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Home My WebLink About08-4474/PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR., ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEY FOR PLAINTIFF EMPIRE FIRE AND MARINE INSURANCE COMMON PLEAS COURT OF COMPANY AS SUBROGEE OF KUNTZ & CUMBERLAND COUNTY SON INC. 13810 FNB PARKWAY OMAHA, NE 68154 NO. ?$ • Hy'7 q CtV i lerok vs. RIBBS TRUCKING, INC. 116 HOBART AVENUE BAYONNE, NJ 07002 AND GREENWICH INSURANCE COMPANY 70 SEAVIEW AVENUE STAMFORD, CT 06902 NOTICE YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER„ GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 AVISO LE HAN DEMANDADO A USTED EN LA CORTE. SI USTED QUIERE DEFENDERSE DE ESTAS DEMANDAS EXPUESTAS EN LAS PAGINAS SIGUIENTES, USTED TIENE (20) DIAS DE PLAZO A PARTIR DE LA FECHA DE LA DEMANDA Y LA NOTIFICACION. USTED DEBE PRESENTAR UNA APARIENCIA ESCRITA 0 EN PERSONA 0 POR ABOGADO Y ARCHIVAR EN LA CORTE SUS DEFENSAS 0 SUS OBJECIONES A LAS DEMANDAS ENCONTRA DE SU PERSONA. SEA AVISADO QUE SI USTED NO SE DEFIENDE, LA CORTE TOMARA MEDIDAS Y PUEDE ENTRAR UNA ORDEN CONTRA USTED SIN PREVIO AVISO 0 NOTIFICACION 0 FOR CUALQIER QUEJA 0 ALIVIO QUE ESPEDIDO EN LA PETICION DE DEMANDA. USTED PUEDE PERDER DINERO, SUS PROPIEDADES 0 OTROS DERECHOS IMPORTANTES PARA LISTED. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE PARA PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME FOR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE USTED PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 PAUL F. D-EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR., ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEY FOR PLAINTIFF EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF KUNTZ & SON INC. 13810 FNB PARKWAY OMAHA, NE 68154 VS. RIBBS TRUCKING, INC. 116 HOBART AVENUE BAYONNE, NJ 07002 AND GREENWICH INSURANCE COMPANY 70 SEAVIEW AVENUE STAMFORD, CT 06902 COMMON PLEAS COURT OF CUMBERLAND COUNTY NO. "" du?/ r _e- DECLARATORY JUDGMENT ACTION Plaintiff by its attorney, Paul F. D'Emilio, Esquire, brings this action upon a cause whereof the following is a statement: 1. The Plaintiff, Empire Fire and Marine Insurance Company (hereinafter "Empire") is a Nebraska Corporation engaged in the insurance business with a statutory home office located at13810 FNB Parkway, Omaha, NE 68154 and a main administrative office or principal place of business located at 1400 American Lane, Schaumburg, IL 60196. It is authorized to transact business and had transacted business in the 1 Commonwealth of Pennsylvania. 2. Defendant Greenwich Insurance Company is a liability insurance company authorized to do business within the Commonwealth of Pennsylvania having a principal place of business at Seaview House, 70 Seaview Avenue, Stamford, CT 06902-6040. 3. Ribbs Trucking, Inc. is a corporation authorized to do business in the Commonwealth of Pennsylvania with a principal office at 116 Hobart Avenue, Bayonne, NJ 07002 4. On August 11, 2006, when a motor vehicle owned by the Defendant, Ribb's Trucking Inc. and insured by the Defendant Greenwich Insurance Company was traveling southbound on 1-81, Hampden Township, Pennsylvania when the vehicle drifted across three lanes of travel and struck Plaintiff's Insured's vehicle causing the damages hereinafter described. 5. The Insured's vehicle was a total loss and Defendant is liable to Plaintiff for the damages as allowed by law thereto being is Fifty Four Thousand Seven Hundred Two and 02/100 ($54,702.02) Dollars plus the Insured's deductible of Two Thousand Five Hundred and 00/100 ($2,500.00) Dollars plus the towing and storage being Four Thousand Nine Hundred Twenty Eight and 98/100 ($4,928.98) Dollars for a total of Sixty Two Thousand One Hundred Thirty One and 00/100 ($62,131.00) Dollars. A true and correct copy of the checks issued are attached hereto, made part hereof and marked Exhibit "A." 6. A Complaint was filed in the Common Pleas Court of Cumberland County, No. 08-2216 on April 8, 2008 captioned in the matter of Empire Fire and Marine Insurance 2 Company as Subrogee of Kuntz & Son, Inc. v. Patricio Leon and Ribb's Trucking, Inc. A true and correct copy of the Complaint is attached hereto and made part hereof and marked Exhibit "B". 7. The service of the Complaint was made on the Defendants on April 11, 2008 and Notice to Enter Default Judgment was given. 8. A Default Judgment was entered against the Defendant Ribbs Trucking on June 9, 2008 in the sum of $62,131.00. 9. Defendant Ribbs Trucking, Inc. (U.S. Dot 815546) is licensed by and subject to the Federal Motor Vehicle Carrier Safety Act of the United States of America and the rules and regulations promulgated by the Federal Motor Vehicle Carrier Safety Administration thereunder. 10. According to the records of the Federal Motor Vehicle Safety Commission, Defendant Greenwich Insurance Company issued a Property damage liability insurance policy to Defendant Ribb's Trucking, Inc. effective December 1, 2004 for a term expiring on September 21, 2007. Policy number EC-17592 11. Federal regulations state that the policy must remain in effect until it is replaced or cancelled according to special cancellation requirements which are independent of the policy's cancellation requirements. (49 C.F.R. 387.313) 12. The policy was effective as of the date of the loss and in effect until September 21, 2007 according to F.M.C.S.A. regulations. 13. F.M.C.S.A. was never notified of cancellation of the insurance prior to the loss. 14. The policy issued by the Defendant was valid, binding and effective at the time of the injury and Plaintiff as Judgment Creditor of Greenwhch's insured is the beneficiary of 3 the liability insurance policy. 15. Under the terms of the insurance policy, Defendant is obligated to and to indemnify Plaintiff in the suit up to the limits of the policy. 16. Plaintiff has made a demand upon Defendant as required by the terms and conditions of the policy to provide coverage as required under the policy, but the Defendant has refused and neglected to do so. 17. Defendant's disclaimer of liability is without basis and in bad faith. 18. As a result of Defendant's disclaimer, Plaintiff may be required to retain counsel to defend herself in the suit and to incur attorney's fees and costs in connection with the defense. 19. There is a just and actual controversy between the parties. 20. Failure to adjudicate the claims contained herein will result in eminent and inevitable litigation between the parties. WHEREFORE, Plaintiff respectfully requests your Honorable Court enter judgment as follows: A. Declare Defendant, Greenwich Independent Insurance Company, to be obligated to indemnify Plaintiff for the amount of its judgment up to the limits of liability of the policy. B. Order Defendant to bear all future costs of the defense; D. Award attorney's fees and expenses to Plaintiff for fees and expenses for bringing this action; and E. Lastly, grant such other relief as the Court may deem appropriate. Paul F. D'Emilio, Esquire Attorney for Plaintiff 4 VERIFICATION Mary K. Mashek, Subrogation Representative with Empire Fire and Marine Insurance Company in the above captioned matter verifies that the facts contained in the foregoing Declaratory Judgment Action are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. DATE; ?.,r,,.. Subrogat' Representative TO. 0 0 72 A 1"? Common Pleas Court of Cumberland County, Pennsylvania EMPIRE FIRE AND MARINE INS. CO. AS ) Case No.: 48-4474 Civil Term SUBROGEE OF KUNTZ & SON, INC. ) } Plaintiff ) } RIBBS TRUCKING, INC. AND GREENWICH ) INSURANCE COMPANY ) } Defendant ) AFFIDAVIT OF CORPORATE SERVICE That IMAZ4Z TZA?ESGp , htxeby solemnly affirm under the penalties of perjury and upon personal knowledge that the contents of the following document are true and do affirm I am a competent person over 18 years of age and not a party to this action. That on I /q / Le at at I served Ribbs Trucking, Inc. with the following list of documents: Civil Declaratory J t ActiOnj there personally delivering a true and correct copy of the documents into the hands of and leaving with ? ! S l?a whose Title is Ol?`7Z 4j (07b37- Address 17? / City State Zip .50 That the above-named person served stated they had the authority to accept as the Legal Representative for the above listed person or entity bding served. That the description of the person actually served is as follows: Skink/Sex: A Age: 9) . Height: ? weight: Z? air: pkle-) Glasses: "W A.H. Parker & Associates, Inc. dWa Due Process Executed on: P.O. Box 2396 Columbia, MD 21045 (800) 228-0484 ?"? a notary public, on this apa day of U V, 2008. My Commission Expires: 03'08-008975 Ghent Refutnee: ALLM-2001-029 ..ra i CA;> Common Pleas Court of Cumberland County, Pennsylvania EMPIRE FIRE AND MARINE INS. CO. AS ) Case No.: 08-4474 Civil Term SUBROGEE OF KUNTZ dt SON, INC. ) Plaintiff ) RIBBS TRUCKING, INC. AND GREENWICH ) INSURANCE COMPANY ) Defendant ) AI+ WAVIT OF CORPOME SERVICE Thd L Eric Rubin , hereby solemnly affirm under the penalties of perjury and upon personal knowledge that the contents of the following document are true and do affirm I on a competent person over IS years of age and not a party to this action. That on ?/. 12( 0 Bat 3 :2 00 N*m at I served Greenwich hsstua cc Company with the following list. of documents: Civil DecteraEoiy 7ud? t Action by and there personally delivering a true and correct copy of the documents irto the hands of and leaving with "Kell Meagher who"Titleis General Counsel 70 Seaview Ave., Stamford, CT 06902 Address City State Zip That the above-named person served stated they had the authority to accept as the Legal Representative for the above listed person or entity being served. That the description of the person actratlly served is as follows: Skin:Whitem: Male?ge:55 Height: 5' 1 1'Weight:1 75 Hair, Gray Glasses: No 8/12/08 Eric Rubin Executed on: A.H. Parker do Associates, Inc. d/Wa Due Prooess P.U. Box 2396 Columbia, 21045 (800) 228 484 Subsexibed andbefi otary public, on this 12 t: h day of August .2008. Notary Public My Commission Expires: Menlo V. Rubin NOTARY PUBLIC $to% of-Connecticut My Commission Expires 42/31112 M: 08408976 Client Refaimm AMM-2008-029 ?? :?" r?j-v. ?? x;?. .? __ ... .: ? d; dom.,' ;, ? ?. TO: PLAINTIFF'S COUNSEL MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. BY: Patrick C. Lamb, Esquire Anne R. Myers, Esquire plamb(a4mooclaw.c0m, amyersna mooclaw.com ATTORNEY I.D. NOS. 70817/201900 1800 JOHN F. KENNEDY BOULEVARD SUITE 1900 PHILADELPHIA, PENNSYLVANIA 19103 (215) 564-6688 (tel) (215) 564-2526 (fax) Empire Fire and Marine Ins. Co. as subrogree of Kuntz & Son, Inc. Plaintiff, V. Ribbs Trucking and Greenwich Insurance Co. Defendants. YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AINST YOU ATTO Y FOR DEFENDANT ATTORNEYS FOR DEFENDANT, GREENWICH INSURANCE CO. COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 08-4474 CIVIL TERM DEFENDANT GREENWICH INSURANCE CO.'S ANSWER TO PLAINTIFF'S COMPLAINT Defendant Greenwich Insurance Co. ("Answering Defendant") by and through its attorneys, Marks, O'Neill, O'Brien & Courtney, P.C., hereby files this answer to Plaintiffs Complaint ("Complaint") 1. Denied. A reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations and demand strict proof of the averments contained in Paragraph 1 of the Complaint, at trial. 2. Admitted. 3. Admitted. 4. Denied. A reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations and demand strict proof of the averments contained in Paragraph 4 of the Complaint, at trial. 5. Denied. It is denied that an Exhibit A was attached to Plaintiff's Complaint. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations and demand strict proof of the averments contained in Paragraph 5 of the Complaint, at trial. 6. Denied. It is denied that an Exhibit B was attached to Plaintiff's Complaint. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations and demand strict proof of the averments contained in Paragraph 6 of the Complaint, at trial. 7. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations and demand strict proof of the averments contained in Paragraph 7 of the Complaint, at trial. 8. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations and demand strict proof of the averments contained in Paragraph 8 of the Complaint, at trial. 9. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations and demand strict proof of the averments contained in Paragraph 9 of the Complaint, at trial. 10. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations and demand strict proof of the averments contained in Paragraph 10 of the Complaint, at trial. 11. Denied. The averments contained in Paragraph 11 of the Complaint state conclusions of law to which no response is required. To the extent that any of these allegations are later deemed by this Court to be factual, the averments are denied, and Answering Defendant demands strict proof thereof at trial. 12. Denied. It is denied that the policy was effective as of the date of loss and in effect until September 21, 2007. In fact, the date of loss was 8/11/06. The policy, at issued, was in effect from 12/1/04 to 12/01/05. 13. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations and demand strict proof of the averments contained in Paragraph 13 of the Complaint, at trial. 14. Denied. The averments contained in Paragraph 14 of the Complaint state conclusions of law to which no response is required. To the extent that any of these allegations are later deemed by this Court to be factual, the averments are denied, and Answering Defendant demands strict proof thereof at trial. 15. Denied. The averments contained in Paragraph 15 of the Complaint state conclusions of law to which no response is required. To the extent that any of these allegations are later deemed by this Court to be factual, the averments are denied, and Answering Defendant demands strict proof thereof at trial. 16. Admitted in part and denied in part. It is admitted that Plaintiff made a demand on Answering Defendant to provide coverage and that Defendant determined that it was not required to cover the loss, as a matter of contract. The remainder of the averments in Paragraph 17 of the Complaint are denied. 17. Denied. The averments contained in Paragraph 17 of the Complaint state conclusions of law to which no response is required. To the extent that any of these allegations are later deemed by this Court to be factual, the averments are denied, and Answering Defendant demands strict proof thereof at trial. 18. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 18 of the Complaint and demands strict proof of the same, at trial. 19. Denied. The averments contained in Paragraph 19 of the Complaint state conclusions of law to which no response is required. To the extent that any of these allegations are later deemed by this Court to be factual, the averments are denied, and Answering Defendant demands strict proof thereof at trial. 20. Denied. The averments contained in Paragraph 20 of the Complaint state conclusions of law to which no response is required. To the extent that any of these allegations are later deemed by this Court to be factual, the averments are denied, and Answering Defendant demands strict proof thereof at trial. WHEREFORE, Answering Defendant respectfully requests that this Court deny the relief sought in Plaintiff's Complaint, enter judgment in favor of the Answering Defendant and award to the Answering Defendant such other relief that this Court may deem just and proper. NEW MATTER 21. Plaintiff's claims are barred because Plaintiff has failed to state any cause of action against Answering Defendant upon which relief can be granted. 22. Plaintiff's claims are barred or limited by contract. 23. Plaintiff's claims are barred because of waiver or estoppel. 24. Plaintiff's claims are barred by the doctrine of accord and satisfaction. 25. Plaintiff's claims are barred and/or limited by payment. 26. Plaintiff's claims are barred because Plaintiff failed to mitigate its damages. 27. Plaintiff's claims are barred in whole or in part by the doctrine of waiver/consent. 28. Plaintiff's claims are barred by the economic loss doctrine. 29. Plaintiff's claims are barred in whole or in part pursuant to the terms and provisions of the contracts and agreements between the parties. 30. Plaintiff's claims are barred by the Statute of Limitations and/or Laches. 