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David A. Whitmore, An Individual v. Hartford Casualty Insurance Company

December 2, 2010

DAVID A. WHITMORE, AN INDIVIDUAL,
PLAINTIFF,
v.
HARTFORD CASUALTY INSURANCE COMPANY, A CONNECTICUT CORPORATION DOING BUSINESS AS THE HARTFORD, AND DOES 1 TO 10, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge

ORDER ON MOTION TO DISMISS

I. Introduction

David Whitmore was severely injured when an SUV driven by Coy's Produce employee Lucy Busalacchi collided with his motorcycle. Coy's automobile insurance carrier, Mercury Insurance, agreed to pay Whitmore $738,761 - the $750,000 policy limit less a property damage payout to Whitmore. Coy's also had a general liability insurance policy through the Defendant in this case, Hartford Casualty. But when Whitmore offered to settle his claims against Coy's and Busalacchi for $1,738,761 - the Mercury amount plus the $1 million limit of the Hartford policy - Hartford denied that it had any coverage obligations. (Pl. Ex. A, p. 45--46.)

The parties proceeded with litigation and subsequently stipulated to a binding judicial arbitration. The arbitrator found that Busalacchi was negligent, that Coy's was vicariously liable for her negligence, and that Whitmore was entitled to $3,393,585.51 in damages and $28,928.66 in costs and disbursements. (Pl. Ex. A, pp. 62--63.) These findings are not in dispute here.

Before Whitmore's claims were even heard by the arbitrator, Coy's and Busalacchi assigned to him all of their contractual rights against Hartford. (Pl. Ex. A, pp. 45--49.) That is why Whitmore now seeks $2,683,753.10*fn1 from Hartford - the difference between the arbitrator's award and the amount Mercury has agreed to pay under Coy's automobile insurance policy. The only question this case presents is whether Coy's policy with Hartford entitles Coy's to coverage for its automobile-related liabilities.

II. The Policy

Hartford issued the policy at issue to Coy's for the period of time from October 6, 2007 to October 6, 2008. The parties agree that this policy - the "Spectrum Policy" - provided coverage for general business liabilities. (See Br. at 1, Opp'n Br. at 3.) The policy language confirms this:

A. COVERAGES

1. BUSINESS LIABILITY COVERAGE (BODILY INJURY, PROPERTY DAMAGE, PERSONAL AND ADVERTISING INJURY)

Insuring Agreement a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury", "property damage" or "personal and advertising injury" to which this insurance applies. (Pl. Ex. A, p. 20.) The parties also agree, as they should, that the Spectrum Policy contains an automobile exclusion.

B. EXCLUSIONS

1. Applicable to Business Liability Coverage This insurance does not apply to:

g. Aircraft, Auto, Or Watercraft "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.

(Pl. Ex. A, pp. 22, 25.) What the parties don't agree on is the significance of an "Other Insurance" ...


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