Associated Petroleum Carriers, Inc. v. Pan Am. Fire & Cas. Co.
| Decision Date | 08 April 1968 |
| Docket Number | No. 43500,No. 2,43500,2 |
| Citation | 117 Ga.App. 714,161 S.E.2d 411 |
| Parties | ASSOCIATED PETROLEUM CARRIERS, INC., et al. v. PAN AMERICAN FIRE & CASUALTY COMPANY et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
In an action for declaratory judgment to determine rights and obligations under two liability policies insuring a person against whom suits for damages have been brought, the duties of the insurers to defend the suits cannot be determined in the absence of evidence of the allegations of the suits; the contentions of the insurers respecting acts of negligence attributable to the insured causing damages to the parties suing the insured must await trial of these suits.
Pan-American Fire & Casualty Company filed a petition for declaratory judgment to determine rights under two policies of insurance as to coverage of an insured under the following alleged facts and circumstances: A policy of Pan-American provided insurance to Shockley, who operated a gas and oil business, for liability incurred in the operation of his business premises. A policy of Aetna Casualty & Surety Company provided insurance to Associated Petroleum Carriers, Inc., for liability in the use and operation, including unloading of a tank truck. This truck was leased by Shockley to Associated and at the time relevant to this case was being used by an employee of Shockley for hauling and unloading gasoline from the tank truck to a storage tank on Shockley's premises. The gasoline became ignited and resulted in damage to the property of others. Several of the damaged parties made claims and threatened suits against Shockley. The pleadings of the parties and evidence submitted on Pan-American's motion for summary judgment reveal that suits were filed against Shockley and Shockley demanded of both insurers that they defend the suits. Aetna, the vehicle insurer, admitted on oral argument that its policy afforded coverage to Shockley as an additional insured for liability incurred while his employee was unloading the truck, but Aetna contended that the damage was caused by negligence attributable to Shockley in operating the premises. Pan-American, the premises insurer, contended that the damage to the claimants was caused by negligence of Shockley's employee in unloading the truck. Both policies contained an insuring agreement for the defense of suits as follows: 'With respect to such insurance as is afforded by this policy the company shall (a) defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent, but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient.'
The trial court granted the motion for summary judgment of the premises insurer, Pan-American, and declared that coverage for the losses described in the petition for declaratory judgment were covered by Aetna's policy as primary coverage and byPan- American's policy as secondary coverage to Shockley. Aetna and Associated, its insured, appeal from this judgment.
Whelchel, Dunlap & Gignilliat, James A. Dunlap, Wright Willingham, Gainesville, for appellants.
Fulcher, Fulcher,...
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