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Commercial Union Insurance Co. v. Daimlerchrysler Insurance Co.6/2/2005
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
This is an action between two insurers to determine the priority of insurance coverage for an automobile accident. Respondent, Commercial Union Insurance Company (Commercial Union), sued appellant, DaimlerChrysler Insurance Company (DC Insurance), to establish that DC Insurance's policy was primary and that its own coverage, if any, was only excess coverage. The trial court granted judgment in favor of Commercial Union based on the determination that DC Insurance was the primary insurer and it had failed to offer evidence that the facts of the loss triggered application of an indemnity agreement. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
The Accident
On March 20, 2002, a two-car automobile accident occurred on Highway 395 in Inyo County, California. Kristen McCallum, a Michigan resident, drove one of the vehicles, a jeep which was owned by the DaimlerChrysler Corporation, an entity with an address in Glendale, California. McCallum drove the jeep with the permission of DaimlerChrysler Corporation. Two people in the other vehicle were killed, and a third person was seriously injured.
Arising out of the accident, in July of 2002, a lawsuit alleging wrongful death and related causes of action was filed in Los Angeles Superior Court against McCallum and the DaimlerChrysler Corporation. DaimlerChrysler Corporation then tendered its defense to Commercial Union, under the terms of a prior contract between them.
The Services Agreement
Prior to the accident, the DaimlerChrysler Corporation and Hadler Public Relations, Inc. (Hadler PR) had entered into a Services Agreement contract, to administer what the parties referred to as a Studio Vehicle Program. Pursuant to the Studio Vehicle Program, Hadler PR agreed to provide assistance in promoting the use of DaimlerChrysler vehicles, both for studio use and executive leasing , and agreed to purchase an automobile liability policy insuring the DaimlerChrysler Corporation, indemnifying the DaimlerChrysler Corporation against claims arising out of the Services Agreement, and naming it as an additional insured. The agreement also provided that the contract was governed by and construed in accordance with the laws of the state of Michigan without reference to its conflict of laws principles.
The Commercial Union Policy
Hadler PR obtained from Commercial Union the requisite automobile liability policy, which had a $1 million per accident liability limit and named DaimlerChrysler Corporation, Media Relations, as an additional insured "but only with respect to liability arising out of [Hadler PR's] operations or premises owned by or rented to [Hadler PR]." The policy also provided: "For any covered `auto' [Hadler PR] own , this Coverage Form provides primary insurance. For any covered `auto' [Hadler PR] do n't own, insurance provided by this Coverage Form is excess over any other collectible insurance." Commercial Union further agreed to "only pay share" of either the excess or primary coverage, consistent with its proportion of liability under the policy's coverage.
The DaimlerChrysler Insurance Policy
Regarding the second insurance policy at issue, DC Insurance issued to the DaimlerChrysler Corporation a $5 million insurance policy, effective from April 1, 2001, to April 1, 2002, whereby it
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