GREAT WEST CASUALTY INSURANCE COMPANY et al v. SELECTIVE INSURANCE COMPANY OF AMERICA
Filing
51
MEMORANDUM OPINION re 33 and 37 Motions for Summary Judgment. Signed by Chief Magistrate Judge Maureen P. Kelly on 09/28/17. (eca)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
OREA T WEST CASUAL TY COMPANY )
and MIDWEST TRANSPORT, INC.
)
Plaintiffs,
VS.
SELECTIVE INSURANCE COMPANY
OF AMERICA,
Defendant.
)
)
)
)
)
)
)
)
)
)
Civil No. 16-382
Chief Magistrate Judge Maureen P. Kelly
Re: ECF Nos. 33 and 37
OPINION
KELLY, Chief Magistrate Judge
Pending before the Court are the cross-motions for summary judgment filed by Plaintiffs
Great West Casualty Company ("Great West Casualty") and Midwest Transport, Inc.
("Midwest") ("Plaintiffs"), ECF No. 33, and Defendant Selective Insurance Company of
America ("Selective"), ECF No. 37, in this action for declaratory judgment, breach of contract
and equitable contribution.
By this action Plaintiffs seek a declaration that Selective owes Midwest insurance
coverage under Selective Commercial Auto Policy Number S 210012100 ("the Selective
Policy") with respect to the lawsuit captained Cynthia L. Rice, Administratrix of the Estate of
Scott B. Rice, Deceased; and Cynthia L. Rice, Individually v. Cargo Force, Inc. et al., pending in
the Court of Common Pleas of Allegheny County, Pennsylvania at Docket No. GD-15-18582
("the Underlying Action") in which Cynthia Rice, as Administratrix of the Estate of her husband,
Scott B. Rice, and individually, sued Cargo Force, Inc. ("Cargo Force"), Veltri Trucking, Inc.
("Veltri Trucking"), Reggie Sell, Jr. ("Sell"), and Midwest.
At issue in the cross-motions for summary judgment is whether, pursuant to the Selective
Policy, Selective has a duty to defend and indemnify Midwest in the Underlying Action, whether
Selective breached the Selective Policy as to Midwest when it refused to defend and indemnify
Midwest with respect to the Underlying Action, and whether Selective owes Great West
Casualty equitable contribution for the defense costs that Great West Casualty has incurred in
defending Midwest in the Underlying Action to date. In support of their motion for summary
judgment, Plaintiffs contend that Midwest is an insured under the Selective Policy and the
complaint in the Underlying Action alleges claims that fall within the Selective Policy's
coverage and, therefore, Selective is obligated to defend and indemnify Midwest with respect to
the Underlying Action. ECF No. 36 at 11-12 and 14.
In opposition to Plaintiffs' motion for
summary judgment, Selective contends that Midwest is not an insured under the Selective Policy
and therefore, Plaintiffs' motion must be denied. ECF No. 46 at 4.
Selective contends, in support of its motion for summary judgment, that it is entitled to
judgment as a matter of law because Midwest is not an insured under the Selective Policy and
the claim for which Midwest seeks coverage is not covered under the Selective Policy and,
therefore, Selective has no duty to defend or indemnify Midwest against claims asserted in the
Underlying Action.
ECF No. 39 at 1.
In opposition to Selective's motion for summary
judgment, Plaintiffs contend that Midwest is an insured under the Selective Policy and the claims
against Midwest in the Underlying Action are covered under the Policy. ECF No. 43 at 1.
For the following reasons, the Court concludes that Selective has a duty to defend
Midwest under the terms of the Selective Policy, Selective breached its contract with Midwest
2
when it failed to defend Midwest under the terms of the Selective Policy, and Great West
Casualty is entitled to equitable contribution from Selective.
The Court further finds it is
premature to rule on Selective's duty to indemnify Midwest and that it will revisit the issue at a
later date if Midwest is found liable for damages in the Underlying Action. Therefore, Plaintiffs'
motion for summary judgment, ECF No. 33, is granted in part and denied in part without
prejudice, and Defendant's motion for summary judgment, ECF No. 37, is denied.
I. STANDARD OF REVIEW
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." Fed.R.Civ.P. 56(a); see Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
The parties must support their respective
positions by "citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations (including
those made for purposes of the motion only), admissions, interrogatory answers, or other
materials." Fed.R.Civ.P. 56(c)(l)(A). In other words, summary judgment may be granted only
if there exists no genuine issue of material fact that would permit a reasonable jury to find for the
nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). "When
confronted with cross-motions for summary judgment, the "court must rule on each party's
motion on an individual and separate basis, determining, for each side, whether a judgment may
be entered in accordance with the Rule 56 standard." Anderson v. Franklin Institute, 185 F.
Supp. 3d 628, 635 (E.D. Pa. 2016) (quoting Schlegel v. Life Ins. Co. of N. America, 269 F.
Supp. 2d 612, 615 n.1 (E.D. Pa. 2003) (quoting Charles A. Wright, Arthur R. Miller et al., lOA
Fed. Prac. and Proc. § 2720 (3d ed. 1998)) (internal quotations omitted).
3
In reviewing the evidence, the court draws all reasonable inferences in favor of the
nonmoving party. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000);
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Huston v.
Procter & Gamble Paper Prod. Corp., 568 F .3d 100, 104 (3d Cir. 2009) (citations omitted). It is
not the court's role to weigh the disputed evidence and decide which is more probative, or to
make credibility determinations. See Anderson, 477 U.S. at 255; Marino v. Indus. Crating Co.,
358 F.3d 241, 247 (3d Cir. 2004); Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir.
1998). "Only disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 247-48. An
issue is "genuine" if a reasonable jury could possibly hold in the nonmovant's favor with regard
to that issue. See id. "Where the record taken as a whole could not lead a reasonable trier of fact
to find for the nonmoving party, there is no 'genuine issue for trial."' Matsushita, 475 U.S. at
587; Huston, 568 F.3d at 104.
II. RELEVANT FACTS
The Court will now review the facts relevant to the pending cross-motions for summary
judgment. If the parties agree on a fact, the Court will cite to the relevant page and paragraph in
the parties' joint statement of undisputed facts pursuant to L.Civ.R. 56. If a party disputes a fact
alleged by the other party, the Court will cite to the specific evidence of record that supports the
fact in question.
A. Federal Action
Plaintiffs seek a declaration that Selective owes Midwest insurance coverage under the
Selective ·Policy with respect to the Underlying Action.
ECF No. 34,
iJ
2. The Underlying
Action was initiated by Mrs. Rice, as Administratrix of the Estate of her husband, Scott Rice, and
4
in her individual capacity, against Cargo Force, Veltri Trucking, Sell, and Midwest.
Id.,~
3. In
her Amended Complaint in the Underlying Action ("the Amended Complaint"), Mrs. Rice
alleges that on September 8, 2014, her husband, Scott Rice, was killed, and she was injured when
the rear dually wheels of a trailer owned by Midwest ("the Midwest Trailer"), and being hauled
by a 2004 Mack truck, Vehicle Model CX613 ("the Veltri Tractor"), owned by Veltri Trucking,
and driven by Sell, detached from the Midwest Trailer, traveled across a grassy median on
Interstate 79 and impacted a 2011 Volkswagen Tiguan being operated by Scott Rice with Mrs.
