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BANKERS & SHIPPERS INS. CO. v. JAMES H. HARTMAN &

January 8, 1982

BANKERS AND SHIPPERS INSURANCE COMPANY OF NEW YORK, Plaintiff,
v.
JAMES H. HARTMAN & SON, INC., Defendant. and Dennis L. TOWNSEND, Defendant and Third-Party Plaintiff, v. CAROLINA CASUALTY INSURANCE COMPANY, Third-Party Defendant. BANKERS AND SHIPPERS INSURANCE COMPANY OF NEW YORK, Plaintiff, v. CAROLINA CASUALTY INSURANCE COMPANY, Defendant



The opinion of the court was delivered by: WEINER

MEMORANDUM OPINION AND ORDER

This is an action in which plaintiff, Bankers and Shippers Insurance Company of New York ("Bankers"), insurer of P. Liedtka Trucking, Inc. ("Liedtka"), is seeking to recover from all the defendants either jointly or severally, a payment made by plaintiff to Linda and William Rice. The payment was made out of a contract of reinsurance obtained by plaintiff in settlement of an injury claim by the Rices arising out of an accident involving an automobile operated by Linda Rice and a tractor-trailer leased by Liedtka from its owner defendant James H. Hartman & Son, Inc. ("Hartman"), and operated by defendant Dennis L. Townsend ("Townsend"). Defendant Carolina Casualty Insurance Company ("Carolina") insured Hartman. The case was tried to the Court sitting with a jury. The court submitted the case to the jury with instructions to answer special written interrogatories. The jury answered the interrogatories finding that at the time of the accident, Townsend was the agent of both Hartman and Liedtka; that Townsend was negligent in his operation of the tractor-trailer, and his negligence was a proximate cause of the accident; that Hartman was negligent in failing to properly maintain its tractor-trailer or in allowing Townsend to operate its tractor-trailer, and its negligence was a proximate cause of the accident; that Liedtka was negligent in failing to inspect the tractor-trailer it leased from Hartman, but that its negligence was not a proximate cause of the accident; and that Carolina was right in not participating in the settlement of the Rice claim. Presently before the Court are several motions as follows:

 1. Motion of Defendant Dennis L. Townsend for Entry of Judgment in his favor against the plaintiff, Bankers and Shippers Insurance Company of New York.

 3. Motion of plaintiff Bankers and Shippers Insurance Company of New York for Entry of Judgment as follows:

 (a) Against plaintiff Bankers and in favor of defendant Townsend with respect to Bankers' claim against Townsend;

 (b) In favor of plaintiff Bankers against defendant Hartman for $ 238,141.76 with respect to Bankers' claim against Hartman;

 (c) Against defendant Townsend and in favor of defendant Hartman and third party defendant Carolina with respect to Townsend's crossclaim and third party claim, as these claims would be rendered moot by entry of judgment in favor of Townsend against Bankers by virtue of (a) above;

 (d) Against Hartman and in favor of Bankers with respect to Hartman's counterclaim against Bankers;

 (e) Against Hartman and in favor of Townsend with respect to Hartman's crossclaim against Townsend; and

 (f) Against Carolina and in favor of Bankers with respect to Carolina's crossclaim against Bankers.

 With respect to the declaratory judgment action brought by Bankers against Carolina, Bankers moves for entry of judgment that:

 (a) the insurance policy issued by Bankers to Liedtka does not afford insurance coverage to Hartman for liability imposed upon Hartman arising out of its own independent negligence in connection with the Rice accident; and

 (b) the insurance policy issued by Carolina to Hartman affords coverage to Hartman for liability arising from its independent negligence in connection with the Rice accident.

 Motion of Dennis L. Townsend for Entry of Judgment Against Bankers and Shippers Insurance Company of New York

 This motion is granted since Bankers and Shippers Insurance Company of New York agrees that the judgment should be entered, in light of the finding by the jury that Townsend was the agent of both Hartman and Liedtka at the time of the accident.

 Motion of James H. Hartman, Inc. for Entry of Judgment Against Bankers and Shippers Insurance Company of New York

 Hartman contends that it was an insured under the policy which Bankers issued to Liedtka. Thus, Hartman concludes Bankers may not obtain indemnification from its own insured in regard to payment of policy proceeds by Bankers to Rice. Sherwood Trucking, Inc. v. Carolina Casualty Insurance Co., 552 F.2d 568 (4th Cir. 1977); Turner Construction Co. v. John B. Kelly Co., 442 F. Supp. 551 (E.D.Pa.1976). We agree with Hartman's conclusion that an insurance company may not obtain indemnification from its own insured. However, we do not agree that Hartman was an insured under Bankers' policy of insurance issued to Liedtka.

 The "Truckmen's Endorsement" of Bankers' insurance policy to Liedtka provides:

 
"Persons Insured
 
each of the following is insured under this insurance to the ...

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