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London v. Morrow

United States District Court, W.D. Kentucky, Bowling Green Division

August 5, 2019

CERTAIN UNDERWRITERS AT LLOYD'S, LONDON PLAINTIFF
v.
EUGENE C. MORROW et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          Greg N. Stivers, Chief Judge.

         This matter is before the Court on Defendants' Motions for Summary Judgment (DN 122, 123, 124), Plaintiff's Motion for Summary Judgment (DN 125), Defendant's Motion to Exclude Expert Testimony (DN 121), Plaintiff's Motion to Exceed Page Limit (DN 140), Defendants' Motions to Exceed Page Limit (DN 139, 147); and Plaintiff's Motion to File Supplemental Materials (DN 149). The motions are ripe for adjudication. For the reasons set forth below, the motions to exceed page limit are GRANTED, the motion for leave to file supplemental materials is GRANTED, and all other motions are DENIED.

         I. BACKGROUND

         The events giving rise to this action occurred October 12 and 13, 2015. (Compl. ¶ 1, DN 1). Defendant Klaus Bermel-Schanz (“Bermel-Schanz”) left his home in Georgia and eventually stopped at the Flying J Truck Stop some six hours away in Simpson County, Kentucky, to rest and refuel. (Compl. ¶ 21). While maneuvering to refuel, Bermel-Schanz's truck struck and killed Margaret E. Morrow.[1] (Compl. ¶ 21). The accident is the subject of a tort suit also filed in this Court. Morrow v. Horizon Transport, Inc. et al., No. 1:16-CV-158-GNS.

         It is undisputed that, at the time of the accident, Bermel-Schanz was driving a 2014 Dodge Ram (“the vehicle”) which he owned but leased to Horizon Transport (“Horizon”). (Compl. ¶ 6; Scottsdale's Mem. Supp. Mot. Summ. J. 3, DN 122-1 [hereinafter Scottsdale's Mot.]). Plaintiff Certain Underwriters at Lloyd's London (“Plaintiff” or “Certain Underwriters”) filed this declaratory action seeking a declaration that it is not liable to indemnify or cover Bermel-Schanz under its non-trucking liability policy (“NTL Policy”). (Compl. ¶¶ 1-2). Certain Underwriters has moved for summary judgment on this issue. (Certain Underwriters' Mot. Summ. J. DN 125 [hereinafter Certain Underwriters' Mot.]). Defendant Scottsdale Insurance Company (“Scottsdale”) likewise seeks summary judgment declaring that Certain Underwriters is liable to defend Bermel-Schanz and cover any damages. (Scottsdale's Mot. 22).

         Horizon was covered by a Scottsdale insurance policy (“Trucking Policy”), which provided coverage for activities related to the commercial use of the vehicle. The relevant policy language from Certain Underwriters' NTL Policy states as follows:

We will pay all sums you legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies, resulting from an “accident” involving the personal use of a “covered commercial vehicle(s)” or “trailer(s)” owned, maintained or used as a “covered commercial vehicle(s)”.

(Compl. Ex. 3, at 7, DN 1-3).

         Further, that policy defines “personal use” as follows:

“Personal Use” means the private use of the “covered commercial vehicle(s).” “Personal Use”, however, does not include the following:
a. Any use of the “covered commercial vehicle(s)” while in the business of or furthering the business of any motor carrier.
b. Any “covered commercial vehicle(s)” when being used for or when under orders from or after being dispatched by any motor carrier or lessee of such “covered commercial vehicle(s)” until you have finished the assignment including return to your initial point of dispatch or your principal place of garaging, whichever comes first.
c. Any “covered commercial vehicle(s)” when being used for or in furtherance of any maintenance schedule(s), requirements, policies or needs of the motor carrier or lessee.

(Compl. Ex. 3, at 8).

         Finally, Certain Underwriters' NTL Policy contains exclusions as follows:

         This insurance does not apply to:

1. A “covered commercial vehicle” or “trailer(s)” while used to carry property in any business.
2. A “covered commercial vehicle” or “trailer(s)” while being used in the business of or furthering the business of a motor carrier designated in the certificate.
3. A “covered commercial vehicle(s)” or “trailer(s)” when being used in the business of anyone to whom the “covered commercial vehicle” is leased, if the lease requires the motor carrier to carry primary insurance for liability arising out of your use of the “covered commercial vehicle” or “trailer(s)”. However, the above exclusions (D1 and D2) apply only if there is another liability insurance which is valid and collectible, applicable to the “covered commercial vehicle”, which provides the minimum kinds of insurance required by law and which meets the minimum limits specified by the compulsory or financial responsibility laws of the jurisdiction where the “covered commercial vehicle(s)” or “trailer(s)” is being registered or principally garaged or the minimum limits specified by any law governing motor carriers of passengers or property, whichever is applicable.
4. A “covered commercial vehicle(s)” or “trailer(s)” when being maintained or used under any permit, authority or operating rights granted by any governmental agency to operate as a Common or Contract ...

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