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Richardson v. Zurich American Insurance Co.

United States District Court, E.D. Louisiana

March 21, 2018

RONALD RICHARDSON
v.
ZURICH AMERICAN INSURANCE COMPANY ET AL

         SECTION "L" (2)

          ORDER & REASONS

         Before the Court are Defendants' cross motions for summary judgment. R. Docs. 33, 34. Each motion is opposed. R. Docs. 37, 38. Having considered the parties' arguments and the applicable law, the Court now issues this Order and Reasons.

         I. BACKGROUND

         This case arises from injuries Plaintiff Ronald Richardson (“Richardson”) allegedly sustained in a collision between two 18-wheelers. On January 14, 2016, Plaintiff was sitting inside his truck waiting to refuel when an unknown driver in an 18-wheeler struck Plaintiff's vehicle. R. Doc. 1-4 at 1. The unknown driver then fled the scene.

         At the time of the accident, Plaintiff was working on behalf of 1845 Oilfield Transport, LLC (“D & T Holdings”). Plaintiff alleges Defendant Zurich American Insurance Company (“Zurich”) provided insurance coverage to and on behalf of D & T Holdings. Defendant Great American Assurance Company (“American”) provided underinsured/uninsured insurance coverage to Plaintiff. R. Doc. 1-4 at 2. Plaintiff claims that both insurance companies have refused to make any tender under the policies despite receiving adequate proof of loss. R. Doc. 1-4 at 3. Plaintiff claims that Defendants Zurich and American's failure to make tender on his claim is in bad faith and therefore he is entitled to statutory damages and attorney's fees. R. Doc. 1-4 at 4.

         Defendant Zurich answers and denies all allegations in Plaintiff's complaint. R. Doc. 5 at 1-2. Zurich admits it was the insurer for D & T Holdings and provided coverage to Plaintiff while his truck was being used by or for D & T Holdings. R. Doc. 5 at 2. Defendant American answers and denies the allegations in Plaintiff's complaint. R. Doc. 6 at 1-3. Defendant asserts that Plaintiff has not provided adequate proof that the driver in the alleged accident was uninsured. Therefore American contends it cannot be held liable until it receives proof that Plaintiffs injuries and damages exhaust the limits of the tortfeasor's coverage. R. Doc. 6 at 1-3.

         Defendants Zurich and American claim that any assertion of bad faith is barred because Plaintiff only recently provided identifying information regarding the tortfeasor's vehicle to the Defendants. R. Doc. 6 at 5-6; R. Doc. 5 at 12. Defendants also raise various affirmative defenses, including contributory negligence because of where Plaintiff chose to park his vehicle. R. Doc. 6 at 6; R. Doc. 5 at 13.

         II. PRESENT MOTIONS

         a. Defendant Zurich's Motion for Summary Judgment (R. Doc. 33)

         Defendant Zurich moves for summary judgment on the ranking of the Defendants' uninsured motorist (“UM”) coverage. R. Doc. 33. Zurich alleges that the policy provided by GAAC is the primary coverage for Plaintiff Richardson and the Zurich policy is only available as excess when the GAAC policy is exhausted. R. Doc. 33-1 at 1, 3. Zurich argues that the GAAC policy has a limit of $1, 000, 000 and lists the truck in question as a covered auto. R. Doc. 33-1 at 5. Zurich argues that this is coverage on the vehicle; in contrast, the Zurich policy is not coverage on the vehicle but is based on the status of the vehicle at the time of the accident. R. Doc. 33-1 at 6. Therefore, because the GAAC policy is coverage on the vehicle, Zurich argues that under Louisiana law it is the primary UM coverage in this accident. R. Doc. 33-1 at 7.

         b. Defendant GAAC's Motion for Summary Judgment (R. Doc. 34)

         Defendant GAAC also moves for summary judgment on the ranking of the Defendants' UM coverage. R. Doc. 34. GAAC alleges that the policies provided by Zurich and GAAC are co-primary. R. Doc. 34-1 at 1. GAAC argues that the truck in question is a covered auto under the Zurich policy because it was under lease for a year. R. Doc. 34-1 at 8. GAAC argues that because it lists the truck as a covered auto Louisiana law makes Zurich's coverage primary for Plaintiff Richardson's injuries because they occurred in a covered auto that he did not own. R. Doc. 34-1 at 9. Furthermore, GAAC argues that because both policies have language apportioning coverage this language should be applied and each Defendant should be liable proportionate to the applicable limits of their policies. R. Doc. 34-1 at 14.

         III. LAW & ANALYSIS

         a. Summary Judgment Standard ...


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