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Fuller v. Snyder

June 28, 2001

FRANCIS FULLER AND CHARLES FULLER, PLAINTIFFS,
v.
DALE E. SNYDER, DEFENDANT, AND ALLSTATE INSURANCE COMPANY, INTERVENOR-PLAINTIFF-APPELLEE,
v.
UNIVERSAL UNDERWRITERS INSURANCE COMPANY, INTERVENOR-DEFENDANT-APPELLANT, AND UNIVERSAL UNDERWRITERS INSURANCE COMPANY, INTERVENOR-COUNTERPLAINTIFF-APPELLANT,
v.
ALLSTATE INSURANCE COMPANY, INTERVENOR-COUNTERDEFENDANT-APPELLEE.



Appeal from Circuit Court of Calhoun County No. 98L6 Honorable Richard D. Greenlief, Judge Presiding.

The opinion of the court was delivered by: Justice Myerscough

Not Released For Publication

FRANCIS FULLER AND CHARLES FULLER, PLAINTIFFS,
v.
DALE E. SNYDER, DEFENDANT, AND ALLSTATE INSURANCE COMPANY, INTERVENOR-PLAINTIFF-APPELLEE,
v.
UNIVERSAL UNDERWRITERS INSURANCE COMPANY, INTERVENOR-DEFENDANT-APPELLANT, AND UNIVERSAL UNDERWRITERS INSURANCE COMPANY, INTERVENOR-COUNTERPLAINTIFF-APPELLANT,
v.
ALLSTATE INSURANCE COMPANY, INTERVENOR-COUNTERDEFENDANT-APPELLEE.

Appeal from Circuit Court of Calhoun County No. 98L6 Honorable Richard D. Greenlief, Judge Presiding.

The opinion of the court was delivered by: Justice Myerscough

In July 1998, Francis Fuller sued Dale Snyder for personal injuries resulting from a two-car accident. Snyder was driving a loaner vehicle owned by Hurley Dodge (Hurley), an automotive dealership. Universal Underwriters Insurance Company (Universal) insured Hurley's vehicles. Allstate Insurance Company (Allstate) provided Snyder's automobile insurance. In February 1999, Allstate filed a declaratory judgment action against Universal, seeking a declaration that Universal's garage liability insurance policy provided sole primary coverage. In November 1999, Universal filed a counterclaim for declaratory judgment, seeking reimbursement for Allstate's prorated share of the personal injury settlement. Both Allstate and Universal filed motions for summary judgment. In January 2000, the trial court granted Allstate's motion, concluding that Universal was primarily obligated to defend Snyder and that the limits of the Universal policy were $500,000. We allowed Universal's motion to file a late notice of appeal. We affirm.

 I. BACKGROUND

On appeal, the following facts are undisputed. In September 1997, Snyder was a permissive user of a vehicle owned by Hurley when it collided with a truck being driven by Francis Fuller and containing a passenger, Charles Fuller. The collision caused property damage and personal injuries to the Fullers. Universal initially refused Allstate's tender of Snyder's defense. Allstate settled the property damage claim for $1,600. Universal settled the personal injury claims for $50,000. Allstate incurred $11,034.50 in defending Snyder.

However, Universal's brief states that Snyder was test-driving Hurley's truck while Allstate's brief notes that Hurley was repairing Snyder's own vehicle. Universal's brief cites an agreed statement of facts, which states, "Snyder, with permission, took possession as a loaner vehicle a 1992 Dodge Dakota truck owned by Hurley Dodge." Nothing in the record on appeal indicates that Snyder was test-driving. Accordingly, we consider Snyder's vehicle to have been a loaner from Hurley.

Snyder's insurance with Allstate had policy limits of $300,000 for bodily injury per person, $500,000 for bodily injury per occurrence, and $100,000 for property damage per occurrence. Allstate's policy had an "other insurance" clause that provided that its insurance would be excess over other collectible insurance.

Hurley was a named insured in Universal's $500,000 garage liability policy, which stated:

"WE will pay all sums the INSURED legally must pay as DAMAGES *** because of INJURY to which this insurance applies caused by an OCCURRENCE arising out of GARAGE OPERATIONS or AUTO HAZARD."

Universal's policy included the following in "who is an insured" under the auto hazard:

"(4) any other person or organization required by law to be an INSURED while using an AUTO covered by this [c]overage [p]art ...


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