The opinion of the court was delivered by: BRODERICK
Presently before the Court is the motion of defendant St. Paul Fire and Marine Insurance Company (St. Paul) for summary judgment. This action was commenced by plaintiff Truck Insurance Exchange in an effort to recover by way of indemnity and/or contribution against the defendant St. Paul the amounts it paid on behalf of American Security Van Lines (American Security) in settlement of a verdict obtained by Lt. James A. Zimble in a negligence action against American Security. Truck Insurance Exchange also seeks reimbursement for the attorneys' fees it was required to pay to defend the suit brought by Lt. Zimble against American Security.
In support of its motion for summary judgment, St. Paul has submitted the affidavits of Richard J. Loy, a Claims Loss Manager for St. Paul, together with the requests for admissions filed by St. Paul and the answers thereto filed by Truck Insurance Exchange. In opposition to the motion, Truck Insurance Exchange has submitted the affidavit of William F. Sweeney, Esq., its attorney in this case. Truck Insurance Exchange admits that the facts as stated in St. Paul's motion and supporting affidavits are an accurate description of the chronological events and policy provisions relevant to this case.
In a motion for summary judgment, all doubt as to the existence of a genuine issue of material fact must be resolved against the moving party. First Pa. B. & T. Co. v. United States Life Ins. Co., 421 F.2d 959, 962 (3d Cir. 1969). As stated in 6 Moore's Federal Practice, para. 56.15, at 56-463 to 467:
The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitles him to judgment as a matter of law.
The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. (Footnotes omitted).
Under Rule 56, once a properly supported summary judgment motion is made, an adverse party may not rest upon the mere allegations of his pleading. His response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if otherwise appropriate, shall be entered against him. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-290, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968); Chapman v. Rudd Paint & Varnish Company, 409 F.2d 635, 643-644 (9th Cir. 1969). Accordingly, we have drawn all inferences favorable to the plaintiff, Truck Insurance Exchange, and have accepted its version of the facts where a conflict exists. We find that there is no genuine issue of material fact and that the defendant, St. Paul, is entitled to summary judgment as a matter of law.
The facts relevant to St. Paul's motion for summary judgment are as follows: On August 1, 1970, Lt. James A. Zimble was struck by a truck and injured in Needles, Arizona. The truck which struck Lt. Zimble was owned by Morgan Van and Storage Company (Morgan) and was operated by Jessie Lane, a driver supplied by Morgan. At the time of the accident involving Lt. Zimble, Morgan was insured by St. Paul. The truck involved was leased by Morgan to American Security.
For the purpose of the motion for summary judgment, St. Paul has conceded that by virtue of the lease agreement entered into between Morgan and American Security, American Security was an insured by definition under the policy of insurance issued by St. Paul to Morgan. American Security was also the insured under a liability insurance policy issued by Truck Insurance Exchange.
Within thirty days after the accident which occurred on August 1, 1970, in Needles, Arizona, both American Security and Morgan had been notified by counsel for Lt. Zimble, the injured party, that a claim was being made against them as a result of the accident. In September, 1970, about one month following the accident, Truck Insurance Exchange became aware that a claim was being made against American Security and/or Morgan by Lt. Zimble as a result of the August 1, 1970 accident. A lawsuit was subsequently filed by Lt. Zimble against American Security in the United States District Court for the Eastern District of Pennsylvania. On December 22, 1971, over fifteen months after the accident occurred, Robert A. Bailey, the Branch Claims Manager of the Jacksonville, Florida office of the plaintiff, Truck Insurance Exchange, asked Crawford and Company to determine the insurance carrier for Morgan. On January 3, 1972, Crawford and Company advised Mr. Bailey that Morgan was insured by St. Paul. On or about January 5, 1972, Mr. Bailey advised Charles Bogdanoff, Esq., counsel for American Security in the action brought by Lt. Zimble, that Morgan was insured by the defendant, St. Paul. On March 23, 1972, Richard Loy, a Claim Loss Manager for St. Paul, received a telephone call from Charles Bogdanoff, Esq., the attorney who was retained by Truck Insurance Exchange to defend the action against American Security. Mr. Bogdanoff told Mr. Loy that St. Paul was the insurer of Morgan and requested that St. Paul defend American Security in the Lt. Zimble action and that St. Paul ultimately indemnify American Security in the event of a finding of liability. This was the first notice of any kind received by St. Paul in connection with the motor vehicle accident which had occurred on August 1, 1970 involving Lt. Zimble, Morgan and/or American Security. This initial notice was received by St. Paul nineteen months and twenty-three days following the accident and only eighteen days prior to the scheduled trial of the Lt. Zimble action on April 11, 1972. On March 27, 1972, Mr. Loy received a letter from Mr. Bogdanoff which contained a formal demand that St. Paul "engage counsel and defend this action and pay any judgment that might result therefrom." The letter from Mr. Bogdanoff also informed Mr. Loy and St. Paul that several depositions were scheduled in Phoenix, Arizona for March 28, 1972 (the day after the letter was written by Mr. Bogdanoff) and that trial had been set for April 11, 1972. Thereafter, the case proceeded to trial with American Security being defended by Charles Bogdanoff, Esq. at the request of Truck Insurance Exchange, and resulted in a substantial verdict for the plaintiff, Lt. Zimble. The case was eventually settled by Truck Insurance Exchange.
The insurance policy issued by St. Paul to Morgan under which the plaintiff, Truck Insurance Exchange, seeks to recover provides:
(a) Under the occurrence of any casualty or event for which coverage is afforded by this Policy, written notice containing particulars sufficient to identify the Insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured (and of available witnesses), shall be given by or for the Insured to the Company or any of its authorized agents as soon as practicable. (Emphasis supplied).
The policy also provides:
1. Except with respect to the Named Insured, the insurance as provided by the Comprehensive General and Auto Liability Insuring Agreement does not cover as an Insured any person or organization, or any agent, employee or contractor thereof, who is required to carry liability insurance under any motor ...