cir. 2004) (citation omitted).

Fin.,

A "mere

disagreement or bald assertion" that a genuine dispute as to a
material fact exists "will not preclude the grant of summary
judgment."

Deering v. Lassen Cmty. Coll. Dist./ No. 2:07-CV-

1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011)
(citing Harper v. Wallingford,
1989)).

877 F.2d 728, 731 (9th Cir.

When the nonmoving party's claims are factually

implausible, that party must "come forward •tJith more persuasive
evidence than otherwise would be necessary."

LVRC Holdings LLC

v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009) (citation omitted)
The substantive law governing a claim or a defense
determines whether a fact is material.

Prod., Inc.,

454 F.3d 975, 987

Miller v. Glenn Miller

(9th Cir. 2006).

If the

resolution of a factual dispute would not affect the outcome of
the claim, the court may grant summary judgment.
8 - OPINION AND ORDER

Id.

DISCUSSION
Although the parties each move for summary judgment on their
own claims as well as to foreclose the claims of opposing
parties, the resolution of the respective Motions is guided by
the same analysis.

Accordingly, the issues raised in these

Motions are addressed together.

I.

Misjoinder of Ford
Although Ford characterizes its argument as based on

subject-matter jurisdiction, it is, in effect, based on
misjoinder under Federal Rule of Civil Procedure 21.

Ford

contends its status as a loss payee on Defendant Sue Cranley's
insurance policy does not make it a proper party to this action
because Ford does not have a stake in either this action or the
underlying Texas litigation.

Plaintiffs, however, assert Ford is

a necessary party because Ford's interest as a loss payee under
the insurance policy is relevant to this case and a determination
that coverage applies could adversely affect Sue Cranley's
insurance policy.
If a plaintiff fails to meet the standard for permissive
joinder, the court may sever the misjoined parties as long as a
substantial right would not be prejudiced by the severance.
Visendi v.

2013) .

Bank of Am./ N.A.,

733 F.3d 863, 870-71 (9th Cir.

Permissive joinder of a defendant is proper if "any right

to relief is asserted against them jointly, severally, or in the

9 - OPINION AND ORDER

alternative with respect to or arising out of the same
transaction, occurrence, or series of transactions or
occurrences" and "any question of law or fact common to all
defendants will arise in the action."

Fed. R. Civ. P. 20(a) (2).

Ford is listed as a loss payee on Defendant Sue Cranley's
automobile insurance policy.

Thus, if Sue Cranley's automobile

was damaged or destroyed, Ford would be entitled to at least a
portion of the insurance proceeds in satisfaction of its
remaining interest in the automobile.

A loss payee is generally

a proper party when the action concerns loss to the insured
property.
F.2d 48, 51

See Continental Ins. Co. of New York v. Cotten, 427
(9~

Cir. 1970).

Here, however, the Texas pleadings do not contain an
allegation that Sue Cranley's vehicle was damaged in the
accident, and, in fact, the pleadings in the case before this
Court make clear that Sue Cranley's vehicle was not physically
involved in the accident.

See Compl.

~~

17, 18.

Thus, there is

no provable set of facts under the pleadings in the Texas action
that would implicate Ford's status as a loss payee under the
insurance policy covering Sue Cranley's vehicle.
In summary, Plaintiffs seek a declaration regarding the
rights and responsibilities of the parties in relation to the
Texas lawsuit in which Defendant Ford is not presently a party
and in which the facts do not reflect Ford has a direct interest

10 - OPINION AND ORDER

in the outcome of the case nor that Ford could ever become a
party.

The relief sought as to Ford, therefore, does not arise

from the same transaction or occurrence as that of the other
Defendants and a substantial right will not be prejudiced by
Ford's dismissal.
On this record, therefore, the Court concludes Ford was
misjoined as a party, and, therefore, the Court dismisses Ford
from this case pursuant to Federal Rule of Civil Procedure 21.
II.

