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KEYSTONE INS. CO. v. ALLSTATE INS. CO.

May 15, 1986

KEYSTONE INSURANCE COMPANY, Plaintiff,
v.
ALLSTATE INSURANCE COMPANY, Defendant



The opinion of the court was delivered by: WEBER

[EDITOR'S NOTE:] The following court provided text does not appear at this cite in 633 F. Supp.

 ORDER

 GERALD J. WEBER, United States District Judge.

 Plaintiff's motion for summary judgment is DENIED. Defendant's motion for summary judgment is GRANTED and the case is DISMISSED in accordance with the accompanying opinion.

 This is an action to determine whether defendant is responsible for insurance coverage of Charlotte Borner's personal injuries. At the pretrial conference in March 1986 it became apparent that the matter might be resolved under Rule 56. Pursuant to our order the parties have filed cross-motions for summary judgment. Only defendant chose to file evidentiary material, although a stipulation was filed before the pretrial conference containing most of the documents necessary to decide this case. Neither side responded to the other's motion.

 On August 23, 1982, Charlotte Borner was a passenger on a Port Authority Transit bus. A vehicle driven by Robert Linner struck the bus, injuring Borner. The vehicle Linner was driving is owned by William Rusnak and was not insured. Rusnak was a passenger at the time.

 Plaintiff is Borner's insurance carrier. Defendant insures Linner's mother, with whom he resided at the time of the mishap. It is uncontested that defendant's coverage extends to Robert Linner if he satisfies certain conditions, described below, which form the heart of this dispute.

 Borner sued Linner in state court for the benefit of defendant's coverage, prompting defendant to formally deny coverage. Stipulation, Docket No. 12, Exhibit A. Borner then made a claim against her own policy for uninsured motorist benefits. Plaintiff paid her the $15,000 limit in return for an assignment of rights to pursue any causes of action arising out of the accident. This is one such action, in which plaintiff seeks the $15,000 for wrongful denial of coverage.

 Defendant's denial of coverage rests on its assertion that the vehicle Linner was driving is not one to which coverage was extended. This leads us to construe three brief sections of the policy which concern the persons who are insured, the vehicles that are insured, and the definitions. The section of defendant's policy defining "Persons Insured" covers, by amendment:

 
(2) While using a non-owned auto
 
(a) you,
 
(b) any resident relative using a four wheel private passenger ...

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