61928) which provided comprehensive automobile insurance with limits of liability of $ 300,000 per person and $ 300,000 per accident, and it was also added to the father's umbrella policy (No. UB 6019) which afforded $ 1,000,000 coverage over and above the primary policy. The premium on the primary policy was increased as a result of the addition of the son's truck and both policies were in effect and paid up on the date of the accident. Further, the father's policy as originally issued provided for an additional premium because a youthful driver would be operating the listed vehicle.
Selected Risks claims that it is not obligated to the defendant under either of the father's policies because the terms and conditions of those policies clearly state that coverage is afforded only to the named insured, i.e., the father, or another driver driving a vehicle owned by the insured which is listed on the policy.
As the vehicle involved in the accident was owned by the defendant and not the person insured, Selected Risks maintains there is no coverage for the accident.
The defendant does not contest the fact that he was the sole owner of the vehicle at the time of the accident but asserts that Selected Risks should be estopped from denying coverage.
Cross motions for summary judgment, such as the ones presently before me, are no more than a claim by each side that it alone is entitled to summary judgment. However, the mere fact that such inherently contradictory claims have been made does not constitute an agreement that if one is rejected the other is necessarily justified. Newark Morning Ledger Co. v. United States, 539 F.2d 929 (3d Cir. 1976); Rains v. Cascade Industries, Inc., 402 F.2d 241 (3d Cir. 1968). The standards to be applied in deciding cross motions for summary judgment are the same as those applied when only one party has filed a summary judgment motion. Daburlos v. Commercial Insurance Co., 367 F. Supp. 1017 (E.D.Pa.1973). Thus, the granting of summary judgment in the present case is warranted only if the moving party is entitled to judgment as a matter of law upon facts that are not generally disputed. Manetas v. International Petroleum Carriers, Inc., 541 F.2d 408 (3d Cir. 1976).
The parties have stipulated to the facts. The question presented by the motions is whether Selected Risks can avoid coverage of the defendant under the literal language of the policies.
Selected Risks cannot avoid the policy if it had knowledge that the vehicle it was adding to the father's coverage was owned by the son. In Headley's Express and Storage Company v. Pennsylvania Indemnity Corporation, 319 Pa. 240, 178 A. 816 (1935), the court held that where the insurance carrier had knowledge of facts sufficient to put it on inquiry and where carrier's agent was expressly informed of the true facts as to ownership, the carrier cannot disclaim on the basis of a provision inconsistent with those facts. So it seems to me that the issue here is what notice the company or agent had.
As a general rule, an insurance broker is initially the agent for the insured. Couch on Insurance, 2d § 25.95. However, in Pennsylvania, "(a) broker may be found to have acted on behalf of the insurer in negotiations between the latter and the insured so as to be deemed the agent of the insurer and not the insured ... but there must be some evidence of an authorization or some fact from which a fair inference of an authorization by the company might be deduced to make an insurance broker an agent of the company." Taylor v. Crowe, 444 Pa. 471, 475, 282 A.2d 682 (1971) citing Couch, supra. In the present case, it is clear that Selected Risks authorized Deitman & Bauer to act as its agent when it entered into a written agency agreement (Exhibit F). Section 8 of this agreement specifically provides:
8. BINDERS, POLICIES, CERTIFICATES CLAIM AND CLAIM INFORMATION
A. The Agent is authorized on behalf of the Company, during the term of this agreement to bind and execute contracts of insurance subject to such restrictions as may be specified in the Agent's handbook of general information.