31. Plaintiff's claims are barred because of statutory and/or common law. WHEREFORE, Answering Defendant respectfully requests that this Court deny the relief sought in Plaintiff's Complaint, enter judgment in favor of the Answering Defendant, and award to the Answering Defendant such other relief that this Court may deem just and proper. Respectfully submitted this 17th day of September, 2008, MARKS, O'NEJLL, O'BRIEN & COURTNEY, P.C. // e/ A Patrick C. Lamb, Esquire lo. 70817 Anne R. Myers, Esquire - o. 201900 1800 John F. Kennedy, Blvd., Suite 1900 Philadelphia, PA 19109 (215) 564-6688 Attorneys for Greenwich Insurance Co VERIFICATION I, ?ov, Re(w to , verify that I am the v,e? PreS?c?ec.r for the Defendant Greenwich Insurance Co and that the facts, other than those stated by reference to the Plaintiff's Complaint for the purpose of demur, are true and correct to the best of my knowledge, information, and belief. I understand that this Verification is made subject to the penalties of 18 Pa. Cons. Stat. Ann. § 4904 relating to unsworn falsification to authorities. MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. By: CERTIFICATE OF SERVICE I, Patricia Buchanan, hereby certify that on September Br' 2008, I caused a true and correct copy of the foregoing DEFENDANT'S GREENWICH INSURANCE CO ANSWER TO PLAINTIFF'S COMPLAINT to be sent via U.S. Mail to all parties of record to the parties listed below: Paul F. D'Emilio, Esquire Paul M. Schofield, Jr., Esquire James P. McCoy, Esquire 905 W. Sproul Road, Suite 105 Springfield, PA 19064 MARKS, O'NEILL O'BRIEN & COURTNEY, P.C. Patricia Buchanan, Legal Assistant C? Y ? co C : ( \w PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR., ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEY FOR PLAINTIFF EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF KUNTZ & SON INC. VS. RIBBS TRUCKING, INC. AND . GREENWICH INSURANCE COMPANY COMMON PLEAS COURT OF CUMBERLAND COUNTY NO. 08-4474 REPLY TO NEW MATTER The Plaintiff, Empire Fire and Marine Insurance Company, by its attorney, Paul F. D'Emilio, Esquire, replies to the New Matter of the Defendant in the above-captioned matter and sets forth as follows: 21-31. Denied. The allegations are conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. Furthermore, the allegations contain conclusions of fact and the material facts upon which they are based are not pleaded with particularity as required by the Pennsylvania Rules of Civil Procedure. WHEREFORE, Plaintiff respectfully requests that the New Matter filed by the Defendant be stricken. pectfully submitted, ul F. D'Emilio, Esquire Attorney for Plaintiff VERIFICATION Paul F. D'Emilio, Esquire, attorney for Plaintiff in the above-captioned matter verifies that the facts contained in the foregoing Reply to New Matter are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. DATE: ailw? Paul F. D'Emilio. Esquire Attorney for Plaintiff PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR., ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEY FOR PLAINTIFF EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF KUNTZ & SON INC. VS. RIBBS TRUCKING, INC. AND COMMON PLEAS COURT OF CUMBERLAND COUNTY NO. 08-4474 GREENWICH INSURANCE COMPANY CERTIFICATE OF SERVICE I, Paul F. D'Emilio, Esquire, hereby certify that a true and correct copy of Plaintiffs Reply to New Matter in the above-entitled matter has been served upon the following person on the D' day of September, 2008 by first-class U.S. Mail, postage prepaid: Anne R. Myers, Esquire MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. 1800 John F. Kennedy Blvd., Suite 1900 Philadelphia, PA 19103 (215) 564-6688 Paul F. D'Emilio, Esquire Attorney for Plaintiff n ~ ? ?.: rn MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. BY: Patrick C. Lamb, Esquire Anne R. Myers, Esquire plamb(aD,mooclaw com; amyers(a,,mooclaw.com ATTORNEY I.D. NOS. 70817/201900 1800 JOHN F. KENNEDY BOULEVARD SUITE 1900 PHILADELPHIA, PENNSYLVANIA 19103 (215) 564-6688 (tel) (215) 564-2526 (fax) Empire Fire and Marine Ins. Co. as subrogree of Kuntz & Son, Inc. V. Plaintiff, Ribbs Trucking and Greenwich Insurance Co. Defendants. ATTORNEYS FOR DEFENDANT, GREENWICH INSURANCE CO. COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 08-4474 CIVIL TERM ENTRY OF APPEARANCE AND DEMAND FOR JURY TRIAL TO THE PROTHONOTARY: Kindly enter our appearance on behalf of Defendant, Greenwich Insurance Co., in the above-captioned matter. Defendant by and through their undersigned attorney hereby demands a trial by jury of twelve in the above referenced matter with the fee being paid in full at this time. Respectfully submitted, MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. BY: PATRICK C. LAMB, ESQUIRE BY: ? (Z71 D Z' ANNE R. MYERS, ESQUI {PH257333.1 } CERTIFICATE OF SERVICE I, Patricia Buchanan, hereby certify that on November 25, 2008, 1 caused a true and correct copy of the foregoing ENTRY OF APPEARANCE OF PATRICK C. LAMB, ESQUIRE AND ANNE R. MYERS, ESQUIRE ON BEHALF OF DEFENDANT, GREENWICH INSURANCE COMPANY to be sent by first-class U.S. mail, postage prepaid to the parties listed below: Paul F. D'Emilio, Esquire Paul M. Schofield, Jr., Esquire James P. McCoy, Esquire 905 W. Sproul Road, Suite 105 Springfield, PA 19064 Ribb's Trucking Inc. 116 Hobart Avenue Bayonne, NJ 07002 MARKS, O'NEILL O'BRIEN & COURTNEY, P.C. Patricia Buchanan, Legal Assistant {PH257333.1 } n? - ..q ? ?' ?` E"3'? . - `... C"`a r,7 ' ; C::? .. PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR., ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEY FOR PLAINTIFF EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF KUNTZ & SON INC. VS. RIBBS TRUCKING, INC. AND GREENWICH INSURANCE COMPANY COMMON PLEAS COURT OF CUMBERLAND COUNTY NO. 08-4474 REPLY TO NEW MATTER FOR DECLARATORY JUDGMENT The Plaintiff, Empire Fire and Marine Insurance Company, by its attorney, Paul F. D'Emilio, Esquire, replies to the New Matter for Declaratory Judgment of the Defendant Greenwich Insurance Company in the above-captioned matter and sets forth as follows: 18. Plaintiff incorporates by reference all the allegations contained in paragraphs 1 through 17 of the Interrogatories in Attachment as fully as though the same were herein set forth at length. Plaintiff objects to the Garnishee's filing of "New Matter for Declaratory Judgment" as this is not a Declaratory Judgment and the only matter that is before the Court in this case are the Garnishee's Interrogatories in Attachment. 1 a 19. Admitted. 20. Denied. All the allegations contained in the Complaint for Declaratory Judgment are incorporated herein by reference as fully as though the same where herein set forth at length. It is specifically denied that the Defendant is afforded insurance coverage and indemnity only until December 1, 2005. On the contrary, the policy was not cancelled until September 21, 2007 and the certified motor vehicle indemnification reports and company history date details confirm that date. 21. Denied. It is specifically denied that the date of loss was outside the policy. It is admitted that Plaintiff is entitled to the proceeds of the Greenwich Insurance policy. 22. Denied. The allegations are conclusions of law to which no responsive pleading is required. The coverage pursuant to MCS-90 Endorsement does not change the nature of the insurance contract. A federal carrier doing interstate business has an option to protect public motorists. The carrier may have an insurance policy endorsed with an MCS-90 Endorsement or place a bond or be self-insured. The motor carrier applies to the U. S. Secretary of Transportation who makes that decision. The MCS-90 Endorsement contains a provision requiring the insurer to pay a final judgment against its policyholder. That is the case here. The judgment is final and the Garnishee has failed to pay. 23. Denied. The allegations are conclusions of law and fact to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. This is not a case involving priority between insurers. Priority situations arise where two insurers issue coverage for the same insured. In this case, Empire issued coverage for Kuntz & Son, Inc. and Greenwich issued coverage for Patricio Leon and Ribbs 2 Trucking. The MCS certificate which this Garnishee references but fails to attach and the policy which this Garnishee references but fails to attach specifically states: It is understood and agreed that no condition, provision, stipulation or limitation contained in the policy, this endorsement, or any other endorsement thereon or violation thereof, shall relieve the company from liability or from the payment of any final judgment, within the limits of liability herein described, irrespective of the financial condition, insolvency or bankruptcy of the insured. 49 C.F.R. §387.15 The Supreme Court of Pennsylvania has stated the following: This rider required Progressive to pay a final judgment recovered against its "resulting from negligence in operation, maintenance or use of motor vehicles subject to the financial responsibility requirements of § 29 and 30 of the Motor Carrier Act regardless of whether or not each motor vehicle is specifically described in the policy. See Progressive Cas. Ins. Co. v. Hoover, 809 A2d 353 (2002). The Eastern District of Pennsylvania in an unreported decision, the Federal District Court for the Eastern District of Pennsylvania found "the MCS-90 Endorsement requires an insurance carrier to pay "any final judgment recovered against such motor carrier for (public liability, personal injury or property damage) resulting from negligent operation, maintenance or use of vehicles operated by a motor carrier see Oxidental Fire and Casualty Company of North Carolina v. Westport Insurance Corp. 2004 w12028616 (edpa). The balance of the allegations are conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 24. Denied. The allegations are conclusions of law to which no responsive pleading is required. WHEREFORE, Plaintiff respectfully requests that Your Honorable Court strike from Garnishee's answer its "New Matter for Declaratory Judgment" and enter 3 judgment in favor of Plaintiff and against Greenwich Insurance Company, the Garnishee. Respectfully submitted, Lsquire aul F. D'Emilio, Attorney for Plaintiff l VERIFICATION Paul F. D'Emilio, Esquire, attorney for Plaintiff in the above-captioned matter verifies that the facts contained in the foregoing Reply to New Matter for Declaratory Judgment are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. DATE: 42'(101 Paul F. D'Emilio. Esquire Attorney for Plaintiff PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR., ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEY FOR PLAINTIFF EMPIRE FIRE AND MARINE INSURANCE COMMON PLEAS COURT OF COMPANY AS SUBROGEE OF KUNTZ & CUMBERLAND COUNTY SON INC. VS. NO. 08-4474 RIBBS TRUCKING, INC. AND GREENWICH INSURANCE COMPANY . CERTIFICATE OF SERVICE I, Paul F. D'Emilio, Esquire, hereby certify that a true and correct copy of Reply to New Matter for Declaratory Judgment in the above-entitled matter has been served upon the following person on the 2I day of January, 2009 by first-class U.S. Mail, postage prepaid: Anne R. Myers, Esquire MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. 1800 John F. Kennedy Blvd., Suite 1900 Philadelphia, PA 19103 (215) 564-6688 6?k Paul F. D'Emilio, Esquire Attorney for Plaintiff CI t PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR., ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEY FOR PLAINTIFF EMPIRE FIRE AND MARINE INSURANCE COMMON PLEAS COURT OF COMPANY AS SUBROGEE OF KUNTZ & CUMBERLAND COUNTY SON INC. vs. NO. 08-4474 RIBBS TRUCKING, INC. AND GREENWICH INSURANCE COMPANY REPLY TO NEW MATTER The Plaintiff, Empire Fire and Marine Insurance Company, by its attorney, Paul F. D'Emilio, Esquire, replies to the New Matter of the Defendant Greenwich Insurance Company in the above-captioned matter and sets forth as follows: 25-35. Denied. The allegations are conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. Furthermore, the allegations contain conclusions of fact and the material facts upon which they are based are not pleaded with particularity as required by the Pennsylvania Rules of Civil Procedure. Lastly, All of the allegations contained in paragraphs 1 through 24 inclusive of Complaint are incorporated herein by reference as fully as though the same were herein set forth at length. 1 I WHEREFORE, Plaintiff respectfully requests Your Honorable Court enter judgment against Greenwich Insurance Company, Garnishee, in the sum of $62,131.00. Respectfully submitted, 12aL- Paul F. D'Emilio, Esquire Attorney for Plaintiff 2 I VERIFICATION Paul F. D'Emilio, Esquire, attorney for Plaintiff in the above-captioned matter verifies that the facts contained in the foregoing Reply to New Matter are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. DATE: _L?v U 9(' Paul F. D'Emilio. Esquire Attorney for Plaintiff PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR., ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEY FOR PLAINTIFF EMPIRE FIRE AND MARINE INSURANCE COMMON PLEAS COURT OF COMPANY AS SUBROGEE OF KUNTZ & CUMBERLAND COUNTY SON INC. VS. NO. 08-4474 RIBBS TRUCKING, INC. AND GREENWICH INSURANCE COMPANY CERTIFICATE OF SERVICE f, Paul F. D'Emilio, Esquire, hereby certify that a true and correct copy of Reply to New Matter in the above-entitled matter has been served upon the following person on thept day of January, 2009 by first-class U.S. Mail, postage prepaid: Anne R. Myers, Esquire MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. 1800 John F. Kennedy Blvd., Suite 1900 Philadelphia, PA 19103 (215) 564-6688 2 S Paul F. D'Emilio, Esquire Attorney for Plaintiff '?r .--? -?? ?- _,?, ors Y^?.? ?. s^`! z ?. ???? .?" ;? y r ? PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR., ESQUIRE ATTORNEY I.D. # 81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEY FOR PLAINTIFF EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF KUNTZ & SON INC. VS. RIBBS TRUCKING, INC. AND GREENWICH INSURANCE COMPANY COMMON PLEAS COURT OF CUMBERLAND COUNTY NO. 08-4474 CIVIL TERM PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Plaintiff, Empire Fire and Marine Insurance Company as subrogee of Kuntz & Son, Inc. ("Plaintiff'), by its attorney, Paul F. D'Emilio, Esquire, respectfully requests that your Honorable Court enter Summary Judgment in the above-captioned matter in favor of the Plaintiff and against the Defendants Ribb's Trucking, Inc. ("Ribb's Trucking") and Greenwich Insurance Company ("Greenwich"), for the following reasons: 1. On August 11, 2006, a motor vehicle owned by Ribb's Trucking and insured by Greenwich was traveling southbound on 1-81, Hampden Township, Pennsylvania when the motor vehicle drifted across three lanes of travel and struck Plaintiff's Insured's vehicle. 1 2. As a result of the collision, Plaintiff's Insured suffered damages in the amount of Sixty Two Thousand One Hundred Thirty One and 00/100 Dollars ($62,313.00). Plaintiff compensated the Insured for such loss. 3. On April 8, 2008, Plaintiff filed a complaint in the Common Pleas Court of Cumberland County, No, 08-2216 captioned "Empire Fire and Marine Insurance Company as Subrogee of Kuntz & Son, Inc. v. Patricio Leon and Ribb's Trucking, Inc." Plaintiff's complaint is attached as Exhibit "A". 4. The Defendants in that case did not appear or respond to the complaint and on May 16, 2008, Plaintiff send a notice of intent to enter default judgment. Again, no appearance or response was made and a default judgment was properly entered against Ribb's Trucking on June 9, 2008 in the amount of $62,131.00. Plaintiff's Praecipe for Judgment and Assessment of Damages and related filings are attached as Exhibit "B". 5. Ribb's Trucking is licensed by, and subject to, the Federal Motor Vehicle Carrier Safety Act of the United States of America and the rules and regulations promulgated thereunder by the Federal Motor Carrier Safety Administration (the "F.M.C.S.A."). 6. In order to comply with the F.M.C.S.A. (Motor Carrier Act of 1980, "MCA"'). minimum insurance requirements, Defendant Greenwich Insurance Company issued a property damage liability insurance policy to Defendant Ribb's Trucking, Inc., Policy 'The MCA P.L. 96-296, 94 Stat. 793 (July 1, 1980) (the "MCA') (amending various provisions interspersed throughout Title 49 of the United States Code). was passed to assure that carriers operating in interstate commerce would be financially responsible to members of the public injured by the carrier's negligence. To qualify financially under the MCA, a carrier must file a bond, insurance policy, or other type of security approved by the Secretary of Transportation establishing that the carrier meet s the minium financial requirements set by the Secretary 49 U.S.C.§13906(a)(1). 2 Number EC-17592, effective December 1, 2004 for a term expiring on September 21, 2007. A certified copy of the Motor Carrier Identification Reports and Company History Date details are attached as Exhibit "C". 7. Federal law mandates that insurance policies remain in effect until replaced or canceled in strict accordance with special cancellation requirements mandated by federal law (F.M.C.S.A). 8. The F.M.C.S.A. was never notified of cancellation of the insurance policy prior to August 11, 2006, the date of the loss. Therefore, the policy was effective until September 21, 2007, well beyond the date of loss.. 9. Under the terms of the insurance policy, Defendant Greenwich is obligated to indemnify Plaintiff in this suit up to the limits of the policy. 