On December 9, 2016, a 1992 Mack dump truck ("The Tractor") driven by former defendant James Moore collided with another vehicle, killing Patrick Glisson. At the time of the accident, Moore was employed by defendant Blu Blu Trucking, LLC and / or former defendant B&N Trucking, Inc. and the tractor was owned by defendant Tru Blu Trucking.
Progressive Mountain Insurance Company v. Numbers Enterprise, LLC; Stanley J. Smart; Tru Blu Trucking, LLC; Scott & Sons Trucking, LLC; and Patrick Styblo, individually and as the court-appointed personal administrator of Patrick Glisson's estates ; CASE NO. CV419-166, United States District Court of Southern District Georgia Savannah Division (December 15, 2020) The USDC was asked to declare no coverage because the tractor was not planned under Progressive policy.
Following the accident, Prosecutor Patrick Styblo, as administrator of Glisson's estate, sued to claim wrongful death and survival claims against several defendants, including Defendants Numbers Enterprise, LLC, Stanley J. Smart and Tru Blu Trucking, LLC. Although Progressive was not involved in the State's court action at the time of the accident, defendant Numbers Enterprise was insured under a commercial car insurance policy issued by Progressive (the "Policy").
To resolve any uncertainty about the availability of insurance coverage under the insurance, Progressed sued to obtain a declaration that it is not liable for and is not liable for defense or damages for any claims arising from the accident as the tractor is not a covered vehicle according to the terms of the policy.
Progressive claimed that the policy is a "scheduled auto" policy, where "the coverage is linked to a specific car  as described… Or that car's replacement or temporary replacement."
According to the policy, Progressive gives liability for bodily injury or property damage that an "insured" becomes legally liable to pay due to an accident that arises as a result of the use of an "insured car."
The policy defines "insured car" as: " All cars specifically described on the declaration page; or b. An additional car for Part I liability to others and / or Part II damage to your car on the date [Numbers Enterprise] [became] the owner … Each replacement car on the date [Numbers Enterprise] becomes [s] the owner … "
When used in Part I Liability to Others," insured car "also includes:" 1. Trailers designed primarily for travel on public roads, while connected to a [Numbers Enterprise’s] insured car which is a power unit; 2. Mobile equipment when carried or towed by an insured car; and 3. Each temporary replacement car. "
The policy further defines" temporary replacement car "as:" Not all cars [Numbers Enterprise] own [es] while used with permission from the owner as temporary replacement for an insured car that has been taken out of normal use due to breakdown, repair , service, loss or destruction.
In summary, the policy limits liability protection to accidents with (1) cars that are specifically described on the declaration page of the policy; (2) post-acquired cars; (3) replacement cars; and (4) temporary replacement cars.
Progressive claimed that the tractor is not an "insured car" because the tractor is not specifically described on the policy declaration page and also that the tractor does not constitute an after-acquired car, replacement machine or temporary replacement car according to the policy. Because the tractor is not an “insured car” under the policy, Progressive argued that it had no obligation to defend or injure any individual or entity in connection with claims, lawsuits or acts arising out of or related to the accident, including but not limited to the defendant Styblos State Court. Defendant Styblo agreed.
It is common ground that Georgia's interpretation law applies in this case. Georgia follows the lex loci contractus rule, according to which contracts must be governed with respect to their nature, validity and interpretation according to the law of the place where they were made. According to Georgia's rules for the interpretation of contracts, where “the terms of an insurance contract are clear and unambiguous, they must be given their literal meaning.
The unambiguous terms of the policy exclude coverage of the tractor. The tractor's VIN number (1M2P264C2NM01878) is not described on the insurance side of the policy and the defendant Styblo has not shown that the tractor was a post-acquired car, replacement car or a temporary replacement car as defined under the policy. As the tractor is not an “insured car” under the policy, Progressive is not liable to defend or injure any person or entity in connection with claims, lawsuits or actions arising out of or related to the accident on December 9, 2016.  This case is an insurance company lawyer's dream, because the defendant who could benefit from the claims against Progressives insured agreed with Progressives interpretation of its policy and Progressives insurance did not dispute its claim. The policy formulation that limited the coverage to losses involving only vehicles listed in the policy was clear, unambiguous and obvious, even to the defendants. Progressive played it safe even though it probably would not have been tuned to provide coverage. Since both parties agreed on the policy interpretation, there should be no chance of appeal.
© 2020 – Barry Zalma
Barry Zalma, Esq., CFE, now limits his practice to employment as an insurance consultant specializing in insurance coverage. , handling insurance claims, unfaithful insurance and insurance fraud almost equally for insurers and policyholders. He also acts as an arbitrator or mediator for insurance-related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims lawyer and more than 52 years in the insurance business. He is available at http://www.zalma.com and firstname.lastname@example.org.
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