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Nationwide Agribusiness Insurance Co. v. Byler

March 31, 2009

NATIONWIDE AGRIBUSINESS INSURANCE COMPANY, PLAINTIFF
v.
BARETT N. BYLER, ET AL., DEFENDANTS
THE BRETHREN MUTUAL INSURANCE COMPANY, PLAINTIFF
v.
BARETT N. BYLER, ET AL., DEFENDANTS



The opinion of the court was delivered by: Stengel, J.

MEMORANDUM

These consolidated cases seek declarations of the rights, duties, and liabilities of the parties under various insurance policies issued to Defendants Barett N. Byler and Timothy Billig. The Brethren Mutual Insurance Company has filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The defendants have responded. For the following reasons, I will deny the motion in its entirety.

I. BACKGROUND

A. FACTS

These cases arise out of a motor vehicle accident that occurred on September 7, 2005, at the intersection of two public roads in Lynn Township, Lehigh County. See Pl. Ex. A. There were two vehicles involved in the collision: (1) a Dodge Caravan owned and operated by Defendant Martin Bennicoff; and (2) a GMC Sierra dump truck operated by Defendant Larry Cohick, Jr. The dump truck was not owned by Byler or Cohick or anyone in their households. See Cohick Dep. at 58-59; see also Byler Dep. at 16. Defendant George Billig is the registered owner of the dump truck. See Pl. Ex. D; see also T. Billig Dep. at 66. Neither Byler nor Cohick were in the business of selling, servicing, repairing, parking or storing automobiles. See Cohick Dep. at 59. The dump truck was not a bulldozer, forklift, a tractor or a cherry picker. Id. at 62. It was registered with farm license plates. See T. Billig Dep. at 82, 87. On the date of the accident, the truck was not operated on crawler treads, and there were no power cranes, shovels, loaders, diggers, road construction equipment, resurfacing equipment, raisers, scrapers or rollers permanently mounted on it. See Cohick Dep. at 63. The truck, bought from a private individual, had minor modifications. The sandblaster was removed and replaced with a dump body box. See B. Billig Dep. at 81. The name, address, and telephone number of Billig Farms were printed on both doors of the dump truck for advertising purposes. See Pl. Ex. G.

At the time of the collision, Defendant Cohick was driving the dump truck in the course and scope of his employment with Defendant Byler. See Cohick Dep. at 9, 43. Cohick understood that corn silage was to be delivered to the Byler Farm and that he would be involved in its delivery. Id. at 25. Byler had purchased the silage from Defendant Dietrich who borrowed the dump truck from Timothy Billig to help with the delivery. See Dietrich Dep. at 17; see also Byler Dep. at 12, 74. On the day before the accident, some of Defendant Dietrich's other employees moved most of the loads of silage. Defendant Dietrich asked Defendant Byler if one of his employees would be available to drive the truck the next morning to finish the job. Id. at 43. Byler offered the assistance of Defendant Cohick who was instructed to pick up the silage with the dump truck. Id. at 45. At his deposition, Cohick affirmed that the dump truck would drive along the cutting mechanism and the silage went into the truck while he drove it. See Cohick Dep. at 65. He indicated that the dump truck was used to transport or haul the silage and was not involved in the cutting process. Id. at 64, 87. The truck was also not used to store the silage or to prepare it to be used as feed. Id. at 87. Its purpose on that day was to haul the silage. Id. at 78, 91.

Many of the defendants testified that the dump truck was regularly used in farm fields in the cultivation and harvesting of farm crops. See Dietrich Dep. at 24-25; Byler Dep. at 23-24; Cohick Dep. at 63; T. Billig Dep. at 45-47, 86. They described the process in which the truck was used in the harvesting of the silage: Dietrich cut the corn silage with his chopper, which brought the silage into the chopper and which was then blown alternatively into the dump truck at issue here and another truck while in the field. This was performed while the trucks traveled alongside the chopper. Once each truck was full, it was driven from Dietrich's field to the Byler farm, where the truck would be unloaded onto a walking table operated by a hydraulic motor driven from a tractor, which also powered a blower that blew the silage into a silo owned by Byler. See Dietrich Dep. at 24-25; Byler Dep. at 21; Cohick Dep. at 89. The truck had been used several times for this purpose. See T. Billig Dep. at 91. The chopper travels at a speed of approximately three miles per hour in the field while the truck follows alongside at the same rate of speed. See Dietrich Dep. at 67. According to the defendants, the dump truck was not used solely to haul the silage, but was used for loading of the silage in the fields and for the unloading of the silage at Byler's farm. Id. at 24-25; Byler Dep. at 21; Cohick Dep. at 89.

