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NATIONAL INDEM. CO. v. GRIMM

March 22, 1991

NATIONAL INDEMNITY COMPANY, PLAINTIFF,
v.
KATHERINE GRIMM, ADMINISTRATRIX OF THE ESTATE OF GARY GRIMM, MARTHA KRIGGER, EXECUTRIX OF THE ESTATE OF JOHN E. KRIGGER, PATRICIA NASH, EXECUTRIX OF THE ESTATE OF JAMES NASH, CARMELA GIARAMITA, JOSEPH GIARAMITA, KAAREN MERLO, RICHARD S. MERLO, EDWARD LEYDA, JR., RITA LEYDA, AND CITY OF PITTSBURGH, COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, REITHREILLY CONSTRUCTION COMPANY AND METALWORKING LUBRICANTS, INC., DEFENDANTS.



The opinion of the court was delivered by: Lee, District Judge.

MEMORANDUM OPINION

Plaintiff, National Indemnity Company, has moved this Court to grant summary judgment in its favor pursuant to Rule 56(a) of the Federal Rules of Civil Procedure.*fn1 In interpreting Rule 56(c), the United States Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) has ruled that:

    "The plain language . . . mandates entry of
  summary judgment, after adequate time for
  discovery and upon motion, against a party who
  fails to make a showing sufficient to establish
  the existence of an element essential to that
  party's case, and on which that party will bear
  the burden of proof at trial. In such a situation,
  there can be no genuine issue as to material fact,
  since a complete failure of proof concerning an
  essential element of the non-moving party's case
  necessarily renders all other facts immaterial."
  Celotex, 477 U.S. at 322 to 323, 106 S.Ct. at 2552
  to 2552.

An issue of material fact is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Incorporated, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Furthermore, the Court must view the facts in a light most favorable to the non-moving party and the burden of establishing that no genuine issue of material fact exists rests with the movant. Pontius v. Children's Hospital, 552 F. Supp. 1352 (W.D.Pa. 1982).

In its Motion for Summary Judgment, plaintiff requests entry of a favorable disposition in the form of (1) an Order directing payment of the policy limit of $1 million into an interest bearing account;*fn2 (2) an Order commanding each of the defendants to interplead among themselves their respective rights and claims in the sum of $1 million due and payable under plaintiff's contract of insurance; (3) an Order enjoining and restraining each and all of the defendants from instituting or prosecuting further any proceeding in any state or United States Court on account of the accident or the insurance policy; (4) an Order, on final hearing, that each of the defendants and their agents, attorneys, representatives, assigns, and all other persons claiming by, through, or under them or any of them be perpetually enjoined and restrained from instituting or prosecuting further any proceeding in this or any other court of law or equity against the plaintiff on account of the policy described in the original Complaint for Interpleader; (5) an Order that plaintiff be fully and finally discharged from all liability under the policy described in the original Complaint for Interpleader; (6) an Order that plaintiff be awarded reasonable and proper attorney's fees and court costs in connection with the filing of the original Complaint in Interpleader and the prosecution of these actions, and; (7) an Order granting such further relief as may appear in the Court's discretion to be proper.

But for the scope of the Order requested by plaintiff the parties, except for the Commonwealth of Pennsylvania, are in agreement that a favorable disposition of plaintiff's Motion for Summary Judgment is appropriate. Also before the Court are claims of the individual claimants for delay damages under Pennsylvania Rule of Civil Procedure 238 and the Commonwealth's Motion to Dismiss pursuant to the Eleventh Amendment of the United States Constitution.

The Court will grant some, but not all, of the relief requested by the plaintiff and will assess an interest charge against plaintiff for its failure to pay into Court the policy limit of $1 million within a reasonable time following the Court's Order of May 25, 1990.

BACKGROUND

On or about September 15, 1989, plaintiff instituted this action by filing a Complaint for Interpleader. In the Complaint, plaintiff averred that effective February 1, 1988, it issued a commercial liability insurance policy to Kogers, Inc.*fn3 The policy contained a single limit of liability for bodily injury and property damage in the amount of $1 million for any one accident.

On January 19, 1989, while the policy was still in effect, a tanker truck owned by plaintiff's insured, Kogers, Inc. and operated by one of Kogers, Inc.'s employees, Mark Duncan, was involved in a multi-vehicle collision at the intersection of Route 51 and Woodruff Street in the City of Pittsburgh, Allegheny County, Pennsylvania. As a result of this accident, James Nash, John Krigger and Gary Grimm sustained injuries that ultimately led to their death. Other individuals, namely Carmela Giaramita, Kaaren Merlo and Edward Leyda, Jr. sustained personal injuries. In addition, the tanker truck involved in this accident struck a fence owned by the City of Pittsburgh causing the fence to be damaged beyond repair. The City of Pittsburgh incurred costs in removing debris from the site of the accident and replacing the damaged fence. The City also assumed the costs of cleaning the oil spill at the scene of the accident.

The estates of those who died and others injured as a result of this accident have presented claims in state court against Kogers, Inc. for damages. At the time plaintiff's interpleader action was instituted, four lawsuits had been filed against Kogers in state court. In the interim, this Court is aware that at least one additional lawsuit seeking damages for wrongful death and survival was filed in the Court of Common Pleas of Allegheny County, Pennsylvania. See Cathy Ann Grimm, Administratrix of the Estate of Gary Roy Grimm, Deceased, vs. Kogers, Inc., a corporation, Neier, Inc., a corporation and successor-in-interest to Kogers, Inc., Metalworking Lubricants, Inc., a corporation, and Reithriley Construction Company, Defendants, vs. the City of Pittsburgh, Additional Defendant filed at No. G.D. 89-07970.

Plaintiff acknowledges that both the Kogers, Inc. truck and the accident were covered within the meaning of the policy. Plaintiff concedes that the value of all of the claims against Kogers, Inc. would exceed the $1 million single limit of liability. Plaintiff now asserts it is in doubt and therefore cannot safely determine the extent of its liability to the various claimants.*fn4 In the interest of avoiding multiple and vexatious claims, plaintiff asks the Court to Order each of the defendants to interplead and to settle among themselves their respective rights and claims in the sum of $1 million due and payable under the insurance policy and grant summary judgment in its favor discharging plaintiff from further liability under the policy.

Except for the Commonwealth of Pennsylvania, the parties, by consent, submitted this matter to the jurisdiction of this Court and by our Order dated May 25, 1990, the parties were directed to submit a Consent Order to the Honorable John L. Musmanno, Administrative Judge of the Civil Division for the Court of Common Pleas of Allegheny County, Pennsylvania, to stay the underlying actions pending in that Court.*fn5 Additionally, plaintiff interpleader was ordered to pay into the Clerk of Courts the insurance policy single limit of $1 million pursuant to the relevant rules of procedure.

Forty-nine (49) days passed before plaintiff complied with the Court's May 25th Order. On July 13, 1990, plaintiff filed a certificate of compliance indicating it had deposited the sum of $1 million with the Deputy Clerk of Courts who in turn invested the funds in 182-day Treasury bills pursuant to Fed.R.Civ.P. 67, and U.S.D.C. Amended Local Rule 39.

In its proposed amended order, plaintiff asks the Court to enter an Order effectively enjoining the enforcement of any judgment against Kogers, Inc. or any other defendant in these consolidated actions. The proposed amended order provides:

  "Defendants are hereby ordered enjoined from
  pursuing enforcement of any judgments they obtain
  in any of the underlying lawsuits presently
  pending in the Court of Common Pleas of Allegheny
  County, ...

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