10. Plaintiff has made a demand upon Defendant Greenwich as required by the terms and conditions of the insurance policy, but the Defendant has refused and neglected and continues to fail, refuse and neglect to do so contrary to the terms of its policy and the requirements of federal law. 11. Defendant Greenwich's refusal to indemnify Plaintiff for the amount of this suit up to the limit of liability of the policy is unreasonable, without basis and in bad faith. 12. The pleadings, filings, and affidavits have established that there are no genuine 3 issues of material fact and that Plaintiff is entitled to judgment as a matter of law. WHEREFORE, Plaintiff respectfully requests that your Honorable Court enter Summary Judgment in favor of Plaintiff, and against Defendant Greenwich. Dated: I?d(_ Respectfully submitted, Paul F. D'Emilio, Esquire Attorney for Plaintiff VERIFICATION Paul F. D'Emilio, attorney for Plaintiff in the above matter, verifies that the statements made in the foregoing Motion for Summary Judgment are true and correct. I understand that any false statements made herein are made subject to the penalties of 18 Pa. C.S.A. § 4904 related to unsworn falsification to authorities. Date: _ t6 0 Paul F. D'Emilio 4 PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR., ESQUIRE ATTORNEY I.D. # 81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEY FOR PLAINTIFF EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF KUNTZ & SON INC. VS. RIBBS TRUCKING, INC. AND GREENWICH INSURANCE COMPANY COMMON PLEAS COURT OF CUMBERLAND COUNTY NO. 08-4474 CIVIL TERM MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 1. STATEMENT OF FACTS AND HISTORY OF THE CASE On August 11, 2006, a motor vehicle owned by Defendant Ribb's Trucking, Inc. ("Ribb's Trucking") and insured by Defendant Greenwich Insurance Company ("Greenwich") drifted across three lanes of travel and struck Plaintiff's Insured's vehicle. As a result of accident, Plaintiff's Insured suffered damages in the amount of $62,131.00. On April 8, 2008, Plaintiff, Empire Fire and Marine Insurance Company as Subrogee of Kuntz & Son, Inc. ("Plaintiff'), filed a complaint against Patricio Leon and Ribb's Trucking in the Common Pleas Court of Cumberland County, No. 08-2216. Service was properly made on both Ribb's Trucking and Patricio Leon on April 11, 1 2008. Notice of Intent to Enter Default Judgment was sent to Ribb's Trucking on May 16, 2008. Default judgment was entered against Ribb's Trucking on June 9, 2008 in the sum of $62,131.00. Defendant Ribb's Trucking, U.S. Dot 815546, is licensed by, and subject to, the Federal Motor Vehicle Carrier Safety Act of the United States (the "Motor Vehicle Safety Act") and the rules and regulations promulgated thereunder. In order to comply with the minimum insurance requirements set forth in the regulations promulgated under the Motor Vehicle Safety Act, Defendant Greenwich issued a property damage liability insurance policy, Policy No. EC-17592 (the "Policy"), to Ribb's Trucking effective beginning on December 1, 2004. Insurance policies must remain in effect until the policy is either replaced or canceled in strict accordance with 49 C.F.R. § 387.313(d), the regulation governing cancellation. According to certified Federal Motor Carrier Safety Administration ("F.M.C.S.A.") records, Defendant Greenwich was Ribb's Trucking's sole insurance carrier from December 1, 2004 to September 21, 2007, and Defendant Greenwich did not at any time prior to the date of loss comply with the cancellation requirements required by federal law. Certified F.M.C.S.A. records are attached as Exhibit "C". Therefore, Defendant Greenwich is liable for the loss paid by the Empire Fire and Marine. Plaintiff filed this Default Judgment Action against Ribb's Trucking and Greenwich on July 25, 2008. On September 17, 2008, Defendant Greenwich filed an answer to Plaintiffs complaint with New Matter. On September 29, 2008, Plaintiff filed a Reply to New Matter. 2 II. ARGUMENT 1. Standard for Summary Judgment When a party moves for summary judgment pursuant to Rule 1035.2 of the Pennsylvania Rules of Civil Procedure, "a court shall enter judgment whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense that could be established by additional discovery (or expert report]." Swords v. Harleysville Ins. Co., 883 A.2d 562, 566 (Pa. 2005); see also Rybas v. Wapner, 457 A.2d 108 (Pa. Super. 1983) ("To uphold summary judgment, there must be not only an absence of genuine factual issues, but also an entitlement to judgment as a matter of law."). There are no genuine issues of material fact in this case and therefore, Plaintiff is entitled to judgment as a matter of law declaring Defendant Greenwich liable to Plaintiff for the loss caused by Defendant Ribb's Trucking. Defendant Ribb's Trucking was insured by Defendant Greenwich beginning December 1, 2004 through September 21, 2007. See Exhibit "C". The loss suffered by Plaintiff's Insured occurred on April 11, 2006, clearly within the effective dates of the Policy. Defendant Ribb's Trucking was insured by Defendant Greenwich at the time of the loss and therefore, Defendant Greenwich liable to Plaintiff for the loss caused Defendant Ribb's Trucking. Therefore, Greenwich is liable to Plaintiff for the amount of the loss. 3 2. The loss suffered by the Plaintiff is covered by the Policy issued by Defendant Greenwich to Defendant Ribb's Trucking. Pursuant to federal regulations promulgated under 49 U.S.C. § 13906,2 motor carriers of non-hazardous property must have, at a minimum, an insurance policy or surety bond in place in the minimum amount of $750,000 to cover liability for injuries to the public. See 49 C.F.R. § 387.9. Policies issued to motor carriers of non-hazardous property must also contain a MCS-90 endorsement. The MCS-90 endorsement provides, in part: In consideration of the premium stated in the policy to which this endorsement is attached, the insurer (the company) agrees to pay, within the limits of liability described herein, any final judgment recovered against the insured for public liability resulting from negligence in the operation, maintenance or use of motor vehicles subject to the financial responsibility requirements of sections 29 and 30 of the Motor Carrier Act of 1980 regardless of whether or not each motor vehicle is specifically described in the policy and whether or not such negligence occurs on any route or in any territory authorized to be served by the insured or elsewhere..... It is understood and agreed that no condition, provision, stipulation, or limitation contained in the policy, this endorsement, or any other endorsement thereon, or violation thereof, shall relieve the company from liability or from the payment of any final judgment, within the limits of liability herein described, irrespective of the financial condition, insolvency or bankruptcy of the insured.... 49 C.F.R. § 387.15. The MCS-90 endorsement also contains a clause authorizing this action against Defendant Greenwich: "It is further understood and agreed that, upon failure of the company to pay any final judgment recovered against the insured as 49 U.S.C. § 13906(a)(1) provides, in pertinent part: The Secretary may register a motor carrier under section 13902 only if the registrant files with the Secretary a bond, insurance policy, or other type of security approved by the Secretary, in an amount not less than such amount as the Secretary prescribes pursuant to, or as is required by, sections 3138 and 31139, and the laws of the State or States in which the registrant is operating, to the extent applicable. 4 provided herein, the judgment creditor may maintain an action in any court of competent jurisdiction against the company to compel such payment." Id. Policy No. EC-17592, the policy issued by Defendant Greenwich to Defendant Ribb's Trucking, must have included the MCS-90 endorsement. See id. ("Endorsements for policies of insurance (Illustration 1) and surety bonds (Illustration II) must be in the form prescribed by the F.M.C.S.A. and approved by the OMB."). However, even if the endorsement was not specifically included in the Policy, because the endorsement is required by the federal regulations governing minimum insurance coverage, the Policy is automatically amended by operation of law to conform to the regulations. See Clairton School Dist. v. Marv, 541 A.2d 849, 851 (Pa. Cmwlth. 1988) ("Insurance contracts are presumed to have been made with reference to substantive law, including applicable statutes in force, and such laws enter into and form a part of the contractual obligation as if actually incorporated into the contract."); Sunoco Prod. Co. v. Fire & Cas. Ins. Co. of Connecticut, 767 A.2d 1018, 1020 (N.J. 2001) ("Whenever an insurance policy and a governing statute are in conflict, the statute controls, and the policy is automatically amended by operation of law to conform to the statutory standard."). In Progressive Cas. Ins. Co. v. Hoover 809 A.2d 353 Pa.,2002, the Supreme Court of Pennsylvania discusses the MCS-90 endorsement: Commonly referred to as an "MCS-90" or "interstate commerce endorsement," this rider required Progressive to pay a final judgment recovered against its insured "resulting from negligence in the operation, maintenance or use of motor vehicles subject to the financial responsibility requirements of Sections 29 and 30 of the [MCA] regardless 5 of whether or not each motor vehicle is specifically described in the policy. "Progressive Cas. Ins. Co. v. Hoover, 809 A.2d at p.355, 2002 and "Although Progressive thus concedes that the MCS- 90 endorsement "cast[s] a wide protective net for the motoring public,...... "Progressive Cas. Ins. Co. v. Hoover 809 A. 2d at p. 359 In Occidental Fire & Casualty Company of North Carolina v. Westport Insurance Corp., an unreported decision 2004 WL 2028616 (E.D. Pa.) The Federal District Court for the Eastern District of PA found: The MCS-90 endorsement requires an insurance carrier to pay "any final judgment recovered against such motor carrier for [public liability] (personal injury or property damage) resulting from the negligent operation, maintenance or use" of vehicles operated by a motor carrier. The endorsement requires payment "regardless of whether or not each motor vehicle is specifically described in the policy." 2004 WL 2028616 (E.D. Pa.) At page 10 3. Any purported termination or cancellation by Defendant Greenwich prior to September 21, 2007 was ineffective and therefore, summary judgment should be granted in favor of Plaintiff. In Paragraph 12 of Defendant Greenwich's Answer to Plaintiffs Complaint, Defendant Greenwich denies that it provided insurance to Defendant Ribb's Trucking at the time of the loss. See Defendant's Answer ¶ 12 ("it is denied that the policy was effective as to the date of loss and in effect until September 21, 2007. In fact, the date of loss was 8/11/06. The policy, at issuer, was in effect from 12/1/04 to 12/01/05."). However, any purported termination or cancellation by Defendant Greenwich on December 1, 2005 was ineffective because the Policy was not replaced by another 6 policy on that date nor did Defendant Greenwich it did not comply with the strict cancellation requirements prescribed by the governing regulations for cancellation on that date. Pursuant to 49 C.F.R. § 387.313(d), certificates of insurance "shall not be cancelled or withdrawn until 30 days after written notice has been submitted to the F.M.C.S.A. at its offices in Washington, D.C., on the prescribed form (Form BMC-35. . ) by the insurance company." 49 C.F.R. § 387(d). The 30-day period begins "from the date such notice on the prescribed form is actually received by the F.M.C.S.A." Id. Defendant's first and only notice of cancellation was received to the F.M.C.S.A. on August 22, 2007, over one year after the date of loss. See Exhibit "D". Therefore, the F.M.C.S.A. records clearly show that Defendant Greenwich insured Defendant Ribb's Trucking on August 11, 2007, the date of the loss. WHEREFORE, Plaintiff requests that your Honorable Court enter Summary Judgment in favor of Plaintiff and against Defendant Greenwich because there is no genuine issue of material fact and Plaintiff is entitled to judgment as a matter of law. Respectfully submitted, Dated: G a(1v4 JJb4J.A.--- Paul F. D'Emilio, Esquire Attorney for Plaintiff 7 PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR., ESQUIRE ATTORNEY I.D. # 81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEY FOR PLAINTIFF EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF KUNTZ & SON INC. VS. RIBBS TRUCKING, INC. AND GREENWICH INSURANCE COMPANY COMMON PLEAS COURT OF CUMBERLAND COUNTY NO. 08-4474 CIVIL TERM CERTIFICATE OF SERVICE I, Paul F. D'Emilio, Esquire, attorney for Plaintiff, do hereby certify that a true and correct copy of Plaintiff's Motion for Summary Judgment and Memorandum of Law has been served on the a j day of January, 2009, upon the persons listed below by first class mail, postage prepaid, addressed as follows: Patrick C. Lamb, Esquire Anne R. Myers, Esquire 1800 John F. Kennedy Boulevard Suite 1900 Philadelphia, PA 19103 (?') 11 - - . Lr'ML" Paul F. D'Emilio, Esquire Attorney for Plaintiff EXHIBIT "A" PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. 016654 PAUL M. SCHOFIELD, JR, ESQUIRE ATTORNEY I.D. 981894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEY FOR PLAINTIFF EMPIRE FIRE A N E . COMPANY AS SUBROGEE OF KUNTZ & SON INC. 13810 FNB PARKWAY OMAHA, NE 68154 VS. PATRICIO LEON 2414 97T" STREET EAST ELMHURST, NY 11369 AND RIBB'S TRUCKING INC. 116 HOBART AVENUE BAYONNE, NJ 07002 NOTICE YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER„ GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Court Administrator 4th Floor, Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 Lawyer Referral Service 4th Floor, Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 -c7 I'j MI I ft %J Co ra a5 ?p COMMON PLEAS COURT OF CUMBERLAND COUNTY NO. 0081 ? Nit 7e« CIVIL ACTION AVISO r A Ca rI" ;y Le han demandado a usted an Is torte. Si usted quiere defenderse de estas demandas expuestas an [as paginas siguientes, usted tiene (20) dies de plazo a partir de Is fecha de Is demands y Is notificacion. Listed debe presenter una spariencia escrita o an persona o por abogado y archivar an la corte sus defenses o sus objeciones a las demandas encontra de su persona. Sea avisado qua si usted no se defiende, Is corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion o por cualgier queja o alivio qua espedido an Is peticion de demands. Usted puede perder dinero, sus propiedades o otros derechos importantes pars usted. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE PARA PAGAR TAIL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITAABAJO PARAAVERIGUAR DONDE LISTED PUEDE CONSEGUIR ASISTENCIA LEGAL. Court Administrator 4th Floor, Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 Lawyer Referral Service 4th Floor, Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 py FROM RECORD " Tftftwy whereof,1 here info set my itm Ind lbg 8" Of Said Cowl St C401W. Fad b PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR, ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEY FOR PLAINTIFF EMPIRE FIRE AND MARINE INSURANCE COMMON PLEAS COURT OF COMPANY AS SUBROGEE OF KUNTZ & CUMBERLAND COUNTY SON INC. 13810 FNB PARKWAY OMAHA, NE 68154 VS. PATRICIO LEON 2414 97THSTREET EAST ELMHURST, NY 11369 NO. AND RIBB'S TRUCKING INC. 116 HOBART AVENUE CIVIL ACTION BAYONNE, NJ 07002 NOTICE UNDER THE FAIR DEBT COLLECTION PRACTICES ACT, 15 U.S.C. §1601 (AS AMENDED) THE PENNSYLVANIA UNFAIR TRADE PRACTICES ACT AND CONSUMER PROTECTION LAW, 73 PA.CON.STAT.ANN. §201, ET. SEQ. ("THE ACTS") INASMUCH AS THE ACTS MAY APPLY, PLEASE BE ADVISED THAT THIS COMMUNICATION IS FROM A DEBT COLLECTOR. THIS IS AN ATTEMPT TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. COMPLAINT The Plaintiff, Empire Fire and Marine Insurance Company, by its attorney Paul F. D'Emilio, Esquire, bring action upon a cause whereof the following is a statement: 1. The Plaintiff, Empire Fire and Marine Insurance Company (hereinafter "Empire") is a Nebraska Corporation engaged in the insurance business with a statutory home office located at13810 FNB Parkway, Omaha, NE 68154 and a main administrative office or principal place of business located at 1400 American Lane, Schaumburg, IL 60196. It is authorized to transact business and had transacted business in the Commonwealth of Pennsylvania. Plaintiff brings this action as subrogee of Kuntz & Son Inc. ("Insured") under a policy of insurance #CL0660838, issued by Plaintiff. 2. Defendant, Patricio Leon ("Leon"), is an individual residing at 2414 97th Street, East Elmhurst, NY 11369. 