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Lafayette Insurance Co. v. Altheimer Oil Co.

March 22, 2007

LAFAYETTE INSURANCE COMPANY PLAINTIFF
v.
ALTHEIMER OIL COMPANY; JOHNATHON LEWIS COLE; AND LAUVERN P. JONES, AS NEXT FRIEND OF HAYWOOD JONES, A MINOR DEFENDANTS



MEMORANDUM OPINION AND ORDER

On November 3rd, a bench trial was held on plaintiff's complaint for declaratory relief that it owes no duty to defend or indemnify Altheimer Oil and/or Johnathon Lewis Cole under an insurance policy issued to Altheimer Oil in the personal injury case of Jones v. Cole, CV-3002-942-1, in the Jefferson County Circuit Court. Proposed findings of fact and conclusions of law and post-trial briefs were submitted to the Court by plaintiff and Jones on December 4th.

FINDINGS OF FACT

1. On or about March 10, 2001, Altheimer Oil Company ("Altheimer Oil") purchased Commercial Lines Policy No. 203 30113918 ("the Policy") from Lafayette.

2. The Policy was issued to Altheimer Oil for the policy period March 10, 2001 to March 10, 2002.

3. The Policy contained a Schedule of Covered Autos which included a 1992 Cadillac Deville, VIN 1G6CD53B1N4282874 ("the subject Cadillac").

4. At the time the subject Cadillac was added to the Policy, it was owned by Bill E. Jones, Jr. ("Bubba"), the son of the owner of Altheimer Oil, Ms. Frieda Jones.

5. The Policy includes a Business Auto Coverage Form which states that Lafayette "will pay all sums an 'insured' legally must pay as damages because of 'bodily injury' or 'property damage' to which this insurance applies, caused by an 'accident' and resulting from the ownership, maintenance or use of a covered 'auto' . . . . [Lafayette] will have the right and duty to defend any 'insured' against a 'suit' asking for such damages . . . . However, [Lafayette] will have no duty to defend 'any' insured against a 'suit' seeking damages for 'bodily injury' or 'property damage' . . . to which this insurance does not apply."

6. With respect to the Business Auto Coverage, the term "insured" includes anyone using, with the named insured's permission, a covered auto owned, hired, or borrowed by the named insured.

7. With respect to the Business Auto Coverage, the term "insured" specifically does not include an employee using an automobile owned by that employee.

8. The Policy also includes a Commercial General Liability Coverage Form which states that Lafayette "will pay those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' or 'property damage' to which this insurance applies."

9. The Commercial General Liability Coverage does not apply to bodily injury or property damage "arising out of the ownership, maintenance, use or entrustment to others of any . . . 'auto' . . . owned or operated by or rented to any insured."

10. With respect to the Commercial General Liability Coverage, the term "insured" includes the organization (i.e., Altheimer Oil) and only those employees which are acting within the scope of their employment or performing duties related to the conduct of the business.

11. In early May 2001, Cole was at Bubba's house after the funeral of Bubba's child. He had ridden there with Bubba. When he got ready to leave, Bubba told him to drive the subject Cadillac home instead. Cole inquired as to whether Bubba was interested in selling the vehicle, and Bubba replied that he might be, but no further discussion about selling the subject Cadillac occurred at that time.

12. A week or so later, Bubba came and got the subject Cadillac and drove it away and continued to ...


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