The opinion of the court was delivered by: CHARLES A. LEGGE
Plaintiffs and defendant have made cross-motions for summary judgment. The motions are essentially reciprocals of one another, and present the issue of whether the antitrust judgment entered against plaintiff Trailer Marine Transport Corporation is covered by the policies of insurance issued by defendant. The motions were argued and submitted to the court for decision. The court has reviewed the record, the moving and opposing papers, the arguments of counsel, and the applicable authorities. The court finds that there are no genuine issues of material fact as to the facts stated below, and the court concludes that as a matter of law the policies do not provide coverage to plaintiffs.
Plaintiff Trailer Marine Transport Corporation is a wholly owned subsidiary of plaintiff Crowley Maritime Corporation. Defendant issued excess liability insurance policies to Crowley. Their coverage also extended to plaintiff Trailer Marine Transport, as a subsidiary of Crowley.
Policies of primary comprehensive general liability insurance were issued to plaintiffs by Beacon Insurance Company. Beacon is not a party to this case. It is not expressed in the present record, but the court is advised by the parties that Beacon is a so-called "captive" primary insurer organized by plaintiffs, and that plaintiffs gave defendant credit for the policy limits of the Beacon policies in this action against defendant. However, these matters are not necessary to this decision.
The important thing about the primary coverage is the language of the Beacon policies. That is because the policies issued to plaintiffs by defendant were excess to the Beacon coverage, and they adopted and incorporated into the excess policies the coverage language of the primary policies what is called "following the form" excess coverage. So it is the policy language of the primary policies that must be examined here.
The issue here is whether defendant's policies provide coverage for that judgment against Trailer Marine.
Two portions of the language of the policies are relevant.
In the insuring agreements, defendant agrees to pay any liability of the insured for property damage. The term "property damage" is specifically defined. It expressly includes "loss of or damage to property or other thing" and "loss of . . . profits". This is broad insuring language. The policies are not printed forms, but appear to be specifically drafted manuscript-type policies. Most printed forms of comprehensive general liability policies limit property damage coverage to physical loss or physical injury. The insuring agreements of these policies are obviously different, and the difference explains why the issue of insurance coverage for antitrust liability under comprehensive general liability policies arises in this case but has not arisen frequently in the past.
The policies contain a relevant exclusion. They do not provide coverage for liability for property damage "caused intentionally by or ...