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Imperium Insurance Co. v. Unigard Insurance Co.

United States District Court, E.D. California

April 28, 2014

IMPERIUM INSURANCE COMPANY, Plaintiff,
v.
UNIGARD INSURANCE COMPANY, et al., Defendants

Page 1105

[Copyrighted Material Omitted]

Page 1106

For Imperium Insurance Company, formerly known as, Delos Insurance Company, Plaintiff: Kevin P. McNamara, LEAD ATTORNEY, Traub Lieberman Straus & Shrewsberry LLP, Los Angeles, CA.

For Unigard Insurance Company, Defendant, Counter Claimant: Barbara Kekich, Brown, Brown & Klass, Agoura Hills, CA.

For Fernando Sanchez, Defendant, Counter Defendant: Roger Evan Booth, LEAD ATTORNEY, Booth & Koskoff, Torrance, CA.

For Imperium Insurance Company, Counter Defendant: Kevin P. McNamara, LEAD ATTORNEY, Traub Lieberman Straus & Shrewsberry LLP, Los Angeles, CA.

OPINION

Page 1107

Jennifer L. Thurston, UNITED STATES MAGISTRATE JUDGE.

ORDER GRANTING PLAINTIFF IMPERIUM INSURANCE COMPANY'S MOTION FOR SUMMARY ADJUDICATION AND DENYING DEFENDANT UNIGARD INSURANCE COMPANY'S CROSS-MOTION FOR SUMMARY JUDGMENT (Docs. 34, 39)

Imperium Insurance Company, formerly known as Delos Insurance Company (" Imperium" ) and Unigard Insurance Company (" Unigard" ) have filed cross-motions for summary judgment or, in the alternative, summary adjudication of Imperium's claims. (Docs. 34, 39.) The Court heard the oral arguments of the parties on April 23, 2013. For the following reasons, Imperium's motion for summary judgment is GRANTED, and Unigard's cross-motion is DENIED.

I. Relevant Factual and Procedural History

Imperium issued insurance policy number DTP7400107 to Juarez Brothers Tucking, Inc. and Juarez Agri Mix Transport, Inc. (collectively, " Juarez" ), for the period of March 1, 2010 to March 1, 2011. (Doc. 1 at 3.) According to Imperium, the policy " provides commercial auto liability insurance to Juarez." ( Id. ) Specifically, Imperium alleges:

Under Coverage A, the Imperium Policy obligates Imperium to pay those sums that the insured legally must pay as damages because of " bodily injury" or " property damage," to which the Imperium Policy applies, caused by an " accident," and " resulting from the ownership, maintenance or use of a covered 'auto.'"

(Doc. 1 at 3.) Further, Imperium asserts Unigard Insurance Company " issued a multi-line commercial insurance policy, policy number CM004237 to Juarez for a policy period of March 1, 2010 to March 1, 2011." ( Id. at 4, footnote omitted.) Imperium alleges that the Unigard policy " provided commercial general liability insurance to Juarez." ( Id.)

Imperium reports that an action entitled Fernando Sanchez v. Seaco Technologies, Inc., et al., was filed on August 6, 2012 in Kern County Superior Court, Case No. S-1500-CV-277330-WDP. (Doc. 1 at 6.) Juarez is identified as a defendant in the action, in which it is alleged:

[O]n or about December 8, 2010, defendants IAN GALYAN, while in the course and scope of his employment with defendant SEACO TECHNOLOGIES, INC., and an individual known as " Mr. Pena," who himself was acting in the course and scope of his employment with defendant, AGRI-MIX TRANSPORT, INC., formally [sic] known as JUAREZ BROTHERS TRUCKING, INC.[]

Page 1108

JUAREZ BROTHERS TRUCKING, INC., AND DOES 1 to 75, inclusive, and each of them, negligently, carelessly and recklessly and without permission accessed a restricted access road on the private business premises of Grimmway Farms wherein they unpinned a control pole gate and removed fixed barriers from the roadway and left the pole gate unattended pointed diagonally towards the expected pathway of oncoming traffic and thereby created an extreme danger to unwary motorists. That on said date and time Plaintiff, Fernando Sanchez, was driving a forklift on said access road unaware of the hazard and subsequently was impaled by the pole gate.[1]

(Doc. 1 at 7, Doc. 1-3 at 6.) Imperium reports that it " is currently providing Juarez with a defense to the Underlying action," but asserts " Imperium has no duty to defend" because the plaintiff " alleges only injuries caused by acts relative to the operation of the pole gate." ( Id. at 7-8.) Imperium asserts, " Juarez formally tendered its defense and indemnity for the [state court action] to Unigard" on May 20, 2013. ( Id. at 7.) According to Imperium, " Unigard has taken the position that it does not understand why the Underlying Action is not covered under the Imperium Policy, but has not otherwise responded to Juarez's tender under the Unigard Policy." ( Id. )

Based upon the foregoing, Imperium filed its complaint on October 23, 2013, seeking declaratory relief that: (1) Imperium has no duty to defend any insured in the state court action; (2) Imperium owes no duty to indemnify any insured in the state court action; (3) Unigard owes a duty to defend the insureds in the state court action; (4) Unigard owes a duty to indemnify the insureds in the state court action ; and (5) Imperium is entitled to reimbursement from Unigard for defending Juarez in the state court action. (Doc. 1 at 7-10.)

On November 14, 2013, Unigard filed its answer to the complaint denying that its policy was implicated. (Doc. 6 at 8.) Accordingly, Unigard denied that Imperium was " entitled to the requested declaratory judgments, sums requested, or any relief from Unigard whatsoever." ( Id. at 10.) In addition, Unigard filed counterclaims against Imperium, seeking judicial declarations that (1) Imperium has a duty to defend in the underlying action, and (2) even if there is a potential for coverage under the Unigard policy, " the Imperium policy is ...


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