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VULCAN MATERIALS CO. v. CASUALTY INS. CO.

September 29, 1989

VULCAN MATERIALS COMPANY, Plaintiff,
v.
CASUALTY INSURANCE COMPANY, Defendant


Milton I. Shadur, United States District Judge.


The opinion of the court was delivered by: SHADUR

MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE

 Vulcan Materials Company ("Vulcan") has sued Casualty Insurance Company ("Casualty") in this diversity action, seeking declaratory relief under 28 U.S.C. ยง 2201 *fn1" to define the rights and liabilities of the parties under an insurance policy issued by Casualty. Both parties have now moved for summary judgment under Fed.R.Civ.P. ("Rule") 56. For the reasons stated in this memorandum opinion and order, Vulcan's motion is denied, Casualty's motion is granted and this action is dismissed.

 Facts2

 On August 5, 1986 Michael Giguere ("Giguere"), an employee of J.H. Sandman & Sons ("Sandman"), delivered a load of scrap metal to a Vulcan plant in Gary, Indiana. That delivery was made in a truck owned and operated by Sandman, which had been insured by Casualty under its Policy No. GAD 86-27486 ("the Policy"). After Giguere had finished unloading *fn3" the bulk of the scrap metal from his truck, he was in the process of cleaning out some remaining debris in the truck when he was struck and killed by a magnet falling from Vulcan's crane.

 Giguere's ex-wife Christine, as the administrator of his estate, sued Vulcan for damages in the Circuit Court of Cook County. Vulcan then removed the case to this District Court, and it was later transferred to the Northern District of Indiana under Section 1404(a).

 On May 23, 1988 Vulcan wrote to Casualty tendering the defense of the Giguere lawsuit. There was no response. On August 31, 1988 Vulcan filed this action to determine whether the Policy required Casualty to provide such a defense. Then on October 10 Vulcan again wrote Casualty tendering the defense of the Giguere case. Finally on December 9, when Casualty answered in this action, it denied that it was required to defend Vulcan.

 Vulcan asserts Casualty's duty to defend arises out of "Comprehensive Automobile Liability Insurance Coverage Part Nine" of the Policy. Under that section the "PERSONS INSURED" are defined in part this way (emphasis in original, indicating terms defined elsewhere in the Policy):

 
Each of the following is an insured under this insurance to the extent set forth below:
 
(a) The named insured [Sandman];
 
* * * *
 
(c) any other person while using an owned automobile or a hired automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, but with respect to bodily injury or property damage arising out of the loading or unloading thereof, such other person shall be an insured only if he is:
 
(1) a lessee or borrower of the automobile, or
 
(2) an employee of the named insured or of such lessee ...

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