Rice as a passenger ("the Rice vehicle"). Id.,
~~
4, 6-7, 10, 39. At all relevant times, including
at the time of the detachment of the rear-dually wheels from the Midwest Trailer, Sell was
employed by Veltri Trucking as a commercial truck driver and was acting in the course and
scope of his employment.
Id.,~
6.
Midwest had a contract with the United States Postal Service ("USPS") to transport mail
and a schedule under which it performed its contract-related services.
Id.,~
13. Veltri Trucking
had a separate contract with the USPS to transport mail and a schedule under which it performed
its contractual services. Id.,
~
14. There was no contract between Midwest and Veltri Trucking.
Id.,~18.
On September 8, 2014, prior to the accident involving the Rice vehicle, Sell had driven
the Veltri Tractor to a truck terminal located in Moon Township, Pennsylvania, operated by
Cargo Force. Id.,
~
15. At the truck terminal, Cargo Force dispatched the Midwest Trailer,
which was empty, to Sell for transport to a USPS facility located in Pittsburgh.
Id.,~
16. While
Sell was operating the Veltri Tractor and hauling the Midwest Trailer from Cargo Force's facility
to the USPS facility in Pittsburgh, the Midwest Trailer's rear dually wheels detached and struck
the Rice vehicle.
Id.,~
17.
5
Selective insured Veltri Trucking pursuant to the Selective Policy, with effective dates of
January 22, 2014 to January 22, 2015.
Id.,~
19. Great West Casualty insured Midwest pursuant
to Commercial Lines Policy Number GWP88246D ("the Great West Policy"), with effective
dates of August 1, 2014 to August 1, 2015.
Id.,~
20.
B. State Court - Underlying Action
Relevant to the instant federal action, Cynthia Rice alleges in the Amended Complaint in
the Underlying Action as follows. On September 8, 2014, at approximately 6:00 a.m., Scott
Rice, was operating the Rice vehicle in the left lane of travel on south-bound Interstate 79. Id., ~
24. Mrs. Rice, his wife, was a front seat passenger of the Rice vehicle. Id.,
~
25. Sell was
operating a tractor trailer unit on north-bound Interstate 79, travelling in a northerly direction, at
the same time that Scott Rice was operating the Rice vehicle, travelling in a south-bound
direction. Id.,
~
27.
The tractor-trailer unit operated by Sell was a commercial vehicle in
interstate commerce governed by the Federal Motor Carrier Safety Regulations ("FMCSR"), 49
C.F.R. §350.1 et seq. and §390.1 et seq., and operated under the authority of the Federal Motor
Carrier Safety Administration. Id.,
~
28. While Sell was operating the tractor-trailer unit on
north-bound Interstate 79 in close proximity to Exit 68, the rear dually wheels of the Midwest
Trailer detached, traveled across a grassy median, entered the southbound lanes of travel and
impacted the Rice vehicle operated by Scott Rice. Id.,
~
29. Scott Rice sustained fatal injuries
and Cynthia Rice sustained severe and permanent personal injuries when the Midwest Trailer's
rear dually wheels struck the Rice vehicle. Id.,
~
as a result of witnessing her husband's death. Id.,
30. Mrs. Rice also sustained emotional injuries
~
31. These injuries were caused, in part, "[a]s
a direct and proximate result of the negligence, carelessness, recklessness and wantonness" of
the various defendants, including Midwest.
Id.,~
6
32.
In the Amended Complaint, the plaintiffs further alleged the following regarding the
maintenance of the Midwest Trailer. The Midwest Trailer was not sufficiently, adequately, or
properly maintained, such that it had problems with its axle, spindle assembly, lock nuts, wheel
bearings, and rear dually-wheels prior to the incident in which the rear dually-wheels of the
Midwest Trailer detached and struck the Rice vehicle. Id.,
~
33. The Midwest Trailer was
unsafe for road use, and it created an unreasonable hazard to other motorists.
Id.,~
34.
The plaintiffs in the Underlying Action also alleged that Midwest was aware of these
issues with the Midwest Trailer prior to the subject motor vehicle accident, and the Midwest
Trailer was taken out of service by Midwest, but Cargo Force improperly placed the Midwest
Trailer back into service prior to the subject motor vehicle accident.
Id.,~~
35-36.
In addition, the plaintiffs alleged that before starting his route on September 8, 2014, Sell
failed to perform a proper pre-trip inspection of the Midwest Trailer, and instead, coupled the
Midwest Trailer to the Veltri Tractor while at the Cargo Force facility, and thereafter began to
operate the tractor-trailer unit, leaving the Cargo Force facility and driving on north-bound
Interstate 79.
Id.,~~
37-38.
With respect to Midwest, the plaintiffs also alleged in the Amended Complaint that:
24. At all times material hereto, it is believed and therefore averred that the
trailer-unit operated by Defendant, REGGIE SELL, JR., was owned and/or
controlled by Defendants, MIDWEST TRANSPORT, INC. and/or CARGO
FORCE, INC. t/d/b/a CARGO FORCE INC.
25. At all times material hereto, it is believed and therefore averred that the
aforementioned trailer unit was not sufficiently, adequately, and/or properly
maintained in accordance with the requirements set forth in the FMCSR [Federal
Motor Carrier Safety Regulations] and/or general industry standards and had, in
fact, been placed out-of-service with a "red tag" affixed thereto due to mechanical
problems with its axle, spindle assembly, lock nuts, wheel bearings, rear duallywheels, and/or other components.
7
26. At all times material hereto, it is believed and therefore averred that the
aforementioned trailer unit existed in an unsafe and out-of-service condition, and
created an unreasonable hazard to other motorists on the roadway.
27. At all times material hereto, and prior to being operated by Defendant,
REGGIE SELL, JR., on September 8, 2014, it is believed and therefore averred
that the aforementioned trailer unit had been observed by Defendants, CARGO
FORCE, INC. t/d/b/a CARGO FORCE INC. t/d/b/a CARGO FORCE and
MIDWEST TRANSPORT, INC., to be emitting large quantities of odorous
smoke from an area in close proximity to the rear dually-wheels of the trailer
while within a facility owned, operated, and/or managed by Defendant, CARGO
FORCE, INC. t/d/b/a CARGO FORCE INC. t/d/b/a CARGO FORCE, located at
700 Airside Drive, Moon Township, Allegheny County, Pennsylvania 15108.
28. At all times material hereto, it is believed and therefore averred that
Defendants, CARGO FORCE, INC. t/d/b/a CARGO FORCE INC. t/d/b/a
CARGO FORCE and/or MIDWEST TRANSPORT, INC., thereafter affixed a
"red tag" to the aforementioned trailer unit and had placed it out-of-service and/or
otherwise marked it to not be operated.
