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Canal Ins. Co. v. Brogan3/24/1994
BOWMAN, Judge.
In November 1990, James G. Brogan, an independent trucker, entered into a lease agreement with Tri-State Expedited Services, Inc. ("Tri-State"), a trucking company which engages independent contractors to provide trucking services for other companies. Under the agreement, Brogan promised to lease his truck to Tri-State, furnish transportation services to Tri-State using the truck, and indemnify Tri-State for liability for property damage and personal injury caused by Brogan. Tri-State was insured by St. Paul Fire and Marine Insurance Company ("St. Paul") under a policy providing coverage for vehicles leased by Tri-State. In addition, Brogan held his own policy with Canal Insurance Company ("Canal").
In July 1991, Brogan, who lives in Salem, Ohio, was engaged by Tri-State to pick up a load in Malvern, Ohio, and deliver it to Muncie, Indiana. After making the delivery, Brogan checked with Tri-State for further assignments, and, there being none, began the return trip to Salem with an empty truck. En route, Brogan was involved in a collision on I-270 in Franklin County, which resulted in the injury of Rex Rowand and Walter Hughes. Rowand and Hughes each filed personal injury actions as a result of this accident. It is undisputed that, at the time of the accident, the cab door of Brogan's truck displayed Tri-State's placard listing Tri-State's Interstate Commerce Commission ("I.C.C.") numbers.
In January 1992, Canal initiated the instant action, seeking a declaratory judgment of the rights and liabilities of Canal, Brogan, Tri-State and St. Paul. Tri-State followed with a cross-claim against Brogan seeking indemnification and alleging breach of the lease agreement between Tri-State and Brogan. Brogan filed a cross-claim against St. Paul asserting St. Paul's liability and that St. Paul acted in bad faith in refusing to provide coverage for the accident. Finally, StsPaul filed its own cross-claim against all other parties seeking a declaration that it had no duty to provide coverage to Brogan.
The matter was submitted to the trial court on depositions, admissions, answers to interrogatories and briefs, and the court rendered a decision in June 1993, finding the case of Wyckoff Trucking, Inc. v. Marsh Bros. Trucking Serv., Inc. (1991), 58 Ohio St.3d 261, 569 N.E.2d 1049, to be dispositive. Rejecting Tri-State's argument that Tri-State's lease agreement with Brogan was not in effect at the time of the accident, the court determined that Brogan's truck was displaying Tri-State's I.C.C. number at the time of the accident and that Tri-State was responsible for covering Brogan for his return trip. As, a result, the court found St. Paul had the primary duty to provide coverage and to defend Brogan, but found no bad faith on the part of St. Paul in refusing to do so. The court also found that Canal was not required to defend or provide coverage to Brogan but that, because Brogan had agreed to indemnify Tri-State for damages in excess of the policy limit, Brogan was obligated to indemnify Tri-State for any damages in excess of the limits of Tri-State's policy with St. Paul.
St. Paul, Tri-State and Brogan have all appealed from the judgment of the trial court, and this court consolidated their appeals.
St. Paul asserts the following assignments of error:
"First Assignment of Error:
"The trial court erred in determining that Brogan was an employee of [Tri-State] at the time of the accident. "Second Assignment of Error:
"The court erred in determining that St. Paul had primary insurance coverage and had a duty to defend.
"Third Assignment of Error:
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