Duty to Defend and to Indemnify

Plaintiffs contend they do not have a duty to defend or to
indemnify Sue Cranley under the insurance policy because she
failed to provide Plaintiffs with timely notice of the accident
and the accident did not "arise out of the ownership, maintenance
or use" of the insured auto within the meaning of the insurance
policy.

Conversely, the remaining Defendants argue they are

entitled to a declaration that Plaintiffs have a duty to defend
and to indemnify because Plaintiffs were not prejudiced by any
delay in providing notice and the accident arose "out of the
ownership, maintenance or use" of Sue Cranley's insured auto.
The parties agree whether Plaintiffs have a duty to defend
and to indemnify Sue Cranley is controlled by Oregon law.
A.

Timely Notice

"When an insured fails to give immediate notice to its
insurer of a possible claim, the viability of the insurer's

11 - OPINION AND ORDER

policy obligation turns on a two-part inquiry:

(1) whether the

insurer was prejudiced by the delayed notice; and (2) if the
insurer was prejudiced, whether the insured acted reasonably in
failing to give notice at an earlier time."
Wausau v. Tektronix/ Inc., 211 Or. App.

Employers Ins. of

485, 494

(2007).

insurer has the burden of demonstrating prejudice."

"The

Id. at 495.

Plaintiffs argue Sue Cranley's notice to Plaintiffs was
untimely because she did not tender notice of the accident until
February 15, 2012, which was more than eight months after the
accident occurred and shortly after Defendants White and Williams
filed their petition in Texas state court.

Plaintiffs assert a

presumption of prejudice arises if an insured's failure to give
notice results in unreasonable delay.

Plaintiffs rely on PSI

Energy/ Inc. v. Home Ins. Co., 801 N.E.2d 705 (Ind ..App. 2004),

to support their position.
The presumption of prejudice as set out in PSI Energy,
however, is inconsistent with Oregon law because it reverses the
inquiry required by Employers Insurance of Wausau:

Whereas

Indiana law permits a presumption of prejudice to arise upon a
finding of unreasonable delay, Oregon law requires the insurer
to show prejudice before the court may inquire into the
reasonableness of the delay.
Or. App. at 494-95.

See Employers Ins.

of Wausau,

211

Because Plaintiffs do not show any prejudice

caused by Sue Cranley's delayed notice as required under Oregon
12 - OPINION AND ORDER

law, this Court need not determine whether the delay was
reasonable.

Thus, the Court concludes Plaintiffs cannot avoid

the duty to defend or to indemnify Sue Cranley on the ground that
she provided untimely notice of the accident.

B.

Coverage under the Terms of the Policy

Plaintiffs' duty to defend their insured hinges on whether
the terms of the insurance policy cover the facts as pled in the
underlying litigation.
Exchange,

Bresee Homes, Inc. v. Farmers Ins.

353 Or. 112, 116 (2012).

Whether Plaintiffs have a

duty to indemnify their insured is determined "on the basis of
the ultimate facts proven at trial or .
the basis for the settlement."

the facts that formed

Id. at 126.

In interpreting an insurance policy, the court determines
the intent of the parties based on the terms and conditions of
the policy.

Hoffman Constr. Co. of Alaska v. Fred S. James & Co.

of Oregon, 313 Or. 464, 469 (1992).

If the terms of the policy

are unambiguous, the analysis ends and the unambiguous terms
control.

Id. at 470.

If there are multiple plausible

interpretations of a term, however, the court examines the term
in light of the "particular context in which that term is used in
the policy and the broader context of the policy as a whole."
Id.

If the term remains ambiguous in light of its context, then

the term will be construed against the insurer.

Id.

The relevant provision of the insurance policy at issue in
13 - OPINION AND ORDER

this case provides:
Subject to the Limits of Liability, if you pay the
premium for liability coverage, we will pay
damages for bodily injury, property damage, and
covered pollution cost or expense, for which an
insured becomes legally responsible because of an
accident arising out of the ownership, maintenance
or use of an insured auto.

