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OLD REPUBLIC INS. CO. v. LUMBERMENS MUTUAL CASUALTY CO.

March 9, 2004.

OLD REPUBLIC INSURANCE COMPANY
v.
LUMBERMENS MUTUAL CASUALTY COMPANY; OLD REPUBLIC INSURANCE COMPANY v. THE VENATOR GROUP, INC. and FOOT LOCKER, INC



The opinion of the court was delivered by: CYNTHIA RUFE, District Judge

MEMORANDUM OPINION AND ORDER

Before the Court are the Cross-Motions for Summary Judgment of Plaintiff Old Republic Insurance Company ("Old Republic"), Defendant Lumbermens Mutual Casualty Co. ("Lumbermens"), and Defendant The Venator Group, Inc./Foot Locker, Inc. (collectively referred to as "Foot Locker").*fn1 Old Republic filed this declaratory judgment action to determine which party is responsible for costs associated with defending and indemnifying Foot Locker in Ricchiuti v. The Venator Group, Inc., No. 99-CV-1976, a personal injury action that settled in January of 2003.*fn2 The parties dispute whether the incident at issue is covered by Old Republic Business Auto Policy No. Z35726-10 ("Old Republic Business Auto policy") or Lumbermens Commercial General Liability Policy No. 5AA 045 319-00 ("Lumbermens CGL policy"), or both. The Court has diversity jurisdiction over this matter pursuant to 28 U.S.C. § 1332(a)(1).

FACTUAL BACKGROUND

  On April 19, 1999, William and Irene Ricchiuti commenced action against Foot Locker in the United States District Court for the Eastern District of Pennsylvania, seeking to recover damages resulting from an April 17, 1997 accident in which William Ricchiuti was injured when cargo from the trailer of a truck fell upon him. Ricchiuti alleged that Foot Locker employees carelessly and negligently loaded the cargo.

  Ricchiuti's employer, Ryder Logistics Integrated ("Ryder"), owned the truck and was required to transport goods from Woolworth's central distribution center to various Woolworth store locations pursuant to a Logistics Master Agreement, which provided that "[a]ll loads tendered to [Ryder] would be on `shipper load and count' basis. Trailers to be sealed by Shipper." The Logistics Master Agreement further provided that Ryder drivers, such as Ricchiuti, were to assist in unloading at delivery locations.

  The Logistics Master Agreement contained provisions addressing insurance requirements:
B. Insurance of Operations. [Ryder] will obtain and maintain in effect throughout the Term the following insurance coverages:
1. Comprehensive general liability and automobile liability insurance for bodily injury (including death) and property damage, each in the minimum combined single limit per occurrence of $1,000,000.00 or such greater limit as the U.S. DOT may require for transportation of any Product listed in the "Hazardous Products" table of the Schedule. The general liability coverage includes coverage for contractual liability. [Foot Locker] will be named an additional insured under this coverage.
Logistics Master Agreement at 4-5.
  Foot Locker initially undertook the defense of the claim. In October of 2001, however, Foot Locker tendered the defense of the claim to Ryder and its insurer, Old Republic, under the Old Republic Business Auto policy.*fn3 By letter dated December 19, 2001, Ryder and Old Republic agreed to undertake defense of the action, subject to Old Republic's right to disclaim coverage for Foot Locker's alleged late reporting of the claim.

  On November 19, 2002, Ryder, on behalf of Old Republic, sent a second letter to Foot Locker, purporting to reserve its rights based upon two additional provisions in the policy.*fn4 First, Old Republic asserted that because loading of the truck was complete when Ricchiuti was injured, the "Completed Operations" exclusion may be grounds for denying coverage. Second, Old Republic asserted that coverage may not apply because Ricchiuti's injuries did not occur during the course of Foot Locker's allegedly negligent "use" of the Ryder vehicle. The letter stated that Old Republic would continue to provide a defense, subject to its right to disclaim coverage based on these grounds.

  On January 6, 2003, the underlying Ricchiuti case settled for $125,000.00. While Old Republic funded the settlement, it did so without prejudice to its right to seek reimbursement from Lumbermens and/or Foot Locker for both the $125,000.00 settlement and costs of defense, which totaled $41,026.41. In the instant declaratory judgment action, Old Republic reasserts the defenses reserved in its November 19, 2002 letter. It maintains that because Foot Locker was not "using" the Ryder vehicle when the accident occurred, it is not obligated to provide coverage under the Old Republic Business Auto policy. Old Republic further submits that, even if Foot Locker was "using" the vehicle, defense and indemnity are barred by the "Completed Operations" exclusion. Old Republic therefore asserts that Lumbermens (or Foot Locker to the extent it is self-insured)*fn5 is responsible for the costs associated with the defense and indemnification of Foot Locker under the Lumbermens CGL policy.

  Lumbermens and Foot Locker counter that coverage exists under the Old Republic Business Auto policy only. They argue that the "Completed Operations" exclusion in the Old Republic Business Auto policy is inapplicable because the operations were not completed. Lumbermens and Foot Locker further argue that there is no coverage under the Lumbermens CGL policy. Specifically, they assert that the "Aircraft, Auto or Watercraft" exclusion in the Lumbermens CGL policy bars coverage under that policy. Moreover, Lumbermens and Foot Locker contend that even if there were coverage under the Lumbermens CGL policy, Old Republic would be responsible for primary coverage by operation of the "Other Insurance" clauses in the respective policies.

  STANDARD OF REVIEW

  Summary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The party moving for summary judgment has the initial burden of showing the basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party adequately supports its motion, the burden shifts to the non-moving party to go beyond the mere pleadings and present evidence that there is a genuine issue of material fact for trial. See id at 324. Because the Court is confronted with cross-motions for summary judgment, the Court must consider each party's motion individually, and each party bears the burden of establishing a lack of genuine issues of material fact. Reinhert v. Giorgio Foods, Inc., 15 F. Supp.2d 589, 593-94(E.D. Pa. 1998).

  The Declaratory Judgment Act, 28 U.S.C. § 2201, empowers federal courts to grant declaratory relief. State Auto Ins. Co. v. Summy, 234 F.3d 131, 133 (3d Cir. 2000). A determination of coverage under an insurance policy is a question of law to be decided by the court. PECO Energy Co. v. Boden, 64 F.3d 852, 855 (3d Cir. 1995). In interpreting an insurance contract, the court must attempt to "ascertain the intent of the parties as manifested by the language of the written instrument." Madison Const. Co. v. Harleysville Mut. Ins. Co., 735 A.2d 100, 106 (Pa. 1999). DISCUSSION

 A. CHOICE OF LAW

  The parties dispute whether Florida or New York law governs this case. Old Republic argues that Florida law should govern in interpreting the Old Republic Business Auto policy and that New York law should govern interpreting the Lumbermens CGL policy. Lumbermens ...


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