The defendants all agreed that the dump truck was used to haul silage, and other sorts of farm product. See Dietrich Dep. at 17, 74; Byler Dep. at 79; T. Billig Dep. at 20, 51, 85. Dietrich testified, however, that he had borrowed the truck on ten prior occasions to haul farm product, but generally the truck was used in the silage harvesting operation. . See Dietrich Dep. at 74. The dump truck was part of the harvesting operation and the silage could not be harvested without either a truck or the use of a forage wagon. Id. at 87-88. Use of the forage wagon was less efficient because the silage deteriorated rapidly each day in the field. In four to five days it becomes too late to harvest. Id. at 89, 100. Defendant Cohick testified that the dump truck served a number of farming purposes and that those purposes could include tasks both on a farm and on a public road. See Cohick Dep. at 78. Cohick's testimony, and that of other witnesses, establishes that the dump truck was used in the harvesting of silage several times. See Dietrich Dep. at 24-25; Byler Dep. at 21; Cohick Dep. at 31, 65-66, 88, 89, 90.

Contrary to the plaintiff's contention, Dietrich did not admit that the dump truck was going to be used solely for hauling silage on the date of the loss. He asked Billig to borrow the dump truck because he was going to be hauling silage. See Dietrich Dep. at 17. His testimony, however, establishes that the dump truck was used in harvesting operations wherein (1) the truck was driven simultaneously alongside of the chopper in the farm field for the purpose of loading the silage, (2) after which the truck was driven out of the field and driven to the Byler farm, (3) where it was unloaded and the silage was blown into Byler's silo. Id. at 25. The harvesting of silage involved more than one person and more than one vehicle, two trucks were needed to perform efficiently, and trucks were needed that would come in and out of the farm field. Id. at 65-67.

Dietrich also testified that his own stake body truck was occasionally borrowed by Timothy Billig who used it to haul wheat, corn and soy beans. Id. at 56. However, in contrast with Dietrich, Billig does not raise corn for the purpose of making silage and the hogs raised on Billig's farm do not eat silage. See T. Billig Dep. at 42.

Byler answered in the negative when asked if there was any reason to believe from his perspective that the Billig dump truck could not be used on the day of the accident for purposes of transporting the corn silage. See Byler Dep. at 79. His testimony established that the dump truck was repeatedly used in all facets of the harvesting operations, including onsite loading in Dietrich's farm field, travel to the Byler farm, and unloading of the harvested product onto the walking table for delivery to Byler's silo. Id. at 21-25.

Timothy Billig testified that he observed Dietrich harvesting silage in the past and observed a truck moving alongside the chopper in the farm field where the silage was being loaded and that when one truck was full, another truck would take the full truck's place so that the operation of the silage harvesting could continue. See T. Billig Dep. at 46. When Billig borrowed Dietrich's International stake body truck, he used it to haul commodities off the farm. Id. at 51. He also testified that although he used the dump truck to haul commodities from the farm, he did not use it to haul produce to markets. His tractor trailer is usually used for that purpose. Id. at 80, 85-86, 94-95.

B. INSURANCE POLICIES

(1) Brethren's Business Auto Policy

Brethren issued a Business Auto policy to Defendant Byler with a policy period from April 27, 2005 to April 27, 2006. See Pl. Ex. N. The policy states that coverage applies to "only those 'autos' described in item Three of the Declarations for which a premium charge is shown (and for Liability Coverage any "trailers" you don't own while attached to any power unit described in item Three). Id. at 1. The only vehicle listed in item Three of the Declarations is a 2001 Ford F350 Truck. Id.

The policy also offers the following coverage: "We will pay all sums an 'insured' legally must pay as damages because of 'bodily injury' or 'property damage' to which this insurance applies, caused by an 'accident' and resulting from the ownership, maintenance or use of a covered 'auto.' We will also pay all sums an 'insured' legally must pay as a 'covered pollution cost or expense' to which this insurance applies, caused by an 'accident' and resulting from the ownership, maintenance or use of covered 'autos.' However, we will only pay for the 'covered pollution cost or expense' if there is either 'bodily injury' or 'property damage' to which this insurance applies that is caused by the same 'accident.' We have the right and duty to defend any 'insured' against a 'suit' asking for such damages or a 'covered pollution cost or expense.' However, we have no duty to defend any 'insured' against a 'suit' seeking damages for 'bodily injury' or 'property damage' or a 'covered pollution cost or expense' to which this insurance does not apply. We may investigate and settle any claim or 'suit' as we consider appropriate. Our duty to defend or settle ends when the Liability Coverage Limit of Insurance has been exhausted by payment of judgments or settlements." Id. at 2.

The policy defines the term "insured" as follows: "(a) You for any covered 'auto.' (b) Anyone else while using with your permission a covered 'auto' you own, hire or borrow except: (1) The owner or anyone else from whom you hire or borrow a covered 'auto.' This exception does not apply if the covered auto is a trailer connected to a covered auto you own. (2) Your 'employee' if the covered 'auto' is owned by that 'employee' or a member of his or her household. (3) Someone using a covered 'auto' while he or she is working in a business of selling, servicing, repairing, parking or storing 'autos' unless that business is yours. (4) Anyone other than your 'employees,' partners (if you are a partnership), members (if you are a limited liability company), or a lessee or borrower or any of their 'employees, while moving property to or from a covered 'auto.' (5) A partner (if you are a partnership), or a member (if you are a limited liability company) for a covered 'auto' owned by him or her or a member of his or her household. (c) Anyone liable for the conduct of an 'insured' ...


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