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Protective Insurance Co. v. Plasse

United States District Court, S.D. Alabama, Southern Division

August 11, 2014

PROTECTIVE INSURANCE COMPANY, Plaintiff,
v.
PHILLIP PLASSE, Defendant.[1]

ORDER

KRISTI K. DUBOSE, District Judge.

This matter is before the Court on Plaintiff Protective Insurance Company's (Protective) Motion for Summary Judgment (Docs. 25), Defendant Phillip Plasse's Response (Plasse) (Doc. 30), and Protective's Reply (Doc. 36); Plasse's Motion for Summary Judgment (Docs. 24, 26) and Protective's Response (Doc. 28, 29); Protective's Motion to Strike (Doc. 31) and Plasse's Response (Doc. 34); and Plasse's Motion to Strike (Doc. 33) and Protective's Response (Doc. 35). Upon consideration and for the reasons set forth herein, Protective's motion for summary judgment is GRANTED and Plasse's motion is DENIED.

I. Procedural background

In this declaratory judgment action, Protective seeks a determination as to the rights, remedies, obligations and liabilities between it and Plasse under the commercial automobile liability insurance policy issued from Protective to its insured Carroll Fulmer Logistics Corporation (Carroll). (Doc. 1) Plasse filed a counterclaim against Protective for breach of contract, bad faithand claiming uninsured/underinsured motorist (UM) benefits, medical benefits, and personal injury protection (PIP) benefits. (Doc. 4)[2]

This action arises from an underlying state court action pending in the Circuit Court of Monroe County, Alabama. Plasse was injured in a motor vehicle accident while driving his tractor that was leased to Carroll and pulling one of Carroll's trailers. In that action, Plasse brings two claims: Count One for Workers' Compensation/Occupational Accident Benefits/Employer Liability" and Count Two for "Negligence and/or Wanton Conduct". (Doc. 26-14)

II. Findings of Fact[3]

A. The Independent Contractor Agreement

On March 31, 2011, Carroll, Protective's insured, and Plasse a resident of Florida doing business as P&R Transport, [4] a name registered by Plasse in Florida, entered into an Independent Contractor Agreement. (Doc. 1-3) According to its terms, Plasse would provide Carroll with "transportation related services" and "Equipment"; specifically, the 2001 International tractor owned by Plasse. (Id., at 2) Carroll and Plasse specifically agreed that Plasse was an independent contractor and not an employee of Carroll. (Id., at 6, ¶7) The parties selected the laws of the state of Wisconsin to govern the Agreement. (Id.. at 7) Carroll registered the tractor in Wisconsin. (Doc. 26-5 at 20 (Dep. Plasse at 225); Doc. 26-18 (Wisconsin Apportioned Registration Cab Card).

The Agreement was to remain in effect for not less than 30 days from the date of the Agreement, March 31, 2011, but was then subject to termination by either party. (Id., at 2) As to insurance, the parties agreed as follows

(e) Insurance (49 CFR 376.12(j)). The responsibilities and obligations between CARRIER and INDEPENDENT CONTRACTOR involving insurance shall be as specified in paragraph 6(d) and in Appendix B. CARRIER shall have no insurance responsibilities or obligations pertaining to INDEPENDENT CONTRACTOR other than those expressly stated in this Agreement or mandated by law.

(Doc. 1-3, at 4) (capitalization in original).

Paragraph 6 addresses Carroll's responsibilities as the Carrier, and subparagraph (d) states as follows

(d) Insurance. Unless authorized to be self-insured, CARRIER shall maintain public liability, property damages, and cargo insurance in such amounts as are required by the Federal Highway Administration, Department of Transportation, and applicable state regulatory agencies. CARRIER shall maintain insurance coverage for the protection of the public pursuant to the Federal Highway Administration's regulations under 49 U.S.C. § 13906. CARRIER'S self-insurance or possession of legally required insurance in no way restricts CARRIER'S right of indemnification from INDEPENDENT CONTRACTOR under Paragraph 5(g) and other provisions of this Agreement.

(Doc. 1-3, at 5) (capitalization in original).

