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February 8, 1996

JOEL T. RADMAN, an individual, Plaintiff,
JONES MOTOR COMPANY, INC., a Pennsylvania corporation, Defendant.

The opinion of the court was delivered by: LEE

 February 8, 1996

 Before the Court are the following motions for summary judgment:

(i) Motion for Summary Judgment of Defendant, Jones Motor Company, Inc. (Document No. 26);
(ii) Motion of Plaintiff, Radman, for Summary Judgment Pursuant to F.R.C.P. 56 (Document No. 28).

 The motion for summary judgment of the defendant, Jones Motor Company, Inc., will be granted and the motion for summary judgment of the plaintiff, Radman, will be denied.


 The plaintiff, Joel T. Radman, brings this civil action against the defendant, Jones Motor Company, Inc., ("Jones") alleging that Jones is liable for a judgment obtained by plaintiff against the Estate of Jeffrey Peden, Deceased, ("Peden") in an earlier action filed in this court at Civil Action No. 88-2578 for damages resulting from serious personal injuries sustained by the plaintiff on November 7, 1987, when the automobile which he was operating on the Pennsylvania Turnpike collided with a tractor trailer owned and operated by Peden.

 At the time of the collision, Peden had leased the tractor trader to Jones pursuant to a written trip lease agreement and was operating the tractor trailer in interstate commerce under permits issued by the Interstate Commerce Commission to Jones as a motor carrier operating under the Interstate Commerce Act, 49 U.S.C. § 10101, et seq, and the regulations promulgated thereunder by the Interstate Commerce Commission ("ICC"). 49 C.F.R., § 1000, et seq.

 In order to obtain operating authority from the Interstate Commerce Commission, Jones complied with all applicable ICC regulations, including its obtaining and filing with the ICC proof of financial responsibility. Specifically, Jones filed with the ICC a surety bond in the amount of $ 1 million which was issued by the Protective Insurance Company, as surety and which named Jones as the principal. In addition, Jones obtained personal injury and property damage liability insurance from Protective Insurance Company which provided coverage of up to $ 9 million, but with Jones retaining self-coverage of $ 2 million.

 The plaintiff concedes that under the terms of that liability policy, Peden, while operating under the trip lease agreement with Jones, was not "an insured" and therefore the policy provided no coverage for either Peden or his estate. (Plaintiff's Statement of Material Facts Established Without Genuine Dispute, P 21, Document No. 30).

 The trip lease agreement between Peden and Jones contained the following provisions:

With regard to indemnification, the trip lease provided:
12. The LESSOR [Peden] shall hold LESSEE [Jones] harmless, defend and indemnify the LESSEE [Jones] for any loss, damage, or expense which may be incurred by the LESSEE [Jones] or anyone acting in his behalf under this lease.
With regard to insurance, the trip lease provided:

 In the initial complaint in the underlying action, plaintiff did not include Jones as a defendant. However, in August 1989, approximately four years after the date of the accident and two years, nine months after the date that action was commenced in this Court, plaintiff sought to add Jones as a defendant pursuant to Federal Rule of Civil Procedure 15(c).

 On January 28, 1992, the Court entered an order denying plaintiff's motion to amend for the reason that the joinder was barred by the applicable Pennsylvania State of Limitations of two years. The plaintiff did not appeal the Court's determination in that regard to the United States Court of Appeals for the Third Circuit.

 After a jury verdict of $ 1.3 million was returned for plaintiff, Peden filed post-trial motions which were denied by the Court and which determination was affirmed on appeal to the United States Court of Appeals for the Third Circuit.

 Plaintiff originally alleged in the instant complaint that Jones is liable for the damages sustained by him because (i) the Interstate Commerce Act holds Jones responsible for the judgment entered solely against Peden; (ii) the trip lease required Jones to procure insurance coverage for Peden and, as a third-party beneficiary of the trip lease, Radman is entitled to recover from Jones since Jones failed to provide insurance coverage for Peden; (iii) under the doctrine of respondeat superior, Jones, as master, is liable not only for the acts of, but also for the judgment obligations entered against Peden, its servant; (iv) Jones assumed the status of an insurer, and, in failing to satisfy the judgment entered against Peden, Jones acted in bad faith; and (v) Jones fully participated in and controlled the defense of the Radman v. Peden action and consequently is responsible to pay the judgment entered against Peden.

 However, in plaintiff's response to Jones' motion for summary judgment, he narrows his theory of liability of Jones as follows:

In the Motion for Summary Judgment filed by Jones Motor Company, counsel for Jones Motor Company discusses all theories set forth in Radman's complaint and amended complaint in this case. We wish to make it clear to this Court that Radman hereby withdraws all theories of liability asserted in his complaint and amended complaint except the theory of liability set forth in Radman's pending Motion for Summary Judgment and brief in support of motion for summary judgment. (Emphasis in original).

 The plaintiff's present theory of recovery is that: (i) Jones is liable under the Interstate Commerce Act, 49 U.S.C. § 11107, for plaintiff's damages caused by Peden while operating his tractor trailer under the written trip lease agreement with Jones and transporting a load of steel under the ICC certificates of authority issued to Jones; (ii) Jones participated in, controlled and directed the legal defense of Peden in the underlying action at Civil Action No. 88-2578 (W.D.Pa.) and it is bound under res judicata by the issues actually litigated in that case i e., (a) Peden was negligent, (b) Radman was not contributorily negligent, (c) harm was proximately caused to plaintiff, and (d) the amount of damages was $ 1.3 million; (iii) that the only issue not actually litigated in the underlying action was the question of whether Peden was operating his tractor trailer at the time of the accident under the trip lease and was transporting steel in interstate commerce under the ICC permits issued to Jones, but that there is no dispute and therefore, Jones is not entitled to a jury trial on that single undisputed issue; *fn1" and (iv) there is no Statute of Limitations applicable which bars this action which is brought under the Interstate Commerce Act, 49 U.S.C. § 11107.

 In support of its motion for summary judgment and in opposition to plaintiff's motion for summary judgment, Jones asserts that the only issue this Court need resolve is whether the Pennsylvania Statute of Limitations expired on November 5, 1989, so as to preclude plaintiff from maintaining this present action against it.

 Since obtaining the judgment against Peden, the plaintiff, in an unsuccessful effort to obtain satisfaction of his judgment, issued execution which was served on Jayeann R. Peden, Administratrix of the Estate of Jeffrey Peden, Deceased, *fn2" and issued interrogatories in aid of execution directed to Jones and its liability insurance carrier.

 Jones asserts that the plaintiff has filed various proceedings to attempt to satisfy his judgment: (i) the action against Jones in the Radman v. Peden proceeding; (ii) a legal malpractice claim against plaintiff's former counsel in the Court of Common Pleas of Allegheny County, Pennsylvania; (iii) an action based on conspiracy and tortious interference against the insurance carrier of plaintiff's former counsel; and (iv) this present action.

 While it is undisputed that Jones retained and paid the fees of the law firm of Richard J. Mills and Associates, P.C. to represent itself and Peden in the underlying action, Jones neither agreed to indemnify Peden nor pay any judgment entered against Peden arising ...

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