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St. Paul Fire & Marine Insurance Co v. Primavera Software

August 5, 2011

ST. PAUL FIRE & MARINE INSURANCE CO.,
PLAINTIFF,
v.
PRIMAVERA SOFTWARE, INC, ET AL., DEFENDANT.



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

MEMORANDUM OPINION

Plaintiff, St. Paul Fire & Marine Insurance Co., the insurer for Defendant, Primavera Software, Inc., has brought this declaratory judgment action against numerous Defendants. Plaintiff asserts that it is not obligated to provide automobile liability protection benefits for injuries occurring in an automobile accident caused by Primavera's employee who was operating a company vehicle for personal, non-work related reasons.

Before the Court are Plaintiff's motion for summary judgment and motion to strike the affidavit of Defendant John Wilburn, Primavera's employee and driver of the vehicle. Also before the Court is the motion for summary judgment of Defendant Donna Hill, Wilburn's girlfriend, who was a passenger in the vehicle. For the following reasons, Plaintiff's motions will be granted and Defendant's motion will be denied.

I. FACTUAL AND PROCEDURAL HISTORY*fn1

At approximately 5:00 a.m. on April 13, 2008, a vehicle operated by Defendant Wilburn was involved in a motor vehicle accident on the New Jersey Turnpike. At the time of the accident, Wilburn was driving a company vehicle owned by his employer, Defendant Primavera, and insured for Primavera by Plaintiff, St. Paul Fire & Marine Insurance Co. (Pl.'s Statement of Facts, ¶¶ 15, 17-19; Def.'s Reply to Pl.'s Statement of Facts, ¶¶ 15, 17.)

According to Plaintiff, Wilburn was permitted to use the company vehicle for business tasks only, such as retrieving mail and running work-related errands for other Primavera employees. Wilburn was one of the few Primavera employees who had complete access to the company vehicle and used it on a daily basis. Wilburn's responsibilities with the company vehicle never required him to leave the Philadelphia area. (Wilburn Dep., pp. 11:10-24; 12:5-10.)

On April 12, 2008, Wilburn learned that his grandmother needed assistance in moving out of her home in Trenton, New Jersey and thus, he decided to use the company vehicle to help his grandmother move. According to Wilburn, the company vehicle was larger than his regular vehicle and was therefore better suited to move furniture and other items. (Wilburn Dep., p. 24:13-23.)

On April 13, 2008, Wilburn and Hill were returning the company vehicle to Primavera's office in Bala Cynwyd, Pennsylvania, when they were involved in the accident, both suffering injuries which required medical attention. Ray Garman, also named by Plaintiff as a Defendant, was the driver of the other vehicle. Plaintiff contends Hill and Garman subsequently filed claims under Primavera's policy for injuries they sustained as a result of the accident. (Pl.'s Mot., Exs. B, F; Pl.'s Statement of Facts, ¶¶ 2, 4, 15, 17-19; Def.'s Reply to Pl.'s Statement of Facts, ¶¶ 15, 17-18.)*fn2

On April 16, 2008, Wilburn sent an e-mail to Anthony Lund, his direct supervisor at Primavera, explaining that he had used the company vehicle for personal reasons and had been involved in an accident. (Pl.'s Mot., Ex. F.)

On May 19, 2008, Wilburn participated in a recorded interview in which he stated he had used the company vehicle for personal business and that he had previously been told by individuals from Primavera that the company vehicle was not for personal use. On August 20, 2008, Wilburn signed a "Misconduct - Written Advisory" notice from Primavera acknowledging that he had used company property without authorization. (Pl.'s Mot., Exs. G, H.)

Plaintiff filed a complaint on August 25, 2009, seeking declaratory judgment against Primavera, Wilburn, Hill, and Garman. Due to their failure to respond to the complaint, a default was entered against Wilburn on January 27, 2010, and against Garman on March 3, 2010. On May 6, 2010, an Order granting Plaintiff's motion for default judgment was entered against Wilburn and Garman.

On October 13, 2010, the last scheduled day for discovery in this matter, Hill submitted the affidavit of John Wilburn. In the affidavit, Wilburn states that "[g]iven the fact that no one ever told [him] not to use the [company] vehicle, [he] felt that [he] had the right to use [the company vehicle]." (Pl.'s Mot. to Strike, Ex. A, ¶ 11.) According to Hill, Wilburn's affidavit was filed on the last day of discovery, because "[b]y the time counsel for Hill was able to obtain contact information for Wilburn . . . it did not appear feasible to schedule [his] deposition prior to the October 13, 2010, discovery end date[.]" After Plaintiff's motion for sanctions against Hill regarding the affidavit was denied, I extended the discovery deadline and provided Plaintiff with an opportunity to depose Wilburn, which occurred, on December 23, 2010. (Def.'s Resp. to Mot. to Strike, p. 4.)

On January 12, 2011, Hill filed her motion for summary judgment. In conjunction with their response in opposition, Plaintiff filed a motion to strike the Wilburn affidavit. Plaintiff filed ...


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