29. Thereafter, it is believed and therefore averred that Defendant, CARGO
FORCE, INC. t/d/b/a CARGO FORCE INC. t/d/b/a CARGO FORCE, cut and/or
otherwise removed part of the aforementioned "red tag" that was placed on the
trailer unit, and attempted multiple times to dispatch the trailer onto the roadway
without having the aforementioned trailer unit properly inspected and/or repaired
with knowledge of its dangerous and hazardous condition.
41. As a direct and proximate result of the negligence and carelessness of
Defendant, MIDWEST TRANSPORT, INC., as more fully set forth in Counts
XIII and XIV, below, Plaintiffs Decedent, SCOTT B. RICE, sustained severe and
fatal personal injuries, as described in more detail in Counts XIII and XIV, below.
42. As a direct and proximate result of the negligence, carelessness, recklessness,
and wantonness of Defendant, MIDWEST TRANSPORT, INC., as more fully set
forth in Counts XV and XVI, below, Plaintiff, CYNTHIA L. RICE, sustained
severe and permanent personal injuries, as described in more detail in Counts XV
and XVI, below.
ECF No. 34-2 at 20-22, 24.
In Count XIII of the Amended Complaint in the Underlying Action, the plaintiffs set
forth a survival claim against Midwest by Mrs. Rice as the Administratrix of Mr. Rice's Estate.
8
Id. at 87-94. In Count XIV of the Amended Complaint, the plaintiffs set forth a wrongful death
claim against Midwest by Mrs. Rice as the Administratrix of Mr. Rice's Estate. Id. at 94-101. In
Count XV of the Amended Complaint, the plaintiffs set forth a negligence/intentional tort claim
against Midwest by Mrs. Rice individually. Id. at 101-107. In Count XVI of the Amended
Complaint, the plaintiffs set forth a negligent infliction of emotional distress claim against
Midwest by Mrs. Rice individually. Id. at 107-108.
C. Selective Policy
The Selective Policy provides up to $1,000,000 in Business Automobile coverage per
accident. ECF No. 34, ~ 43. The insuring agreement of the Selective Policy states as follows:
We will pay all sums an "insured" legally must pay as damages because of
"bodily injury" or "property damage" to which this insurance applies, caused by
an "accident" and resulting from the owl)ership, maintenance or use of a covered
"auto".
We will also pay all sums an "insured" legally must pay as a "covered pollution
cost or expense" to which this insurance applies, caused by an "accident" and
resulting from the ownership, maintenance or use of covered "autos". However,
we will only pay for the "covered pollution cost or expense" if there is either
"bodily injury" or "property damage" to which this insurance applies that is
caused by the same "accident".
We have the right and duty to defend any "insured" against a "suit" asking for
such damages or a "covered pollution cost or expense". However, we have no
duty to defend any "insured" against a "suit" seeking damages for "bodily injury"
or "property damage" or a "covered pollution cost or expense" to which this
insurance does not apply. We may investigate and settle any claim or "suit" as we
consider appropriate. Our duty to defend or settle ends when the Liability
Coverage Limit of Insurance has been exhausted by payment of judgments or
settlements.
Id.,
~
44. The Selective Policy provides liability coverage for those "covered autos" designated
as Symbol 7 automobiles. Id.,
~
45. A Symbol 7 automobile is defined by the Business Auto
Coverage Form of the Selective Policy to include "Specifically Described 'Autos"'- that is,
"Only those 'autos' described in Item Three of the Declarations for which a premium charge is
9
shown (and for Liability Coverage any 'trailers' you don't own while attached to any power unit
described in Item Three)."
Id.,~
46. The Business Auto Coverage Form of the Selective Policy
is modified by the "Truckers Endorsement," Endorsement Number CA 23 20 03 06 ("the
Truckers Endorsement"), in relevant part, as follows:
For any operations you engage in as a "trucker" the policy 1s changed as
follows:
A. Who Is An Insured under Liability Coverage is replaced by the following:
1. Who Is An Insured
a. You for any covered "auto.
b. Anyone else while using with your permission a covered "auto" you own,
hire or borrow except: ...
c. The owner or anyone else from whom you hire or borrow a covered "auto"
that is a "trailer" while the "trailer" is [connected] to another covered "auto"
that is a power unit, or, if not connected:
( 1) Is being used exclusively in your business as a "trucker"; and
(2) Is being used pursuant to operating rights granted to you by a public
authority.
Id.,~
47. The Truckers Endorsement further provides the following definitions:
E. Additional Definitions
As used in this endorsement:
1. "Trailer" includes a semitrailer or a dolly used to convert a semitrailer
into a trailer. But for Trailer Interchange Coverage only, "trailer" also
includes a container.
3. "Trucker" means any person or organization engaged in the business of
transporting property by "auto" for hire.
Id.,~
48.
10
The Veltri Tractor is a "covered auto" under the Selective Policy.
Id.,~
49. Sell was a
"trucker" as defined by the Selective Policy at the time of the subject motor vehicle accident. Id.,
~
50.
The Selective Policy also includes the "Endorsement of Motor Carrier Policies of
Insurance for Public Liability Under Sections 29 and 30 of the Motor Carrier Act of 1980," Form
MCS-90.
Id.,~
51. Pursuant to this Endorsement:
In consideration of the premium stated in the policy to which this endorsement is
attached, the insurer (the company) agrees to pay, within the limits ofliability
described herein, any final judgment recovered against the Insured for public
liability resulting from negligence in the operation, maintenance or use of motor
vehicles subject to the financial responsibility requirements of Sections 29 and 30
of the Motor Carrier Act of 1980 regardless of whether or not each motor vehicle
is specifically described in the policy and whether or not such negligence occurs
on any route or in any territory authorized to be served by the insured or
elsewhere. Such insurance as is afforded, for public liability, does not apply to
injury to or death of the insured's employees while engaged in the course of their
employment, or property transported by the insured, designated as cargo.
Id. The Form MCS-90 provides that the insurance provided in the Selective Policy is primary
insurance.
Id.,~
52.
The Selective Policy also includes the "Endorsement for Motor Carrier Policies of
Insurance for Automobile Bodily Injury and Property Damage Liability Under Section 10927,
Title 49 of the United States Code," Form BMC 90, which states as follows:
In consideration of the premium stated in the policy to which this endorsement is
attached, the insurer (the company) agrees to pay, within the limits of liability
described herein, any final judgment recovered against the Insured for public
liability resulting from negligence in the operation, maintenance or use of motor
vehicles subject to the financial responsibility requirements of Sections 29 and 30
of the Motor Carrier Act of 1980 regardless of whether or not each motor vehicle
is specifically described in the policy and whether or not such negligence occurs
on any route or in any territory authorized to be served by the insured or
elsewhere. Such insurance as is afforded, for public liability, does not apply to
11
injury to or death of the insured's employees while engaged in the course of their
employment, or property transported by the insured, designated as cargo.
Id.,~
53.
The Business Auto Coverage Form of the Selective Policy contains an Other Insurance
Provision. This provision states, in pertinent part, as follows:
5. Other Insurance
a. For any covered "auto" you own, this Coverage Form provides primary
insurance. For any covered "auto" you don't own, the insurance provided
by this Coverage Form is excess over any other collectible insurance.
