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WESTERN FREIGHT ASSN. v. AETNA CAS. & SUR. CO.

June 24, 1966

WESTERN FREIGHT ASSOCIATION, a corporation, Plaintiff,
v.
AETNA CASUALTY & SURETY COMPANY, a corporation, Defendant. Bernard ZANDIER, Plaintiff, v. AETNA CASUALTY & SURETY COMPANY, a corporation, Defendant



The opinion of the court was delivered by: MARSH

 MARSH, District Judge.

 These consolidated actions, involving a comprehensive liability policy issued by the defendant, Aetna Casualty & Surety Company (Aetna), were tried to the court. The plaintiffs assert that they were insureds under the omnibus clause of the policy and contractually entitled to the protection of its coverage. The plaintiffs also assert that the defendant breached the contractual obligations of the policy by failing to defend a negligence action brought by Bernard Niedbalski against the plaintiff, Western Freight Association (Western), in which Bernard Zandier was joined as a third-party defendant, and by failing to indemnify them for the fair and reasonable settlement of that suit and for reasonable legal fees incurred in defending and settling the suit, plus interest.

 The court adopts the facts stipulated by the parties.

 The facts show diversity of citizenship and the requisite jurisdictional amounts in each case. The court has jurisdiction of the parties and the subject matter.

 The negligence action brought by Niedbalski was settled for $32,250. Pursuant thereto Western paid $21,500 and Zandier paid $10,750 to Niedbalski. The legal fees of Western and Zandier were $1,185.95 and $1,000, respectively. The parties stipulated that all these amounts were fair and reasonable.

 Niedbalski was employed as a truck driver by Lightning Express, Inc. (Lightning). Lightning was the named insured under the policy issued by Aetna.

 On November 16, 1961, Niedbalski drove a tractor-trailer owned by Lightning to Western's unloading dock in Pittsburgh. This tractor-trailer was among the vehicles insured in the Aetna policy. The trailer carried a load of banded bundles of heavy pipe. Niedbalski backed the trailer against the dock for unloading. Zandier and Whigham, employees of Western, together with Niedbalski, proceeded to remove the bundles of pipe from the trailer with the aid of a fork-lift owned by Western. Zandier operated the fork-lift. Three of the bundles were unloaded and placed in a nearby boxcar without incident. In attempting to remove a fourth bundle from the trailer, Zandier inserted the prongs of the fork-lift into the openings of the pipe; he raised the pipe slightly from the bed of the trailer; the heavy pipe caused the rear wheels of the fork-lift to raise up; Niedbalski and Whigham took positions on the rear end of the fork-lift in an effort to counterbalance the weight of the pipe and lower the rear wheels of the lift to the dock. Zandier proceeded to withdraw the pipe from the trailer by driving the lift backward. Zandier testified that the ends of the pipe bumped on the bed of the trailer as the bundle was being withdrawn (deposition of Zandier, p. 19, et seq.). During the process the pipe suddenly slid off the prongs and the fork-lift sped backward and crashed into the side of the boxcar, causing serious injuries to Niedbalski.

 The defendant's policy provides:

 
"The unqualified word 'Insured' includes the named Insured and also includes * * * under * * * [Coverage] A * * * 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 * * *."
 
"Use of an automobile includes the loading and unloading thereof."
 
"Coverage A:
 
"* * *
 
"Bodily Injury Liability - ...

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