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Empire Fire and Marine Insurance Co. v. Jones

September 13, 2010

EMPIRE FIRE AND MARINE INSURANCE COMPANY, PLAINTIFF,
v.
ROBERT A JONES D/B/A R.A. JONES & SONS AND JAMES DRUMHEISER, DEFENDANTS. AND JAMES H. DRUMHEISER, PLAINTIFF ON THE COUNTERCLAIM AND CROSS CLAIM,
v.
EMPIRE FIRE AND MARINES INSURANCE COMPANY, DEFENDANT ON THE COUNTERCLAIM, AND ROBERT A. JONES D/B/A R.A. JONES & SONS, DEFENDANTS ON THE CROSS CLAIM.



The opinion of the court was delivered by: Hon. Thomas M. Blewitt

Hon. John E. Jones III

MEMORANDUM

THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:

This matter is before the Court on the Report and Recommendation ("R&R") of Magistrate Judge Thomas M. Blewitt (Doc. 54), filed on August 19, 2010, which recommends that we grant the Plaintiff's Motion for Summary Judgment (Doc. 28) and deny Defendant James Drumheiser's ("Drumheiser") cross-Motion for Summary Judgment. (Doc. 39). Drumheiser filed objections to the R&R on September 2, 2010. (Doc. 55). No other parties have filed objections to the R&R and the time for doing so has lapsed. Accordingly, this matter is ripe for disposition. For the reasons set forth below, the Court will adopt the Magistrate Judge's R&R, grant the Plaintiff's Motion for Summary Judgment, deny Drumheiser's cross Motion for Summary Judgment and close this case.

I. PROCEDURAL BACKGROUND

Plaintiff Empire Fire and Marine Insurance Company ("Empire"), filed a Complaint for Declaratory Judgment on March 9, 2009 against Defendants Robert A. Jones, d/b/a R.A. Jones & Sons (" Jones") and Drumheiser seeking this Court's determination of Empire's obligation to provide liability coverage to Jones.*fn1 (Doc. 1). This action arose when Drumheiser was injured by a garbage truck owned and operated by Jones. Jones filed an Answer to Empire's Complaint on April 23, 2009. The following day, Drumheiser filed an Answer to Empire's Complaint, a cross claim against Jones,*fn2 and counterclaims against Empire.*fn3

Following the close of discovery, Empire filed a Motion for Summary Judgment against Drumheiser and Jones. (Doc. 28). Drumheiser filed a cross-Motion for Summary Judgment against Empire. (Doc. 38). We referred both of the Motions to Magistrate Judge Blewitt for an R&R. As noted above, on August 19, 2010, Magistrate Judge Blewitt issued the instant R&R, recommending that Empire's Motion be granted in its entirety and that Drumheiser's Motion be denied in its entirety.

II. FACTUAL BACKGROUND

On August 19, 2008, Drumheiser was working for Jones' trash collection business. After tossing a bag of trash into the back of Jones' garbage truck, Drumheiser attempted to jump aboard the outside of the truck. As Drumheiser attempted to board the truck, he slipped and fell from the truck onto the road. The garbage truck, driven by Jones, proceeded to run over Drumheiser's lower leg causing severe injuries.

Empire was Jones' insurance provider at the time of the above incident. The policy provides "Truckers Coverage" to Jones doing business by and through R.A. Jones & Sons for accidents involving Jones' garbage truck. At issue in this case is whether Empire's insurance policy issued to Jones provides liability coverage Jones for the Drumheiser accident. The relevant portions of Empire's policy provide:

SECTION II - LIABILITY COVERAGE

A. Coverage

We will pay all sums an "Insured"*fn4 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." (Doc. 28, Ex. A, p. 38).

The provisions below list "Exclusions" to the Empire policy's liability coverage. Relevant to this case is the "Employee" Exclusion to the policy's liability coverage. Specifically, the relevant Exclusions are as follows:

B. Exclusions

This insurance does not apply to any of the following:

4. Employee Indemnification and Employer's Liability

a. An "employee" of the "insured" arising out of and in the course of:

"Bodily injury" to:

(1) Employment by the "insured"; or

(2) Performing the duties related to the conduct of the ...


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