Artisan & Truckers Cas. Co. v. The Burlington Ins. Co.

• Decision Date: 23 June 2022
• Docket Number: 3:21-cv-497-JPG
• Parties: ARTISAN AND TRUCKERS CASUALTY CO., Plaintiff, v. THE BURLINGTON INSURANCE COMPANY, SOUTHERN TRUSS, INC., DOUGLAS FORREST, GAYLON CRUSE, individually and doing business as CRUSE CONSTRUCTION COMPANY, and MARK DUCKWORTH., Defendants. THE BURLINGTON INSURANCE COMPANY., Defendant/Counter/Cross-Plaintiff, v. ARTISAN AND TRUCKERS CASUALTY CO, Plaintiff/Counter-Defendant, v. SOUTHERN TRUSS, INC., DOUGLAS FORREST, GAYLON CRUSE, individually and doing business as CRUSE CONSTRUCTION COMPANY, and MARK DUCKWORTH Cross-Defendants.
• Court: U.S. District Court — Southern District of Illinois

ARTISAN AND TRUCKERS CASUALTY CO., Plaintiff, v. THE BURLINGTON INSURANCE COMPANY, SOUTHERN TRUSS, INC., DOUGLAS FORREST, GAYLON CRUSE, individually and doing business as CRUSE CONSTRUCTION COMPANY, and MARK DUCKWORTH., Defendants.

THE BURLINGTON INSURANCE COMPANY., Defendant/Counter/Cross-Plaintiff, v. ARTISAN AND TRUCKERS CASUALTY CO, Plaintiff/Counter-Defendant, v. SOUTHERN TRUSS, INC., DOUGLAS FORREST, GAYLON CRUSE, individually and doing business as CRUSE CONSTRUCTION COMPANY, and MARK DUCKWORTH Cross-Defendants.

No. 3:21-cv-497-JPG

United States District Court, S.D. Illinois

June 23, 2022

MEMORANDUM AND ORDER

J PHIL GILBERT U.S. DISTRICT JUDGE

I. Introduction

This matter comes before the Court on Defendant/Counter/Cross-Plaintiff Burlington Insurance Company (“TBIC”) Motion for Judgment on the Pleadings (Doc. 49) and Artisan and Truckers Casualty Co. (“Artisan”) Motion for Judgment on the Pleadings (Doc. 54).

II. Background

This is a complaint for declaratory judgment, filed on May 18, 2021 (Doc. 1). Plaintiff Artisan filed this action to seek a declaration that it owes no duty to defend or indemnify “Southern Truss, Inc. (“Southern Truss”), Douglas Forrest (“Forrest”), Cruse Construction Company (“Cruse Construction”), or any other person or entity pursuant to an insurance contract for bodily harms brought by Gaylon Cruse (“Cruse”) and Mark Duckworth (“Duckworth”). TBIC issued a general liability policy to Southern Truss. Additionally, Artisan issued a commercial automobile policy to Southern Truss.

On May 5, 2020, Cruse and Duckworth, employees of Cruse Construction, were installing roof trusses at Rusty's Home Center. Compl at ¶ 11-13. During the process of cabling down to unhook from the truss and while using a truck equipped with an attached power crane, Gaylon Cruse and Mark Duckworth were knocked to the ground and injured. The truck was a 2007 Intl 760 with attached crane equipment. Southern Truss was the owner of the truck. Forrest was operating the power crane used to lift roof trusses into the position for installation. Cruse and Duckworth filed a complaint including construction liability, specifically regarding the negligent design of the trusses, negligent hiring and training of construction personnel, negligent supervision of personnel working at the jobsite, and the negligent use of equipment to perform the construction. (Doc. 34, Ex. B. at ¶ 24).^[1] A. TBIC Policy definitions and exclusions

According to TBIC, the insurance company which issued a general policy to Southern Truss, excludes coverage for “autos.” TBIC defines the “auto” exclusion in section C below:

C. This insurance does not apply to:

g. Aircraft, Auto Or Watercraft, Including Unmanned Aircraft or Unmanned Aerial Vehicle

(2) Manned Aircraft or Manned Aerial Vehicle, Auto or Watercraft

“Bodily injury”, “property damage” or “damages” arising out of the ownership, maintenance, use or entrustment to others of any aircraft that is a “manned aircraft or manned aerial vehicle”, “auto” or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and “loading or unloading.”

This Paragraph g. (2) applies even if the claims against any insured allege negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by that insured, if the “occurrence” which caused the “bodily injury”, “property damage” or “damages” involved the ownership, maintenance, use or entrustment to others of any aircraft that is a manned aircraft or manned aerial vehicle”, “auto” or watercraft that is owned or operated by or rented or loaned to any insured.

This Paragraph g. (2) does not apply to:

(e) “Bodily injury” or “property damage” arising out of:

(i) The operation of machinery or equipment that is attached to, or part of, a land vehicle that would qualify under the definition of “mobile equipment” if it were not subject to a compulsory or financial responsibility law or other motor vehicle insurance law where is it is licensed or principally garaged; or

(ii) The operation of any of the machinery or equipment listed in Paragraph f. (2) or f. (3) of the definition of “mobile equipment.”