We will settle or defend, at our option, any claim
or lawsuit for damages covered by this Part I.
Pl.'s Compl., Ex. Cat 9, 30.

It is undisputed that the

controlling question in determining whether Plaintiffs have a
duty to defend and to indemnify Sue Cranley is whether the
accident "ar[ose] out of the ownership, maintenance or use of an
insured auto."
1.

Duty to Defend

The insurer's duty to defend is determined exclusively
by reference to the insurance policy and the pleadings in the
underlying action.

Bresee Homes,

353 Or. at 116.

See also

Cooper v. Commonwealth Land Title Ins. Co., 73 Or. App. 539,
541-44

(1985) (determining an insurer's duty to defend based on a

counterclaim)

"'An insurer has a duty to defend an action

against its insured if the claim against the insured stated in
the complaint could, without amendment, impose liability for
conduct covered by the policy."'

Bresee Homes,

353 Or. at 116

(quoting Ledford v. Gutoski, 319 Or. 397, 399-400 (1994)).

The

duty to defend arises if the "'complaint provides any basis for
14 - OPINION AND ORDER

which the insurer provides coverage'" even if some of the conduct
alleged in the pleadings falls outside of the policy's coverage.

Id.

(emphasis in original).

"'Any ambiguity in the complaint

with respect to whether the allegations could be covered is
resolved in favor of the insured.'"

Id.

Oregon courts have frequently considered the meaning of
the phrase "arising out of the ownership, maintenance or use" of
an insured vehicle.

There is a "continuum of causal connection"

upon v1hich the court must "locate the factual situation alleged
in [the complaint]."

United States Fid.

&

Oakridge Community Ambulance Serv., Inc. v.
Guar. Co., 278 Or. 21, 25 (1977).

For the

duty to defend to arise, "[t]he injury must originate from, be
incident to or have a connection with the use of the vehicle."

Jordan v. Lee, 76 Or. App. 472, 475 (1985).

"[T]he vehicle need

not be the direct or legal cause of the injury."

Id.

An injury

does not arise out of the use of an automobile, however, if "it
was directly caused by some act wholly disassociated from and
independent of the vehicle's use."

Underwriters Ins.

Co. v. Jackson,

Id.

See also Worldwide

121 Or. App. 292, 295 (1993);

Atlanta Cas. Co. v. Orr, 141 Or. App. 441, 444

(1996).

On one end of the continuum Oregon courts have found an
insufficient causal connection when the injury was caused by an
action wholly dissociated from the use of the vehicle or when the
risks from which the party claiming coverage was seeking

15 - OPINION AND ORDER

protection were not those typicaily covered by automobile
insurance.

See, e.g., Worldwide Underwriters,

121 Or. App. at

294-96 (injuries sustained in drive-by shooting were caused by
the firing of a gun, which was "wholly dissociatedu from the use
of the vehicle); Jordan,

76 Or. App. at 474-76 (rejecting

coverage when a child was accidentally shot while a friend was
playing with a gun stored in the car); First Far West Transp. V.
Carolina Cas.

Ins. Co., 47 Or. App. 339, 341-42 (1980) (lessor of

truck not covered by the deceased lessee's auto insurance when a
defect in the truck caused the crash because the risk of defect
was "more appropriately thought of as risks inherent in the
operation of plaintiff's business.n).
On the other end of the continuum, Oregon courts have
found the requisite causal connection when the accident was
caused by an action that was at least an "incidental partu of
using the vehicle.

See, e.g., Atlanta Cas.,

141 Or. App. at

443-45 (finding coverage for an accidental shooting when a gun
stored in the vehicle discharged after being jostled in the
course of loading the vehicle).
Most relevant to this case, however, is the Oregon
Supreme Court's finding as to coverage in Oakridge Community
Ambulance in which the plaintiffs alleged the decedent's death
was caused by Oakridge's "failure to have an ambulance at the
scene of the accident within a reasonable period of time.n

16 - OPINION AND ORDER

278

Or. at 23.