However, while a covered "auto" which is a "trailer" is connected to
another vehicle, the Liability Coverage this Coverage Form provides for the
trailer is:
( 1) Excess while connected to a motor vehicle you do not own.
(2) Primary while it is connected to a covered "auto" you own.
d. When this Coverage Form and any other Coverage Form or policy
covers on the same basis, either excess or primary, we will pay only our
share. Our share is the proportion that the Limit of Insurance of our
Coverage Forms bears to the total of the limits of all the Coverage Forms
and policies covering on the same basis.
Id.,~
54. The Great West Policy also has an Other Insurance Provision. Id.
Midwest requested coverage from Selective under the Selective Policy with respect to the
Underlying Action on November 16, 2015, December 21, 2015, and March 14, 2016.
Id.,~~
58-
60, 62. On March 15, 2016, Selective disclaimed coverage for Midwest in connection with the
Underlying Action. Id.,
~
63. Great West Casualty is defending Midwest in the Underlying
Action under a reservation of rights. Id.,
~
64.
12
III. APPLICABLE LAW
A. Choice of Law
The Court begins its legal analysis in this action based upon diversity jurisdiction with a
choice of law determination. As explained by the district court in Castlepoint Nat. Ins. Co. v.
Ins. Co. of Penn., No. 1:14-0792, 2015 WL 2339092 (M.D. Pa. May 13, 2015):
In cases such as this one where the federal court's jurisdiction lies in diversity, the
court will procedurally apply the choice of law princip[les] of the forum state.
Hammersmith v. TIG Ins. Co., 480 F.3d 220, 226 (3d Cir. 2007).
Pennsylvania applies a flexible, interest/contacts methodology under the
Restatement (Second) Conflict of Laws, to contract choice of law questions,
"bearing in mind that 'we are concerned with the contract of insurance' and not
the underlying tort." Hammersmith, 480 F.3d at 232-33. Pennsylvania applies
Section 193 of the Restatement (Second) of Conflict of Laws when the insured
has a principal place of insured risk, stating "the rights created thereby are
determined by the local law of the state which the parties understood was to be
the principal location of the insured risk during the term of the policy .... "
Specialty Surfaces Int. Inc. v. Continental Cas. Co., 609 F.3d 223, 233 (3d Cir.
2010). When the insured has no principal place of risk, Pennsylvania courts apply
Section 188(2) of the Restatement (Second) of Conflict of Laws, to determine
which state has greater contacts with the contract at issue. Id. The factors include
the place of contracting and negotiating, the place of performance, and the place
of the subject matter of the contract. Id.
Id., at *3.
Applying the choice of law principles of Pennsylvania, the forum state, to the facts
underlying this action, the named insured in the Selective Policy is Veltri Trucking. According
to the Amended Complaint in the Underlying Action, which the parties do not dispute, Veltri
Trucking is a Pennsylvania corporation with a principal place of business in Pennsylvania and an
office/usual place of business in Pennsylvania. ECF No. 34-2 at 18. Selective contends, and
Plaintiffs do not dispute, that "[t]he Selective Policy was issued to Veltri Trucking in
Pennsylvania and insures Veltri Trucking's operations in Pennsylvania." ECF No. 39 at 6 n.1.
13
The Court finds, as both parties agree, that Pennsylvania law governs the interpretation of the
Selective Policy and the issues of whether pursuant to the Selective Policy, Selective has a duty
to defend and indemnify Midwest in the Underlying Action, Selective breached a contract with
Midwest when it failed to defend Midwest in the Underlying Action, and Great West Casualty is
entitled to equitable contribution based on Selective's failure to defend Midwest in the
Underlying Action.
B. Pennsylvania Law
Having determined that Pennsylvania law is applicable to this litigation, "this case
involves a dispute regarding insurance coverage. In actions arising under an insurance policy,
[Pennsylvania] courts have established a general rule that it is a necessary prerequisite for the
insured to establish that his claim falls within the coverage provided by the insurance policy."
Erie Ins. Grp. v. Catania, 95 A.3d 320, 322 (Pa. Super. Ct. 2014) (citing McEwing v. Lititz Mut.
Ins. Co., 77 A.3d 639, 646 (Pa. Super. Ct. 2013) (citations omitted)). In Amer. Auto. Ins. Co. v.
Murray, 658 F.3d 311 (3d Cir. 2011 ), the United States Court of Appeals for the Third Circuit
established the approach that Pennsylvania district courts should take when reviewing insurancecontract provisions such as those contained in the Selective Policy:
It is the function of the court to interpret insurance contracts under Pennsylvania
law. Melrose Hotel Co. v. St. Paul Fire & Marine Ins. Co., 432 F. Supp. 2d 488,
495 (E.D. Pa. 2006) (citing 401 Fourth St., Inc. v. Investors Ins. Grp., 879 A.2d
166, 171 (Pa. 2005)). The court's primary consideration in performing this
function is '"to ascertain the intent of the parties as manifested by the language of
the written instrument."' Home Ins. Co. v. Law Offices of Jonathan DeYoung,
P.C., 32 F. Supp. 2d 219, 223 (E.D. Pa. 1998) (quoting Standard Venetian Blind
Co. v. Am. Empire Ins. Co., 469 A.2d 563, 566 (Pa. 1983)). The policy must be
read as a whole and construed in accordance with the plain meaning of terms.
CH Heist Caribe Corp. v. Am. House Assurance Co., 640 F.2d 479, 481 (3d Cir.
1981). Words of common usage must be "construed in their natural, plain, and
ordinary sense, with a court free to consult a dictionary to inform its
understanding of terms." Melrose Hotel Co., 423 F. Supp. 2d at 495 (citing
Madison Constr. Co. v. Harleysville Mut. Ins. Co., 735 A.2d 100, 108 (Pa. 1999)).
14
Where the language of an insurance policy is clear and unambiguous, a court must
enforce that language. Med. Protective Co. v. Watkins, 198 F.3d 100, 103 (3d Cir.
1999). "Furthermore, if possible, 'a court should interpret the policy so as to avoid
ambiguities and give effect to all of its provisions."' Id. (quoting Little v. MGIC
Indem. Corp., 836 F.2d 789, 793 (3d Cir. 1987)). However, ifthe contract's terms
are reasonably susceptible to more than one interpretation, then they must be
regarded as ambiguous. Id.; CH Heist Caribe Corp., 640 F.2d at 481.
"'Ambiguous provisions in an insurance policy must be construed against the
insurer and in favor of the insured; any reasonable interpretation offered by the
insured, therefore, must control."' Med. Protective Co., 198 F .3d at 104 (quoting
McMillan v. State Mut. Life Assurance Co., 922 F.2d 1073, 1075 (3d Cir. 1990)).
Pennsylvania courts have applied this rule liberally. Id.
Amer. Auto. Ins. Co., 658 F.3d at 320-21.
