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Diary Road Partners v. Shell Oil Company2/1/2000
revealed that was an employer of . . . Nakamura." The circuit court granted the motion in an order dated the same day.
On June 17, 1994, Thelma Vierra and Alvin K. Vierra, Sr. (collectively, the Vierras), who are apparently the parents of the decedent, Alvin K. Vierra, Jr., filed a separate complaint (Civil No. 94-0452(2)) in the second circuit court, naming Shell, Nakamura, and Connelly as defendants. The Vierras' complaint made allegations similar to those in Wolken-Vierra's complaint. The Vierras' complaint, however, also alleged vicarious liability on the part of Shell. On November 22, 1995, the Vierras filed a first amended complaint, naming DRP as a defendant and additionally alleging in relevant part that: (1) Nakamura had acted within the scope of his "agency or employment during the events that caused or contributed to the accident"; (2) DRP had been negligent in "allowing the drinking of alcohol on its premises"; and (3) DRP was vicariously liable for Nakamura's negligence.
B. The Insurance Policies
On cross-motions for summary judgment in the present case, see infra, section I.C, both parties adduced evidence that, at the time of the alleged accident, DRP was the named insured on four separate insurance policies issued by Island: (1) a business auto policy (Policy No. BAP 12054); (2) a commercial garage liability policy (Policy No. CGP 60245-01); (3) a commercial general liability policy (Policy No. IM 208018-01); and (4) a commercial umbrella insurance policy (Policy No. IUB 3713525-00).
1. The business auto policy
In the section entitled "PART IV -- LIABILITY INSURANCE," the business auto policy provides in relevant part:
A. WE WILL PAY.
1. We will pay all sums the 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. 2. We have the right and duty to defend any suit asking for these damages. However, we have no duty to defend suits for bodily injury or property damage not covered by this policy. We may investigate and settle any claim or suit as we consider appropriate. Our payment of the LIABILITY INSURANCE limit ends our duty to defend or settle. D. WHO IS INSURED. 1. You are an insured for any covered auto. (Emphases added.) "Bodily injury" is defined in Part I of the policy as "bodily injury, sickness or disease including death from any of these."
Part II of the policy provides in relevant part that "ITEM TWO of the declarations shows the autos that are covered autos for each of your coverages. The numerical symbols explained in ITEM THREE of the declarations describe which autos are covered autos. The symbols entered next to a coverage designate the only autos that are covered autos." "ITEM TWO of the declarations" section of the business auto policy was not made a part of either party's filings in connection with the motions for summary judgment. As described infra, however, DRP adduced evidence of that page as an attachment to, and basis for, a motion for reconsideration of the circuit court's orders on the motions for summary judgment.
A "Renewal Certificate," which was attached to both parties' motions for summary judgment and which, by its terms, was "effective" as of the date of the accident, provides in relevant part:
In return for the payment of the renewal premium, and subject to all the terms of the policy, we agree with you to provide the Insurance as stated in this certificate. 3. This Policy consists of the following Coverage Part(s) for which a Premium is indicated. This Premium may be subject to adj
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