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October 13, 1961

STATE OF MARYLAND to Use of Charlesetta BROWN et al., Plaintiff,
BETHLEHEM STEEL COMPANY, Defendant and Third-Party Plaintiff, v. CONTINENTAL CASUALTY COMPANY and E. A. Gallagher & Sons, Third-Party Defendants

The opinion of the court was delivered by: LORD, JR.

The present motion for partial summary judgment involves only two of the parties to this action, and is somewhat incidental to the cause itself. Explanation of the general nature of the entire controversy, however, is prerequisite to discussion of the instant motion.

This is an action brought by the administrator of a deceased truck driver who, as alleged in plaintiff's complaint, was killed while in the employ of Pinto Trucking Company of Philadelphia (hereinafter referred to as 'Pinto'). In the course of his employment he was driving a tractor-trailer truck hauling rolls of sheet steel from the plant of the Bethlehem Steel Company (hereinafter referred to as 'Bethlehem') at Sparrows Point in Baltimore, Maryland, to a customer not named in the complaint. The steel had allegedly been loaded on the Pinto truck by Bethlehem employees in a negligent manner. According to the allegations, that negligent loading caused the vehicle, while still in Maryland, to overturn during the course of the carriage of the sheet steel -- which accident resulted in decedent's death.

 Originally, the suit was brought against Sparrows Point Shipyards, Inc., but by stipulation of the parties the caption and complaint was amended to substitute Bethlehem as defendant. Following the filing of its answer, Bethlehem joined Continental Casualty Company (hereinafter referred to as 'Continental'), insurer of Pinto (the aforesaid trucker, employer of deceased) as third-party defendant. In the third-party complaint, Bethlehem asserts that it is an assured under the terms of the Continental policy and is therefore entitled to a defense by Continental against plaintiff's claim. Further, Bethlehem demands from Continental indemnification against any judgment which should result from plaintiff's claims.

 The moving party, Bethlehem, as third-party plaintiff, moves for judgment that Continental, third-party defendant, is obligated to defend plaintiff's suit against Bethlehem and to reimburse Bethlehem for the expenses involved in the defense. It should be added that Bethlehem does not seek at this time a judgment on Continental's alleged duty to indemnify Bethlehem in the event of an adverse verdict.

 Since the motion calls for summary judgment, it necessarily would require a finding that there is no substantial question of fact as to Continental's duty in this regard, and that Continental's duty is clear as a matter of law. Fed.R.Civ.P. 56(c), 28 U.S.C.A.

 It is admitted in Continental's answer to Bethlehem's third-party complaint that, at all times pertinent to plaintiff's complaint, a comprehensive general automobile liability policy was in force between Pinto (also known as Delaware Cartage Company) as assured, and Continental as assurer. A copy of the policy was attached to the Bethlehem motion. It is shown that among the coverages provided by the policy are the following:

 'I Coverage A -- Bodily Injury Liability -- Automobile

 'To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of any automobile.

 'III Definition of Insured

 'The unqualified word 'insured' includes the named insured and also includes * * * (2) under coverages A and C, any person while using an owned automobile or a hired automobile and any person or organization legally responsible for the use thereof provided the actual use of the automobile is by the named insured or with his permission, and any executive officer of the named insured with respect to the use of a non-owned automobile in the business of the named insured.'

 The words 'using' and 'use' in the foregoing are a focal point of the disagreement at hand. Bethlehem says that using and use therein contemplate the delivery of steel products loaded by Bethlehem. Continental says the vehicle was not being used within the coverage of the policy -- as will be seen hereinafter.

 The following provision, says Bethlehem, requires Continental to defend the present type of suit against Bethlehem:

 'II Defense, Settlement, Supplementary Payments

 'With respect to such insurance as is afforded by this policy, the company shall: '(a) defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but the Company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient; '(part (b), consisting of four numbered subsections concerning supplementary payments, is not presently concerned.) and the amounts so incurred, ...

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