3. Defendant, Ribb's Trucking Inc. ("Ribb's"), is a corporation authorized to do business in the Commonwealth of Pennsylvania with a principal office at 116 Hobart Avenue, Bayonne, NJ 07002. 4. At all times hereinafter mentioned, the Defendant, Leon was the agent, servant, workman or employee of Defendant, Ribb's Trucking Inc. then and there engaged in the business of the Defendant, Ribb's Trucking Inc. acting within the course and scope of his employment. 5. On August 11, 2006, when a motor vehicle owned by the Defendant, Ribb's Trucking Inc. and operated by the Defendant, Leon was traveling southbound on 1-81, Hampden Township, Pennsylvania when he drifted across three lanes of travel and struck the Insured's vehicle causing the damages hereinafter described. 6. The Insured's vehicle was a total loss and Defendant is liable to Plaintiff for the damages as allowed by law thereto being is Fifty Four Thousand Seven Hundred Two and 02/100 ($54,702.02) Dollars plus the Insured's deductible of Two Thousand 2 Five Hundred and 00/100 ($2,500.00) Dollars plus the towing and storage being Four Thousand Nine Hundred Twenty Eight and 98/100 ($4,928.98) Dollars for a total of Sixty Two Thousand One Hundred Thirty One and 00/100 ($62,131.00) Dollars. A true and correct copy of the checks issued are attached hereto, made part hereof and marked Exhibit "A." Count I Empire Fire and Marine Insurance Company v. Patricio Leon 7. Plaintiff incorporates by reference all of the allegations contained in paragraphs 1 through 6 inclusive of this Complaint as fully as though same were herein and set forth at length. 8. The said occurrence was do to the negligence of the Defendant, Leon in that he: a. did fail to have the motor vehicle under proper and adequate control; b. did operate the motor vehicle at an excessive rate of speed; C. did fail to apply the brakes in time to avoid the collision; d. did negligently apply the brakes; e. did fail to operate the vehicle in accordance with existing conditions; f. did fail to drive at a speed and in the manner that would allow him to stop within the assured clear distance ahead; g. did fail to keep a reasonable lookout for other vehicles lawfully on the road; h. did operate the motor vehicle without due regard for the rights, safety and position of the Insured at the point of aforesaid; 3 i . did operate the vehicle without Insurance; j. did fail to maintain financial responsibility under the laws of the Commonwealth of Pennsylvania and the Federal Motor Carrier Safety Administration; and k. did violate the various statutes and laws of the Commonwealth of Pennsylvania and County of Cumberland and Section 3714 of the Motor Vehicle Code, pertaining to the operation of motor vehicles. Count II Empire Fire and Marine Insurance Company v. Ribb's Trucking Inc. 9. Plaintiff incorporates by reference all of the allegations contained in paragraphs 1 through 8 inclusive of this Complaint as fully as though same were herein and set forth at length. 10. The occurrence was the result of the negligence of the Defendant Ribb's Trucking Inc., in that they: a. negligently entrust the vehicle to another operator for use when they knew, or with a reasonable exercise of due care should have known, that the operator was not capable of operating the motor vehicle properly; b. negligently entrust the motor vehicle to a person which they knew, or in the exercise of reasonable care should have known, was an incompetent driver; C. negligently entrust the motor vehicle to a person known, should have known or in the exercise of reasonable care would have known, was going to drive the vehicle in an improper, dangerous or reckless manner; d. negligently entrust the motor vehicle to another person who they knew, 4 . should have known or in the exercise of due care would have known would cause damages to another; and e. negligently entrust the motor vehicle to a person who did not maintain financial responsibility as required by the laws of the Commonwealth of Pennsylvania. WHEREFORE, Plaintiff demands judgment against each Defendant in an amount in excess of Fifty Thousand and 00/100 ($50,000.00) Dollars together with costs of suit. Date: (ile4'? P I F. D' milio, Esquire Identification No.: 16654 e-mail address: pauld@demillolaw.com Paul M. Schofield, Jr., Esquire Identification No.: 81894 e-mail address: pauls@demiliolaw.com 905 W. Sproul Road, Suite 105 Springfield, PA 19064 Telephone No.: 610-338-0338 Fax No.: 610-338-0303 5 VERIFICATION To OD r. sM i7:/r/ -Subrogation Representative with Empire Fire and Marine Insurance Company to the above captioned matter verifies that the facts contained in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. DATE. cur. rY? O a g F :rt??r¢+'/l9ayi/7<t Subrogation Representative 6 Exhibit "A" A v. EMPIRE INDEMNITY INSURA,• -COMPANY 5528731 J "' "??? EXECUTIVc OFFICES: 13810 FNB PARKWAY *OMAHA, NEBRASKA 68154 NO. CHECK NO. GATE OF CHECK GATE OF LOSS POUCV NO CWNNO 20061030 20060811 CLO660838 402940 PAY ***054*THOUSAND*7*HUNDRED*02*DOLLARS & 02 CENTS. RE FULL PAYMENT ON 2000 STERLING $54702.02 0 KUNTZ AND SON INC EMPIRE FIRE AND MARINE INSURANCE CO. TWO SIGNATURES REQUIRED OVER $5,000.00 -VOID AFTER 180 DAYS- TO THE ORDER BY - OF BY NON - NEGOTIABLE REMITTANCE ADVICE - DETACH BEFORE DEPOSITING CHECK INSURED AGENT CODE M.P LOSS ADJUST K1f,TTZ AND SO PAYMENT ?A1PE?? i?Vi?14 AND ?7 5825 83 FEDERAL ID N 0 r/OVERNIGHT 1 1380 00 MAIL EMPIRE FIRE AND MARINE INS. CO. TO OMAHA, NEBRASKA L J 1U4U EMPIRE,INDEMNITY INSURA COMPANY 5527171' 'vtbRAS A X?CGTIVE OFFICES: 13810 FNB PARKWAY' ,jMAHA, NEBRASKA 68154 CHECK NO. NO. GATE Of CHECK DATE Of LOSS POLICY NO CWMNO 20061011 20060811 CLO660838 402940 PAY ***004*THOUSAND*9*HUNDRED*28*DOLLARS & 98 CENTS. RE TOW/STORAGE INV #262420100 $4928.98 0 ?IVER' S TRUCK CENTER EMPIRE FIRE AND MARINE INSURANCE CO. TWO SIGNATURES REQUIRED OVER $5,000.00 -VOID AFTER 180 DAYS- TO THE BY ORDER OF BY NON - NEGOTIABLE RENIITTANCE ADVICE • DETACH BEFORE DEPOSITING CHECK VSURED KUNTZ AND SO 104u AGENT CODE MP LOSS PAYMENT 5825 83 FEDERAL ID N 0 Iw/OVERNIGHT MAIL. TO L 7 J 1 I EMPIRE FIRE AND MARINE.INS. CO. 138000 OMAHA, NEBRASKA 11%. EXHIBIT "B" r PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR, ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEY FOR PLAINTIFF EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF KUNTZ & SON INC. VS. PATRICIO LEON AND RIBB'S TRUCKING INC. COMMON PLEAS COURT OF CUMBERLAND COUNTY NO. 08-2216 CIVIL CIVIL ACTION PRAECIPE FOR JUDGMENT AND ASSESSMENT OF DAMAGES TO THE PROTHONOTARY, C.P.: TERM -:7 S ri S Enter Judgment in the above entitled matter in favor of the Plaintiff, Empire Fire and Marine Insurance Company, and against the Defendant, Ribb's Trucking, Inc., for want of an answer, and assess Plaintiffs damages in the sum of $62,131.00 in accordance with a Complaint filed. (zloi?r4 PAUL F. D'EMILIO, ESQUIRE ATTORNEY FOR PLAINTIFF ATTORNEY I.D. #16654 Pro assesses aintiffs damages in the sum of $62,131.00. 71P O PROTWIF PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR, ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEY FOR PLAINTIFF EMPIRE FIRE AND MARINE INSURANCE COMMON PLEAS COURT OF COMPANY AS SUBROGEE OF KUNTZ & CUMBERLAND COUNTY SON INC. ; VS. NO. 08-2216 CIVIL TERM PATRICIO LEON AND RIBB'S TRUCKING INC. CIVIL ACTION AFFIDAVIT OF LAST KNOWN MAILING ADDRESS OF DEFENDANT AND PLAINTIFF Paul F. D'Emilio, Esquire, attorney for Plaintiff in the above-entitled matter hereby certifies that the following is the last known mailing address of the Defendant and Plaintiff: DEFENDANT: RIBB'S TRUCKING, INC. 116 HOBART AVENUE BAYONNE, NJ 07002 PLAINTIFF: EMPIRE FIRE AND MARINE INSURANCE COMPANY 13810 FNB PARKWAY OMAHA, NE 68154 (?V? PAUL F. D'EMILIO, ESQUIRE ATTORNEY FOR PLAINTIFF PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR, ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEY FOR PLAINTIFF EMPIRE FIRE AND MARINE INSURANCE COMMON PLEAS COURT OF COMPANY AS SUBROGEE OF KUNTZ & CUMBERLAND COUNTY SON INC. VS. NO. 08-2216 CIVIL TERM PATRICIO LEON AND RIBB'S TRUCKING INC. CIVIL ACTION AFFIDAVIT AS TO NON-MILITARY SERVICE COMMONWEALTH OF PENNSYLVANIA : SS COUNTY OF CUMBERLAND PAUL F. D'EMILIO, being duly sworn according to law, deposes and says that he is the agent for the Plaintiff above-named and is authorized to and does make this Affidavit on its behalf, and that he has knowledge of the facts set forth herein: That Defendant, Ribb'S Trucking, Inc., is over twenty-one years of age and that he is not in the military service of the United States or otherwise within the provisions of the Soldier's and Sailor's Civil Relief Act of 1940 as amended. dilux-x- PAUL F. D'EMILIO, ESQUIRE ATTORNEY FOR PLAINTIFF SWORN TO AND SUBSCRIBED BEFORE ME THIS DAY OF JUNE, 2008. PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR, ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEY FOR PLAINTIFF EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF KUNTZ & SON INC. VS. PATRICIO LEON AND RIBB'S TRUCKING INC. COMMON PLEAS COURT OF CUMBERLAND COUNTY NO. 08-2216 CIVIL TERM CIVIL ACTION AFFIDAVIT OF NOTICE OF INTENT TO ENTER DEFAULT JUDGEMENT I, PAUL F. D'EMILIO, ESQUIRE, attorney for the Plaintiff, Empire Fire and Marine Insurance Company, does hereby certify that a Notice of Intent to Enter Default Judgement was mailed on May 16, 2008 to the Defendant listed below by Certificate of Mailing; a copy of the Notice and the original certification of mailing are attached hereto, made a part hereof, and marked Exhibit "A". Ribb's Trucking, Inc. 116 Hobart Avenue Bayonne, NJ 07002 PAUL . D'EMILIO, ESQUIRE ATTORNEY FOR PLAINTIFF IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA CIVIL ACTION- LAW (Rule of Civil Procedure No. 236) EMPIRE FIRE AND MARINE INSURANCE COMMON PLEAS COURT OF COMPANY AS SUBROGEE OF KUNTZ & CUMBERLAND COUNTY SON INC. VS. NO. 08-2216 CIVIL TERM PATRICIO LEON AND RIBB'S TRUCKING INC. CIVIL ACTION Notice is given that a judgment in the above captioned matter has been entered against you on 4 , 2008. Pr honot If you have any questions concerning the above please contact: Paul F. D'Emilio. Esquire Attorney or Party Filing 905 West Sproul Road, Suite 105 Address Springfield. PA 19064 City, State, Zip (610) 338-0338 Telephone Number EXHIBIT "A" V O {4 r U C94 U.S. POSTAL SERVICE CERTIFICATE OF MAILING Law Offices of F Paul F. D'Emilio, LLC 90 S: S i It Suite 105 j ?s?._ P _ 11 9064 dressed to One piece of ordinary mail I•a ukin a ; inc. Ribb' S T €t ?? on 116 Hobart venue RAynnne.? NJ °? mn02 !US POSTAGE PS Form 3817, January 2001 "PAbL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR, ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEY FOR PLAINTIFF EMPIRE FIRE AND MARINE INSURANCE COMMON PLEAS COURT OF COMPANY AS SUBROGEE OF KUNTZ & CUMBERLAND COUNTY SON INC. VS. PATRICIO LEON NO. 08-2216 AND RIBB'S TRUCKING INC. CIVIL ACTION DATE OF NOTICE: MAY 15, 2008 TO: RIBB'S TRUCKING, INC. 116 HOBART AVENUE BAYONNE, NJ 07002 NOTICE OF INTENT TO ENTER DEFAULT JUDGMENT YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. LAWYER REFERRAL SERVICE FOR CUMBERLAND COUNTY CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 u M. 9CHIELD, JR., ESQUIf 106W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 EXHIBIT "C" U.S. Department of Transportation Federal Motor Carrier Safety Administration I HEREBY CERTIFY that the annexed are true copies, in their entirety, of two Motor Carrier Identification Reports dated July 17, 2008, and August 28, 2008, and eight computer printouts of Company History Date details. on file in the Federal Motor Carrier SafetyAdministration (FMCSA Signed and dated at Washington, D .C. this _ 28th day October by Herman Dogan /M-- FMCSA Records Officer (Title) I HEREBY CERTIFY that __ Herman Dogain 2008 who signed the foregoing certificate, is now, and was at the time of signing, FMCSA Records Officer, Carrier Safety Administration, Department of Transportation anjall faith and credit should be given his certificate as such. IN WITNESS WHEREOF, I have hereunto subscribed my name, and caused the seal of the Department of Transportation to be affixed this _ 28th __ day of October Two-Thousand Eight For the SECRETARY OF TRANSPORTATION Certifying Officer Jane S. Tamai, Acting Chief, Management Information & Directives Division #MCSA MWor Carrier USDOT Number: 815546 Docket Number: MC362306 Legal Name: RIBB'S TRUCKING, INC. DBA (Doing-Business-As) Name Addresses Business Address: 116 HOBART AVE BAYONNE, NJ 07002 Business Phone: (201) 339-0054 Business Fax: Fax: (201) 339-0090 Mail Address: b? F M C S A Mail Phone: Mail Fax: Undeliverable Mail: NO Authorities. Common Authority: INACTIVE Application Pending: NO Contract Authority: NONE Application Pending: NO Broker Authority: NONE Application Pending: NO Property: YES Passenger: NO Household Goods: NO Private: NO Enterprise: NO Insurance Requirements: BIPD Exempt: NO BIPD Waiver: NO BIPD Required: $750,000 BIPD on File: $0 Cargo Exempt: YES Cargo Required NO Cargo on File: NO BOC-3: NO Bond Required: NO Bond on File: NO Older process agent filings may not be shown in the database. To inquire if a carrier has process agents, even if they are not shown here, please call (202)358-7069. Comments: 8/5/03 - NAME CHANGE - OMC772630 - ASSIGNED TO BEA ALEXANDER - 6/13/03 - NAME CHANGE - OMC172630 - ASSIGNED TO WILLIE DAVIS, 6/17103 - REJECTION LETTER Active/Pending Insurance: Form: Type: Posted Date: Policy/Surety Number: Coverage From: $0 To: $0 Effective Date: Cancellation Date: Rejected Insurances Form: Type: Policy/Surety Number: Coverage From: $0 To: $0 Received: Rejected: Rejected Reason: Run Date: October 20, 2008 Page 1 of 8 Data Source: Licensing and Insurance Run Time: 13:41 li_carrier *MCSA Motor Carrier USDOT Number: 815546 Docket Number: MC362306 Legal Name: RIBB'S TRUCKING, INC. DBA (Doing-Business-As) Name Insurance History: xa??lllu ' F M C S A Form: 91X Type: B111213/Primary Policy/Surety Number: TRK 0000 269 Coverage From $0 To: $1,000,000 Effective Date From: 01/2312001 To: 0810212001 Disposition: Cancelled Insurance Carrier REPUBLIC WESTERN INSURANCE COMPANY Attn: LORRAINE MARTIN Address: 2727 NORTH CENTRAL AVENUE PHOENIX, AZ 85004 US Telephone: (602) 263 - 6755 Fax: (602) 745 - 6413 Form: 91X Type: BIPD/Primary Policy/Surety Number: CT7653358099-991 Coverage From $0 To: $1,000,000 Effective Date From: 01/2612000 To: 04105/2000 Disposition: Cancelled Insurance Carrier SENTRY SELECT INSURANCE COMPANY Attn: LINDA HAMMERSCHMIDT Address: 1800 NORTH POINT DR STEVENS POINT, WI 54481 US Telephone: (800) 610 - 4888 Fax: (715) 346 - 8913 Form: 91X Type: BIPD/Primary Policy/Surety Number: CT7653358099-991 Coverage From $0 To: $1,000,000 Effective Date From: 0410512000 To: 07/1312000 Disposition: Cancelled Insurance Carrier SENTRY SELECT INSURANCE COMPANY Attn: LINDA HAMMERSCHMIDT Address: 1800 NORTH POINT DR STEVENS POINT, WI 54481 US Telephone: (800) 610 - 4888 Fax: (715) 346 - 8913 Form: 91X Type: BIPD/Primary Policy/Surety Number: CA29010096 Coverage From $0 To: $1,000,000 Effective Date From: 06/24/2004 To: 12/01/2004 Disposition: Replaced Insurance Carrier ARI MUTUAL INSURANCE COMPANY Attn: TUCKER ERICSON, SVP Address: 133 FRANKLIN CORNER ROAD LAWRENCEVILLE, NJ 08648 US Telephone: (800) 820 - 4506 Fax: (609) 882 - 4088 Run Date: October 20, 2008 Page 2 of 8 Data Source: Licensing and Insurance Run Time: 13:41 li_carrier #MCSA VOtor Carrier USDOT Number: 815546 Docket Number: MC362306 Legal Name: RIBB'S TRUCKING, INC. DBA (Doing-Business-As) Name Insurance History: FMCSA Form: 91X Type: BIPD/Primary Policy/Surety Number: LWI10030301 Coverage From $0 To: $1,000,000 Effective Date From: 06124/2003 To: 06124/2003 Disposition: Replaced Insurance Carrier LINCOLN GENERAL INSURANCE COMPANY MIDWEST OFF Attn: SCOTT D. WOLLNEY/ PRESIDENT & CEO Address: 150 NORTHWEST POINT BLVD. 6TH FL. ELK GROVE VILLAGE, IL 60007 US Telephone: (847) 700 - 8606 Fax: (847) 700 - 8610 Form: 91X Type: BIPD/Primary Policy/Surety Number: LWI10030301 Coverage From $0 To: $1,000,000 Effective Date From: 06124/2003 To: 09/1112003 Disposition: Name Changed Insurance Carrier LINCOLN GENERAL INSURANCE COMPANY MIDWEST OFF Attn: SCOTT D. WOLLNEY/ PRESIDENT & CEO Address: 150 NORTHWEST POINT BLVD. 6TH FL. ELK GROVE VILLAGE, IL 60007 US Telephone: (847) 700 - 8606 Fax: (847) 700 - 8610 Form: 91X Type: BIPD/Primary Policy/Surety Number: CT7653358099-991 Coverage From $0 To: $1,000,000 Effective Date From: 07113/2000 To: 08/0212000 Disposition: Replaced Insurance Carrier SENTRY SELECT INSURANCE COMPANY Attn: LINDA HAMMERSCHMIDT Address: 1800 NORTH POINT DR STEVENS POINT, WI 54481 US Telephone: (800) 610 - 4888 Fax: (715) 346 - 8913 Form: 91X Type: BIPD/Primary Policy/Surety Number: TRK 0000 269 Coverage From $0 To: $1,000,000 Effective Date From: 08102/2000 To: 01123/2001 Disposition: Cancelled Insurance Carrier REPUBLIC WESTERN INSURANCE COMPANY Attn: LORRAINE MARTIN Address: 