St. Paul Mercury Insurance Company v. Huitt

• Decision Date: 30 March 1963
• Docket Number: Civ. A. No. 4173.
• Citation: 215 F. Supp. 709
• Parties: ST. PAUL MERCURY INSURANCE COMPANY, a Minnesota corporation, Plaintiff, v. Dewey HUITT, individually and dba Dewey Huitt & Son, Russell Ontis, Ruth V. Withers, Guardian of James A. Withers, Mentally Ill, Auto-Owners Insurance Company, a Michigan corporation, Defendants.
• Court: U.S. District Court — Western District of Michigan

215 F. Supp. 709

ST. PAUL MERCURY INSURANCE COMPANY, a Minnesota corporation, Plaintiff, v. Dewey HUITT, individually and dba Dewey Huitt & Son, Russell Ontis, Ruth V. Withers, Guardian of James A. Withers, Mentally Ill, Auto-Owners Insurance Company, a Michigan corporation, Defendants.

Civ. A. No. 4173.

United States District Court W. D. Michigan, S. D.

March 30, 1963.

Mitts, Smith & Haughey, Grand Rapids, Mich., David O. Haughey, Grand Rapids, Mich., of counsel, for plaintiff.

Rex W. Orton, Allegan, Mich., for defendant Dewey Huitt, ind. and Dewey Huitt & Son, and Russell Ontis.

Shivel, Phelps, Linsey & Strain, Grand Rapids, Mich., Leland D. Phelps, Grand Rapids, Mich., of counsel, for defendant Auto-Owners Ins. Co.

Ryan, Sullivan & Hamilton, Battle Creek, Mich., Ronald M. Ryan, Battle

Creek, Mich., of counsel, for Mich. National Bank, Guardian of James A. Withers, Mentally Ill, successor to Ruth V. Withers.

FOX, District Judge.

Plaintiff filed a complaint for declaratory relief on October 2, 1961. On September 25, 1962, plaintiff filed a motion for summary judgment in accordance with the prayer in the complaint for declaratory relief.

The accident causing plaintiff's complaint in this case occurred in Allegan, Michigan. A cement truck, owned by Ben Waanders & Son and driven and operated by their employee, was being unloaded by a crane owned by Dewey Huitt & Son, at the site of the construction of the General Telephone Company building. The crane was being operated by Russell Ontis, employee of Dewey Huitt & Son.

The ready-mix cement truck emptied its cement into the bucket of the crane, the crane picked it up and was in the process of moving or lowering the bucket when the boom of the crane gave way and struck James A. Withers.

Ruth Withers, the guardian of James A Withers, has commenced a suit in the Circuit Court of Allegan County, against Dewey Huitt and Hazel Huitt, d/b/a Dewey Huitt & Son, Russell Ontis and Clark Equipment Company, a Michigan corporation, for damages in the sum of $200,000. Plaintiff in this action for declaratory relief is the insurer of Dewey Huitt & Son, that is, Dewey Huitt and Hazel Huitt, d/b/a Dewey Huitt & Son.

A liability policy issued by Auto-Owners Insurance Company to Ben Waanders & Son was in force at the time of the accident. This policy contained the common omnibus and loading and unloading clauses.¹

The insurance policy issued by plaintiff St. Paul to Dewey Huitt contained an excess insurance clause, which, in effect, says that the St. Paul policy is to cover only those losses which are not covered by any other valid and collectible insurance which applies to that same loss.²

Plaintiff alleges that Dewey Huitt and Russell Ontis are insureds under the Auto Owners policy by virtue of the omnibus and loading and unloading clauses in the policy. It is also alleged that Auto Owners was given proper notice of the accident and asked to assume the defense of the action. This Auto Owners refused to do. Because of Auto Owners' refusal to accept the defense of the Allegan Circuit Court case, plaintiff brings this action for declaratory relief asking the Court to adjudge:

First, that Russell Ontis and Dewey Huitt are insureds and covered by the Auto Owners policy issued to Ben Waanders & Son;

Second, that the primary coverage for Dewey Huitt and the primary responsibility of defending him against the state court suit by Ruth Withers is with and upon the Auto Owners Insurance Company and not St. Paul Mercury Insurance Company;

Third, that the sole coverage for Russell Ontis and the sole responsibility for defending him against the lawsuit by Ruth Withers is with and upon the Auto Owners Insurance Company and not the St. Paul Mercury Insurance Company;

Fourth, that the St. Paul Mercury Insurance Company's "General Liability Policy" provides only excess coverage for Dewey Huitt and no coverage for Russell Ontis with respect to the lawsuit by Ruth Withers.

