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Commerce & Indus. Ins. Co. v. Great American Ins. Co.

United States District Court, D. Minnesota

December 1, 2014

Commerce & Industry Insurance Co. and Chartis Property Casualty Co., Plaintiffs,
v.
Great American Insurance Co., Defendant

Nicholas H. Jakobe, Esq., and Leon R. Erstad, Esq., Erstad & Riemer, P.A., counsel for Plaintiffs.

Jeanne H. Unger, Esq., and Shanda K. Pearson, Esq., Bassford Remele, P.A., counsel for Defendant.

MEMORANDUM OPINION AND ORDER

DONOVAN W. FRANK, United States District Judge.

INTRODUCTION

This matter is before the Court on cross-motions for summary judgment by Plaintiffs Commerce & Industry Insurance Co. (" Commerce") and Chartis Property Casualty Co. (" Chartis") (Doc. No. 22) and Defendant Great American Insurance Co. (" Great American") (Doc. No. 24). For the reasons stated below, the Court denies Plaintiffs' motion and grants in part and denies in part Defendant's motion.

I. The Accident

BACKGROUND

On April 17, 2011, Arnold S. Paster (" Paster") was driving a vehicle owned by Paster Enterprises, LLC (" Paster Enterprises"), when he collided with a motorcycle driven by Jerome G. Wind (" Wind") in St. Paul, Minnesota. (Doc. No. 27 (" Jakobe Aff.") ¶ 3, Ex. E at 35-36.) As a result of the accident, Wind sustained serious injuries. (Id.) Following the accident, Wind sought coverage for his injuries under all applicable insurance policies. (Jakobe Aff. ¶ 3, Ex. M at 331-36.)

II. The Insurance Policies

At the time of the accident, the vehicle owned by Paster Enterprises was insured under a commercial automobile policy issued by Phoenix Insurance Co. (" Phoenix") (" Phoenix Policy") and a commercial umbrella policy issued by Great American (" Great American Policy"). (Jakobe Aff. ¶ 3, Ex. F (" Phoenix Policy"); Jakobe Aff. ¶ 3, Ex. G (" Great American Policy").) The driver of the vehicle, Paster, was insured under a personal automobile policy issued by Commerce (" Commerce Policy") and a personal excess liability policy issued by Chartis (" Chartis Policy"). (Jakobe Aff. ¶ 3, Ex. H (" Commerce Policy"); Jakobe Aff. ¶ 3, Ex. I (" Chartis Policy").)

A. The Phoenix Policy

The Phoenix Policy, number Y-810-868K1683-PHX-10, provides commercial automobile liability coverage for any vehicle owned by Paster Enterprises, with a policy limit of $1, 000, 000. (Phoenix Policy at 39, 50.) The Phoenix Policy provides 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.'" (Id. at 57.) The term " insured" is defined to include the named insured, Paster Enterprises, and " anyone else while using with your permission a covered 'auto' you own, hire, or borrow." (Id.) As a condition to automobile liability coverage, the Phoenix Policy provides:

5. Other Insurance
a. For any covered " auto" you own, this Coverage Form provides primary insurance. For any covered " auto" you don't own, the insurance provided by this Coverage Form is excess over any other collectible insurance.

(Id. at 64.)

B. The Great American Policy

The Great American Policy, number UM1235734, provides commercial umbrella liability coverage to Paster Enterprises, with a policy limit of $25, 000, 000. (Great American Policy at 112.) The " Insuring Agreement" of the Great American Policy requires Great American to " pay on behalf of the 'insured' those sums in excess of the 'Retained Limit' that the 'insured' becomes legally obligated to pay by reason of liability imposed by law or assumed by the 'insured' under an 'insured contract' because of 'bodily injury, '. . . caused by an 'occurrence' happening anywhere." (Id. at 120.) The term " insured" is defined to include permissive drivers of vehicles owned by Paster Enterprises. (Id. at 117-18.) The ...


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