Turning to the issue of whether Selective has a duty to defend Midwest in the Underlying
Action, under Pennsylvania law, "the obligation of a casualty insurance company to defend an
action brought against the insured is to be determined solely by the allegations of the complaint
in the action."' Holy Ghost Carpatho-Russian Greek Catholic (Orthodox) Church of the Eastern
Rite of Phoenixville, Pa. v. Church Mut. Ins. Co., 492 F. App'x 247, 249 (3d Cir. 2012) (quoting
Kvaemer Metals Div. of Kvaemer U.S., Inc. v. Commercial Union Ins. Co., 908 A.2d 888, 896
(Pa. 2006)). As further explained by the United States Court of Appeals for the Third Circuit in
Ramara, Inc. v. Westfield Ins. Co., 814 F.3d 660 (3d Cir. 2016):
Importantly, Pennsylvania adheres to the "four comers" rule (also known as the
"eight comers" rule), under which an insurer's potential duty to defend is
"determined solely by the allegations of the complaint in the [underlying] action."
Kvaerner Metals Div. of Kvaerner U.S., Inc. v. Commercial Union Ins. Co., 589
Pa. 317, 908 A.2d 888, 896 (2006) ("Kvaerner") (emphasis in original) (citation
omitted). Under the four comers rule, a court in determining if there is coverage
does not look outside the allegations of the underlying complaint or consider
extrinsic evidence. Id.
Ramara, 814 F.3d at 673. In a footnote, the Ramara court continued its explanation: "[t]here will
be eight comers because a court in deciding if there is coverage will look at both the insurance
policy and the underlying complaint."
Id. at n.9.
15
Moreover, "'[g]enerally speaking, under
Pennsylvania law, the issuer of a general liability insurance policy has a duty to defend its
insured when the allegations in the complaint against it could potentially fall within the coverage
of the policy.' An insurer must defend if any claim included in the complaint may potentially
fall under the policy and must continue to defend until it can confine the complaint to a claim
that has no possibility of falling under the policy." Sunoco, Inc. v. Ill. Nat'l Ins. Co., 226 F.
App'x 104, 108-09 (3d Cir. 2007) (citations omitted).
Finally, in reviewing the allegations
contained in the underlying complaint, the allegations must be viewed as true, and be liberally
construed in the insured's favor. Am. and Foreign Ins. Co. v. Jerry's Sport Center, Inc., 2 A.3d
526, 541 (Pa. 2010) (citing Frog, Switch & Mfg. Co., Inc. v. Travelers Ins. Co., 193 F.3d 742 (3d
Cir. 1999)).
IV. LEGAL ANALYSIS
A. Whether Selective owes Midwest a Duty to Defend under the Terms of the
Selective Policy.
1. Whether Midwest is an "insured" under the terms of the Selective
Policy.
·As previously stated, in support of its motion for summary judgment, Plaintiffs contend
that Selective owes Midwest a duty to defend under the Selective Policy because Midwest is an
"insured" under the terms of the policy. See ECF No. 36 at 11-12. In support thereof, Plaintiffs
cite to the definition of "insured" contained in the Truckers Endorsement provision of the
Selective Policy.
As also stated, conversely, Selective argues that Plaintiffs' motion for
summary judgment must be denied and its motion for summary judgment must be granted
because Midwest is not an "insured" to whom, under the terms of the Selective Policy, it owes a
duty to defend. See ECF No. 39 at 1.
16
a. Eight corners analysis
The Court turns first to the four comers of the Selective Policy. The parties agree
that section (B)(2)( c) of the Truckers Endorsement provision of the Selective Policy
contains the determinative definition of "insured" for the purpose of deciding whether or
Midwest qualifies as an "insured" under the terms of the Selective Policy. ECF No. 36 at
11; ECF No. 39 at 8. This provision states in relevant part:
For any operations you engage in as a "trucker" the policy is changed as
follows:
A. Who Is An Insured under Liability Coverage is replaced by the following:
1. Who Is An Insured
(c) The owner or anyone else from whom you hire or borrow a covered
"auto" that is a "trailer" while the "trailer" is [connected] to another
covered "auto" that is a power unit, or, if not connected:
(1) Is being used exclusively in your business as a "trucker"; and
(2) Is being used pursuant to operating rights granted to you by a public
authority.
ECF No. 34,
~
47 (emphasis added).
More particularly, the parties agree that within this
definition of "insured," the critical terms are "borrow" and "hire" and the critical inquiry is
whether Midwest is an "insured" under the Selective Policy because Veltri Trucking
"borrow[ed]" or "hire[d]" the Midwest Trailer from Midwest. ECF No. 36 at 11; ECF No. 39 at
9.
Delving into the meaning of "hire or borrow" in the Selective Policy, neither "hire" nor
"borrow" are defined in the policy. Therefore, as discussed supra, pursuant to Pennsylvania law,
the Court must give the terms their plain, natural, ordinary meaning and can look to dictionary
17
definitions for guidance. Am. Auto. Ins. Co., 658 F.3d at 320; Melrose Hotel Co., 423 F. Supp.
2d at 495 (citation omitted). The definition of "hire" in the Merriam - Webster dictionary is "a
payment
for
the
temporary
use
of
something."
http://unabridged.merriam-
webster.com/unabridged/hire. The definition of "borrow" in the Merriam - Webster dictionary
is "to receive temporarily from another, implying or expressing the intention either of returning
the thing received or of giving its equivalent to the lender: obtain the temporary use of."
http://unabridged.merriam-webster.com/unabridged/borrow. Similarly, Black's Law Dictionary
provides the following definition: "[t]o take something for temporary use."
Black's Law
Dictionary (10th ed. 2014). See also Schroeder v. Bd. of Sup'rs of Louisiana State Univ., 591
So. 2d 342, 343 (La. 1991) (interpreting the term "borrow" in a standardized national
commercial automobile liability policy, the state supreme court concluded that the word was
clear and explicit and that "[u]nder its generally prevailing meaning, borrow connotes the
acquisition of temporary possession, dominion or control of a thing, or the right to direct the use
of a thing, not merely the receipt of some benefit from its use by another person"). Further, as
explained in Castlepoint Nat. Ins. Co., supra., where the court interpreted the meaning of the
same definition of "insured" at issue in this litigation (i.e. the definition of "insured" set forth in
the Truckers Endorsement), "[i]n its ordinary meaning, 'from whom you borrow' requires a
proximate source interpretation. In other words, 'from whom you hire or borrow a covered
"auto'" ... is plainly understood to mean the specific party from whom the insured directly
acquired the vehicle." Id. at *7 (footnote omitted) (emphasis added).
18
b. Amended Complaint in the Underlying Action 1
The Court turns next to the four corners of the Amended Complaint in the Underlying
Action to examine whether it is possible under the factual allegations in the pleading, liberally
construed, that Veltri Trucking "hire[ d] or borrow[ ed]" the Midwest Trailer from Midwest.
Under Pennsylvania law, "an insurer has a duty to defend if there is any possibility that its
coverage has been triggered by allegations in the underlying complaint." Ramara, Inc., 814 F.3d
at 674.
Reviewing the relevant allegations contained in the Amended Complaint in the
Underlying Action, the plaintiffs claimed that the Midwest Trailer that was owned or controlled
by Midwest had been placed out of service and left by Midwest at the Cargo Force facility, and
Veltri Trucking, through its employee Sell, at the direction of Cargo Force, had coupled the
Midwest Trailer with the Veltri Tractor and was operating the tractor-trailer unit at the time of
the accident that killed Mr. Rice and injured Mrs. Rice. See Amended Complaint: ECF 1-1, iii!
