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Travelers Home and Marine Insurance Co. v. Central Mutual Insurance Co.

United States District Court, D. Colorado

October 2, 2014

TRAVELERS HOME AND MARINE INSURANCE COMPANY, Plaintiff,
v.
CENTRAL MUTUAL INSURANCE COMPANY, Defendant.

ORDER GRANTING SUMMARY JUDGMENT FOR THE PLAINTIFF

RICHARD P. MATSCH, Senior District Judge.

Travelers Home and Marine Insurance Company ("Travelers" or "the Plaintiff") and Central Mutual Insurance Company ("Central" or "the Defendant") each contributed to the settlement of a negligence action against a common insured, Winston Howe ("Howe"). In this federal diversity action, Travelers alleges that it paid more than its required share of the settlement. Asserting claims for declaratory judgment, Travelers seeks determinations that the Central Policy was primary and the Travelers Policy was excess; that Travelers did not have any duty of indemnification until and unless the limits of the Central Policy were exhausted; that Central is obligated to reimburse Travelers in the amount of $158, 333, and that Travelers does not owe contribution to Central for the cost of Howe's defense.

On August 28, 2014, Travelers moved pursuant to Fed.R.Civ.P. 56 for summary judgment in its favor. The motion has been fully briefed. The material facts are not in dispute.

On or about August 19, 2011, Howe was driving a 1993 Chevrolet Suburban in or near Kasilof, Kenai, Alaska, when Howe was involved in an auto accident with a vehicle driven by Gary William Timm ("Timm"). Howe is a resident of Colorado. The Suburban that Howe was driving at the time of the accident was owned by Walter Pawlowski ("Pawlowski"), a resident of Texas.

Timm brought a negligence suit against Howe in an action captioned Gary W. Timm vs. Winston A. Howe, in the Superior Court for the State of Alaska, Third Judicial District at Kenai, Case Number: 3KN-13-462 Civil ("the Timm Action"), seeking damages for alleged injuries and losses arising from the accident.

Travelers had negotiated and issued an automobile insurance policy in Colorado to Howe, which afforded $500, 000 per accident in combined single limit liability coverage. (Pl.'s Ex. A, "the Travelers Policy").

Central had issued an automobile insurance policy in Texas to Pawlowski that identified the 1993 Chevrolet Suburban as one of the "vehicles covered." (Pl.'s Ex. B, "the Central Policy"). The Central Policy afforded liability coverage limits of $250, 000 per person, and $500, 000 per accident.

Both the Travelers and Central Policies were in effect at the time of the accident. Howe was a permitted user of Pawlowski's Suburban, and thus qualified as an insured under the Central Policy.

Howe tendered the Timm Action to both Travelers and Central for defense and indemnification under the insurers' respective policies.

The Travelers' Policy includes an "Other Insurance" provision which provides in relevant part as follows:

OTHER INSURANCE
If there is other applicable liability insurance:
1. Any insurance we provide for a vehicle you [Howe] do not own shall be excess over any other collectible insurance ...

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