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TRAVELERS INDEM. CO. v. ERIE INS. EXCH.

April 1, 1981

TRAVELERS INDEMNITY COMPANY, Plaintiff,
v.
ERIE INSURANCE EXCHANGE and Allstate Insurance Company, Defendants



The opinion of the court was delivered by: WEBER

This action for declaratory judgment was brought by plaintiff to determine the potential excess coverage of the defendants named in this suit.

One Randy Niemeyer was the owner and operator of a 1974 Dodge Charger automobile that was involved in a two car collision which resulted in the death of his passenger, Kenneth A. Kinnear. A wrongful death and survival action was brought in the Court of Common Pleas by Cathy Kinnear as Administratrix of the Estate of Kenneth A. Kinnear, against Randy Niemeyer and the driver of the other vehicle.

 At the time of the accident Randy Niemeyer's vehicle was insured by plaintiff (hereinafter "Travelers"). There were other people residing at the same residence as Randy Neimeyer, his father, Randolph Niemeyer, and Kathryn E. McCracken, each of whom owned their own automobiles. Defendant Erie Insurance Exchange (hereinafter "Erie") insured Randolph Niemeyer's vehicle and defendant Allstate Insurance Company (hereinafter "Allstate") insured Kathryn E. McCracken's auto.

 The state court suit claims damages in excess of $ 250,000, which exceeds the limits of Randy Neimeyer's policy of $ 50,000. Cathy Kinnear has indicated that she is looking for excess coverage that might be available from the Erie and Allstate policies. Since Travelers, as primary insurer, would have certain obligations to these possible excess carriers, it has filed this declaratory judgment action to determine whether the Erie and/or Allstate policies will be liable for excess coverage.

 Both the defendants claim that their policies do not cover the accident involving Randy Niemeyer. Since this issue does not involve questions of fact but interpretation of a contract the parties have submitted the matter for determination by summary judgment on cross motions.

 At the outset, the court will dismiss the claim against Erie because Travelers, in their response to Erie's motion for summary judgment, have conceded that the Erie policy does not provide coverage in this situation.

 The Allstate policy issued to Kathryn McCracken contains the following provision:

 
Persons Insured
 
(1) While using your insured auto
 
(a) You,
 
(b) Any resident relative, and
 
(c) Any other person using it with your permission.
 
(2) While using any other auto, not furnished for ...

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