Phila. Indem. Ins. Co. v. Fedex Freight, Inc.
Decision Date | 08 November 2017 |
Docket Number | No. 2:16–cv–02600–cgc,2:16–cv–02600–cgc |
Citation | 297 F.Supp.3d 795 |
Parties | PHILADELPHIA INDEMNITY INSURANCE COMPANY, Plaintiff/Counter–Defendant v. FEDEX FREIGHT, INC., David F. Rickman, Defendants/Counter–Plaintiffs Maggie Shorter, and David Shorter, Defendants. |
Court | U.S. District Court — Western District of Tennessee |
ORDER GRANTING PHILADELPHIA INDEMNITY INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT AND DENYING FEDEX FREIGHT, INC. AND DAVID RICKMAN'S MOTION FOR SUMMARY JUDGMENT
Before the Court are Plaintiff/Counter–Defendant Philadelphia Indemnity Insurance Company's ("Philadelphia") Motion for Summary Judgment and Defendants/Counter–Plaintiffs FedEx Freight, Inc. ("FedEx Freight") and David F. Rickman's ("Rickman") Motion for Summary Judgment (D.E. # 36). The parties have consented to the jurisdiction of the United States Magistrate Judge. (D.E. # 33). For the reasons set forth herein, Philadelphia's Motion for Summary Judgment is GRANTED and FedEx Freight and Rickman's Motion for Summary Judgment is DENIED.
The underlying action arises was filed by Defendants Maggie Shorter and David Shorter in Tennessee state court against FedEx Freight and Rickman ("State Complaint"). (D.E. # 1–1). The State Complaint alleges that, on or about July 8, 2015, Mrs. Shorter was working as a security guard for Universal Protection Service, LLC ("Universal") at a FedEx Freight facility located at 461 Winchester Road in Memphis, Tennessee. (State Compl. ¶ 3) The State Complaint alleges that Mrs. Shorter sustained severe and permanent injuries, including the amputation of her right leg from the knee down and the permanent disfigurement of her left leg, after being struck by a FedEx Freight vehicle operated by Rickman. (State Compl. ¶¶ 6, 10). The State Complaint alleges that Ms. Shorter's injuries were proximately caused by Rickman's negligent operation of the FedEx Freight vehicle. (State Compl. ¶ 10). The State Complaint alleges that FedEx Freight is vicariously liable for Rickman's negligence under the doctrine of respondent superior. (State Compl. ¶ 6).
After the State Complaint was filed, FedEx Freight and Rickman tendered the Shorters' suit to Philadelphia and demanded a defense and indemnification. Philadelphia refused asserting that the Policy did not cover either. On July 20, 2016, Philadelphia filed a Complaint for Declaratory Judgment ("Complaint") in this Court pursuant to 28 U.S.C. §§ 2201 – 2202 and Rule 57 of the Federal Rules of Civil Procedure (D.E. # 1). FedEx Freight and Rickman then filed a Counter–Complaint under 28 U.S.C. § 2201 and Rule 57 for Declaratory Judgment (D.E. # 22). The Complaint alleges that, prior to the incident complained of in the State Complaint, on or about November 2013, FedEx Freight and Universal entered into a General Guard Security Agreement ("Agreement"). (Agreement, filed at D.E. # 1–2, at 1, 9). Under the Agreement, Universal agreed to provide security services for FedEx Freight facilities throughout the United States. (Agreement at 1). Section 9 of the Agreement, entitled "Indemnification," provides as follows:
Section 9. Indemnification. [Universal] agrees to indemnify, defend and hold harmless FedEx [Freight], its directors, officers, and employees from any and all liabilities, damages, losses, expenses, demands, claims, suits, or judgments, including reasonable attorneys' fees and expenses, to the extent resulting from [Universal]'s negligence or willful misconduct in the performance of its obligations under this Agreement, including, but not limited to any claim for payment by a subcontractor, agent, or employee of [Universal]. [Universal]'s obligation to so indemnify, defend and hold harmless FedEx [Freight] shall survive the expiration or earlier termination of this Agreement.
Additionally, the Agreement provides that Universal shall "maintain Commercial General Liability insurance for bodily injury, and property damage, including contractual liability, products and completed operations; Broad Form Property Damage; Workers Compensation at statutory limits; Employers Liability Insurance; Personal Injury insurance, and Commercial Liability insurance if operating automotive vehicles as set out in attached Exhibit C." (Agreement at 4, § 10).
Exhibit A to the Agreement provides the Security Guard Responsibilities. (Agreement at 13). Of central importance to the instant case, the Agreement provides in Paragraph 19 as follows: "For Safety reasons do not walk between double trailers unless Tractor is (Exh. A. at 13). Exhibit C to the Agreement further provides, in pertinent part, as follows:
(Agreement at Exh. C).
Further, in order to comply with their requirements under the Agreement, Universal procured a policy of insurance from Philadelphia bearing the policy number PHPK1224836 ("Policy"), which provided commercial auto insurance coverage for a policy period of September 1, 2014 to September 1, 2015. (D.E. # 1–3). There is no dispute that the Policy was in full force on or about July 8, 2015 when Mrs. Shorter sustained injuries after being struck by the FedEx Freight truck. (Id. ) The Policy issued by Philadelphia to Universal consists of the Business Auto Declarations and the Business Auto Coverage Form. (Id. ). The Policy states, in pertinent part:
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