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REID v. BOOTHEEL TRANSP. CO.

January 12, 1991

LES REID, Plaintiff, RONALD MAYS individually, RONALD MAYS, d/b/a BOOTHEEL TRANSPORTATION, Defendants; and INTERSTATE EXPRESS INC., a corporation, for its own use and for the use of TRANSPORT INSURANCE COMPANY, a corporation, Defendant and Third Party Plaintiff,
v.
BOOTHEEL TRANSPORTATION CO. INC., a Missouri corporation, Third Party Defendant



The opinion of the court was delivered by: ROSZKOWSKI

 STANLEY J. ROSZKOWSKI, UNITED STATES DISTRICT JUDGE

 Before the court are: 1) Third Party Defendant Bootheel's motion to dismiss the amended third party complaint; 2) Third Party Defendant Bootheel's motion for summary judgment; and 3) Third Party Plaintiff Interstate's motion for summary judgment. For the reasons set forth herein, the court denies Third Party Defendant Bootheel's motions to dismiss and for summary judgment, and grants Third Party Plaintiff Interstate's motion for summary judgment.

 BACKGROUND

 On October 27, 1988, Plaintiff Las Reid (hereinafter Reid) filed a complaint in this court against Defendants Ronald Mays, individually (hereinafter Mays) and doing business as Bootheel Transportation Co. (hereinafter Bootheel), and Interstate Express Inc. (hereinafter Interstate). On June 28, 1989, Interstate filed a third-party complaint against Bootheel. In both of these actions, the parties are of diverse citizenship. Thus, this court has jurisdiction over both actions pursuant to 29 U.S.C. § 1332 (1988). Interstate filed an amended third-party complaint on June 20, 1990. Bootheel filed its motion to dismiss on July 6, 1990, and its motion for summary judgment on August 15, 1990. Interstate filed its motion for summary judgment on August 15, 1990.

 Interstate and Bootheel filed a joint stipulation of facts in this court on August 16, 1990. The following information is taken from this stipulation. On and prior to March 6, 1987, both Interstate and Bootheel were engaged in interstate trucking as certified carriers licensed by the ICC. On March 6, 1987, Interstate and Bootheel entered into a Trip Lease agreement (hereinafter Lease). Under the Lease, Interstate leased a semi tractor and trailer with driver, Defendant Mays, from Bootheel.

 On March 6, 1987, while the Lease was in effect, Mays was driving the leased semi tractor and trailer in Rockford pursuant to the Lease, and in the interest solely of Interstate. Mays collided with a van driven by Plaintiff Reid. Reid filed a personal injury complaint in this court for the injuries received in the collision. At the time of the collision, Interstate was insured by Transport Insurance Company (hereinafter Transport), and Bootheel was insured by Integral Insurance Company. Both insurance policies provided coverage for the insured's legal obligation for damages because of bodily or property damage.

 Transport settled with Reid for Reid's claim for personal injury, and also with Reid's subrogee, an automobile collision insurer. Reid and Reid's subrogee signed releases as part of their settlements. Interstate has reimbursed Transport $ 35,000 of the amount Transport paid to Reid, the amount of the deductible under Interstate's insurance policy. Interstate paid $ 4,288.47 to Transport as its allocated adjustment expense under the policy, for its share of attorney's fees and expenses incurred in the defense of Reid's claim. Transport incurred an additional $ 2,835.39 in attorneys fees and expenses for the defense of Reid's claim.

 Interstate prepared the Lease and the Lease form. As the Lease required, Interstate carried public liability, property damage, and cargo insurance for the operation of the leased equipment. This insurance was for the benefit of the public and the lessor. At the time of the collision, the leased tractor and trailer were in the exclusive direction and control of Interstate.

 DISCUSSION

 Bootheel's Motion to Dismiss

 In analyzing a motion to dismiss, this court will not dismiss a complaint unless it is clear there are no set of facts that Plaintiffs could prove consistent with the pleadings that would entitle them to relief. Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Murphy v. Lane, 833 F.2d 106, 107 (7th Cir. 1987); Vaden v. Village of Maywood, 809 F.2d 361, 363 (7th Cir.), cert. denied, 482 U.S. 908, 96 L. Ed. 2d 381, 107 S. Ct. 2489 (1987). The court will accept all well-pleaded factual allegations in the complaint as true. Vaden, 809 F.2d at 363; Doe v. St. Joseph's Hosp. of Fort Wayne, 788 F.2d 411, 414 (7th Cir. 1986). In addition, this court will view the allegations in a light most favorable to the non-moving party. Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984), cert. denied, 470 U.S. 1054, 84 L. Ed. 2d 821, 105 S. Ct. 1758 (1985); Wolfolk v. Rivera, 729 F.2d 1114, 1116 (7th Cir. 1984).

 The gist of Bootheel's motion to dismiss is that Interstate cannot recover against it because the release Plaintiff executed on September 25, 1989 does not expressly reserve claims for contribution or indemnity. Bootheel also argues that Transport has no standing in this third-party action, because Transport was not a party to the Lease.

 A basic flaw in Bootheel's argument is, as Interstate observes, that Plaintiff, and not Interstate or Transport, executed the release in question. ...


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