Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case 1:05-cv-00022-MPT

Document 28-7

Filed 04/22/2005

Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ST. PAUL MERCURY INSURANCE COMPANY 385 Washington Street St. Paul, Minnesota, and PACK AND PROCESS, INC., 1400 B Street Wilmington, DE. Plaintiffs, v. MALY YAN 2007 S. Ninth Street Philadelphia, Pennsylvania, Defendant.
1 AMENDED COMPLAINT FOR DECLARATORY JUDGMENT

Civil Action No. 05-0022 (KAJ)

Plaintiffs, St. Paul Mercury Insurance Company (hereinafter "St. Paul") and Pack and Process. Inc. ("Pack and Process"), by and through its their counsel, Christie, , Bifferato, Gentilotti & Biden and Deasey, Mahgney & Bender, Ltd., hereby files this action seeking declaratory relief pursuant to 28 U.S.C. § 2201, and alleges in support thereof the following: THE PARTIES 1. Plaintiff, St. Paul, is a corporation organized under the laws of the State of

Minnesota, maintaining its principal place of business at 385 Washington Street, St. Paul, ' Additions to the original Complaint are underscored while deletions thereto are marked with strikethrough. Additionally, an exhibit not included in the original Complaint has been appended hereto.

Case 1:05-cv-00022-MPT

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was

authorized to drive a vehicle nor to transport other" workers

. on Pack S.: Pi ocessi-In 4,2--s: behalf;

d) v,as never expected to drive a Pack & Pi ocess .r.1-ne; and

vehicle as part of

her employment with

was never 1 Na:sled by Pack & Process, Inc, to drive a vehicle oi to transport . w orkers on its behalf
p Ho l-iiferinat--er-r-Euld-be-kef Most of the passengers in the van involved

hi: the a. ,\ccicient noted above were temporary laborers provided to Pack & Piocess, ine

nilependent contractor t4 As a matter of law, at the time of the subject accident, defendant was not
her employment by and with Pack &

the vehicle v,ithin the course and or scope of ocess,--ine

Non was the velnclc being used by defendant in the conduct of Pack &. b
SI IleSS

n r wt' issued 16.
.':LL
L

insurance policy nsurance

to defendant

iar nti- -St..Paul issued a policy of

insurance, Policy No. CK0380070 , to,

t''ocess7 Inc-, with an applicable policy pet lad of May 1, 2001 to May 1.

:1clemaftel the "Poticy") lhe Policy contains cenerai liability_ auto and excess .
i mits of SI million per event and SlO million umbrella, 11IL STI .

umbrella

coveiatze

for a total of

Attached bet eta as Exhibit -A" is a cop y of the most relevant canes_ol:11c

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19.

As resnccts the. general liability nortion of the Policy. defendant does not

r1u ifv -_s . on- insure.d or protected person under the terms of the Policy because. among l:elthintrs,
driving

the van at the time of the accident was not " work done within the

sco rc . of [her] enlplov!nent by [Packand Process]" and because she was not performinrt ' . c.i::,i s !At!ted_ . tg . c. h conduct gf Fuck and Process'l business." See Exhibit "A". Form 4:590 Rev. 1-96. at on. 5-6of 22. Florepver the "Auto " exclusion in the general liability portion of the 1?ol
[r , .

(i xi?ibit "A". PoiI n47500 Rev. 1-96, at p, 10 of 22) bars coverage rit:

for,_ all

cltrllrs

tile ` nd _gilyingl i)rt AetiOns and aris!ng_out of theAccident because the does not cover bodil y injur y . property dama g e, or medical expenses that result

Doi

uin theownership_maintenance, use, or operation of any auto owned. operated, rented, [ea, sli or k2orrowed by anyo oiectedp erson. 21 !!
i . vu

-1s espeets the auto coverage contained in the Policy. Tthe vehicle being
of

,

b\ DiLefen 'a?=t at ' he time
ia,

the accident

'J

as not a " covered auto " as the term is

. 10;.

t_i t Policy

(Exhibit "'_ Al Form 4449 Rev. 12-9 -i, at pp. 2 and 4 of

as

Moreover. uncler the let ins of the auto portion of the Policy. Ddefendant is

not a "permitted use'" of a "protected person" as those term is used in the suhiec-t Policy, so as to give Ilse to a coverage obligation under the Policy for defendant's liabilities in Under lying Tort Actions. {See Exhibit "A". Form 4499 Rev. 12-93. at o. 5 of 10), 23. ouali 1' As res;)ects the umbrella excess p ortion of the Policy. defendant does not

as a --protected person" and therefore has no coverage under that aspect of the (See Exhibit "A". Form 47550 Rev. 3-96, at p p . 2. 6-7 and 9 of 10).

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Therema y be other terms. conditions. orovisions or exclusions of the P rev which bar coverage for claims arising out of the Accident. Pursuant to the terms and conditions of the Policy, defendant is not an insured, additional insured. nor entitled to benefits of coverage.
22
r

Plaintiffs seeks a determination by this Court pursuant to 28 U.S.C §

se g ., that no coverage is available to Ddefendant under the Policy with respect to liability in the Underlying Tort Actions. ii tiffs further seeks a determination by this Court pursuant to 28 U.S.C. ,) esL, jlqLclefendant was not actin in the course or scope of her emolument
g

F)cil:ffLI. a ifs l

COUNT I 28 Plaintiffs repeats and re-alleges paragraphs 1 through -1-927 above as

though Fully set ford? hereunder

29.

For the reasons set forth above, ne-c-ev-erago is due

e-fend-ant there is no

,.re cl_e.ji.ige. 0iible under the Polley, as matter of law, with respect to her-lia ler4t-y-m-the the claims asset ted any of the Underlying Tort Actions.
12

W11E1U:PORE,

plaintiffq, St. Paul Mercury Insurance Company and Pack and

respectfully requests relief from this Court in the form of a declaration pursuant to 28 U.S.C. , 2201, et , that Pplaintiff St. Paul has no obligation under the

to ueTend or pi,Lide rndemniiAy to any parN In connectionwiththe Ac dent or

I)efenJant-ia the Underlying= Tort Actions. and that Maly Yarn was not acting in the

Case 1:05-cv-00022-MPT

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Filed 04/22/2005

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cc::,j.:..

.L).i scope of her DioloyiLnent with Pack and Process at the time of the Accident.

C41-RISTIE-y-PABA-R-U-EM-OR-T--E-iNSEN lewd-Car p era o t
g

Tlaad&-us-J-:--W-ea-v,

(215)- 87 1604-

At4orneys fo -I laiti4T-4t. Paul MeK-L-1-15 -- hiati-afic Gem-pal-1yp l . ,

Date- --DatedNlalcli 10, 200 Vli1mi>> _ton, DE

BI.ITER.-ATO, GENTILOTTI

BIDEN

Vine- it A. 3iffelato, Si. (#100 57) tan Jonnor Bifferato (#3273) Joseph R. Biden, III (#4203) Joseph K. Koury (#4272) 1.308 Delaware Avenue P 0 Box 2165 Wilmington, DE 19899 (302) 429-1900 -andFiaocis J. Deasey, Esq. Deasey, Mahoney & Bender, Ltd. 1800 John F. Kennedy Blvd., Suite 1300 Philadelphia, PA 19103-2978 (215) 587-9400 4tiorneys for Plaimiffi