Bits & Pieces

OneBeacon Insurance Co. v. Haas Industries, Inc.,

United States District Court,N.D. California.



HAAS INDUSTRIES, INC., Defendant(s).

April 23, 2008.



BERNARD ZIMMERMAN, United States Magistrate Judge.

Professional Products, Inc. (PPI) purchased electronic equipment from Omneon Video Networks (Omneon). The equipment was to be shipped to the City University of New York (City University). Omneon contracted with defendant Haas Industries, Inc. (Haas) to ship the equipment.When the equipment was delivered to City University, the shipment was short equipment valued at $105,647.

All parties have consented to my jurisdiction, including entry of final judgment, pursuant to 28 U.S.C. § 636(c) for all proceedings.

PPI filed a claim with plaintiff OneBeacon, its transit and property insurance carrier. OneBeacon paid the claim and then filed a subrogation claim for cargo loss against Haas to recover the cost of the lost equipment. OneBeacon has moved for summary judgment, or in the alternative for partial summary judgment as to Haas’ Sixteenth Affirmative Defense that liability is limited to $0.50 per pound. In its opposition papers, Haas requests that OneBeacon’s claims be dismissed because Haas’ payment to Omneon constituted an accord and satisfaction. The court treats this request as a motion for summary judgment on Haas’ Thirteenth Affirmative Defense.

The Carmack Amendment

The parties agree that this dispute is governed by the Carmack Amendment, 49 U.S.C. § 14706.Under the Amendment, a carrier is liable for the “actual loss or injury to the property” it carries in interstate commerce unless otherwise agreed with the shipper. Id.;Ins. Co. of N. Am. v. NNR Aircargo Serv. (USA), Inc. ., 201 F.3d 1111, 1115 (9th Cir.2000); Hughes Aircraft v. N. Am. Van Lines, 970 F.2d 609, 611 (9th Cir.1992); Atlantic Mut. Ins. Co. v. Yasutomi Warehousing & Distribution, Inc., 326 F.Supp.2d 1123, 1126 (C.D.Cal.2004)(Yasutomi ).

Although the court has reservations about whether this transaction is subject to the Carmack Amendment since the equipment was transported by air and Haas’ bill of lading states it is an Airbill, the parties stipulated that the Carmack Amendment governs this dispute.

OneBeacon’s Standing to Sue

As an initial matter, although not adequately addressed in the moving papers or during argument, a serious question exists whether OneBeacon has standing to bring the instant suit. Omneon is listed as the shipper and City University as the consignee on the bill of lading. PPI is not listed anywhere on the bill of lading and did not contract with Haas to ship the equipment.

The Carmack Amendment provides that the carrier is “liable to the person entitled to recover under the receipt or bill of lading.”49 U.S.C. § 174706(a). Haas asserts that “the proper parties to bring a Carmack action are the parties named in the bill of lading” citing Windows, Inc. v. Jordan Panel Systems, Corp., 177 F.3d 114, 118 (2nd Cir.1999) (Def.’s Supp. Br. p. 2, lns. 8-9). While Windows states that persons who may sue under the Carmack Amendment are those entitled to recover under the bill of lading, it also states without any analysis, that a buyer or seller of shipped goods is such a person. Here, PPI had bought the goods from Omneon and was selling them to City University.

OneBeacon relies on a number of cases which have either assumed that the owner of goods may sue under the Carmack Amendment even if not named in the bill of lading, or have so stated generally, without any analysis or explanation of their decision. See e.g. Spray-Tek, Inc. v. Robbins Motor Transp., Inc., 426 F.Supp.2d 875, 883 (W.D.Wis.2006); Banos v. Eckerd Corp., 997 F.Supp. 756, 762, (E.D.La.1998); Delaware, L. & W.R. Co. v. U.S., 123 F.Supp. 579, 581 (S.D.N.Y.1954). The court has not found a single case decided after the relevant language of the Carmack Amendment was amended in 1978 addressing the issue of whether an owner of goods, who was not listed on or a party to the bill of lading, did not negotiate with the carrier, and was not the receiving party of the shipment, has standing to sue for cargo loss.