2727 NORTH CENTRAL AVENUE PHOENIX, AZ 85004 US Telephone: (602) 263 - 6755 Fax: (602) 745 - 6413 Run Date: October 20, 2008 Page 3 of 8 Data Source: Licensing and Insurance Run Time: 13:41 li_carrier iMCSA Motor Carrier USDOT Number: 815546 Docket Number: MC362306 Legal Name: RIBB'S TRUCKING, INC. DBA (Doing-Business-As) Name Insurance History: F M C S A Form: 91X Type: BIPD/Primary Policy/Surety Number: CT7653358099-991 Coverage From $0 To: $1,000,000 Effective Date From: 08101/1999 To: 0112612000 Disposition: Cancelled Insurance Carrier SENTRY SELECT INSURANCE COMPANY Attn: LINDA HAMMERSCHMIDT Address: 1800 NORTH POINT DR STEVENS POINT, WI 54481 US Telephone: (800) 610 - 4888 Fax: (715) 346 - 8913 Form: 91X Type: BIPD/Primary Policy/Surety Number: LWI10030301 Coverage From $0 To: $1,000,000 Effective Date From: 06/2412003 To: 06/24/2004 Disposition: Cancelled Insurance Carrier LINCOLN GENERAL INSURANCE COMPANY MIDWEST OFF Attn: SCOTT D. WOLLNEY/ PRESIDENT & CEO Address: 150 NORTHWEST POINT BLVD. 6TH FL. ELK GROVE VILLAGE, IL 60007 US Telephone: (847) 700 - 8606 Fax: (847) 700 - 8610 Form: 91X Type: BIPD/Primary Policy/Surety Number: CAA2006057 Coverage From $0 To: $1,000,000 Effective Date From: 08/0112001 To: 08/01/2001 Disposition: Replaced Insurance Carrier HIGHLANDS INSURANCE CO. Attn: ANDREA SEUREN Address: P.O. BOX 6426, 1000 LENOX DR. LAWRENCEVILLE, NJ 08648 US Telephone: (800) 288 - 8898 Fax: (609) 219 - 1780 Form: 91X Type: BIPD/Primary Policy/Surety Number: H08293855 Coverage From $0 To: $1,000,000 Effective Date From: 09/2012007 To: 05114/2008 Disposition: Cancelled Insurance Carrier ACE AMERICAN INSURANCE COMPANY Attn: MARK WHITER Address: 436 WALNUT STREET PHILADELPHIA, PA 19106 US Telephone: (215) 640 - 4551 Fax: (215) 761 - 5611 Run Date: October 20, 2008 Page 4 of 8 Data Source: Licensing and Insurance Run Time: 13:41 li_carrier ?MCSA Motor Carrier USDOT Number: 815546 Docket Number: MC362306 Legal Name: RIBB'S TRUCKING, INC. DBA (Doing-Business-As) Name F M C S A Insurance History: Form: 91X Type: B1112113/Primary Policy/Surety Number: CAA2006057 Coverage From $0 To: $1,000,000 Effective Date From: 08101/2001 To: 01/09/2002 Disposition: Cancelled Insurance Carrier HIGHLANDS INSURANCE CO. Attn: ANDREA SEUREN Address: P.O. BOX 6426, 1000 LENOX DR. LAWRENCEVILLE, NJ 08648 US Telephone: (800) 288 - 8898 Fax: (609) 219 - 1780 Form: 91X Type: BIPD/Primary Policy/Surety Number: AEC0017592 Coverage From $0 To: $1,000,000 Effective Date From: 12/01/2004 To: 09/21/2007 Disposition: Cancelled Insurance Carrier GREENWICH INSURANCE COMPANY Attn: SHEILA KELLEY Address: 1201 N. MARKET STREET WILMINGTON, DE 19801 US Telephone: Fax: Form: 34 Type: CARGO Policy/Surety Number: MTC 0000 249 Coverage From $0 To: $5,000 Effective Date From: 01/23/2001 To: 08102/2001 Disposition: Cancelled Insurance Carrier REPUBLIC WESTERN INSURANCE COMPANY Attn: LORRAINE MARTIN Address: 2727 NORTH CENTRAL AVENUE PHOENIX, AZ 85004 US Telephone: (602) 263 - 6755 Fax: (602) 745 - 6413 Form: 34 Type: CARGO Policy/Surety Number: CT7653358099-991 Coverage From $0 To: $5,000 Effective Date From: 01/26/2000 To: 0410512000 Disposition: Cancelled Insurance Carrier SENTRY SELECT INSURANCE COMPANY Attn: LINDA HAMMERSCHMIDT Address: 1800 NORTH POINT DR STEVENS POINT, WI 54481 US Telephone: (800) 610 - 4888 Fax: (715) 346 - 8913 Run Date: October 20, 2008 Page 5 of 8 Data Source: Licensing and Insurance Run Time: 13:41 li_carrier #MCSA''Motor Carrier USDOT Number: 815546 Docket Number: MC362306 Legal Name: RIBB'S TRUCKING, INC. DBA (Doing-Business-As) Name Insurance History: FMCS A Form: 34 Type: CARGO Policy/Surety Number: CT7653358099-991 Coverage From $0 To: $5,000 Effective Date From: 04/05/2000 To: 0711312000 Disposition: Cancelled Insurance Carrier SENTRY SELECT INSURANCE COMPANY Attn: LINDA HAMMERSCHMIDT Address: 1800 NORTH POINT DR STEVENS POINT, WI 54481 US Telephone: (800) 610 - 4888 Fax: (715) 346 - 8913 Form: 34 Type: CARGO Policy/Surety Number: CT7663358099-991 Coverage From $0 To: $5,000 { Effective Date From: 0711312000 To: 08102/2000 Disposition: Replaced Insurance Carrier SENTRY SELECT INSURANCE COMPANY Attn: LINDA HAMMERSCHMIDT Address: 1800 NORTH POINT DR STEVENS POINT, WI 54481 US Telephone: (800) 610 - 4888 Fax: (715) 346 - 8913 Form: 34 Type: CARGO Policy/Surety Number: MTC 0000 249 Coverage From $0 To: $5,000 Effective Date From: 0810212000 To: 01/23/2001 Disposition: Cancelled Insurance Carrier REPUBLIC WESTERN INSURANCE COMPANY Attn: LORRAINE MARTIN Address: 2727 NORTH CENTRAL AVENUE PHOENIX, AZ 85004 US Telephone: (602) 263 - 6755 Fax: (602) 745 - 6413 Form: 34 Type: CARGO Policy/Surety Number: CT7653358099-991 Coverage From $0 To: $5,000 Effective Date From: 08/01/1999 To: 01/26/2000 Disposition: Cancelled Insurance Carrier SENTRY SELECT INSURANCE COMPANY Attn: LINDA HAMMERSCHMIDT Address: 1800 NORTH POINT DR STEVENS POINT, WI 54481 US Telephone: (800) 610 - 4888 Fax: (715) 346 - 8913 Run Date: October 20, 2008 Page 6 of 8 Data Source: Licensing and Insurance Run Time: 13:41 li_carrier 6MCSA Motor Carrier USDOT Number: 815546 Docket Number: MC362306 Legal Name: RIBB'S TRUCKING, INC. DBA (Doing-Business-As) Name Insurance History: IF MCSA Form: 34 Type: CARGO Policy/Surety Number: NE0609 Coverage From $0 To: $5,000- Effective Date From: 08/08/2003 To: 08/08/2004 Disposition: Cancelled Insurance Carrier UNDERWRITERS AT LLOYDS LONDON Attn: LLOYD'S ILLINOIS INC Address: 181 W. MADISON, SUITE 3870 CHICAGO, IL 60602 US Telephone: (312) 407 - 6214 Fax: (312) 407 - 6629 * If a carrier is in compliance, the amount of coverage will always be shown as the required Federal minimum ($5,000 per vehicle, $10,000 per occurrence for cargo insurance and $10,000 for bond/trust fund). The carrier may actually have higher levels of coverage. * If a carrier is in compliance, the amount of coverage will always be shown as the required Federal minimum ($5,000 per vehicle, $10,000 per occurrence for cargo insurance and $10,000 for bond/trust fund). The carrier may actually have higher levels of coverage. * If a carrier is in compliance, the amount of coverage will always be shown as the required Federal minimum ($5,000 per vehicle, $10,000 per occurrence for cargo insurance and $10,000 for bond/trust fund). The carrier may actually have higher levels of coverage. * If a carrier is in compliance, the amount of coverage will always be shown as the required Federal minimum ($5,000 per vehicle, $10,000 per occurrence for cargo insurance and $10,000 for bond/trust fund). The carrier may actually have higher levels of coverage. Authority History: Sub No. Authority Type Original Action Disposition Action MOTOR PROPERTY COMMON CARRIER GRANTED 11/07/2006 REVOKED 05/20/2008 MOTOR PROPERTY COMMON CARRIER REINSTATED 11/01/2004 OUT OF SERVICE 11/06/2006 MOTOR PROPERTY COMMON CARRIER REINSTATED 01/05/2004 REVOKED 08/16/2004 MOTOR PROPERTY COMMON CARRIER GRANTED 08/10/1999 REVOKED 10/19/2001 Pending Application: Authority Type Filed Status Insurance BOC-3 Run Date: October 20, 2008 Page 7 of 8 Data Source: Licensing and Insurance Run Time: 13:41 li carrier IIICSA IV ofor carrier USDOT Number: 815546 Docket Number: MC362306 Legal Name: RIBB'S TRUCKING, INC. DBA (Doing-Business-As) Name F M C S A Revocation History: Authority Type - 1 st Serve Date 2nd Serve Date Reason COMMON 04/17/2008 05/20/2008 INVOLUNTARY REVOCATION COMMON 07/12/2004 08/16/2004 INVOLUNTARY REVOCATION COMMON 08/28/2001 10/19/2001 INVOLUNTARY REVOCATION Run Date: October 20, 2008 Run Time: 13:41 Page 8 of 8 Data Source: Licensing and Insurance li carrier Filer: 13335 00 GREENWICH INSURANCE COMPANY - . Carrier: MC 362306 815546 RIBB'S TRUCKING, INC. f)BA Name: Form: 91X Cancelled by: 35 Status: H Type: 1 BIPD Received Date: 12/06/2004 Coverage: P Primary maximum: 1000 Underlying: 0 Effective Date: 12/01/2004 Policy/Surety No.: AEC0017592 Entry User / Date: WEB 12/06/2004 Modified User / Date: Cancellation: Method: CANCEL Received Date: 08/22/2007 Effective Date: 09/21/2007 Entry User / Date: WEB 08/22/2007 Comment: MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. BY: Patrick C. Lamb, Esquire Anne R. Myers, Esquire plambna,mooclaw.com; amyersAmooclaw.com ATTORNEY I.D. NOS. 70817/201900 1800 JOHN F. KENNEDY BOULEVARD SUITE 1900 PHILADELPHIA, PENNSYLVANIA 19103 (215) 564-6688 (tel) (215) 564-2526 (fax) Empire Fire and Marine Ins. Co. as subrogree of Kuntz & Son, Inc. Plaintiff, V. Ribbs Trucking and Greenwich Insurance Co. Defendants. ATTORNEYS FOR DEFENDANT, GREENWICH INSURANCE CO. COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 08-4474 CIVIL TERM DEFENDANT GREENWICH INSURANCE CO.'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Defendant Greenwich Insurance Co., ("Greenwhich Insurance") by and through its attorneys, Marks, O'Neill, O'Brien & Courtney, P.C., hereby files Response in Opposition to the Motion for Summary Judgment filed by Plaintiff Empire Fire and Marine Insurance Company ("Empire Insurance"). For the reasons set forth below, even if all the facts are as Empire Insurance alleges, Empire Insurance's Motion for Summary Judgment fails as a matter of law. A. Background Facts I. Greenwhich Insurance issued a liability policy to Ribbs Trucking. Empire Insurance issued a liability policy to Kuntz & Son, Inc. Ribbs Trucking and Kuntz & Son, Inc. were involved in a motor vehicle accident, causing Kuntz & Son, Inc. $62,313.00 in damages. Ribbs Trucking's liability insurance had lapsed. Empire Insurance paid Kuntz & Son $62,313.00 for the damages. Empire Insurance now seeks indemnification from Greenwich Insurance arguing that the rules and regulations promulgated by the Federal Motor Carrier Safety Administration, in conformity with the Federal Motor Vehicle Carrier Safety Act require Greenwich to cover the loss suffered by Kuntz & Son without regard to whether or not the liability insurance policy that Greenwich Insurance issued to Ribbs Trucking had expired. B. Issue before this Court 2. Whether the rules and regulations promulgated by the Federal Motor Carrier Safety Administration, in conformity with the Federal Motor Vehicle Carrier Safety Act require Greenwhich Insurance to indemnify Empire Insurance for losses suffered by Empire's insured, Kuntz & Son, Inc. See Plaintiff's Motion for Summary Judgment, attached as Exhibit A, at ¶¶ 9- 12. C. Suggested Answer to the Issue before this Court 3. No, the majority of federal courts hold that the rules and regulations promulgated by the Federal Motor Carrier Safety Administration, in conformity with the Federal Motor Vehicle Carrier Safety Act, do not affect the allocation of loss between insurance carriers. See Travelers Ins. Co. v. Transport Ins Co., 787 F.2d 1133, 1140 (7th Cir. 1986; Occidental Fire & Casualty Co. v. Int'l Ins. Co., 804 F.2d 983, 986 (7th Cir. 1986); Carter v. Vanilder, 803 F.2d 189, 192 (5th Cir. 1986); Grinnell Mut. Reinsurance Co v Empire Fire & Marine Ins Co., 722 F.2d 1400 (8th Cir. 1983; Carolina Cas. Ins. Co. v. The Underwriters Ins Co., 569 F.2d 304, 313 (5th Cir. 1978); Prestige Cas. Co. v. Michigan Mut Ins Co., 99 F.3d 1340, 1348 (6th Cir. 1996). 4. And the seminal case for this line of jurisprudence came out of the Third Circuit, which governs federal case law for the Commonwealth of Pennsylvania. See Allstate Ins. Co. v. Liberty Mut. Ins. Co., 368 F.2d 121 (3rd Cir. 1966) (finding that I.C.C. Regulations are not dispositive in a coverage dispute between two insurance carriers") D. Empire Insurance Statement of Facts 5. Empire Insurance alleges the following: • Empire Insurance insured Kuntz & Son, Inc. See Plaintiff's Motion for Summary Judgment, attached as Exhibit A, at ¶ 1. See also Plaintiff's Complaint at ¶ 1. • On August 11, 2006, a motor vehicle owned by Ribbs Trucking struck Kuntz & Son's vehicle causing $62,313.00 in damages. See Plaintiff's Motion for Summary Judgment, attached as Exhibit A, at ¶¶ 1 and 2. • Empire Insurance paid its insured, Kuntz & Son $62,313.00 for the injury that Kuntz & Son suffered. See Plaintiff's Motion for Summary Judgment, attached as Exhibit A, at ¶ 2. • Empire Insurance secured a default judgment in the amount of $62,313.00 against Ribbs Trucking. See Plaintiff's Motion for Summary Judgment, attached as Exhibit A, at ¶¶ 3 and 4. • Ribbs Trucking is subject to the Federal Motor Vehicle Carrier Safety Act ("FMVCSA") and the rules and regulations promulgated by the Federal Motor Carrier Safety Administration. See Plaintiff's Motion for Summary Judgment, attached as Exhibit A, at ¶ 5. • In order to comply with the FMVCSA Ribbs Trucking secured property damage liability insurance from Greenwhich Insurance. See Plaintiff's Motion for Summary Judgment, attached as Exhibit A, at ¶ 6. • Federal law mandates that the insurance policy that Greenwhich Insurance issued to Ribbs Trucking remains in effect until replaced or cancelled in strict accordance with special cancellation requirements. See Plaintiff's Motion for Summary Judgment, attached as Exhibit A, at ¶ 7. • The strict cancellation requirements were not met. As a result the insurance policy that Greenwhich Insurance issued to Ribbs Trucking was still in effect on August 11, 2006, when a motor vehicle owned by Ribbs Trucking struck Kuntz & Son's vehicle causing $62,313.00 in damages. See Plaintiff's Motion for Summary Judgment, attached as Exhibit A, at ¶ 8. E. Law Underlying the Issue before this Court 6. Interstate trucking companies who lease, borrow, or hire a truck and driver are required to assume control and responsibility for their equipment. See 49 C.F.R. § 376. 7. Federal regulations were established to protect the public by, among other things, establishing minimum financial obligations for interstate trucking companies. See 49 C.F.R. § 387. 8. The federal regulations provide three alternative ways for carriers to meet the minimum financial obligations established by Part 387: (1) produce evidence of a surety bond via the use of Form MCS-82; obtain authorization from the FMCSA to self insure under Section 387.309; or (3) obtain a policy of insurance containing an endorsement that extends financial responsibility to the public. See 49 C.F.R. §§ 387.7(d) and 387.15. 9. It is third alternative for meeting minimum financial obligations that is at issue in the matter before this Court. Basically, Part 387 makes the motor carrier's insure liable to third party members of the public for any liability resulting from the negligent use of any motor vehicle by the insured, even if the vehicle is not covered under the insurance policy. See T.H.E. Ins. Co. v. Larsen Intermodel Servs., Inc., 242 F.3d 667, 671 (5" Cir. 2001). This form of blanket protect is called a MCS-90 endorsement. 10. An MCS-90 endorsement does not constitute insurance coverage per se. See Progressive Cas. Ins. Co. v. Hoover, 809 A.2d 353, 360 n.11 (Pa. 2002). Rather, the endorsement establishes the minimum levels of financial responsibility required of companies in the business of transporting property in "interstate or foreign commerce." 49 C.F.R. §§ 387.3, 387.5, 387.9. Its purpose is to ensure that a financially responsible party will be available to compensate innocent third parties injured in accidents with trucks owned by such companies. See Maryland Cas. Co. v. City Delivery Serv., Inc., 817 F. Supp. 525, 530 (M.D. Pa. 1993). The endorsement is triggered only when the insurance policy to which it attaches does not otherwise provide coverage. See Canal Ins. Co. v. Underwriters at Lloyd's London, 435 F.3d 431, 442 n.4 (3d Cir. 2006). It is, in essence, a "suretyship by the insurance carrier to protect the public." Id. F. Arguments and Authorities 11. The majority of federal circuit courts have held that the MCS-90 endorsement does not affect the allocation of loss among insurers, and therefore excludes the relief sought by Empire Insurance, before this Court. 12. In short, the majority view holds that the MCS-90 is designed to put the public's interest above that of the insurance and trucking companies. Once that goal is met, the insurance contracts and state law govern the analysis. See Travelers Ins. Co., 787 F.2d at 1140. 13. The Third Circuit Court of Appeals, which governs the interpretation of federal law for several states, including our Commonwealth, subscribes to the majority view and has held that responsibility among motor carriers and their insurers must be determined by state law, not by federal requirements. See Carolina Cas. Ins. Co. v. Ins. Co. of N. Am., 595 F.2d 128, 139- 40 (3d Cir. 1979). The Third Circuit reasoned that "where the case is concerned with responsibility as between insurance carriers, and not with the federal policy of protecting the public, I.C.C. considerations are not determinative and a court should consider the express terms of the parties' contracts." See Carolina Cas. Ins., 595 F.2d at 138. See also Maryland Casualty Co. v. City Delivery Serv. Inc., 817 F. Supp. 525, 531 (M.D. Pa. 1993) (under Carolina Casualty, ICC regulations have no further effect on insurance policy interpretation; so long as the public interest is protected and third parties have been compensated, "responsibility among the motor carriers and their various insurers is determined by state insurance and contract law, not by federal requirements"). 