14, 20, 23, 24, and 32. The Court concludes that based upon these factual allegations, liberally
construed, it is possible that on September 8, 2014, Veltri Trucking "borrow[ed]" the Midwest
Trailer from Midwest in that based upon these allegations one could conclude that on that date,
Veltri Trucking had taken temporary possession and use of the Midwest Trailer from Midwest
for its own purposes through some express or implied permissive arrangement with Midwest.
1
Plaintiffs contend that in determining whether Veltri Trucking "hire[d] or borrow[ed]" the Trailer from Midwest,
the Court can look outside of the eight comers and review the parties' contracts with the United States Postal
Services as well as declarations by Midwest's general counsel and James Veltri, the owner of Veltri Trucking. The
United States Court of Appeals for the Third Circuit has recognized as least one scenario when facts outside of the
four comers of the underlying complaint are properly taken into consideration by the court in determining whether
an insurer has a duty to defend an insured in an underlying action, when the Pennsylvania Workers' Compensation
Act is applicable to the underlying action. See Ramara, Inc. v. Westfield Ins. Co., 814 F.3d 660, 680 (3d Cir. 2016)
("The District Court simply reaffirmed what should be obvious: an insurer cannot bury its head in the sand and
disclaim any knowledge of coverage-triggering facts. See, e.g., Revelation Indus., Inc. v. St. Paul Fire & Mar. Ins.
Co., 350 Mont. 184, 206 P.3d 919, 928 (2009) ('An insurer cannot ignore knowledge of facts that may give rise to
coverage under the policy simply because the complaint-which is, after all, drafted by a claimant over whose
draftsmanship the insured has no control-does not allege these facts of which the insurer has knowledge')". It is
unnecessary for the Court to decide whether or not to review the outside documentation in this matter because for
the reasons set forth infra., a review of the allegations in the Amended Complaint in the Underlying Action leads to
the conclusion that it is possible that Veltri Trucking "borrow[ed]" the Midwest Trailer from Midwest.
19
The Court further finds that because it is possible under the allegations contained in the
Amended Complaint in the Underlying Action, that Veltri Trucking "borrow[ ed]" the Midwest
Trailer from Midwest, and it is not disputed that Midwest Trailer was connected to the Veltri
Tractor at the time the dually wheels allegedly detached from the Midwest Trailer and caused
bodily injury to the Rices, under the terms of the Truckers Endorsement provision of the Policy,
Midwest was an "insured" under the Truckers Endorsement provision of the Selective Policy at
the time of the accident that forms the core of the Underlying Action.
In so holding, the Court
expressly disagrees with Selective's contention that because the allegations surrounding
Midwest's legal obligation to pay damages are based upon a time when the Midwest Trailer was
not attached to the Veltri Tractor, Midwest cannot be an "insured" under the Selective Policy.
See ECF No. 46 at 14 ("[r]eading the policy as a whole leads to the inescapable conclusion that
Midwest is only an insured where the injuries claimed result from the ownership, maintenance or
use of the Trailer while it was connected to the Veltri Tractor"). The determination of whether
Midwest was an "insured" under the Selective Policy is based solely upon the definition of
"insured" contained in the Truckers Endorsement of the Selective Policy, and that definition does
not contain any such limitation.
2. Whether any of the claims against Midwest set forth in the Underlying Action
are covered by the Selective Policy.
Having concluded that Midwest was an "insured" under the Selective Policy at the time
of the accident at issue in the Underlying Action, the Court's next determination is whether any
of the claims brought by the Rices in the Amended Complaint in the Underlying Action as
against Midwest fall within the liability coverage provision of the Selective Policy which
provides, "[w]e will pay all sums an 'insured' [i.e. Midwest] legally must pay as damages
because of 'bodily injury' or 'property damage' to which this insurance applies, caused by an
20
'accident' and resulting from the ownership, maintenance or use of a covered 'auto'." If they do,
then Selective has a duty to defend Midwest as to these claims in that under the Business Owners
Auto Form of the Selective Policy, Selective has a duty to defend "any 'insured' against a 'suit'
asking for ... damages [because of 'bodily injury' or 'property damage' to which this Insurance
applies, caused by an 'accident' and resulting from the ownership, maintenance or use of a
covered 'auto']." ECF 1-3 at 42.
Selective argues that even if Midwest is an "insured" under the Selective Policy,
summary judgment still must be granted in its favor and Plaintiffs' motion for summary
judgment must be denied because the claims for which Midwest seeks coverage are not covered
under the Selective Policy and, therefore, there is no duty to defend Midwest relative to the
Rices' claims against it. ECF No. 39 at 1. More specifically, Selective contends that Selective
only has the duty to defend Midwest under the Selective Policy to the extent that the claims
against Midwest in the Underlying Action are based on conduct undertaken by Midwest while
the Midwest Trailer was attached to the Veltri Tractor. Indeed, Selective argues that:
[t]he Underlying Complaint makes clear that the claims against Midwest all result
from Midwest's failure to properly maintain the Trailer and its failure to properly
alert Sell to the Trailer's condition. Each of these alleged acts occurred well
before the Trailer was connected to the Tractor. As against Midwest therefore,
the Underlying Complaint alleges liability for injury that resulted from
maintenance that was improperly performed while the Trailer was not connected
to the Tractor.
ECF No. 39 at 18.
In response to Selective's motion for summary judgment, and in support of their motion
for summary judgment, Plaintiffs contend that the Selective Policy covers Midwest because the
accident and injuries resulted from Sell's use of the Midwest Trailer. See ECF No. 36 at 19 ("In
coupling the Trailer to the Tractor, failing to observe that the Trailer was not fit for his use, and
21
taking the Tractor-Trailer combination on the highway, Sell most definitely used the Trailer -- a
covered "auto" -- and the underlying plaintiffs' damages resulted from his use"); ECF No. 43 at
4 ("Under Agway [Ins. Co. v. Goodville Mut. Cas., 48 F. App'x. 37 (3d Cir. 2002),] one
allegation that the underlying plaintiffs' bodily injuries resulted from the detachment of the rear
dually-tires from the Trailer while the Tractor-Trailer unit was actively being operated by Reggie
Sell, Jr. ("Sell"), while in the course and scope of his employment with Veltri Trucking, is all
that is needed to establish that the alleged injuries resulted from the 'use' of the Trailer....
[T]here are over fifteen such allegations in the Underlying Action Complaint that trigger
Selective's defense obligations") (emphasis in original); ECF No. 50 at 7 (the fifteen plus
allegations in the Complaint that pinpoint the detachment of the rear dually-tires from the Trailer
while the Tractor-Trailer unit was actively being operated by Sell in the course and scope of his
employment with Veltri Trucking, as a direct cause of the underlying plaintiffs injuries "prove
that the underlying plaintiffs' claims for 'damages because of "bodily injury'" were caused by an
"accident" resulting from the use of a covered "auto'").
