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AETNA CASUALTY AND SURETY COMPANY v. ARKIN

October 23, 1973

AETNA CASUALTY AND SURETY COMPANY, A CORPORATION, PLAINTIFF,
v.
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 Procedure.

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
      the plaintiff.
  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
      policy provides:

Persons Insured

        Under the Liability and Medical Expense
        Coverages, the following are Insureds:
          (b) with respect to a non-owned
         ...

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