On the one hand, considerations of judicial economy suggests that the owner of the goods should be able to sue the carrier directly under the Carmack Amendment. The alternative would be for the owner to sue the consignor or shipper who would then have to sue the carrier. On the other hand, the weakness in granting OneBeacon standing is illustrated by Haas’ accord and satisfaction defense. After the loss, Omneon presented a claim to Haas for $154,912.50. Haas replied that its liability was limited by the bill of lading to $88.00 and tendered Omneon a check in that amount. Omneon cashed the check. Absent some explanation from Omneon, this would seem to be a accord and satisfaction between Haas and Omneon. In response to Haas’ motion, OneBeacon insists that Omneon had no authority to enter into an accord and satisfaction that binds PPI since it was not PPI’s agent. Allowing someone not a party to the bill of lading to sue the carrier after it has reached an accord and satisfaction with the shipper would seem to discourage carriers from settling claims.

OneBeacon contends Omneon presented the claim on PPI’s behalf but denies Omneon was PPI’s agent. No explanation is given for why a $154,000 claim was made for a $105,000 loss.

Under the facts of this case it is not clear that OneBeacon has standing to sue under the Carmack Amendment. However, I need not resolve this issue, in part because Hass did not seek summary judgment on this issue and did not develop a proper record, and in part because, as explained below, One Beacon has not established that Haas did not successfully limited its liability.

Limited Liability Under Carmack

A carrier can limit its liability under the Carmack Amendment.

If the shipper and carrier, in writing, expressly waive any or all rights and remedies under this part for the transportation covered by the contract, the transportation provided under the contract shall not be subject to the waived rights and remedies and may not be subsequently challenged on the ground that it violates the waived rights and remedies.

49 U.S.C. § 14101(b)(1).

To limit its liability under the Carmack Amendment, the carrier must:

(1) obtain an agreement with the shipper based on a choice of liability; (2) give the shipper a reasonable opportunity to choose between levels of liability; and (3) issue a bill of lading prior to shipment.

Yasutomi, 326 F.Supp.2d at 1126. Haas has the ultimate burden of showing it has limited its liability. Schweitzer Aircraft Corp. v. Landstar Ranger, Inc., 114 F.Supp.2d 199, 201 (W.D.N.Y.2000). Here, OneBeacon insists that Haas did not give the shipper a reasonable opportunity to choose between levels of liability because: (1) Omneon could not tell from the face of the bill of lading how much more the shipping would cost if it declared the actual value of the equipment and (2) Haas did not maintain a private tariff. OneBeacon is incorrect on both counts.

Pursuant to the practice between Omneon and Haas, Omneon possessed blank Haas bills of lading, which Omneon completed prior to shipping.The front of Haas’ bill of lading contains a conspicuous capitalized warning:

OneBeacon’s contention that Haas should have put the amount of the extra charge on the face of the bill is neither required by law nor commercially reasonable. Haas’ bill of lading is a preprinted form, that its customers fill out. Haas is not required to list its excess valuation charges on the bill of lading by 49 U.S.C. § 14706(a)(1)(B) or the law of this circuit. Doing so would result in Haas having to reprint and redistribute the bill of lading every time its valuation charge changed, and could create confusion if customers continued to use an old form.


To the left of the warning is a box marked “DECLARED VALUE FOR CARRIAGE $” with a blank space provided to list the value of the shipment. The Conditions of Contract Carriage on the reverse side of the bill of lading again state the $0.50 per pound liability limitation “in the absence of a higher declared value for carriage” and that “[d]eclared values for carriage in excess of $0 .50 per pound, per piece, shall be subject to an excess valuation charge.”(Holster Dec. at Ex. D, ¶ 8.)  Omneon left the declared value box on the bill of lading blank.

Moreover, Haas requires that for “shipments having declared values over $25,000.00, [it] must be given advance notice prior to pick up.”(Id. at ¶ 13,48 Cal.Rptr.2d 882.)

Neither side provided testimony from Omneon as to why this box was left blank or testimony from PPI, in whose shoes OneBeacon stands, as to whether PPI requested Omneon to declare the higher value. However, it is undisputed that the arrangement between Omneon and PPI was that Omneon would ship the goods FOB its facility in Sunnyvale, which signifies that the risk of loss passed to PPI. Furthermore, OneBeacon has introduced a document titled “Order Acknowledgment” which Haas apparently sent to PPI and which states that “Title and risk of loss pass upon delivery to freight forwarder, Buyer responsible for freight and insurance costs.”It is also undisputed that PPI was to reimburse Omneon for shipping charges. The logical inference to be drawn from these limited facts, at least for the purpose of summary judgment, is that PPI did not ask Omneon to declare a higher value and pay the higher shipping costs because it did not want to be charged for them. This is not surprising since it appears that PPI already had insurance which would cover the shipment.As Judge Fletcher noted in a somewhat similar dispute involving an air shipment in which the plaintiff who had insured the risk argued that the carrier had not limited its liability, “why would [the shipper] increase its costs by insuring the same cargo twice?”Read-Rite Corp. v. Burlington Air Express, Ltd., 186 F.3d 1190, 1198 (9th Cir.1999); quoting Travelers Indemnity Co. v. The Vessel Sam Houston, 26 F.3d 895, 900 (9th Cir.1994). Asked this question during argument, counsel for OneBeacon had no persuasive response.