According to TBIC policy, “auto,” is defined as:

a. A land motor vehicle, trailer or semitrailer designed for travel on public roads, including any attached machinery or equipment; or

b. Any other land vehicle that is subject to a compulsory or financial responsibility law or other motor vehicle insurance law where it is licensed or principally garaged.

TBIC policy states that “auto” does not include “mobile equipment.” The policy includes a list of what qualifies as “mobile equipment” in Section V (Definitions).

However, “mobile equipment” does not include any land vehicles that are subject to a compulsory or financial responsibility law or other motor vehicle insurance law where it is licensed or principally garaged. Land vehicles subject to a compulsory or financial responsibility law or other motor vehicle insurance law are considered “autos”.

B. Artisan Policy definitions and exclusions

According to Artisan, an “auto” is defined as:

Auto" means a land motor vehicle or trailer designed for travel on public roads, or any other land vehicle that is subject to a compulsory or financial responsibility law or other motor vehicle insurance law in the state or province where it is licensed or principally garaged. It does not include mobile equipment. Self-propelled vehicles with the following types of permanently attached equipment are autos, not mobile equipment:

a. equipment designed and used primarily for:

(i) snow removal;

(ii) road maintenance, but not construction or resurfacing;

(iii) street cleaning;

b. cherry pickers and similar devices mounted on automobile or truck chassis and used to raise or lower workers; and c. air compressors, pumps and generators, including spraying, welding, building cleaning, geophysical exploration, lighting and well-servicing equipment.

Additionally, Artisan states an “insured auto” means: “a. Any auto specifically described on the declarations page.” Artisan expressly listed the 2007 Intl 760 truck in its declaration, with its attached crane (“including Permanently Attached Equip.”), as a covered auto in the declarations page and collected a higher premium to insure the truck/crane combination.

Mobile equipment includes, items such as “bulldozers, farm implements...,” “[v]ehicles you use solely on premises you own or rent and on accesses to public roads from these premises, unless specifically described on the declarations page and not defined as mobile equipment under other parts of this definition,” and others.

Additionally, according to Artisan, there is an exclusion of the Artisan policy of bodily injury arising out of the operation of equipment. That provision is reproduced below:

13. Operations

Bodily injury, property damage, or covered pollution cost or expense arising out of the operation of:

a. any equipment listed in Paragraphs b. and c. of the definition of auto; or b. machinery or equipment that is on, attached to, or part of, a land vehicle that would qualify under the definition of mobile equipment if it were not subject to a compulsory or financial responsibility law where it is licensed or principally garaged.

In the complaint for declaratory judgment, Artisan seeks declaration it has no duty to defend or indemnify Southern Truss or Forrest for the accident and TBIC has the sole duty to defend and indemnify Southern Truss. Artisan premised this assertion on the definition of “auto” and “mobile equipment” in the Artisan policy. Specifically, Artisan states that it has no duty to defend or indemnify Southern Truss or Forrest because the truck and power crane are not an “auto” under the Artisan policy.

TBIC filed a three-count counter and cross claim for declaratory judgment (Doc. 34). TBIC stated that it also has no duty to defend or indemnify Southern Truss or Forrest because the truck with the attached power crane is an “auto” and subject to the auto exclusion in the TBIC policy. Cruse, Duckworth, Southern Truss, and Forrest filed answers to Artisan's complaint and TBIC's cross claim. (Doc. 41, 43). Artisan answered the counterclaim on September 17, 2021 (Doc. 44).

TBIC now moves for a judgment on the pleadings and argues the crane/truck combination is an “auto” and the auto exclusion applies (Doc. 48). Southern Truss and Forrest responded to that motion arguing that both policies owe a duty to defend/indemnify this case (Doc. 50). Additionally, Artisan responded and opposed TBIC's motion (Doc. 53). Cruse, Duckworth, and Cruse Construction also responded to the motion (Doc. 55). TBIC filed their reply. (Doc. 60).

Artisan also motioned for judgment on the pleadings and argues the crane/truck combination is not an “auto” and therefore TBIC and not Artisan has a duty to defend (Doc. 54). TBIC opposed the motion (Doc. 62). Cruse, Duckworth, and Cruse Construction also opposed the motion (Doc. 63). Artisan filed a reply at Doc. 64.

III. Law and Analysis

Federal Rule of Civil Procedure 12(c) allows a party to move for judgment on the pleadings after the pleadings are closed. “Judgment on the pleadings is appropriate when there are no disputed issues of material fact and it is clear that the moving party ... is entitled to judgment as a matter of law.” Unite Here Local 1 v. Hyatt Corp., 862 F.3d 588, 595 (7^th Cir. 2017). A district court is confined to matters in the pleadings and must consider the pleadings in the light most favorable to the non-moving party. Id. Pleadings include “the complaint the answer, and any accompanying written instruments attached as exhibits.” Rube v. PartnerRe Ireland Ins. DAC, 470 F.Supp.3d...