In its motion for summary judgment, plaintiff alleges that there is no good faith issue of fact to be tried, and that pursuant to Rule 56 of the Federal Rules of Civil Procedure, plaintiff is entitled to a summary judgment in its action for declaratory relief.

On September 29, 1962, defendant Auto Owners filed a motion to dismiss the complaint for declaratory relief and in support of its motion alleged:

First, that the complaint does not state a cause of action for declaratory relief under 28 U.S.C. § 2201;

Second, that no controversy exists as to defendant Auto Owners, but that the controversy, if any, exists between this plaintiff and Dewey Huitt, individually, and d/b/a Dewey Huitt & Son;

Third, that no contractual relation exists between the plaintiff and defendant Auto Owners which could form the basis of a declaratory judgment action;

Fourth, that demand was made by letter upon Auto Owners to assume the liability which the plaintiff here seeks to impose upon Auto Owners.

The court's disposition of the plaintiff's motion for summary judgment necessarily resolves the issues raised by the defendant's motion to dismiss.

Defendant Auto Owners, in its brief filed concerning plaintiff's motion for summary judgment, also alleges that there are genuine fact questions concerning the following issues:

First, is the jurisdictional amount of $10,000, exclusive of interest and costs, involved in this controversy;

Second, was there any causal connection between the injury to James A. Withers and the unloading of the readymix truck of Benjamin G. Waanders & Son;

Third, was there a completed operation in the unloading of the concrete truck prior to the injury being inflicted upon James A. Withers Fourth, had the concrete which was in the bucket come to rest as far as the concrete truck was concerned prior to the injury being inflicted upon James A. Withers?

Rule 56 of the Federal Rules of Civil Procedure provides in part, as follows:

"* * * (c) * * * The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. * * *"

In considering the granting of a motion for summary judgment, the Court of Appeals of this Circuit said, in the case of McHenry v. Ford Motor Company, 6 Cir., 269 F.2d 18, at page 22:

"It is the established rule of the federal courts in construing rule 56 that a summary judgment should be entered only in cases where there is no genuine issue as to any material fact. * * * On considering such a motion the pleadings are to be liberally construed in favor of the party opposing the motion. * * Moreover, the court is required to take the view most favorable to the party opposing the motion, giving that party the benefit of all favorable inferences that may be drawn from the evidence. * * *"

Being an extreme remedy, a summary judgment should be awarded only if and when the truth is quite clear. All reasonable doubt touching the existence of a genuine issue as to a material fact must be resolved against the party who has moved for the summary judgment. Yonkers Contracting Company v. Maine Turnpike Authority, D.C., 24 F.R.D. 205.

In determining whether the plaintiff's motion for summary judgment may be allowed and in determining whether there is a genuine issue between the parties, the court must look to the pleadings, affidavits, admissions and exhibits before us.

The issues are precisely drawn by the pleadings in this case and in accordance with the prayer of the plaintiff's complaint, the court has made the following findings:

First, the court is satisfied that Russell Ontis and Dewey Huitt are insureds and covered by the policy issued by Auto Owners Insurance Company to Ben Waanders & Son.

It is admitted by defendant Auto Owners (1) that the crane fell and injured James Withers while the crane was in the process of transferring cement from the ready-mix truck to the building forms; (2) that there still remained in the truck approximately one-half of the load of cement which had not been unloaded at the time James Withers was injured; (3) that the crane was owned by Dewey Huitt & Son and that it was operated at the time of the accident by Russell Ontis; and (4) that the cement truck was owned by Ben Waanders & Son and that Auto Owners had issued a policy to Ben Waanders as previously set out.

All the facts necessary to a judgment that Russell Ontis and Dewey Huitt were insureds under the Auto Owners policy have been admitted. Whether or not these facts constitute Ontis and Huitt "users" under the "loading and unloading" clause, and therefore "insureds", is a question of law for the court.

Defendant would have us rely on the Ohio Supreme Court decision in the case of Travelers Insurance Co. v. Buckeye Union Casualty Co., 172 Ohio St. 507, 178 N.E.2d 792 (1961). The distinction between that case and the instant case is concisely stated in an article by Norman E. Risjord entitled "Loading and Unloading", 13 Vanderbilt Law Review 903, at 931.

"An interesting recent Ohio decision denied coverage for the stranger to the truck crew but not for the reason that he was a stranger. The insured truck in that case was driven to the premises of the Gulf Refining Company which maintained a place of business for the distribution of petroleum products. The truck driver parked the truck near the loading platform, opened the valves and prepared to load diesel fuel. An employee of Gulf handed down to the truck driver a loading pipe from which the diesel fuel had not been drained after a previous loading. As the pipe was lowered to the truck driver, oil suddenly spewed forth from the pipe into the face of the truck driver, causing him to lose his

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