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United States Court of Appeals for the Fifth Circuit
September 19, 1997, Decided
[*271] DUHE, Circuit Judge:
Transport Insurance Company appeals the district court's grant of John Deere Insurance Company's motion for summary judgment on the issue whether John Deere had a duty under its liability insurance policy to defend, indemnify or reimburse either Transport or Transport's insured, Copp Trucking. Transport also appeals the district court's denial of its own motion for summary judgment on the same issues. For the reasons that follow, we affirm.
This appeal arises out of a traffic accident involving a tractor-trailer rig and an automobile occupied by the Kurocik family. Mr. and Mrs. Kurocik died, and their heirs ("plaintiffs") sued, inter alia, Mr. Tompkins, the driver of the rig; his employer, Harold Suits, individually and d/b/a Truckin' U.S.A.; Ronald Schmoe, Truckin' U.S.A.'s other principal owner; and Copp Trucking, Inc., the company whose name appeared on the tractor rig. Truckin' USA has a motor carrier insurance policy ("Policy") with Appellee John Deere Insurance [**2] Co. ("Deere"). Copp Trucking is insured by Appellant Transport Insurance Company ("Transport").
Transport settled all claims asserted by the Kurocik heirs against both its insured, Copp Trucking, and Tompkins (but only to the extent Tompkins was considered an employee of Copp Trucking) for $ 600,000. Thereafter, the Kurocik heirs amended their petition to drop Copp Trucking as a defendant and to allege that Tompkins was an employee of Suits, Schmoe, and Truckin' U.S.A. and that there was a "working agreement" between those three and Copp Trucking.
Transport demanded that Deere reimburse it for the $ 600,000 settlement on Copp Trucking's behalf, alleging that because Copp Trucking was an insured under the Policy, [*272] Deere therefore had a duty to defend and indemnify Copp and a concomitant duty to reimburse Transport for the settlement. Deere brought this action seeking a declaratory judgment providing that it had no duty to defend, indemnify, or reimburse either Copp Trucking or Transport because (1) the rig involved in the accident was not a "covered auto" under its Policy; and (2) Copp Trucking was not an "insured" under its Policy. Transport counterclaimed for a declaratory judgment [**3] providing that the Deere Policy was the primary, or at least co-primary, policy and that Deere was therefore obligated to (1) defend Copp Trucking in the Kurocik lawsuit; and (2) indemnify or reimburse Transport for amounts paid in settlement on Copp Trucking's behalf.
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122 F.3d 270 *; 1997 U.S. App. LEXIS 25290 **
JOHN DEERE INSURANCE COMPANY, Plaintiff-Counter Defendant-Appellee, v. TRUCKIN' U.S.A., et al., Defendants, Transport Insurance Company, Defendant-Counter Claimant-Appellant.
Subsequent History: [**1] As Revised October 2, 1997.
Prior History: Appeal from the United States District Court for the Northern District of Texas.
Trucking, insured, district court, rig, coverage, trailer, indemnify, undescribed, endorsement, tractor, settlement, reimburse, contends, covered automobile
Civil Procedure, Appeals, Standards of Review, De Novo Review, Summary Judgment Review, General Overview, Standards of Review, Responses, Defenses, Demurrers & Objections, Denial of Allegations, Insurance Law, Liability & Performance Standards, Good Faith & Fair Dealing, Duty to Defend, Claim, Contract & Practice Issues