John Turk, the Vice President of Omneon, submitted a declaration in support of OneBeacon’s motion declaring that the terms of sale between “Omneon and PPI were FOB Omneon’s dock.”Thus Omneon had to “bear the expense and risk of putting [the goods] into the possession of the carrier” at Omneon’s dock. SeeU.C.C. § 2-319(1)(a) (2008). At that point, the risk transferred from Omneon to PPI. MEMC Elec. Materials, Inc. v. Mitsubishi Materials Silicon Corp., 420 F.3d 1369, 1374 fn. 3 (2005).

“Under the federal common law of our circuit, [in non-Carmack cases], the function served by notice of limited liability is accomplished if the shipper in fact purchases separate insurance, whether or not such notice is actually given.”Read-Rite Corp. v. Burlington Air Express, Ltd., 186 F.3d 1190, 1198 (9th Cir.1999).

OneBeacon sought to distinguish Read-Rite on the ground that PPI did not purchase spot insurance to cover this particular shipment. Instead, the shipment was covered under a general business policy. That does not explain why PPI would want to pay a higher shipping rate to insure the equipment, if it had already paid OneBeacon to insure the equipment under its general business policy.

Nor is OneBeacon correct that Haas was required to maintain a tariff. OneBeacon concedes that the ICC Termination Act of 1995 eliminated the need for carriers to maintain an approved tariff that provided for limitations on liability. 49 U.S.C. §§ 13710(a)(4) & 14706(c)(1)(B).Consolidated Freightways Corp. of Del. v. Travelers Ins. Co., 2003 WL 22159468,(N.D.Cal.2003)citing Tempel Steel Corp. v. Landstar Inway, Inc., 211 F.3d 1029, 1030 (7th Cir.2000). Nonetheless, without citing any authority, OneBeacon argues that Congress intended for carriers to continue to use “private tariffs.” (Pl.’s Supp. Memo at p. 3, ln. 2.)

Section 14706(c) (1)(B) provides that:

[i]f the motorcarrier is not required to file its tariff with the Board, it shall provide under section 13710(a)(1) to the shipper, on request of the shipper, a written or electronic copy of the rate, classification, rules, and practices upon which any rate applicable to a shipment, or agreed to between the shipper and the carrier, is based. The copy provided by the carrier shall clearly state the dates of applicability of the rate, classification, rules, or practices.

28 U.S.C. § 14706(c)(1)(B) (emphasis added ). Here, there is no evidence that Omneon or PPI ever requested a copy of Haas’ rates or practices, let alone that Haas did not provide it. Omneon and PPI’s failure to request information regarding the higher rate suggests they were not interested in paying the excess valuation shipment charges.

Haas presented evidence that it did maintain a higher shipping rate for declared value shipments, and that Omneon was made aware of that rate. Haas’ comptroller, Carmen Holster, provided a declaration and attached a letter sent to “all customers” addressed to “Dear Valued Customer” noting that it was raising its charges for declared value to “$.70 per $100.00 of value declared on the Haas bill of lading.”(Holster Dec. at ¶ 4.) Holster declared that a copy of the letter was not kept in Omneon’s file, but “from a review of our accounting file [she] determined that, in keeping with HAAS practice and procedure, a copy of the rate charge letter was sent to Omneon on January 27, 2005.”Id. Neither Omneon nor PPI have disputed this evidence. OneBeacon is therefore not entitled to summary judgment that Haas failed to limit its liability in accordance with the Carmack Amendment.

