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AETNA CASUALTY AND SURETY COMPANY v. ARKIN
October 23, 1973
AETNA CASUALTY AND SURETY COMPANY, A CORPORATION, PLAINTIFF,
JEROME ARKIN, ADMINISTRATOR OF THE ESTATE OF JOEL S. ARKIN, DECEASED, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Bauer, District Judge.
MEMORANDUM OPINION AND ORDER
This cause comes on the plaintiff's motion for summary
judgment pursuant to Rule 56 of the Federal Rules of Civil
This is an action for declaratory judgment. On March 17,
1972, Nancy Thrall was operating an automobile which was
involved in a one-car collision resulting in fatal injuries to
Joel S. Arkin. The car was owned by Bay Cities Auto Auction,
Inc. ("Bay Cities") and was being delivered to California by
Wilson Driveway, Inc. ("Wilson") pursuant to a contract
between Wilson and Bay Cities.
A lawsuit, Arkin v. Wilson Driveway, Inc. et al., Case No.
72 C 2725, has been filed in the United States District Court
for the Northern District of Illinois by the Administrator of
the Estate of Jerome Arkin.
The issue involved in this litigation is a determination of
the insurance coverages afforded by three insurance carriers.
The plaintiff Aetna Casualty and Surety Company ("Aetna")
issued a family policy of automobile liability insurance to
Catherine Thrall, mother of Nancy Thrall. Defendant, Reliance
Insurance Company ("Reliance"), issued a policy of automobile
liability insurance to defendant Bay Cities, the owner of the
automobile involved in the collision. Defendant, Casualty
Insurance Co. ("Casualty"), issued a policy of automobile
liability insurance pursuant to Interstate Commerce Commission
regulations to defendant Wilson which was transporting the car
pursuant to a contract with the owner.
The plaintiff in its amended complaint for declaratory
judgment alleges the following facts:
1. Sometime prior to March 17, 1972, Joel S.
Arkin, deceased, Nancy Thrall, Norman Schuck
and Gail Schiefelbein planned to travel from
Illinois to California. Norman Schuck made
arrangements with defendant Wilson for an
automobile to be used in the trip, the exact
arrangements of which are unknown to the
plaintiff. On or about March 17, 1972, Nancy
Thrall was operating a 1970 Chrysler
stationwagon furnished by defendant, Wilson,
and owned by defendant, Bay Cities, on
Interstate 40 near the City of Yucca in the
State of Arizona, and Joel S. Arkin was
riding in the automobile.
2. As a result of the accident, Jerome Arkin,
Administrator of the Estate of Joel S. Arkin,
deceased, has brought an action for damages
in the United States District Court for the
Northern District of Illinois, Eastern
Division, bearing Court No. 72 C 2725. The
driver of the vehicle, defendant Nancy
Thrall, was a resident of the household of
Catherine Thrall, and a named insured under
Policy No. 08 AD 131083 PC issued by the
plaintiff to Catherine Thrall. The plaintiff
is defending Nancy Thrall and Wilson in Suit
No. 72 C 2725, subject to a reservation of
rights, pursuant to the non-ownership
coverage afforded in the said Policy No. 08
AD 131083 PC.
3. Defendant, Wilson, is insured by the
defendant, Casualty, and the exact terms of
the said policy of insurance are unknown to
the plaintiff. The defendant, Bay Cities, is
insured with Reliance, the exact terms of the
said policy of insurance are also unknown to
4. The insurance policy issued by defendant,
Casualty, to Wilson, affords primary coverage
to Nancy Thrall and Wilson and it should be
defending Nancy Thrall and Wilson in the said
Case No. 72 C 2725. The insurance policy
issued by defendant, Reliance, to Bay Cities
affords primary coverage to Nancy Thrall and
Wilson and it should be defending Nancy
Thrall and Wilson in the said Case No. 72 C
2725. The plaintiff's non-ownership coverage
affords excess insurance only to the said
Nancy Thrall and Wilson for the occurrence
described in Case No. 72 C 2725.
5. In the alternative, the plaintiff does not
afford coverage to Nancy Thrall and Wilson
for the occurrence described in Case No. 72 C
2725 for the reason that Nancy Thrall did not
have permission to operate the said vehicle
at the time of the said occurrence as the
Under the Liability and Medical Expense
Coverages, the following are Insureds:
(b) with respect to a non-owned
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