Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cincinnati Insurance Co. v. William F. Braun Milk Hauling, Inc.

United States District Court, Seventh Circuit

October 21, 2013

CINCINNATI INSURANCE COMPANY, Plaintiff,
v.
WILLIAM F. BRAUN MILK HAULING, INC., STEPHEN R. BRAUN and AMY M. FASIG, Defendants.

MEMORANDUM AND ORDER

J. PHIL GILBERT, District Judge.

This matter comes before the Court on plaintiff Cincinnati Insurance Company's ("CIC") motion for summary judgment (Doc. 29). Defendants William F. Braun Milk Hauling Company ("Braun Milk"), Stephen R. Braun and Amy M. Fasig (collectively "Defendants") filed their responses (Docs. 36 & 37) to which CIC replied (Doc. 38). For the following reasons, the Court grants CIC's motion for summary judgment.

1. Background

The facts giving rise to the instant declaratory judgment action are as follows. Braun Milk is a freight shipping and trucking company. One of its trucks was involved in an automobile accident resulting in a diesel fuel spill. After the Environmental Protection Agency ordered Braun Milk to clean up the spill, Braun Milk's auto insurance company, Northland Insurance Company ("Northland"), employed Highway Technologies, Inc. and Transportation Spill Solutions to facilitate the clean-up.

Freeman Environmental Services, a subcontractor in the clean-up effort, employed Fasig as a "flagman" during the clean-up. On March 30, 2012, while driving a Braun Milk semitractor trailer, Stephen Braun hit Fasig as she was working at the clean-up site. She suffered severe injuries, including the amputation of her left arm. Stephen Braun was charged with failure to yield in a construction zone and failing to reduce speed to avoid an accident.

Fasig filed suit against Braun Milk, Stephen Braun, Highway Technologies, Inc., and Transportation Spill Solutions in the Circuit Court for the Twentieth Judicial Circuit, Monroe County, Illinois, Fasig v. William F. Braun Milk Hauling, Inc., et al., Case No. 12-L-10. Fasig's second amended complaint lists the following causes of action: (1) Count One - Negligence for the March 30, 2012 accident against Braun Milk; (2) Count Two - Negligence for the March 30, 2012 accident against Stephen Braun; (3) Count Three - Negligence in the handling of the cleanup against Braun Milk; (4) Count Four - Violations of the Road Construction Injuries Act against Braun Milk; (5) Count Five - Violation of the Road Construction Injuries Act (Duty to Obey Flagmen) against Stephen Braun; (6) Count Six - Violation of the Road Construction Injuries Act (Duty to Obey Flagmen) against Braun Milk; (7) Count Seven - Negligence in Handling of Cleanup against Highway Technologies, Inc.; (8) Count Eight - Negligence in Handling of Cleanup against Transportation Spill Solutions; (9) Violations of the Road Construction Injuries Act against Highway Technologies, Inc.; and (10) Count Ten - Violations of the Road Construction Injuries Act against Transportation Spill Solutions. Doc. 32-2.

Effective at the time of the March 30, 2012 accident was a Northland commercial automobile liability insurance policy. Northland is providing defense for Braun Milk and Stephen Braun with respect to Counts One, Two, Five, and Six in the state-court lawsuit. Also in effect at the time of the accident was a CIC commercial general liability ("CGL") insurance policy. The CIC policy excludes automobile liability coverage, umbrella coverage, and excess coverage. Specifically, the CIC CGL policy automobile exclusion provides as follows:

2. Exclusions. This insurance does not apply to:
...
"Bodily injury" or "property damage" arising out of the ownership, maintenance, use or entrustment to others of any aircraft, "auto" or watercraft owned or operated by or rented or loaned to any insured.
This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by that insured, if the "occurrence" which caused the "bodily injury" or "property damage" involved the ownership, maintenance, use or entrustment to others of any aircraft, "auto" or watercraft that is owned or operated by or rented or loaned to any insured.

Doc. 2-2, p. 20.

CIC has filed the instant declaratory judgment action seeking a declaration under 28 U.S.C. ยง 2201 that CIC has no duty to defend or indemnify Braun Milk or Stephen Braun in the state-court lawsuit. CIC contends that the terms of the insurance policy exclude coverage. CIC further argues that, even if the terms of the policy do not exclude coverage in this instance, courts have found that where both a covered and excluded cause of action exists, an insurer need not provide coverage under either cause of action if they are "inextricably intertwined." In the alternative, CIC seeks a declaration that the CIC policy is excess over any other insurance, and CIC has no duty to defend Braun Milk or Stephen Braun in the state-court lawsuit because Northland is already providing their defense.

Defendants contend that the CIC policy should also provide coverage to Braun Milk and Stephen Braun in Counts Three and Four of the state-court lawsuit because the state-court lawsuit "arises out of two separate and distinct occurrences of alleged negligence." Doc. 36, p. 1. Specifically, they argue that Counts One, Two, Five and Six of the state-court lawsuit allege Stephen Braun was negligent in operating the truck; and Counts Three and Four allege causes of action arising from Braun Milk's negligence in overseeing the clean-up operation. Braun Milk and Stephen Braun do not argue that CIC must provide coverage for the causes of action related directly to Stephen Braun's negligence in driving the truck contained in Counts One, Two, Five and Six. They do, however, argue that CIC is required to provide coverage for the clean-up negligence ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.