The plaintiffs specifically alleged the delay in the

ambulance's arrival was caused by Oakridge's

~failure

to

accurately receive directions to the scene of the accident."
at 23-24.

Id.

The court readily concluded there was not any coverage

for Oakridge's alleged negligence in failing to
receive directions."

Id. at 26-27.

~accurately

The court found, however,

that other allegations in the complaint were general enough to
hypothetically permit the decedent's estate to introduce evidence
that the delay was caused by negligent maintenance or operation
of the ambulance and concluded such allegations triggered the
duty to defend.

Id. at 27-28.

In this case the pleadings in the Texas litigation
contain allegations that could provide a basis for liability
covered by the insurance policy.

In its crossclaim in the Texas

litigation, for example, BNSF alleges the accident was caused by,
among other things, Sue Cranley's failure to keep a proper
lookout, to maintain proper piloting of the vehicle, to heed
warning signs, and to act as a reasonable person of prudence
would have acted under the same or similar circumstances.
Answer and Countercl., Ex. A at 3-4.

BNSF's

These allegations are broad

enough to permit BNSF to introduce evidence that the injury
originated from, was incident to, and/or had a connection with
Sue Cranley's use of the vehicle.
475.

See Jordan,

76 Or. App. at

The Court, therefore, concludes because the pleadings

17 - OPINION AND ORDER

provide "any basis for which the insurer provides coverage,"
Plaintiffs have a duty to defend Sue Cranley in the Texas
litigation.

See Bresee Homes,

353 Or. at 116.

Accordingly, as

to the duty to defend, the Court grants BNSF, the Cranley
Defendants, and Defendants Williams and White's Motion (#14) for
Summary Judgment as to BNSF's Counterclaim and Plaintiffs' claims
in their Complaint.

2.

Duty to Indemnify

As noted, an insurer's duty to indemnify turns on
whether the accident "[arose) out of the ownership, maintenance
or use" of an insured auto based on the "ultimate facts proven at
trial or .

. the facts that formed the basis for the

settlement."

Id. at 126.

Although the pleadings in the Texas

litigation contain allegations that permit the parties to
introduce evidence that the accident arose "out of the ownership,
maintenance or use" of Sue Cranley's vehicle, the pleadings also
contain allegations that may fall outside of the scope of
coverage.

Thus, because the Texas litigation remains unresolved,

this Court cannot determine at this stage whether Plaintiffs have
a duty to indemnify Sue Cranley.
Accordingly, the Court denies as premature the parties'
Motions for Summary Judgment with respect to the duty to
indemnify with leave to renew at a later date if appropriate.

18 - OPINION AND ORDER

CONCLUSION
For these reasons, the Court DISMISSES Ford as a party
pursuant to Federal Rule of Civil Procedure 21.
The Court GRANTS in part and DENIES in part BNSF's Motion
(#14) for Summary Judgment joined by the Cranley Defendants and
Defendants Williams and White and DECLARES Plaintiffs have a duty
to defend Sue Cranley in Case No. 2011-44266 in the District
Court of Harris County, Texas, 189th Judicial District.

The

Court, however, DENIES as premature BNSF's Motion (#14) for
Summary Judgment joined by the Cranley Defendants and Defendants
Williams and White as to Plaintiffs' duty to indemnify Sue
Cranley with leave to amend at a later date if appropriate.

The

Court also DENIES Plaintiffs' Cross-Motion (#20) for Summary
Judgment based on the same analysis.
Finally, the Court STAYS this action until July 3, 2014, or
until the underlying Texas litigation is resolved, whichever
comes first.

If the Texas litigation is resolved first,

the

parties shall advise the Court within ten days of resolution.
IT IS SO ORDERED.
DATED this

3vA day

of January, 2014.

United States District Judge

19 - OPINION AND ORDER