Appendix B, to the Agreement contains the following INDEPENDENT CONTRACTOR shall be covered under CARRIER'S public liability, property damage and, with regard to common carrier service, cargo loss or damage insurance coverage and shall be charged back for CARRIER'S expense in obtaining and administering such coverage. It shall be INDEPENDENT CONTRACTOR'S responsibility to provide, at its sole cost and expense, public liability and property damage insurance to protect INDEPENDENT CONTRACTOR whenever the Equipment is not being operated on behalf of CARRIER. Such insurance shall be provided by and purchased from an insurance company acceptable to CARRIER, and shall name CARRIER as an additional insured thereunder. The insurance provided by CARRIER is not intended to protect INDEPENDENT CONTRACTOR whenever the Equipment is not being operated on behalf of CARRIER.

... It is INDEPENDENT CONTRACTOR'S obligation to carry any fire, theft, uninsured motorist and collision insurance that INDEPENDENT CONTRACTOR may desire, and upon CARRIER'S request, such insurance shall also name CARRIER as insured thereunder. INDEPENDENT CONTRACTOR, together with driver, does hereby (1) acknowledge that the CARRIER provides no uninsured motorist, underinsured motorist, collision insurance or worker's compensation insurance coverage; (2) waive any claim against CARRIER for entitlement to benefits under such insurance coverage; and (3) release CARRIER from any obligation to provide such coverage.

(Doc. 1-3, at 8, Appendix B) (capitalization in original).

B. Carroll's insurance policy with Progressive

On October 1, 2010, Protective issued Policy XA1799/XP1253. (Doc. 1-1, at 2, 4, 22) The Policy was delivered to Carroll in Groveland, Florida. Carroll was identified as the sole "named insured." (Id., at 4, Declarations) Policy XA1799 covered Personal Injury Liability (Coverage A), Property Damage Liability (Coverage B) and Employers Liability (Coverage I).[5] The Policy was in effect at the time of the accident at issue, May 2, 2011.

Policy XA1799 defines the "Insured", in relevant part, as follows:

M. "Insured": Each of the following is an Insured to the extent set forth below:

(1) The "named insured" as designated in the Declarations;
(2) The "related insured(s)", which shall include, if listed in the endorsements, the parent company or other company owning a controlling interest in the named insured and any subsidiary company of or company otherwise controlled by the named insured's ownership.... All other related insureds, if listed in the endorsements, shall be indemnified for their trucking operations as if a named insured under this contract;
Only for their trucking operations, related insured(s) shall also include:
any subsidiary or owned or controlled company of the named insured or related insured created or acquired subsequent to the inception date of this contract, ...
(5) The "additional insured(s)" as designated in the endorsements and/or certificates issued by the Company. The additional insured(s) shall be indemnified under this contract only to the extent that the named insured or related insured is obligated by a covered contract to reimburse, hold harmless or indemnify the additional insured(s).

(Doc. 1-1, at 11, Definitions) (emphasis in original).

In relevant part, the Policy defines a "covered contract" as
(7) That part of any other contract or agreement pertaining to the insured's trucking operations under which any insured assumes the tort liability of another to pay damages because of personal injury or property damage to a third person or organization, if the contract or agreement is made prior to the personal injury or property damage....

(Doc. 1-1, at 10) (emphasis in original).

The Policy defines a "covered vehicle" as a "land motor vehicle, trailer or semi-trailer, designed for use on public roads, including its equipment and other equipment permanently attached thereto, which is either: (1) owned by the insured, or (2) not owned by the insured while in his possession under a written agreement wherein he assumes liability for loss or damage thereto while in his possession." (Doc. 1-1, at 11) Plasse's leased tractor would have been listed on a reporting form delivered to Protective from Carroll. (Doc. 26-24, at 30, Depo. Mark Darling, Corporate Representative). Under the terms of the Independent Contractor Agreement, Plasse and the leased tractor would be covered for liability when pulling a Carroll trailer and under dispatch. (Doc. 26-24, at 14)[6]

Uninsured and Underinsured Motorists (UM)[7](Coverage C) and Personal Injury Protection (PIP) (Coverage D), are provided to Carroll pursuant to Endorsement 3 to Policy XA1799. (Doc. 1-1, at 4 "Declarations) The Endorsement names Carroll as the "Named Insured" and states in relevant partas follows:

All coverage to be provided for Coverage (C) Uninsured or Underinsured Motorists and/or Coverage (D) Personal Injury Protection under this contract shall be provided by the form of Policy Number XP 1253 issued by the Company. Policy Number XP 1253 and all endorsements thereto now or hereafter issued are and shall be an endorsement to this contract but only as respects for ...

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