OneBeacon has moved to strike paragraph 4 of the Holster declaration and the copy of the letter attached as Exhibit B. It argues that letter was not previously disclosed and that there was insufficient foundation laid to establish that it was sent to Omneon. OneBeacon complains that there was not a copy of the letter in Omneon’s file and that the accounting file in which Holster found the letter was not attached to the declaration. Here, for the purpose of summary judgment, Holster’s declaration sets the appropriate foundation for the court to consider the Exhibit. See Orr v. Bank of America, 285 F.3d 767, 773 (9th Cir.2002). That a generic letter was not kept in individual clients’ files is not surprising as it was not specifically addressed to individual clients. Significantly, there is no evidence that Omneon did not receive the letter. While OneBeacon may be correct that the letter should have been disclosed pursuant to Rule 26(a)(1)(A), excluding it at this stage is unwarranted. Lesser sanctions, such as shifting the cost of any additional discovery required by the late disclosure, might have been warranted, but were not requested. OneBeacon’s motion to strike is DENIED.

Reasonableness of Liability Limitation

OneBeacon has failed to present persuasive argument or authority that Haas’ limitation of liability was not “reasonable under the circumstances surrounding the transportation” as required by 49 U.S .C. section 14706(c)(1)(B). Haas’ comptroller declared that a $0.50 per pound limitation on liability is the industry norm for motorcarriers. (Holster Dec. at ¶ 5.) OneBeacon submitted a declaration asserting that motorcarriers’ limitations of liability differ greatly and there is no industry standard. Given this disagreement, and the absence of other evidence on the reasonableness of the limitation, genuine issues of material fact on the reasonableness of the limitation exist such that it is not appropriate to decide this issue on summary judgment.

Accord and Satisfaction

Nor is Haas entitled to summary judgment with respect to its Thirteenth Affirmative Defense of accord and satisfaction. Haas tendered a check for $88.00 as a “settlement” for the claim for the missing equipment (176 pounds of equipment at $.50 per pound) based on the limitation of liability set forth on the bill of lading. Omneon cashed the check. In California, the defense of accord and satisfactions requires a showing that there is “(1) a bona fide dispute between the parties, (2) the debtor sends a certain sum on the express condition that acceptance of it will constitute full payment, and (3) the creditor so understands the transaction and accepts the sum.”In re Marriage of Thompson, 41 Cal.App.4th 1049, 1058, 48 Cal.Rptr.2d 882 (1996). As noted above, Haas asserts that OneBeacon lacks standing to sue it under the Carmack Amendment because it was not a party to the bill of lading. Haas never explains how it could have a “bonafide dispute” with a party it claims lacks standing to sue it. Nor has Haas shown that it sent any money to PPI or that PPI accepted it.0Haas’ motion for summary judgment as to its thirteenth affirmative defense is DENIED.

0. There is no evidence in the record as to whether Omneon transferred any of the funds it received from Haas to PPI.

For the foregoing reasons, IT IS ORDERED that both sides’ motions for summary judgment are DENIED.

Penn National Ins. Co. v. Costa

Superior Court of New Jersey,Appellate Division.



Frank COSTA, Jeanne Costa, CWL Contracting/Franco Leasing, Defendants,

andFarmers Insurance Company of Flemington, Defendant/Third-Party Plaintiff-Appellant,


Ernest D. Arians, Third-Party Defendant,

andGulf Insurance Company, Third-Party Defendant-Respondent.

Argued April 14, 2008.

Decided April 29, 2008.


The opinion of the court was delivered by


The issue here requires us to determine whether coverage should be afforded under an automobile liability insurance policy or under a homeowner’s insurance policy. The motion judge, relying on Wakefern Food Corp. v. Gen. Accident Group, 188 N.J.Super. 77, 455 A.2d 1160 (App.Div.1983), found that, because the accident arose from the negligent accumulation of ice and snow, coverage for personal injury liability to a third party fell under the homeowner’s policy and not the automobile policy. We reverse and remand for entry of judgment in favor of the homeowner’s insurance carrier.

The facts are undisputed and relatively straightforward. On January 20, 2004, Frank Costa was changing a flat tire on his Ford pickup truck located in his driveway. At the time, Costa was the owner of Fleet Truck and Trailer Repair, a business that repairs eighteen-wheelers, which is located next to Costa’s home. Ernest Arians was a mechanic employed by Costa’s business. Arians was on lunch break, walking on the driveway in the vicinity of Costa when he noticed Costa was replacing the tire. As he approached Costa, he asked Costa if he needed any help. While Costa responded, “No, I’ll do it, I’ll take care of it, go to lunch,” Arians slipped on ice and fell forward, striking his head on the top of the post of the bumper jack protruding from behind the pickup truck. Arians sustained multiple face, head, and skull fractures, requiring surgical intervention and causing him to lapse into a coma, develop blood clots, and suffer from cognitive and mental deficits.

