United States District Court, E.D. New York
AMERICAN TRUCKING AND TRANSPORTATION INSURANCE CO., RRG, et al. Plaintiffs,
LIBERTY MUTUAL INSURANCE CO., et al. Defendants.
MEMORANDUM OF DECISION AND ORDER
LaSHANN DeARCY HALL, United States District Judge.
American Trucking and Transportation Insurance Company, RRG
(“ATTIC”) and Watkins and Shepard Trucking, Inc.
(“Watkins”) and Defendants Peerless Insurance
Company (“Peerless”), sued herein as Liberty
Mutual Insurance Company (“Liberty Mutual”), and
Valley Stream House of Carpets (“Valley Stream”)
cross-move pursuant to Federal Rule of Civil Procedure 56 for
a declaratory judgment as to ATTIC's obligations under an
insurance policy issued by ATTIC to Watkins.
ATTIC is a risk retention group formed under the laws of the
State of Montana. (Defs.' Resp. 56.1 Statement ¶1,
ECF No. 79.) Plaintiff Watkins is a Montana trucking
corporation. (Id. ¶ 2.) Each plaintiffs'
principal place of business is in the State of Montana.
(Id. ¶¶ 1-2.) Defendant Valley Stream is a
corporation formed under the laws of the State of New York,
with its principal place of business in the State of New
York. (Id. ¶ 4.) The legal status of Defendant
Liberty Mutual is disputed by the parties. (Id.
The ATTIC Policy
October 2009, ATTIC issued a Truckers Liability and Cargo
Liability insurance policy to Watkins, as the first Named
Insured, and Watkins and Shepard Leasing, LLC, as the
additional Named Insured for the period of October 1, 2009,
through September 30, 2010 (the “ATTIC Policy”).
(Defs.' Resp. 56.1 Statement ¶ 6; Pls.' Resp.
Additional 56.1 Statement ¶ 34, ECF No. 80-1; Pls.'
Ex. A., ECF No. 78-3.) Under the ATTIC Policy, Watkins was
insured “for liability to others resulting from the
ownership, use, and/or maintenance of any Covered Trucking
Unit as defined.” (Pls.' Resp. Additional 56.1
Statement ¶ 36; Pls.' Ex. A, at 18.) The ATTIC
Policy contains, in relevant part, the following provisions.
I - COVERED TRUCKING UNITS
otherwise noted on the Liability Policy Declaration, your
Trucking Liability Coverage extends to any and all trucks,
tractors, or other commercially used motor vehicle, and
trailers you own, lease, borrow or otherwise use in
connection with providing transportation services to others
(these are referred to as your “Covered Trucking
Units”) including any truck, tractor or other
commercially used motor vehicle, or trailer, owned by someone
other than the Named Insured(s) but who leases or contracts
with the Named Insured(s) to use such unit under the
authority and in furtherance of the transportation services
provided to others by the Named Insured(s). Your Covered
Trucking Units also include:
• any trucks, tractors or other commercially used motor
vehicle, and trailers that you acquire ownership or authority
to use after the policy begins;
• Any truck, tractor or other commercially used motor
vehicle or trailer that you do not own but are using with the
permission of the owner as a temporary substitute for your
Covered Trucking Unit while such unit is out of service for
. . .
SECTION II - DEFINITIONS
. . .
Bodily Injury - any injury to a person other
than the insured including sickness, disease or death.
Employee - includes all individuals
employed, leased by or contracted to the Named Insured(s) who
have authority granted by the Named Insured(s) to use operate
or maintain any Covered Trucking Unit. . . .
Insured - includes (1) the Named Insured(s)
for any Covered Trucking Unit; (2) the employees or agents of
the Named Insured(s) while using or maintaining any Covered
Trucking Unit under the authority of the Named Insured(s);
and (3) anyone else while using with the Named Insured's
permission any Covered Trucking Unit. Except as it relates to
the Limits of Coverage set out in the Liability Policy
Declaration the coverage provided by ATTIC, RRG applies
separately to each insured who is either seeking coverage or
against whom a claim or suit has been brought. . . .
SECTION III - TRUCKING LIABILITY COVERAGE
Coverage Unless otherwise excluded as set
out below, ATTIC, RRG will pay all sums an insured must
pay to others for damages resulting from bodily injury
or property damage caused by an accident and resulting from
the ownership, maintenance or use of a Covered Trucking Unit.
ATTIC, RRG will also pay all sums an insured must pay as
pollution liability resulting from the ownership, maintenance
or use of a Covered Trucking Unit.
Defense ATTIC, RRG will defend any insured
against a claim, suit or other demand seeking damages for
bodily injury or property damage of others or for pollution
liability. However, ATTIC, RRG has no duty to defend any
insured against a suit seeking damages for bodily injury,
property damage or pollution liability if the coverage
contained within this policy does not apply or is otherwise
excluded. ATTIC, RRG may investigate and settle any claim or
suit as it considers appropriate. ATTIC, RRG's duty to
defend or settle any claim or suit stops when the Limits of
Coverage set out in the Liability Policy Declaration have
been reached through payment of judgments or other
settlements. . . .
Coverage Conformance to State Law ATTIC, RRG
will provide the state statutorily required amounts and types
of coverage required of the Named Insured(s), such as
no-fault, personal injury protection, personal property
insurance, uninsured or underinsured motorist coverage or any
other coverage required by virtue of the Named Insured(s)
licensing or use of any Covered Trucking Unit within the
particular state. However, ATTIC, RRG will not pay any
damage, loss or claim more than once for the same loss just
because it is covered twice within this extension.
Exclusions from Coverage The trucking
liability insurance provided by ATTIC, RRG to the Named
Insured(s) does not apply to any of the following: . . .
Workers Compensation, Employer's Liability, and
Co-Employees - any bodily injury to any employee of
an insured arising out of and in the course of the
employee's employment by an insured or while performing
any duties in furtherance of the business of an insured,
including any bodily injury to any co-employee of any
employee if the injury occurred in or arises out of and in
the course of the co-employee's employment by an insured
or while performing any duties in furtherance of the business
of an insured.
Operations of any Equipment other than Covered
Trucking Units - . . . . If the cargo moving
equipment used by an insured during the loading or unloading
process is not owned, leased or under the control of the
Named Insured(s) this coverage will apply only in
excess of any other available coverage. . . .
SECTION V - OBLIGATIONS OF THE NAMED
. . .
In the Event of a Claim or Suit - In the
event of a claim or suit being made or served on any insured,
the Named Insured(s) must:
Immediately deliver to ATTIC, RRG a copy of such claim or
suit including any demand, request, notice, order, summons or
other legal ...