14. The Third Circuit, in Carolina Cas. Ins. Co. v. Ins. Co. of N. Am., focused on the public policy considerations behind the MCS-90 and recognized that insurers cannot free themselves of their federal duties to protect the public. However, the Third Circuit recognized that the federal regulations "are not so radically intrusive as to absolve ... insurers of otherwise existing obligations under applicable state tort law doctrines or under contracts allocating financial risk among private parties." Carolina Cas. Ins. Co. v. Ins. Co. of N. Am., 595 F.2d 128, 138 (3`d Cir. 1979). 15. As a result, and contrary to Empire Insurance's representations to this Court, "responsibility among the motor carriers and their various insurers is determined by state insurance and contract law, not by federal requirements." Id. 16. Empire Insurance has first hand knowledge of this rule of law and the fact that the federal courts governing the interpretation of federal law for this Commonwealth have found that the MCS-90 does not allocate risk between insurance carriers. See Fireman's Fund Ins. Co. v. Empire Fire & Marine Ins. Co., 152 F. Supp. 2d 687 (E.D. Pa. 2001) (noting that "application of the relevant I.C.C. regulations does not determine which insurer is responsible for providing primary coverage" and finding that the Court must ... resort to an analysis of the insurers' individual policies"). 17. Occidental Fire & Cas. Co. of N.C. v. Westport Ins. Corp, cited in Plaintiff Empire Fire's Memorandum of Law also followed the majority rule. See Occidental Fire & Cas. Co., Civ. No. 02-8923, 2004 U.S. Dist. LEXIS 18471 (E.D. Pa. Sept. 10, 2004). In Occidental Fire insurance companies filed cross motions for summary judgment to determine who was primarily liable for injuries suffered by a pedestrian struck by an interstate carrier. The Eastern District of Pennsylvania rejected the argument asserted by Empire Insurance ("[A] number of Third Circuit cases which hold that where the case is concerned with responsibility as between insurance carriers, and not with the federal policy of protecting the public, I.C.C. considerations are not determinative"). 18. Empire Insurance's relies on the New Jersey Superior Court's ruling in Sunoco Prod. Co. v. Fire Cas. Inc. Co. of Conn. in order to avoid the forty years of Third Circuit law that holds federal I.C.C. regulations do not govern the allocation of responsibility between insurance carriers. Empire Insurance's reliance is misplaced. Sunoco is not controlling for several reasons. First, an MCS-90 endorsement was not at issue in Sunoco, at issue was the primacy and apportionment of coverage between two umbrella carriers and whether an insurance carrier could be held to the terms of its policy purporting to limit coverage to the coverage provided through the underlying policy, which was amended by operation of law. See Sunoco Prod. Co., 767 A.2d 1018, 1022 (N.J. Super. Ct. 2001). 19. Empire Fire Insurance's misplaced reliance in is further revealed by the fact that the court in Sunoco relied upon New Jersey law, which has no application to this matter. See Sunoco Prod. Co., 767 A.2d at 1020. 20. Empire Insurance's misplaced reliance on the New Jersey Superior Court case is further revealed by the fact that when the Supreme Court of the Commonwealth of Pennsylvania looked at the affect that federal regulations had on the allocation of risk, in the context of a workers compensation case, the Supreme Court of Pennsylvania found that the federal regulations were not controlling. See Universal Am-Can v. Workers' Comp Appeal Bd, 762 A.2d 328 (Pa. 2000). 21. The majority of federal circuit courts have held that the MCS-90 endorsement does not affect the allocation of loss among insurers, and therefore excludes the relief sought by Empire Insurance, before this Court. Moreover, the Third Circuit has found that "responsibility among the motor carriers and their various insurers is determined by state insurance and contract law" and "not" by the very federal regulations upon which Empire Insurance relies. See Carolina Cas. Ins. Co. v. Ins. Co. of N. Am., 595 F.2d 128, 138 (3rd Cir. 1979). Finally, in the single instance in which the courts of our Commonwealth have considered the federal regulations upon which Empire Insurance relies, the Supreme Court of Pennsylvania found that federal regulations do not govern the allocation of risk. See Universal Am-Can v. Workers' Comp. Appeal Bd., 762 A.2d 328, 322 (Pa. 2000). G. Conclusion 22. For all these reasons, Greenwich Insurance requests that this Court: (i) deny Empire Insurance's Motion for Summary Judgment; (ii) find that as a matter of law that that the MCS-90 endorsement does not affect the allocation of loss among insurers, and therefore excludes the relief sought by Empire Insurance; and (iii) for all such further relief that this Court might deem appropriate and just. Respectfully submitted this 17th day of February, 2008, MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. By: hkz /, 9::?e Patrick C. Lamb, Esquire o. 70817 Anne R. Myers, Esquire - No. 201900 1800 John F. Kennedy, Blvd., Suite 1900 Philadelphia, PA 19109 (215) 564-6688 Attorneys for Greenwich Insurance Co CERTIFICATE OF SERVICE I, Patricia Buchanan, hereby certify that on February 17, 2008, I caused a true and correct copy of the foregoing DEFENDANT GREENWICH INSURANCE CO.'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT to be sent via U.S. Mail to all parties of record to the parties listed below: Paul F. D'Emilio, Esquire Paul M. Schofield, Jr., Esquire James P. McCoy, Esquire 905 W. Sproul Road, Suite 105 Springfield, PA 19064 MARKS, O'NEILL O'BRIEN & COURTNEY, P.C. A&441t' ?, Patricia Buchanan, Legal Assistant MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. BY: Patrick C. Lamb, Esquire Anne R. Myers, Esquire ylamb(&,mooclaw.com; amyers(a,mooclaw.com ATTORNEY I.D. NOS. 70817/201900 1800 JOHN F. KENNEDY BOULEVARD SUITE 1900 PHILADELPHIA, PENNSYLVANIA 19103 (215) 564-6688 (tel) (215) 564-2526 (fax) Empire Fire and Marine Ins. Co. as subrogree of Kuntz & Son, Inc. V. Plaintiff, Ribbs Trucking and Greenwich Insurance Co. Defendants. ATTORNEYS FOR DEFENDANT, GREENWICH INSURANCE CO. COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 08-4474 CIVIL TERM DEFENDANT GREENWICH INSURANCE CO.'S MEMORANDUM OF LAW IN SUPPORT OF ITS RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Defendant Greenwich Insurance Co., ("Greenwhich Insurance") by and through its attorneys, Marks, O'Neill, O'Brien & Courtney, P.C., hereby submits this memorandum of law in support of its Response in Opposition to the Motion for Summary Judgment filed by Plaintiff Empire Fire and Marine Insurance Company ("Empire Insurance"). For the reasons set forth below, even if all the facts are as Empire Insurance alleges, Empire Insurance's Motion for Summary Judgment fails as a matter of law. A. Background Facts Greenwhich Insurance issued a liability policy to Ribbs Trucking. Empire Insurance issued a liability policy to Kuntz & Son, Inc. Ribbs Trucking and Kuntz & Son, Inc. were involved in a Page 1 of 12 motor vehicle accident, causing Kuntz & Son, Inc. $62,313.00 in damages. Ribbs Trucking's liability insurance had lapsed. Empire Insurance paid Kuntz & Son $62,313.00 for the damages. Empire Insurance now seeks indemnification from Greenwich Insurance arguing that the rules and regulations promulgated by the Federal Motor Carrier Safety Administration, in conformity with the Federal Motor Vehicle Carrier Safety Act require Greenwich to cover the loss suffered by Kuntz & Son without regard to whether or not the liability insurance policy that Greenwich Insurance issued to Ribbs Trucking had expired. B. Issue before this Court Whether the rules and regulations promulgated by the Federal Motor Carrier Safety Administration, in conformity with the Federal Motor Vehicle Carrier Safety Act require Greenwhich Insurance to indemnify Empire Insurance for losses suffered by Empire's insured, Kuntz & Son, Inc. See Plaintiff's Motion for Summary Judgment, attached as Exhibit A, at IT 9- 12. C. Suggested Answer to the Issue before this Court No. The majority of federal courts hold that the rules and regulations promulgated by the Federal Motor Carrier Safety Administration, in conformity with the Federal Motor Vehicle Carrier Safety Act, do not affect the allocation of loss between insurance carriers. See Travelers Ins. Co. v. Transport Ins. Co., 787 F.2d 1133, 1140 (7th Cir. 1986) ("We agree with the majority view that I.C.C. public policy factors are frequently determinative where protection of a member of the public is at stake, but those factors cannot be invoked by another insurance company which contracted to insure a specific risk and which needs no equivalent protection."); Occidental Fire & Casualty Co. v. Intl Ins. Co., 804 F.2d 983, 986 (7th Cir. 1986) ("Since there is no question that the member of the public who was injured in the accident has been duly Page 2 of 12 compensated, we reject Occidental's argument that the ICC endorsement contained in the lease and in International's policy renders International primarily liable for coverage of the accident as a matter of law. Pursuant to our recent decision in Travelers Insurance Company, supra, we examine the contract language and the applicable state law governing liability to determine which insurance company provides primary coverage."); Carter v. Vangilder, 803 F.2d 189, 192 (5th Cir. 1986) ("We conclude that the ICC endorsement does not require the reading out of the excess provisions of the Chicago policy, leaving Chicago as a primary insurer. "[Louisiana Farm] cannot disavow its primary insurer status on the theory that public policy demands that this be pushed off as to [Chicago]."); Grinnell Mut. Reinsurance Co. v. Empire Fire & Marine Ins. Co., 722 F.2d 1400 (8th Cir. 1983) ("While the ICC regulations do require a motor carrier to maintain public liability insurance and make a carrier liable to the public for negligent acts of the vehicle's driver whenever the carrier's number is displayed, the regulations do not fix the liability between insureds or insurance companies."); Carolina Cas. Ins. Co. v. The Underwriters Ins Co, 569 F.2d 304, 313 (5th Cir. 1978) ("[T]he endorsement does not make (the insurer of the licensed carrier) the primary insurer as a matter of law ... I.C.C. policy factors are frequently determinative where protection of a member of the public or a shipper is at stake, but those factors cannot be invoked by another insurance company which contracted to insure a specific risk and which needs no equivalent protection."); Prestige Cas. Co. v. Michigan Mut Ins Co., 99 F.3d 1340, 1348 (6th Cir. 1996) (finding that the ICC endorsement applies only to situations in which a claim is being asserted by a shipper or member of the public, and has no application as among insurers). And the seminal case for this line of jurisprudence came out of the Third Circuit, which governs federal case law for the Commonwealth of Pennsylvania. See Allstate Page 3 of 12 Ins. Co. v. Liberty Mut. Ins. Co., 368 F.2d 121 (3rd Cir. 1966) (finding that I.C.C. Regulations are not dispositive in a coverage dispute between two insurance carriers") D. Empire Insurance Statement of Facts Empire Insurance alleges the following: • Empire Insurance insured Kuntz & Son, Inc. See Plaintiff's Motion for Summary Judgment, attached as Exhibit A, at ¶ 1. • On August 11, 2006, a motor vehicle owned by Ribbs Trucking struck Kuntz & Son's vehicle causing $62,313.00 in damages. See Exhibit A, Plaintiff's Motion for Summary Judgment, at ¶¶ 1 and 2. • Empire Insurance compensated Kuntz & Son's for its loss. See Exhibit A, Plaintiff's Motion for Summary Judgment, at ¶ 2. • Empire Insurance secured a default judgment in the amount of $62,313.00 against Ribbs Trucking. See Plaintiff's Motion for Summary Judgment, attached as Exhibit A, at ¶¶ 3 and 4. • Ribbs Trucking is subject to the Federal Motor Vehicle Carrier Safety Act ("FMVCSA") and the rules and regulations promulgated by the Federal Motor Carrier Safety Administration. See Plaintiff's Motion for Summary Judgment, attached as Exhibit A, at ¶ 5. • In order to comply with the FMVCSA Ribbs Trucking secured property damage liability insurance from Greenwhich Insurance. See Plaintiff's Motion for Summary Judgment, attached as Exhibit A, at ¶ 6. • Federal law mandates that the insurance policy that Greenwhich Insurance issued to Ribbs Trucking remains in effect until replaced or cancelled in strict accordance with special cancellation requirements. See Plaintiff's Motion for Summary Judgment, attached as Exhibit A, at 17. • The strict cancellation requirements were not met. As a result the insurance policy that Greenwhich Insurance issued to Ribbs Trucking was still in effect on August 11, 2006, when a motor vehicle owned by Ribbs Trucking struck Kuntz & Son's vehicle causing $62,313.00 in damages. See Plaintiff's Motion for Summary Judgment, attached as Exhibit A, at ¶ 8. Page 4 of 12 E. Law Underlying the Issue before this Court Interstate trucking companies who lease, borrow, or hire a truck and driver are required to assume control and responsibility for their equipment. See 49 C.F.R. § 376. Federal regulations were established to protect the public by, among other things, establishing minimum financial obligations for interstate trucking companies. See 49 C.F.R. § 387. The federal regulations provide three alternative ways for carriers to meet the minimum financial obligations established by Part 387: (1) produce evidence of a surety bond via the use of Form MCS-82; obtain authorization from the FMCSA to self insure under Section 387.309; or (3) obtain a policy of insurance containing an endorsement that extends financial responsibility to the public. See 49 C.F.R. §§ 387.7(d) and 387.15. It is the third alternative for meeting minimum financial obligations that is at issue in the matter before this Court. Basically, Part 387 makes the motor carrier's insure liable to third party members of the public for any liability resulting from the negligent use of any motor vehicle by the insured, even if the vehicle is not covered under the insurance policy. See T.H.E. Ins. Co. v. Larsen Intermodel Servs.. Inc., 242 F.3d 667, 671 (5th Cir. 2001). This form of blanket protect is called a MCS-90 endorsement. An MCS-90 endorsement does not constitute insurance coverage per se. See Progressive Cas. Ins. Co. v. Hoover, 809 A.2d 353, 360 n.I l (Pa. 2002). Rather, the endorsement establishes the minimum levels of financial responsibility required of companies in the business of transporting property in "interstate or foreign commerce." 