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Interstate Aerials, LLC v. Great American Insurance Company of New York

November 26, 2008

INTERSTATE AERIALS, LLC, PLAINTIFF,
v.
GREAT AMERICAN INSURANCE COMPANY OF NEW YORK, AL HORGAN GENERAL CONTRACTOR, INC., ERIE INSURANCE GROUP, AND FICTITIOUS INSURANCE COMPANIES 1-10, DEFENDANTS.



The opinion of the court was delivered by: Donio, Magistrate Judge

OPINION

Presently pending before the Court are the cross-motions for summary judgment filed by Plaintiff, Interstate Aerials, LLC (hereinafter, "Interstate Aerials") [Doc. No. 40], and by Defendant Great American Insurance Company of New York (hereinafter, "Great American")[Doc. No. 36] regarding an insurance policy issued by Great American.*fn1 For the reasons set forth below, the Court grants Great American's motion [Doc. No. 36] for summary judgment with respect to the claims by Interstate Aerials and denies Interstate Aerials' cross-motion [Doc. No. 40].

This declaratory judgment action relates to a policy of property insurance issued by Great American to Interstate Aerials for "Commercial Inland Marine" coverage for the period March 10, 2005 to March 10, 2006. (See Br. in Supp. of Cross Mot. for Summ. J. (hereinafter, "Pl. Br.") Ex. E.) Subject matter jurisdiction is premised upon 28 U.S.C. § 1332 and is based upon diversity of citizenship of the parties and the amount in controversy allegedly exceeding $75,000.

The insurance issue in this action relates to an insurance claim filed by Interstate Aerials on December 7, 2005 with Great American seeking reimbursement for damages sustained to an aerial lift*fn2 owned by Interstate Aerials and leased by Al Horgan General Contractor (hereinafter, "Horgan") on November 16, 2005. (See Great American's Statement of Material Facts (hereinafter, "Great American SMF") ¶¶ 3, 4, Exs. B, D.) The parties do not dispute that the lift was damaged in an accident on November 17, 2005 while being operated by an employee of Horgan's subcontractor.*fn3 (Id. at ¶¶ 3, 4; Statement of Material Facts in Supp. of Partial Opp'n of Def., Al Horgan Gen. Contractor, to Pl.'s Cross Mot. for Summ. J. ¶¶ 2, 3.) By letter dated December 29, 2005, Great American advised Interstate Aerials that it was disclaiming coverage for the damage to the lift on the ground that Interstate Aerials failed to comply with two conditions precedent set forth in the insurance policy. (Great American SMF, Ex. D.) Interstate Aerials, however, maintains that it "complied with all terms and conditions of coverage" and that Great American "has issued an invalid disclaimer of coverage." (Am. Compl. 4, ¶ 16.) Interstate Aerials thus instituted the present litigation seeking, inter alia, a "finding of first party property coverage under the policy issued by Great American . . . to the Plaintiff." (Id. at 5, ¶ 1.)

Great American and Interstate Aerials now cross-move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The Court heard oral argument on the motions on July 24, 2008 and reserved decision at that time.*fn4 Thereafter, the parties advised the Court that all claims in this action have been settled other than the declaratory judgment action and, therefore, the Court shall address the cross-motions for summary judgment on the coverage issue only. A court may grant summary judgment when the "pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); see Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing law." See id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.

The moving party bears the initial burden of "identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986). Once a moving party satisfies its burden, the party opposing summary judgment must then "'set forth specific facts showing that there is a genuine issue for trial.'" Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (quoting FED. R. CIV. P. 56(e)). A non-moving party must do more than rely only "'upon bare assertions, conclusory allegations or suspicions.'" Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985), cert. denied, 474 U.S. 1010, 106 S.Ct. 537, 88 L.Ed. 2d 467 (1985) (quotation omitted); see Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505, 91 L.Ed. 2d 202. Thus, if the non-moving party's evidence is a mere "scintilla" or is "not significantly probative," the court may grant summary judgment in favor of the moving party. Liberty Lobby, 477 U.S. at 249, 251, 106 S.Ct. 2505, 91 L.Ed. 2d 202.

The standard for granting summary judgment is the same when cross-motions for summary judgment are filed. See Appelmans v. City of Philadelphia, 826 F.2d 214, 216 (3d Cir. 1987). Cross-motions for summary judgment "'are no more than a claim by each side that it alone is entitled to summary judgment[.]'" Transportes Ferreos de Venezuela II CA v. NKK Corp., 239 F.3d 555, 560 (3d Cir. 2001) (quoting Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968)). As noted in F.A.R. Liquidating Corp. v. Brownell:

"The fact that both parties make motions for summary judgment, and each contends in support of his respective motion that no genuine issue of fact exists, does not require the Court to rule that no fact issue exists. Each, in support of his own motion, may be willing to concede certain contentions of his opponent, which concession, however, is only for the purpose of the pending motion. If the motion is overruled, the concession is no longer effective."

F.A.R. Liquidating Corp. v. Brownell, 209 F.2d 375, 380 n.4 (3d Cir. 1954) (quoting Begnaud v. White, 170 F.2d 323, 327 (6th Cir. 1948)). If upon review of cross-motions for summary judgment the Court finds no genuine issue of material fact, then judgment should be entered "in favor of the party deserving judgment in light of the law and undisputed facts." Iberia Foods Corp. v. Romeo, 150 F.3d 298, 302 (3d Cir. 1998)(citing Ciarlante v. Brown & Williamson Tobacco Corp., 143 F.3d 139, 145-46 (3d Cir. 1998)).

In the present case, the parties do not dispute that under the Great American insurance policy at issue, coverage for leased property is provided by way of an endorsement titled "LEASED PROPERTY - CONTINGENT INTEREST FORM," which is identified as Form F 930. (Pl. Br. 7, Ex. E; Great American Br. of Law in Supp. of Not. of Mot. for Summ. J. (hereinafter, "Great American Br.") 2.)

The Form F 930 expressly provides on Page 1 under the title "DESCRIPTION OF PROPERTY COVERED" the following language: "Personal property consisting principally of EQUIPMENT USUAL TO AREIAL [sic] LIFT OPERATION." (Id.; see also Great American May 22, 2008 Letter Reply Br. (hereinafter "Great American Reply Br.") Ex. 3.) Page 1 of the Form F 930 also sets forth the following in the "LIMITS OF LIABILITY" section:

LIMITS OF LIABILITY:

A. Property leased to others. $200,000. in the custody of any one lessee not specified below. . . .

(Great American Reply Br., Ex. 3 at 1.) Likewise, Page 2 of the Form F 930 states that leased property is covered under the insurance policy. Specifically, ...


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