At the time of the accident, Costa was covered by a commercial automobile policy issued by Gulf Insurance Company (Gulf) and a homeowner’s policy issued by Farmers Insurance Company (Farmers). Arians’ personal automobile carrier, Penn National Insurance Company (Penn National), provided Personal Injury Protection (PIP) benefits to Arians. Arians filed a personal injury suit against Costa. Meanwhile, Penn National filed a subrogation suit to recover its PIP payments, naming Farmers, Costa, and Costa’s business.Farmers answered and named Arians and Gulf as third-party defendants, seeking a declaration that it did not provide coverage. Arians’ complaint and Penn National’s complaint were eventually consolidated. Cross-motions for summary judgment were filed by both Farmers and Gulf. The order determining that coverage lay with Farmers was entered on May 24, 2007. Arians later settled his personal injury suit and a consent judgment was entered in the amount of $400,000. Farmers satisfied the judgment and filed this appeal.

On appeal, Farmers asserts that Arians’ injuries are excluded from coverage under its homeowner’s policy because they are covered by Gulf’s automobile policy. Gulf counters that coverage was under Farmers’ policy.

Farmers’ policy expressly excluded “bodily injury … arising out of … [t]he maintenance, operation, ownership, or use (including loading or unloading) of any … motor vehicles … owned or operated by … any insured.”N.J.S.A. 39:6B-1 requires owners of motor vehicles to have liability coverage “insuring against loss resulting from liability imposed by law for bodily injury, death and property damage sustained by any person arising out of the ownership, maintenance, operation or use of a motor vehicle.”

Our courts have considered the phrase “ownership, maintenance and use” in the context of the word “use” on many occasions, starting with Westchester Fire Ins. Co. v. Continental Ins. Cos., 126 N.J.Super. 29, 35, 312 A.2d 664 (App.Div.1973), aff’d,65 N.J. 152, 319 A.2d 732 (1974).See, e.g., Lindstrom v. Hanover Ins. Co., 138 N.J. 242, 649 A.2d 1272 (1994), overruled on other grounds, Shaw v. City of Jersey City, 174 N.J. 567, 811 A.2d 404 (2002); Smaul v. Irvington Gen. Hosp., 108 N.J. 474, 530 A.2d 1251 (1987); Farmers’ Mut. Ins. Co. of Salem County v. Allstate Ins. Co., 341 N.J.Super. 346, 775 A.2d 514 (App.Div.2001); Svenson v. Nat’l Consumer Ins. Co., 322 N.J.Super. 410, 731 A.2d 91 (App.Div.1999); Stevenson v. State Farm Indem. Co., 311 N.J.Super. 363, 709 A.2d 1359 (App.Div.1998); Diehl v. Cumberland Mut. Fire Ins. Co., 296 N.J.Super. 231, 686 A.2d 785 (App.Div.), certif. denied,149 N.J. 144, 693 A.2d 112 (1997).

“[T]he term ‘use’ … is a broad catch-all designed to include all proper uses of the vehicle not falling within the term ‘ownership [and] maintenance.’ ”Westchester, supra, 126 N.J.Super. at 36, 312 A.2d 664 (citations omitted) (third alteration in original). In Westchester, the plaintiff was injured when a passenger in a car threw a stick out the window. The carrier argued that the injury occurred as a result of the stick being thrown, rather than from the use of the vehicle. Acknowledging that it was true that the direct cause of the injury was the act of throwing the stick, the appellate panel, however, rejected the carrier’s position that there must be a direct causal relationship between the use of the vehicle and the injury. Pointing out “that the phrase ‘arising out of’ must be interpreted in a broad and comprehensive sense to mean ‘originating from’ or ‘growing out of’ the use of the automobile,” the panel held that, when considering use, there need only be a showing of “a substantial nexus between the injury and the use of the vehicle in order for the obligation to provide coverage to arise.”Id. at 38, 312 A.2d 664.It concluded that the act of throwing the stick from a vehicle is a “sufficiently foreseeable consequence of the use of [a] vehicle to mandate coverage.”Id. at 39, 312 A.2d 664.

