Herkes v. Doe

Full title: JAMES D. HERKES, et al. v. JOHN DOE, et al

Court: United States District Court, E.D. Louisiana

Date published: Mar 25, 2002

Civil Action No. 01-0700, Section M (E.D. La. Mar. 25, 2002)

Opinion

Civil Action No. 01-0700, Section M

March 25, 2002

ORDER

PETER BEER, United States District Judge.

Before the Court is a Motion for Partial Summary Judgment filed by defendant, Canal Insurance Company, (hereafter "Canal") seeking a determination of no coverage for the vehicle involved in the accident in this case.¹ Allstate Insurance Company (hereafter "Allstate") opposes the motion on the basis that the MCS-90 endorsement operates to provide "coverage" insofar as injured members of the public are concerned. Dae Nong has not opposed the motion. After a review of the motion, the opposition thereto and the applicable law, IT IS ORDERED that the motion is hereby GRANTED.

1 Canal also contends that it is not obligated to provided a defense to its insured. Dae Nong. Inc., and that it is entitled to reimbursement from Dae Nong for any amounts paid to plaintiffs based upon the MCS-90 endorsement.

FACTS

The facts of the accident are undisputed. Plaintiff, James D. Herkes, alleges that he and his passenger, Joseph Berrigan, were injured on March 3, 2000, when the vehicle driven by Mr. Herkes was struck by a Penske tractor-trailer leased to Dae Nong, and operated by Rodney Taylor, a Dae Nong employee. At the time of the accident, Canal provided liability insurance to Dae Nong, Inc. and Allstate provided uninsured motorist coverage to plaintiff.

Canal has come forth with evidence that the vehicle involved in the accident was not a covered vehicle. Specifically, Canal has submitted the insurance policy which states unequivocally that coverage is provided only for "owned automobiles" and "temporary substitute vehicles." (Exhibit A, attached to Canal's Motion for Summary Judgment). The policy lists one vehicle as an "owned automobile" which is a 1999 Freightliner tractor.

The policy defines a "temporary substitute vehicle" as one "used with the permission of the owner as a substitute for an owned automobile when withdrawn from normal use for servicing or repair or because of its breakdown, loss or destruction." Canal submitted an inspection report which indicates that the 1999 Freightliner tractor had been repaired and serviced on February 18, 2000 and was operational on February 19, 2000. (Exhibit D, attached to Canal's Motion for Summary Judgment) Canal also submitted an affidavit from a Penske employee who testified that Penske leased the vehicle involved in the accident to Dae Nong, and that the vehicle was extra equipment and not a replacement vehicle. (Exhibit B, attached to Canal's Motion for Summary Judgment.)

Dae Nong has not opposed the motion, and the record is void of any evidence which suggests that the vehicle in the accident was either an owned vehicle or a temporary substitute vehicle Allstate does not oppose the motion insofar as it seeks a determination of coverage vis-a-vis Canal and Dae Nong.

LAW AND ANALYSIS

A party is entitled to summary judgment upon a showing that no genuine issue as to any material fact exists and that the movant is entitled to judgment as a matter of law Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Fed.R Civ.P Rule 56(c) In determining whether summary judgment is appropriate, the Court must draw all justifiable inferences in favor of the non-moving party. Anderson, 477 U.S. at 255; Oliver Resources PLC v. International Finance Corp., 62 F.3d 128, 130 (5th Cir. 1995).

To oppose a motion for summary judgment, the non-movant must set forth specific fact showing that there is a genuine issue of material factCelotex Corp v. Catrett. 477 U.S. 317, 321-22 (1986); Rule 56(e) A material fact is any fact "that might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248.

Because the insured, Dae Nong, has not opposed the facts as set forth by Canal, the question of insurance coverage is appropriately resolved by summary judgment Accordingly, the Court finds that the uncontroverted evidence submitted by Canal indicates that the vehicle involved in this accident was not a covered vehicle as per the terms of this policy.

With respect to the applicability of the MCS-90 endorsement, the Fifth Circuit has stated that the MCS-90 and the relevant federal regulations do not address coverage for the purpose of disputes between the insured and the insurer However, when the protection of injured members of the public is at stake. "the insurer's obligations under the MCS-90 are triggered when the policy to which it is attached provides no coverage to the insured." T.H.E Insurance Company v. Larson Intermodel Service, Inc., 242 F.3d 667, 672 (5^th Cir. 2001). Thus, where the policy provides no coverage for the vehicle, the MCS-90 endorsement is triggered for the benefit of plaintiff.

Accordingly. IT IS ORDERED that, there being no disputed issues of fact Canal Insurance Company's Motion for Summary Judgment is GRANTED, thus triggering the actionable and applicable portions of the MCS-90 endorsement.