49 C.F.R. §§ 387.3, 387.5, 387.9. Its purpose is to ensure that a financially responsible party will be available to compensate innocent third parties injured in accidents with trucks owned by such companies. See Maryland Cas. Co. v. City Delivery Serv.. Inc., 817 F. Supp. 525, 530 (M.D. Pa. 1993). The endorsement is Page 5 of 12 triggered only when the insurance policy to which it attaches does not otherwise provide coverage. See Canal Ins. Co. v. Underwriters at Lloyd's London, 435 F.3d 431, 442 n.4 (3d Cir. 2006). It is, in essence, a "suretyship by the insurance carrier to protect the public." Id. F. Arguments and Authorities Empire Insurance has paid its insured, Kuntz & Son, for the losses that it suffered. Empire Insurance now seeks to hold Greenwhich Insurance liable for that payment, and points to the MCS-90 endorsement that Greenwich Insurance issued to Ribbs Trucking as the source of that liability. The majority of federal circuit courts have held that the MCS-90 endorsement does not affect the allocation of loss among insurers, and therefore excludes the relief sought by Empire Insurance, before this Court. The United States Court of Appeals for the Seventh Circuit, explains: The purpose of the federal statute and regulations is to ensure that [a carrier] has independent financial responsibility to pay for the losses sustained by the general public arising out of its trucking operations. However, once it is clear that there are sufficient funds available to safeguard the public, the inquiry changes "the pertinent question is whether the federal policy of assuring compensation for loss to the public prevent courts from examining the manner in which state laws would otherwise allocate the ultimate financial burden of the injury." We agree with the majority view that "I.C.C. public policy factors are frequently determinative where protection of a member of the public is at stake, but those factors cannot be invoked by another insurance company which contracted to insure a specific risk which needs no equivalent protection." Travelers Ins. Co. v. Trans. Ins. Co., 787 F.2d 1133, 1140 (7d' Cir. 1986) (citing and quoting Carolina Cas. Ins. Co. v. Ins. Co. of N. Am., 595 F.2d 128, 138 (3rd Cir. 1979) and Carolina Cas. Ins. Co. v. Underwriters Ins Co., 569 F.2d 304, 313 (5" Cir. 1978)). In short, the majority view holds that the MCS-90 is designed to put the public's interest above that of the insurance and trucking companies. Once that goal is met, the insurance contracts and state law govern the analysis. See Travelers Ins. Co., 787 F.2d at 1140. Page 6 of 12 The Third Circuit Court of Appeals, which governs the interpretation of federal law for several states, including our Commonwealth, subscribes to the majority view and has held that responsibility among motor carriers and their insurers must be determined by state law, not by federal requirements. See Carolina Cas. Ins. Co. v. Ins. Co. of N. Am., 595 F.2d 128, 139-40 (3d Cir. 1979). The Third Circuit reasoned that "where the case is concerned with responsibility as between insurance carriers, and not with the federal policy of protecting the public, I.C.C. considerations are not determinative and a court should consider the express terms of the parties' contracts." See Carolina Cas. Ins., 595 F.2d at 138 (quoting Allstate Ins. Co. v. Liberty Mut Ins. Co., 368 F.2d 121, 125 (3d Cir. 1966)); see also Occidental Fire and Cas. Co. of N. Carolina v. Brocious, 772 F.2d 47, 52-53 (3d Cir. 1985) (federal requirements do not absolve lessors of otherwise existing obligations under contracts allocating financial risk among themselves as private parties); Maryland Casualty Co. v. City Delivery Serv Inc., 817 F. Supp. 525, 531 (M.D. Pa. 1993) (under Carolina Casualty, ICC regulations have no further effect on insurance policy interpretation; so long as the public interest is protected and third parties have been compensated, "responsibility among the motor carriers and their various insurers is determined by state insurance and contract law, not by federal requirements"). The Third Circuit, in Carolina Cas. Ins. Co. v. Ins. Co. of N Am., focused on the public policy considerations behind the MCS-90 and recognized that insurers cannot free themselves of their federal duties to protect the public. However, the Third Circuit recognized that the federal regulations "are not so radically intrusive as to absolve ... insurers of otherwise existing obligations under applicable state tort law doctrines or under contracts allocating financial risk among private parties." Carolina Cas. Ins. Co. v. Ins. Co. of N Am., 595 F.2d 128, 138 (3rd Cir. 1979). Page 7 of 12 As a result, and contrary to Empire Insurance's representations to this Court, "responsibility among the motor carriers and their various insurers is determined by state insurance and contract law, not by federal requirements." Id. Empire Insurance has first hand knowledge of this rule of law and the fact that the federal courts governing the interpretation of federal law for this Commonwealth have found that the MCS-90 does not allocate risk between insurance carriers. See Fireman's Fund Ins. Co. v. Empire Fire & Marine Ins Co., 152 F. Supp. 2d 687 (E.D. Pa. 2001) (noting that "application of the relevant I.C.C. regulations does not determine which insurer is responsible for providing primary coverage" and finding that the Court must ... resort to an analysis of the insurers' individual policies"). Occidental Fire & Cas. Co. of N.C. v Westport Ins Corte, cited in Plaintiff Empire Fire's Memorandum of Law also followed the majority rule. See Occidental Fire & Cas. Co., Civ. No. 02-8923, 2004 U.S. Dist. LEXIS 18471 (E.D. Pa. Sept. 10, 2004). In Occidental Fire insurance companies filed cross motions for summary judgment to determine who was primarily liable for injuries suffered by a pedestrian struck by an interstate carrier. The Eastern District of Pennsylvania rejected the argument asserted by Empire Insurance ("[A] number of Third Circuit cases which hold that where the case is concerned with responsibility as between insurance carriers, and not with the federal policy of protecting the public, I.C.C. considerations are not determinative"). Empire Insurance's relies on the New Jersey Superior Court's ruling in Sunoco Prod. Co. v. Fire Cas. Inc. Co. of Conn. in order to avoid the forty years of Third Circuit law that holds federal I.C.C. regulations do not govern the allocation of responsibility between insurance carriers. Empire Insurance's reliance is misplaced. Sunoco is not controlling for several reasons. First, an MCS-90 endorsement was not at issue in Sunoco, at issue was the primacy and Page 8of12 apportionment of coverage between two umbrella carriers and whether an insurance carrier could be held to the terms of its policy purporting to limit coverage to the coverage provided through the underlying policy, which was amended by operation of law. See Sunoco Prod. Co., 767 A.2d 1018, 1022 (N.J. Super. Ct. 2001) ("U.S. Fire will receive no benefit from including the parenthetical phrase in its provision, and its policy will not be elevated to a position of a super- excess insurer as a result of that parenthetical.") Empire Fire Insurance's misplaced reliance in is further revealed by the fact that the court in Sunoco relied upon New Jersey law, which has no application to this matter. See Sunoco Prod. Co., 767 A.2d at 1020 (noting that it is well established in New Jersey that whenever an insurance policy and a governing statute are in conflict, the statute controls, and the policy is automatically amended by operation of law to conform to the statutory standard). Empire Insurance's misplaced reliance on the New Jersey Superior Court case is further revealed by the fact that when the Supreme Court of the Commonwealth of Pennsylvania looked at the affect that federal regulations had on the allocation of risk, in the context of a workers compensation case, the Supreme Court of Pennsylvania found that the federal regulations were not controlling. See Universal Am-Can v. Workers' Comp Appeal Bd, 762 A.2d 328 (Pa. 2000). In Universal Am-Can the appellee, Clarence O. Minteer, was an owner-operator of a tractor-trailer unit that was under lease to Universal Am-Can. Minteer sustained injuries while working for Universal Am-Can. The workers' compensation judge looked to federal trucking regulations, which required Universal Am-Can, as a motor carrier operating pursuant to an ICC permit, to maintain exclusive possession, control and use of its leased vehicles, 49 C.F.R. § 376.12 (c)(1), and concluded that Minteer was an employee of Universal Am-Can. The appeals Page 9 of 12 board affirmed, as did the Commonwealth Court. The Pennsylvania Supreme Court reversed finding that the federal regulations concerned "a motor carrier's liability under leasing regulations to shippers and the public and not with the employment relationship between owner- operators and motor carriers" and that the federal regulations did not control the allocation of risk between the truck driver and Universal Am-Can. Universal Am-Can, 762 A.2d at 332. Empire Insurance has paid its insured, Kuntz & Son, for the losses that it suffered. Empire Insurance now seeks to hold Greenwhich Insurance liable for that payment, and points to the MCS-90 endorsement that Greenwich Insurance issued to Ribbs Trucking as the source of that liability. The majority of federal circuit courts have held that the MCS-90 endorsement does not affect the allocation of loss among insurers, and therefore excludes the relief sought by Empire Insurance, before this Court. Moreover, the Third Circuit has found that "responsibility among the motor carriers and their various insurers is determined by state insurance and contract law" and "not" by the very federal regulations upon which Empire Insurance relies. See Carolina Cas. Ins. Co. v. Ins. Co. of N. Am., 595 F.2d 128, 138 (3`a Cir. 1979). Finally, in the single instance in which the courts of our Commonwealth have considered the federal regulations upon which Empire Insurance relies, the Supreme Court of Pennsylvania found that federal regulations do not govern the allocation of risk. See Universal Am-Can v. Workers' Comp. Appeal Bd., 762 A.2d 328, 322 (Pa. 2000). G. Conclusion For all these reasons, Greenwich Insurance requests that this Court: (i) deny Empire Insurance's Motion for Summary Judgment; (ii) find that as a matter of law that that the MCS-90 endorsement does not affect the allocation of loss among insurers, and therefore excludes the Page 10 of 12 relief sought by Empire Insurance; and (iii) for all such further relief that this Court might deem appropriate and just. Respectfully submitted this 17th day of February, 2008, MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. Byhae /? Patrick C. Lamb, Esq re - No. 70817 Anne R. Myers, Esquire - No. 201900 1800 John F. Kennedy, Blvd., Suite 1900 Philadelphia, PA 19109 (215) 564-6688 Attorneys for Greenwich Insurance Co Page 11 of 12 CERTIFICATE OF SERVICE I, Patricia Buchanan, hereby certify that on February 17, 2008, I caused a true and correct copy of the foregoing DEFENDANT GREENWICH INSURANCE CO.'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT and DEFENDANT GREENWICH INSURANCE CO.'S MEMORANDUM OF LAW IN SUPPORT OF ITS RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT to be sent via U.S. Mail to all parties of record to the parties listed below: Paul F. D'Emilio, Esquire Paul M. Schofield, Jr., Esquire James P. McCoy, Esquire 905 W. Sproul Road, Suite 105 Springfield, PA 19064 MARKS, O'NEILL O'BRIEN & COURTNEY, P.C. Patricia Buchanan, Legal Assistant Page 12 of 12 PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR., ESQUIRE ATTORNEY I.D. # 81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEY FOR PLAINTIFF EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF KUNTZ & SON INC. VS. RIBBS TRUCKING, INC. AND GREENWICH INSURANCE COMPANY COMMON PLEAS COURT OF CUMBERLAND COUNTY NO. 08-4474 CIVIL TERM PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Plaintiff, Empire Fire and Marine Insurance Company as subrogee of Kuntz & Son, Inc. ("Plaintiff'), by its attorney, Paul F. D'Emilio, Esquire, respectfully requests that your Honorable Court enter Summary Judgment in the above-captioned matter in favor of the Plaintiff and against the Defendants Ribb's Trucking, Inc. ("Ribb's Trucking") and Greenwich Insurance Company ("Greenwich"), for the following reasons: 1. On August 11, 2006, a motor vehicle owned by Ribb's Trucking and insured by Greenwich was traveling southbound on 1-81, Hampden Township, Pennsylvania when the motor vehicle drifted across three lanes of travel and struck Plaintiffs Insured's vehicle. 1 2. As a result of the collision, Plaintiffs Insured suffered damages in the amount of Sixty Two Thousand One Hundred Thirty One and 00/100 Dollars ($62,313.00). Plaintiff compensated the Insured for such loss. 3. On April 8, 2008, Plaintiff filed a complaint in the Common Pleas Court of Cumberland County, No, 08-2216 captioned "Empire Fire and Marine Insurance Company as Subrogee of Kuntz & Son, Inc. v. Patricio Leon and Ribb's Trucking, Inc." Plaintiff's complaint is attached as Exhibit "A". 4. The Defendants in that case did not appear or respond to the complaint and on May 16, 2008, Plaintiff send a notice of intent to enter default judgment. Again, no appearance or response was made and a default judgment was properly entered against Ribb's Trucking on June 9, 2008 in the amount of $62,131.00. Plaintiffs Praecipe for Judgment and Assessment of Damages and related filings are attached as Exhibit "B". 5. Ribb's Trucking is licensed by, and subject to, the Federal Motor Vehicle Carrier Safety Act of the United States of America and the rules and regulations promulgated thereunder by the Federal Motor Carrier Safety Administration (the "F.M.C.S.A."). 6. In order to comply with the F.M.C.S.A. (Motor Carrier Act of 1980, "MCA"'). minimum insurance requirements, Defendant Greenwich Insurance Company issued a property damage liability insurance policy to Defendant Ribb's Trucking, Inc., Policy 'The MCA P.L. 96-296, 94 Stat. 793 (July 1, 1980) (the "MCA") (amending various provisions interspersed throughout Title 49 of the United States Code). was passed to assure that carriers operating in interstate commerce would be financially responsible to members of the public injured by the carrier's negligence. To qualify financially under the MCA, a carrier must file a bond, insurance policy, or other type of security approved by the Secretary of Transportation establishing that the carrier meet s the minium financial requirements set by the Secretary 49 U.S.C.§ 1 3906(a)(1). 2 Number EC-17592, effective December 1, 2004 for a term expiring on September 21, 2007. A certified copy of the Motor Carrier Identification Reports and Company History Date details are attached as Exhibit "C". 7. Federal law mandates that insurance policies remain in effect until replaced or canceled in strict accordance with special cancellation requirements mandated by federal law (F.M.C.S.A). 8. The F.M.C.S.A. was never notified of cancellation of the insurance policy prior to August 11, 2006, the date of the loss. Therefore, the policy was effective until September 21, 2007, well beyond the date of loss.. 9. Under the terms of the insurance policy, Defendant Greenwich is obligated to indemnify Plaintiff in this suit up to the limits of the policy. 10. Plaintiff has made a demand upon Defendant Greenwich as required by the terms and conditions of the insurance policy, but the Defendant has refused and neglected and continues to fail, refuse and neglect to do so contrary to the terms of its policy and the requirements of federal law. 11. Defendant Greenwich's refusal to indemnify Plaintiff for the amount of this suit up to the limit of liability of the policy is unreasonable, without basis and in bad faith. 12. The pleadings, filings, and affidavits have established that there are no genuine 3 issues of material fact and that Plaintiff is entitled to judgment as a matter of law. WHEREFORE, Plaintiff respectfully requests that your Honorable Court enter Summary Judgment in favor of Plaintiff, and against Defendant Greenwich. Dated: Respectfully submitted, 6Ln'yK*L' Paul F. D'Emilio, Esquire Attorney for Plaintiff VERIFICATION Paul F. D'Emilio, attorney for Plaintiff in the above matter, verifies that the statements made in the foregoing Motion for Summary Judgment are true and correct. 1 understand that any false statements made herein are made subject to the penalties of 18 Pa. C.S.A. § 4904 related to unsworn falsification to authorities. r Date: I I C Paul F. D'Emilio 4 C7 n,,> r- ? C?? ??, -? _ _? -., .,.t, _, ? ??; ?t ?z .-?.? PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) Empire Fire and Marine Insurance Company as Subrogee of Kuntz & Son, Inc. vs. Ribbs Trucking, Inc. and Greenwich Insurance Company No. 08-4474 , Civil Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Plaintiff's Motion for Summary Judgment 2. Identify all counsel who will argue cases: (a) for plaintiffs: Paul F. D'Emilio Esquire 905 W Sproul Rd Suite 105 Springfield, PA 19064 (Name and Address) Patrick C. Lamb, Esquire, 1800 John F. Kennedy Blvd., Suite 1900, (b) for defendants: Philadelphia, PA 19103 (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Signature Paul F. D'Emilio, Esquire Print your name Plaintiff Date: January 26, 2009 Attorney for INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. EJ'' CTt -31 4f CTS »f cr, "? PRA?ECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) Empire Fire and Marine Insurance Company as Subrogeee of Kuntz & Son, Inc. VS. Ribbs Trucking, Inc. and Greenwich Insurance Company No. 08=4474 , Civil Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Plaintiff's Motion for Summary Judgment 2. Identify all counsel who will argue cases: (a) for plaintiffs: Paul M. Schofield, Jr. Esquire (Atty. ID 81894) Paul F. D'Emil?o, Esquire, 905 W. Sproul Road, Suite 105, Springfgield, PA (Name and Address) 19064 Patrick C. Lam 16, Esquire. Anne R. Myers, Esquire, 1800 John F. Kennedy 'Blvd., (b) for defendants: Suite 1900, Philadelphia, PA 19103 (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date:' Date: March 12. 2009 Paul F. D'Emilio, Esquire Attorne,, TD 16654 Print your name Plaintiff Attorney for INSTRUCTIONS: 1. Two copies Iof all briefs must be filed with the COURT ADMINISTRATOR (not the Pr thonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The respondi g party shall file their brief 5 days prior to argument. 