In Lindstrom, supra, 138 N.J. 242, 649 A.2d 1272, the plaintiff was shot in a drive-by shooting. Applying the test in Westchester, the Court explained that “[t]he assailant would not likely have committed such an act of apparently random violence without the use of a car.”Id. at 252, 649 A.2d 1272;see also Diehl, supra, 296 N.J.Super. 231, 686 A.2d 785 (holding the automobile liability insurance covered injury to a plaintiff who was bit in the face by a dog that was in the open rear deck of a pickup truck).

Here, we are concerned with whether Arians’ injury arose out of the more limited criteria of maintenance of a motor vehicle, albeit encompassed by the term “use.” Am. Home Assurance Co. v. Hartford Ins. Co., 190 N.J.Super. 477, 480-83, 464 A.2d 1128 (App.Div.1983), involved a dispute between a carrier providing liability coverage for a service station and automobile policies covering the car being serviced.The driver of the automobile brought his vehicle to the service station to change a tire. After driving into the garage, the driver climbed into the trunk of the vehicle to secure the jack. Unbeknownst to the driver, the vehicle was raised on the lift, while the driver was in the trunk. When the driver attempted to climb out of the trunk, he fell onto the floor of the station, injuring himself. Pointing out that “the changing of a tire represent[s] an act of repair or maintenance,” the panel determined that the service station operator had additional coverage as a permissible user under the vehicle’s two automobile policies because the driver’s injuries had a substantial nexus to maintenance of the automobile.Id. at 487-89, 464 A.2d 1128.

*3Generally, a person injured while in the process of unloading cargo from a vehicle is considered a user of the vehicle and thus entitled to coverage under an automobile policy because there is “ ‘a substantial nexus between the injury and the use of the vehicle.’”Bellafronte v. Gen. Motors Corp., 151 N.J.Super. 377, 382-83, 376 A.2d 1294 (App.Div.) (quoting Westchester, supra, 126 N.J.Super. at 38, 312 A.2d 664),certif. denied,75 N.J. 533, 384 A.2d 513 (1977). However, this nexus between injury and use must still be proven. In Wakefern, supra, 188 N.J.Super. at 79, 455 A.2d 1160, the plaintiff, while in the process of hooking up an electric cord to his refrigerated truck, tripped over a broken pallet located on the loading dock. The appellate panel rejected the premises insurer’s contention that there was coverage under the motor vehicle policy’s loading and unloading coverage noting, “ ‘loading and unloading’ clauses are intended to protect the named insured and others who, in the pick-up or delivery process, are actually using the motor vehicle and its contents during the ‘complete operation.’ ”Id. at 86-87, 455 A.2d 1160.Because the plaintiff’s injury was occasioned by the negligent maintenance of the premises, which was “the only connection to that event,” the panel determined that “no realistic social or public policy is served by straining to shift coverage.” Id. at 87, 455 A.2d 1160 (emphasis added).

Unlike the facts in Wakefern, Arians’ injuries were directly connected with the maintenance of Costa’s pickup. It is undisputed that Farmers insured Costa, Costa was maintaining the vehicle at the time of the accident, and Arians approached with the intention to help Costa. Moreover, Arians’ injuries were the direct consequence of his head hitting the protruding post of the bumper jack, which was being used for the vehicle’s maintenance. Arians’ injuries were not solely related to the existence of ice and snow but directly connected with the maintenance of the Ford pickup, thus coming within the exclusion in the homeowner’s policy, and meeting the required substantial nexus.

The summary judgment declaring that the Gulf policy does not afford coverage is reversed and the matter remanded with directions to enter judgment in favor of Farmers and against Gulf. We do not retain jurisdiction.

Although Costa testified at depositions that his business was called Fleet Truck and Trailer Repair, it was named CWL Contracting/Franco Leasing in Penn National’s complaint. CWL Contracting is the official corporate name of the company. It trades as Fleet Truck and Trailer Repair. Costa testified at his deposition that Franco Leasing no longer exists. The Gulf policy names as insured “CWL Contracting/Franco Leasing.”

The automobile used by the driver was leased to his employer and had two policies, one issued by Allstate to the leasing company and a second issued by Hartford to the driver’s employer. Both policies afforded coverage for injuries “caused by any occurrence and arising out of the ownership, maintenance or use … of any automobile.”Id. at 482, 455 A.2d 1160.

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