Although not binding on this Court, the United States District Court for the Middle
District of Florida's decisions in Keymark Corp. of Fla., Inc. v. Empire Fire and Marine Ins. Co.,
No. 6:7-963, 2008 WL 11336588 (M.D. Fla. July 28, 2008) ("Keymark I") and Keymark Corp.
of Fla., Inc. v. Empire Fire and Marine Ins. Co., No. 6:7-963, 2008 WL 11336589 (M.D. Fla.
Aug. 22, 2008) ("Keymark II") are instructive. In Keymark I, the driver of a tractor-trailer unit,
Stanley Stader ("Mr. Stader") had been killed in an accident while unloading a trailer. Keymark
l, 2008 WL 11336588, at
*1.
Mr. Stader had contracted with Phillip Williams Sons, Inc.
("Phillip Williams") to transport aluminum extension from a facility owned by the plaintiff
Keymark Corporation of Florida, Inc. ("Keymark") to the facility of a Keymark customer,
22
Windsor, Inc. ("Windsor"). Id. Keymark employees had loaded the extensions onto a trailer that
Keymark had leased. Id. Mr. Stader then drove a tractor owned by Phillip Williams to pick up
the trailer at Keymark's facility.
Id.
The tractor was connected to the loaded trailer at
Keymark's facility. Mr. Stader subsequently arrived at the Windsor facility and, as he was in the
process of removing the straps that secured the load, the extensions fell from the trailer, landed
on Mr. Stader, and he was killed. Id.
On the date of the accident, Keymark had a liability insurance policy with American Fire
& Casualty Company and Phillip Williams had a liability insurance policy with the defendant
Empire Fire and Marine Insurance Company ("Empire"). Id. As a result of the accident, the
personal representative of Mr. Statler's estate instituted an action in state court for wrongful
death ("the underlying action"). Id. It alleged that Keymark was negligent in its loading of the
trailer. Id. Keymark initiated the federal court lawsuit, seeking a declaratory judgment that
Empire had a duty to defend and indemnify Keymark for the damages in the underlying action.
Id.
The Empire insurance policy ("the Empire policy") provided that Empire will "pay all
sums an 'insured' legally must pay as damages because of 'bodily injury' or 'property damage'
to which this insurance applies, caused by an 'accident' and resulting from ownership,
maintenance or use of a covered 'auto."' Id. (citation omitted). Under the relevant provision, an
insured was defined as "[t]he owner or anyone else from whom you hire or borrow a covered
'auto' that is a 'trailer' while the 'trailer' is connected to another covered 'auto' that is a power
unit .... " Id. (citation omitted). A covered auto included "any 'trailers' you don't own while
attached to any power unit described in Item 3." Id. (citation omitted). There was no dispute
23
that the tractor was specifically identified as a covered auto under Item Three of the Empire
policy. Id.
In Keymark, the parties filed cross motions for summary judgment.
The court
summarized the parties' supporting arguments, which bear a striking resemblance to the
arguments filed by Plaintiffs and Defendant in the case sub Judice:
Keymark contends that it is an insured under the Empire policy because the trailer
was attached to the tractor at the time of the accident. Keymark relies on the plain
language of the Empire policy to assert that since Phillip Williams had borrowed
the trailer which was connected to the tractor at the time of the accident, Keymark
is an insured and the trailer is a covered auto. Empire relies on the allegations
contained in the underlying action to assert that "Keymark's legal obligation to
pay damages occurred at the time of loading when the '[t]railer was not attached
to the tractor," and therefore, "Keymark was not an insured since the [t]railer was
not a covered auto." Empire also argues that Keymark is not an insured under the
policy because Philip Williams neither hired or borrowed the trailer from
Keymark.
Id. (citations omitted).
The district court held that Keymark was an insured under the Empire policy, the trailer
was a covered auto under the Empire policy at the time of the accident and, therefore, Empire
had a duty to defend and indemnify Keymark for the damages alleged in the underlying action as
to the claim that Keymark was negligent in its loading of the trailer. Id. at 3. In so holding, the
court reasoned:
There is no dispute that the tractor was specifically identified as a covered auto
under Item Three of the Declarations to the Empire policy at the time of the
accident. Empire concedes that under its policy, a trailer that is not owned by
Phillip Williams is a covered auto only if it is connected to a covered tractor.
There is also no dispute that at the time of the accident, the trailer was connected
to the tractor. The Court finds that the claims contained in the underlying action
regarding the allegedly negligent loading of the trailer by Keymark do not
determine whether Keymark was an "insured" and whether the trailer was a
covered auto under the Empire policy. Rather, since there is no dispute that the
trailer was connected to the covered tractor at the time of the accident which is the
subject of the underlying action, the Court finds that the trailer is a covered auto
and that Keymark is an insured under the policy. Furthermore, while Phillip
24
Williams did not "hire" the trailer, Phillip Williams did "borrow" the trailer from
Keymark under that term's plain and ordinary meaning because Phillip Williams
was to return the trailer to Keymark.
Id. (citations omitted). The court then granted Keymark's motion for summary judgment on its
declaratory judgment claim and denied Empire's motion for summary judgment. Id.
Thereafter, Empire filed a motion for reconsideration, arguing that Keymark was not
entitled to coverage under the Empire insurance policy because the allegations of the underlying
action involved the loading of the trailer before it was connected to the tractor. Keymark II,
2008 WL 11336589, at *1. The Keymark II court observed that Empire had "merely rehashed"
arguments it had previously raised in support of its motion for summary judgment and in
opposition to Keymark's motion for summary judgment when it argued that Keymark "is not
entitled to coverage under the Empire insurance policy because the allegations of the underlying
action involve the loading of the trailer before it was connected to the tractor." Id. The court
expressly disagreed with this argument, found no clear error or manifest injustice in its
conclusion that Keymark was entitled to summary judgment, and denied Empire's motion for
reconsideration.
As did the court in Keymark I and Keymark II, this Court concludes that the plaintiffs'
claims in the Underlying Action against Midwest, to the extent that they are based upon bodily
injuries suffered by Mr. and Mrs. Rice while the Midwest Trailer was attached to the Veltri
Tractor, being caused by Midwest's negligent or intentional conduct with respect to the
maintenance of the Midwest Trailer, see Amended Complaint: ECF 1-1,
~~
120, 127, 132, are
claims covered under the Policy's provision that "[w]e will pay all sums an 'insured' legally
must pay as damages because of 'bodily injury' or 'property damage' to which this insurance
applies, caused by an 'accident' and resulting from the ownership, maintenance or use of a
25
covered 'auto."' ECF No. 1-3 at 42. Accordingly, as to these claims, Selective owes Midwest a
duty to defend.
Plaintiffs also contend that Selective's obligation to defend Midwest is triggered by the
Selective Policy's Endorsement of Motor Carriers Policies of Insurance for Public Liability
Under Sections 29 and 30 of the Motor Carrier Act of 1980 and Endorsement for Motor Carrier
Policies of Insurance for Automobile Bodily Injury and Property Damage Liability under Section
10927, Title 49 of the United States Code, Form BMC 90 ("the Motor Carrier Endorsements").
