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Acuity, A Mutual Insurance Company v. Bryan C. Johnson

April 26, 2013

ACUITY, A MUTUAL INSURANCE COMPANY, PLAINTIFF,
v.
BRYAN C. JOHNSON, INDIVIDUALLY AND D/B/A BCJ, AND WESTERN NATIONAL MUTUAL INSURANCE COMPANY, DEFENDANT.



The opinion of the court was delivered by: Michael J. Davis Chief Judge United States District Court

ORDER

I.INTRODUCTION

This matter is before the Court on four motions in limine by Plaintiff Acuity, and four motions in limine by Defendant Western National Mutual Insurance Company. [Docket Nos. 52, 64] Defendant Bryan C. Johnson has not filed any motions in limine and has not opposed or otherwise responded to any of the motions in limine pending before the Court. Also before the Court is Plaintiff Acuity's Motion to Dismiss Bryan C. Johnson, Individually and d/b/a BCJ. [Docket No. 74] Trial is set to start on April 29, 2013.

This Order addresses: (1) Plaintiff Acuity's first motion in limine to preclude Western National from seeking to reform Acuity's policy; and (2) Plaintiff Acuity's motion to dismiss Bryan C. Johnson, individually and d/b/a BCJ. For the reasons that follow, the Court will deny both motions.

The Court has taken the remaining motions under advisement.

II.BACKGROUND

A.Factual Background

This is an insurance coverage dispute involving commercial automobile insurance policies. On December 5, 2010, there was a motor vehicle accident at the intersection of US Highway 2 and 2d St. East in Proctor, Minnesota. Defendant Bryan Johnson was operating a 1986 International semi-tractor pulling a trailer owned by J&B Trucking when he collided with a vehicle driven by Penny Marlow. As a result of the accident, the trailer Johnson was pulling overturned, landed on Marlow's vehicle, and killed her.

Defendant Johnson was insured by Acuity under a commercial auto policy, number L34980. For an unknown time period before the 2010-2011 policy period, Acuity's policy covered Johnson's 1986 International semi-tractor. Acuity's policy shows that on or about the policy's renewal date of February 21, 2010, the 1986 International was removed from coverage and replaced with a 1987 International. There is a dispute over the circumstances of the removal of the 1986 International from the insurance policy, and whether Holden Duluth Agency, Acuity's local agent, had authority to remove the 1986 International.

J&B Trucking was insured by Western National under a commercial auto policy, number CPP 0019631 02, with a renewal policy period of June 28, 2010 to June 28, 2011. The policy provides liability limits of $1,000,000 per accident minus the deductible. The J&B trailer that Johnson was hauling at the time of the accident is alleged to be covered by this Western National policy.

The insurance companies dispute whether Acuity or Western National must provide insurance coverage to Johnson. Western National refused to defend Johnson in the underlying wrongful death action brought in St. Louis County, Minnesota (Elizabeth Mascarenas and Ruth Burchett, as Co-Trustees for Next-of-Kin of Penny Neryne Marlow, decedent v. Bryan C. Johnson, individually and d/b/a BCJ and J&B Trucking, LLC, et al., Court File No. 69DUCV-11-2640). Acuity defended Johnson under a reservation of rights and settled the liability lawsuit against Johnson for $561,000 on March 11, 2013. This settlement expressly reserved Acuity's rights to pursue indemnity, contribution, or any other cause of action available to it against Johnson and Western National.

B.Procedural History

On July 1, 2011, Acuity filed a Declaratory Judgment in this Court against Johnson and Western National, which requests an Order and Judgment declaring, inter alia, that Western National provides the primary insurance coverage to Johnson and Acuity's policy did not provide coverage for the 1986 International operated by Johnson at the time of the accident. [Docket No. 1]

On March 15, 2013, at the settlement conference conducted by Magistrate Judge Brisbois, Acuity and Johnson reached a settlement of their issues in this coverage action. Acuity provided the Court with a copy of the settlement agreement on April 23, 2013, when it filed the present motion. The agreement is signed by Jim Schwartz, Senior Claims Adjuster at Acuity and Acuity's counsel, James ...


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