Aetna Insurance Co. v. Transamerica Insurance Co.

• Decision Date: 19 January 1967
• Docket Number: Civ. A. No. 4775.
• Parties: AETNA INSURANCE COMPANY, Everhart Steel Construction Company, Inc., Hester Hamilton, Gilbert Motes, and Chattanooga Rock Products Division of Vulcan Material Company v. TRANSAMERICA INSURANCE COMPANY.
• Court: U.S. District Court — Eastern District of Tennessee

262 F. Supp. 731

AETNA INSURANCE COMPANY, Everhart Steel Construction Company, Inc., Hester Hamilton, Gilbert Motes, and Chattanooga Rock Products Division of Vulcan Material Company v. TRANSAMERICA INSURANCE COMPANY.

Civ. A. No. 4775.

United States District Court E. D. Tennessee, S. D.

January 19, 1967.

Bishop, Thomas, Leitner, Mann & Milburn, Chattanooga, Tenn., for plaintiffs.

Spears, Moore, Rebman & Williams, Chattanooga, Tenn., for intervening plaintiff Chattanooga Rock Products Div. of Vulcan Materials Co.

Noone, Moseley & Bell, Chattanooga, Tenn., for defendant.

MEMORANDUM

FRANK W. WILSON, District Judge.

This is an action in which plaintiffs seek a declaratory judgment upon a policy of insurance alleged to have been issued by defendants. There have been several motions filed in the case, in the following order: (1) defendant's motion for summary judgment, (2) plaintiff's motion for the production of defendant's insurance policy, (3) plaintiffs' motion to amend the complaint, (4) defendant's objection to plaintiffs' requests for admissions, and (5) the motion of Chattanooga Rock Products to intervene as a party plaintiff.

Briefly summarized, the complaint alleges the following facts. On January 11, 1966, plaintiff Everhart Steel Construction Company, Inc., leased and bailed to Chattanooga Rock Products Division, Vulcan Material Company, at the request of and for the use and benefit of Quality Concrete Industries, Inc., of Morristown, Tennessee, a crane vehicle and two Everhart employees, Hester Hamilton and Gilbert Motes. On that date, during the loading of a large tank on a tractor-trailer unit owned by Quality Concrete, Hamilton and Motes were called upon to pull the tractor-trailer with the crane. During the operation, an electric line was struck and electrical energy was conducted through the crane and towing apparatus to the tractor-trailer, causing injury to one Mack Windham. Defendant had issued a policy of liability insurance upon the Quality Concrete tractor-trailer, and it is asserted that Hamilton and Motes are additional insureds under such policy. Plaintiff Aetna is the liability insurer of Everhart and has in its policy the usual subrogation clause. Aetna contends that Hamilton and Motes cannot be insureds under its policy. Windham has filed suit for personal injuries against Chattanooga Rock Products and Everhart in the Circuit Court of Hamilton County, Tennessee, and defendant has refused to provide coverage to Everhart with regard to this lawsuit. Plaintiff Aetna contends that any liability of Everhart to Windham must necessarily be based upon respondeat superior for negligence on the part of Hamilton and Motes, which would necessarily entitle Everhart, and thus by subrogation, Aetna, to proceed against Hamilton and Motes for indemnity. Plaintiffs seek declaratory judgment that Hamilton and Motes are insureds under defendant's policy and thus that defendant should provide coverage to Everhart in the Windham lawsuit.

Defendant's motion for summary judgment is based upon its contention that this is not an appropriate case for declaratory judgment and/or that the suit is premature and must be based upon anticipation and speculation. It is of course well settled that the granting or denying of relief in declaratory judgment actions is a matter within the sound discretion of the Court. Brillhart v. Excess Insurance Co., 316 U.S. 491, 62 S.Ct. 1173, 86 L.Ed. 1620. Basically the question in each case is whether the facts averred under the existing circumstances present a real controversy between parties having adverse legal interest of such immediacy and reality as to warrant a declaratory judgment. Altvater v. Freeman, 319 U.S. 359, 63 S.Ct. 1115, 87 L.Ed. 1450; Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 61 S.Ct. 510, 85 L.Ed. 826. The determinative factor is whether the declaratory action will probably result in a just and...