ECF No. 36 at 13. In support of this position, Plaintiffs argue:
Both of these endorsements provide coverage for any "final judgment recovered
against the Insured for public liability resulting from negligence in the operation,
maintenance or use of motor vehicles subject to the financial responsibility
requirements of Sections 29 and 30 of the Motor Carrier Act of 1980. See JSOUF
at ~~ 51-53. This coverage applies "regardless of whether or not each motor
vehicle is specifically described in the policy and whether or not such negligence
occurs on any route or in any territory authorized to be served by the insured or
elsewhere." See id.
As established above, the Underlying Action Complaint contains allegations
against Midwest that arise from violations of the Federal Motor Carrier Safety
Regulations ("FMCSR"). It avers that Midwest's conduct leading up to the
accident was in violation of §396.3, §393.7(b), and §396.13 of the FMCSR. See
JSOUF at ~ 28. See also Ex. "B" to JSOUF at ~ 24. It further alleges that
Midwest violated numerous additional federal motor carrier safety regulations
including 75 Pa.C.S. §46701; 75 Pa.C.S. §4702; 75 Pa.C.S. §7802 along with the
following sections of the FM CSR: 392.2; 390.11; §390.13; 392.7; 396.3; 396.7;
396.9; 396.11; 396.13; 396.17; and 396.12. See Ex. "B" to JSOUP at~~ 120, 127,
132.
ECF No. 36 at 14. Thus, Plaintiffs conclude the "[b ]ecause it is undisputed that Midwest is an
"insured" under the Selective Policy for the reasons set forth [supra.], the allegations against
Midwest for violations of the Federal Motor Carrier regulations further trigger Selective's
primary defense obligations." Id.
26
The Court disagrees. Upon review of the plain, unambiguous language of the Motor
Carrier Endorsements, the endorsements clearly only apply to "the Insured," which is the named
insured in the Selective Policy -- Veltri Trucking -- and do not apply to "an insured" covered
under the Selective Policy pursuant to the Truckers Endorsement such as Midwest. As such, any
claims against Midwest for violations of the Federal Motor Carrier regulations do not fall within
the coverage of the Selective Policy based upon the Motor Carrier Endorsements.
B. Whether Selective owes Midwest a Duty to Iridemnify under the Terms of the
Selective Policy.
Plaintiffs also seek summary judgment on their claim that Selective owes Midwest a duty
to indemnify with respect to the Underlying Action under the terms of the Selective Policy. In
general, "[a] court entertaining a declaratory judgment action in an insurance coverage case
should refrain from determining the insurer's duty to indemnify until the insured is found liable
for damages in the underlying action." Cincinnati Ins. Cos. v. Pestco, Inc., 374 F. Supp. 2d 451,
465 (W.D. Pa. 2004). This is because "[t]he question of whether [the insurer] has a duty to
indemnify ... is 'not ripe for adjudication until the insured is in fact held liable in the underlying
suit."' Metropolitan Prop. and Cas. Ins. Co. v. Spayd, No. 16-4693, 2017 WL 3141170, at *2
(E.D. Pa. July 24, 2017) (citing Knightbrook Ins. Co. v. DNA Ambulance, Inc., No. 13-2961,
2013 WL 6662745, at *7 (E.D. Pa. Dec. 16, 2013), which, in tum, cites Heffernan & Co. v.
Hartford Ins. Co., 614 A.2d 295, 298 (Pa. Super. Ct. 1992)). See id. (citing C.H. Heist Caribe
Corp. v. Am. Home Assurance Co., 640 F.2d 479, 483 (3d Cir. 1981) ("holding that because
' [a]ctual indemnification depends upon the existence or nonexistence of facts not yet established
... a decision on [the insurance company's] obligation to indemnify [the insured] is premature'
when no judgment has been issued").
27
Having concluded that Selective has a duty to defend Midwest in the Underlying Action,
the Court further finds that, because the issue of Selective's duty to indemnify Midwest "depends
upon the existence or non-existence of facts not yet established" in the Underlying Action, it is
not ripe. C. H. Heist Caribe Corp., 640 F.2d at 483. Therefore, the issue of Selective's duty to
indemnify Midwest shall be deferred until Midwest's liability in the Underlying Action is
decided. Plaintiffs' motion for summary judgment on Count I of their Complaint, to the extent
that it relates to Selective's duty to indemnify Midwest with respect to the Underlying Action,
shall be denied without prejudice to file a renewed motion for summary judgment on the issue of
indemnification upon resolution of the Underlying Action.
C. Whether Selective Breached the Policy as to Midwest by failing to Defend
Midwest under the Terms of the Selective Policy and Whether Selective owes
Great West Casualty Equitable Contribution for the Defense Costs it has
Incurred to Date in Defending Midwest in the Underlying Action.
Plaintiffs have also moved for summary judgment on Count II (breach of contract) and
Count III (equitable contribution) of their Complaint against Selective. In response to Plaintiffs'
motion for summary judgment on the breach of contract and equitable contribution claims set
forth in Counts II and III of the Complaint, Selective states:
Plaintiffs contend that the Court should grant summary judgment as to Count II
(Breach of Contract), Count III (Equitable Contribution). These arguments
presume that Midwest is an insured under the Selective Policy for the claims
asserted in the Underlying Action and that Selective has a duty to defend
Midwest. As demonstrated above, Midwest is not an insured under the Selective
Policy and therefore Selective has no duty to defend. Accordingly, Plaintiffs
motion for summary judgment as to Counts II and Count III of Plaintiffs'
complaint should be denied.
ECF No. 46 at 16-17. The Court reads this response by Selective to be an implied concession by
Selective that, if Midwest is an insured under the Selective Policy for the claims asserted in the
Underlying Action such that Selective has a duty to defend Midwest, then Plaintiffs are entitled
28
to summary judgment on their claims set forth in Counts II (breach of contract) and III (equitable
contribution) of the Complaint.
Having concluded that Midwest is an insured under the
Selective Policy and Selective has a duty to defend Midwest with respect to the Underlying
Action, a duty which Selective has not fulfilled to date, the Court will grant Plaintiffs' motion for
summary judgment as to Count II of the Complaint, the breach of contract claim, and as to Count
III of the Complaint, the equitable contribution claim.
V. CONCLUSION
For the reasons set forth above, Plaintiffs motion for summary judgment, ECF No. 33,
shall be granted in part and denied in part without prejudice and the case will be stayed.
Plaintiffs' motion for summary judgment as to Count I of their Complaint for Declaratory
Judgment shall be granted to the extent that Plaintiffs seek a declaration that Selective owes
Midwest a duty to defend, and shall be denied without prejudice to the extent that Plaintiffs seek
a declaration that Selective owes Midwest a duty to indemnify. In addition, Plaintiffs' motion
for summary judgment as to Counts II and III of their Complaint for Breach of Contract and
Equitable Contribution shall be granted and Defendant's motion for summary judgment, ECF
No. 37, shall be denied.
An appropriate Order follows.
DATED: September 28, 2017
BY THE COURT:
Y
MAUREENP. K
CHIEF UNITED STATES MAOIST
cc: All counsel of record via CM/ECF
29
JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?