4. If argument i continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. t7 ? c tF_: C-a PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR., ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEY FOR PLAINTIFF EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF KUNTZ & SON INC. 13810 FNB PARKWAY OMAHA, NE 68154 VS. RIBBS TRUCKING, INC. 116 HOBART AVENUE BAYONNE, NJ 07002 AND COMMON PLEAS COURT OF CUMBERLAND COUNTY NO.08-4474 GREENWICH INSURANCE COMPANY 70 SEAVIEW AVENUE STAMFORD, CT 06902 PLAINTIFF'S REPLY TO DEFENDANT'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Plaintiff, by and through its counsel the Law Office of Paul F. D?Emilio, LLC, hereby Replies to Defendant's Response in Opposition to Plaintiff's Motion for Summary Judgment. In support thereof, Plaintiff respectfully offers the following: FACTS Empire Fire and Marine Insurance Company (hereinafter "Empire") paid its insured Kuntz & Son for property damage caused by Ribb's Trucking. As a result of paying for the damages caused by the Ribb's, Empire became subrogated to the rights of its insured. Empire then filed suit against Ribb's and its driver and obtained a judgment in the amount of $62,313.00. After Ribb's refused to satisfy the judgment, Empire filed this instant action against Greenwich Insurance Company, Ribb's insurance carrier. ARGUMENT AND AUTHORITIES There is one issue, and one issue only, in this case - whether Plaintiff Empire Fire and Marine, acting as a subrogee, may enforce a judgment obtained against Ribb's trucking against the policy of insurance listed in the Federal Motor Carrier Safety Administration clearinghouse issued by Defendant carrier Greenwich Insurance Company. The issues and authority raised by the Defendant regarding allocating losses between insurance carriers and coverage disputes are superfluous and completely miss the point. This case is about enforcing a judgment against the insurance carrier of a liable party as authorized by the plain meaning of an endorsement to an insurance policy and federal law. ' Defendant does not address the central issue; Was the policy listed with FMCSA cancelled before the accident took place? And if not, why isn't Plaintiff as a subrogee entitled to the proceeds? Defendant has admitted that the policy existed but they intentionally skirt the issue of when and how the policy was cancelled. The official certified record of the FMVCSA clearly indicates the policy of insurance was not 149 C.F.R. § 387.15 - the MCS 90 endorsement provides: It is further understood and agreed that, upon failure of the company to pay any final judgment recovered against the insured as provided herein, the judgment creditor may maintain an action in any court of competent jurisdiction against the company to compel such payment. 2 cancelled until over a year after the accident. Simply put, Plaintiff is the subrogee of its insured, and enjoys all of the insured's rights, responsibilities and remedies. The issue of which party is a responsible for the Plaintiffs Insured's damages was decided when the Plaintiff stepped into its insured's shoes and obtained a judgment against Ribb's Trucking. Since Empire is merely a substituted or use or nominal Plaintiff, the case should not be decided as a dispute between insurance carriers over who is excess verses primary, but rather the case should be decided on the claim of the legal Plaintiff, Empire's insured, Kuntz & Son. Berks County v. Levan, 86 Pa. 360; Crawford v. Stewart, 38 Pa. 34; American Manuf. Co. v Morgan Smith Co., 25 Pa. Superior Ct. 176 (183). The subrogee is generally placed in the exact position of the party to whom' he is subrogated. Fell v. Johnston, 154 Pa.Super. 470, 36 A.2d 227 Pa.Super. (1944). The issue of whether Kuntz and Son had a valid cause of action and is entitled to damages from Ribb's Trucking has already been decided by the judgment issued in the case of Empire Fire and Marine Insurance Company as subrogee of Kuntz and Son v. Patricio Leon and Ribb's Trucking Co., Cumberland County Court of Common Pleas, Case No.: 2008-2216. A careful analysis of Defendant's argument that the financial responsibility provisions of the Federal Motor Vehicle Carrier Safety Act regulations do not protect or apply the Plaintiff Empire since Empire is not a member of the public reveals that Defendant misses the gist of this case entirely. Defendant argues the policy dates, terms and provisions prevail over the plain language of the MCS-90 and completely ignores Plaintiff's status as a subrogee and the plain language of the statute: [n]o condition, provision, stipulation, or limitation contained in the policy, this endorsement or any other endorsement thereon, or violation thereof, shall relieve the company from liability or from payment of any final judgment within the limits of liability herein described... Cancellation of this endorsement may be effected by the company or the insured by giving (1) 35 days notice in writing to the other party and (2) if the insured is subject to the FMCSA'S jurisdiction by providing 30 days notice to the FMCSA (said 30 days notice to commence from the date the notice is received by the FMCSA at its office in Washington, D.C.) 49 C.F.R § 387.15 Again, there is a long line of well settled cases that clearly state the subrogee steps into the shoes of its insured so as to place the burden of the debt on the party that should properly bear it. Mooney v. Lederman, 20 Pa. D. & C. 413, 1934 WL 3852 (1934 ); Kiker v. Pennsylvania Financial Responsibility Assigned Claims Plan, 742 A.2d 1082 Pa.Super.,1999; et.al. The party that should bear that burden is the tortfeasor Ribb's Trucking and its insurance carrier Greenwich. The MCS-90 endorsement serves an important role in any insurance policy issued to a motor carrier involved in interstate trucking. The endorsement uniquely serves the public policy of protecting innocent third parties from financial devastation caused by irresponsible truckers and transportation companies. Its primary purpose is to assure that injured members of the public are able to satisfy a judgment from negligent interstate truckers. Adams v. Royal Indemnity, Co. 99 F.2d 964 (10th Cir. 1996). The purpose of the MCS-90 endorsement allows the Plaintiff Empire to enforce its judgment against the proceeds of the Defendant Ribb's insurance policy. The purpose of the MCS-90 endorsement also means that Defendant Greenwich has a clear duty to satisfy the judgment and can not in good faith deny paying Plaintiffs claim as the endorsement language makes it clear that "no condition, provision, stipulation, or limitation contained in the policy, this endorsement, or any other endorsement thereon, or violation thereof, 4 shall relieve the company from liability or from the payment of any final judgment, within the limits of liability herein described". Canal Ins. Co. V. Distributing Services. Inc., 176 F. Supp. 2d 559 (E.D.Va. 2001). Finally, and contrary to Defendant's assertion that names the MCS-90 as the source of the liability2, the source of the Defendant's liability are the actions of its insured, Ribb's Trucking. The MCS-90 is merely an endorsement that clearly states an injured party may seek to directly collect upon a tortf'easor's policy of insurance through a lawsuit directly against the Company to compel the payment. This case is very simple: Plaintiff Empire, acting in its capacity as a subrogee, has a valid and enforceable judgment against a party that caused damage to its insured and seeks to enforce that judgment against the proceeds of insurance as allowed under federal motor carrier law. Date: -?,["(. (0-) Pau M D'Emilio, Esquire Identification No.: 16654 e-mail address: pauld@demiliolaw.com 905 W. Sproul Road, Suite 105 Springfield, PA 19064 Telephone No.: 610-338-0338 Fax No.: 610-338-0303 See Page 10 of Defendant's Brief in Opposition to Plaintiffs Motion for Summary Judgment: "Empire Insurance now seeks to hold Greenwich Insurance issued to Ribb's Trucking as the source of that liability". S F EMPIRE FIRE AND MARINE INS. CO. IN THE COURT OF COMMON PLEAS OF AS SUBROGEE OF KUNTZ & CUMBERLAND COUNTY, PENNSYLVANIA SON, INC., PLAINTIFF V. RIBBS TRUCKING, INC. AND GREENWICH INSURANCE CO., DEFENDANTS 08-4474 CIVIL TERM IN RE: MOTION OF PLAINTIFF FOR SUMMARY JUDGMENT AGAISNT GREENWICH INSURANCE COMPANY BEFORE BAYLEY, J. AND EBERT. J. ORDER OF COURT AND NOW, this L+--" day of May, 2009, the motion of plaintiff for summary judgment against Greenwich Insurance Company, IS DENI By the Court, Edgar B v45'a'ul F. D'Emilio, Esquire For Plaintiff trick C. Lamb, Esquire For Defendant and Garnishee t :sal r wt _ ._' ' i N U PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR, ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEY FOR PLAINTIFF EMPIRE FIRE AND MARINE INSURANCE COMMON PLEAS COURT OF COMPANY AS SUBROGEE OF KUNTZ & CUMBERLAND COUNTY SON INC. . VS. : NO. 08-2216 PATRICIO LEON . AND RIBB'S TRUCKING INC. CIVIL ACTION EMPIRE FIRE AND MARINE INSURANCE COMMON PLEAS COURT OF COMPANY AS SUBROGEE OF KUNTZ & CUMBERLAND COUNTY SON INC. . VS. NO. 08-4474 RIBBS TRUCKING, INC. AND GREENWICH INSURANCE COMPANY . MOTION TO COMPEL ALL DEFENDANTS TO ANSWER PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS AND FIRST SET OF INTERROGATORIES Plaintiff by their attorney, Paul F. D'Emilio, Esquire, respectfully requests that Your Honorable Court compel Defendants to answer Plaintiff's Request for Production of Documents directed to Defendants and Garnishee, served on Defendant's attorney, and sets forth as follows: 1. On April 8, 2008, Plaintiff filed a complaint against Defendants Patricia Leon and Ribb's Trucking arising out of a motor vehicle accident and after judgement Plaintiff issued a writ of garnishment against Ribb's insurance policy underwritten by Greenwich policy. 2. On or about June 3, 2009, Plaintiffs served its Request for Production of Documents on Defendant's attorney, a true a correct copy of which is attached hereto, made part hereof and marked Exhibit "A." 3. Plaintiffs counsel received a request from Defense counsel for an extension to answer, which extension request was granted by Plaintiffs counsel. 4. Defendants provided an "answer" on or about July 16, 2009. 5. Defendant in its "answer" neglected and failed to completely and adequately answer Plaintiffs request for Production of Documents nor have they requested an extension or filed objections to same, in violation of the Pennsylvania Rules of Civil Procedure. 6. Defendant withheld documents known to be in their possession and has failed to completely respond to the following requests 1, 4, 5, 9, 22, 32, 35, 36 and 37. 7. Defendant's responses are inadequate and the following are examples of Defendant's failure to comply with the rules of Civil Procedure and the Rules regarding discovery: a. Defendant withheld the Ribb's Trucking insurance policy. b. Defendant has withheld all Ribb's cancellation notices. C. Defendant has withheld its communications with Plaintiffs claims agents and others. C. Defendant withheld all premium payment information while admitting it insured Ribb's Trucking. d. Defendant has concealed the identity of its employees or agents responsible for Ribb's insurance policy administration. e. Defendant has withheld its internal communication regarding the Ribb's insurance policy and cancellation thereof. Defendant withheld all information concerning the required reporting to the Federal Governmental Agency responsible for regulating its insured Ribb's. g. Defendant fails to identify the documents it produced. Defendant merely supplies a group of unidentified documents (79 pages) which appear to be declaration sheets, police reports, a few letters from a third party administrator, and litigation documents from another claim involving Ribb's. h. The Defendant attaches improper conditions on its responses. The responses are not verified as required by the Rules of Civil Procedure. 8. The answers failed to comply with Rule 4009.12 in that each paragraph fails to identify all documents produced or made available in response to that question. Defendant has failed to identify any document or thing not produced or made available because of any objection that they are not within the scope of permissible discovery. Defendant's response is "conditional" and Defendant lists "conditions" as to production of documents, which conditions are not permitted by the Pennsylvania Rules of Civil Procedure. WHEREFORE, Plaintiff respectfully request that Your Honorable Court compel Defendants to answer Plaintiff's Request for Production of Documents and apply sanctions as permitted under Rule 4019 including, but not limited to, reasonable attorney fees and preclusion of defenses. PAUL F. D'EMILIO, ESQUIRE ATTORNEY FOR PLAINTIFF VERIFICATION I, PAUL F. D'EMILIO, ESQUIRE, being duly sworn according to law depose and say that the facts contained in the foregoing Motion are true and correct to the best of my knowledge, information and belief; and that this statement is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. DATE PA L F. D'EMILIO, ESQUIRE PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR, ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEY FOR PLAINTIFF EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF KUNTZ & SON INC. VS. PATRICIO LEON AND RIBB'S TRUCKING INC. EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF KUNTZ & SON INC. VS. RIBBS TRUCKING, INC. AND GREENWICH INSURANCE COMPANY COMMON PLEAS COURT OF CUMBERLAND COUNTY NO. 08-2216 CIVIL ACTION COMMON PLEAS COURT OF CUMBERLAND COUNTY NO. 08-4474 MEMORANDUM OF LAW This is a civil action for recovery of money damages arising out of an motor vehicle accident. The action was commenced on April 8, 2008. On or about June 3, 2009 Plaintiffs served its Request for Production of Documents Directed to Defendant's upon Defendant's attorney's by letter dated June 1, 2009 Plaintiffs requested prompt responses to the Request for Production of Documents. Therefore, since Defendant's Answers and Responses are unverified, incomplete, inadequate and conditional, the answers violate the rules of civil procedure. Rule 4006(a)(2) requires answers or objections to request for production of documents within 30 days of the date of service. More than 60 days have elapsed and Defendants have not produced complete unconditional and verified responses to the Request for Production of Documents. WHEREFORE, Plaintiffs requests that your Honorable Court compel all Defendants, to answer Plaintiffs Request for Production of Documents and apply sanctions as permitted under Rule 4019 including, but not limited to, reasonable attorney fees and preclusion of defenses. P L F. D'EMILIO, ESQUIRE ATTORNEY FOR PLAINTIFF PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR, ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEY FOR PLAINTIFF EMPIRE FIRE AND MARINE INSURANCE COMMON PLEAS COURT OF COMPANY AS SUBROGEE OF KUNTZ & CUMBERLAND COUNTY SON INC. VS. NO. 08-2216 PATRICIO LEON . AND RIBB'S TRUCKING INC. CIVIL ACTION EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF KUNTZ & SON INC. VS. RIBBS TRUCKING, INC. AND COMMON PLEAS COURT OF CUMBERLAND COUNTY NO. 08-4474 GREENWICH INSURANCE COMPANY CERTIFICATION OF SERVICE I, PAUL F. D'EMILIO, ESQUIRE, attorney for Plaintiff, do hereby certify that a true and correct copy of Plaintiffs Motion to Compel Defendants, to answer Plaintiff's Request for Production of Documents and First Set of Interrogatories which were mailed on July, 2009 to the following parties by first class mail, postage-prepaid at the address listed below: Anne R. Myers, Esquire Patrick C. Lamb, Esquire Marks, O'Neill, O'Brien & Courtney, P. C. 1800 John F. Kennedy Blvd., Suite 1900 Philadelphia, PA 19103 daLN__4U UL F. D'EMILIO, ESQUIRE ATTORNEY FOR PLAINTIFF ALF ,r,p: 2s?9 AtJS -3 I'll 12' 19 J' r t .' ?i I PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR, ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEY FOR PLAINTIFF EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF KUNTZ & SON INC. VS. PATRICIO LEON AND RIBB'S TRUCKING INC. EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF KUNTZ & SON INC. VS. RIBBS TRUCKING, INC. AND GREENWICH INSURANCE COMPANY COMMON PLEAS COURT OF CUMBERLAND COUNTY NO. 08-2216 CIVIL ACTION COMMON PLEAS COURT OF CUMBERLAND COUNTY NO. 08-4474 AMENDED MOTION TO COMPEL ALL DEFENDANTS. TO ANSWER PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS AND FIRST SET OF INTERROGATORIES Plaintiff by their attorney, Paul F. D'Emilio, Esquire, respectfully requests that Your Honorable Court compel Defendants to answer Plaintiffs Request for Production of Documents directed to Defendants and Garnishee, served on Defendant's attorney, and sets forth as follows: 1. On April 8, 2008, Plaintiff filed a complaint against Defendants Patricia Leon and Ribb's Trucking arising out of a motor vehicle accident and after judgement Plaintiff issued a writ of garnishment against Ribb's insurance policy underwritten by Greenwich policy. 2. On or about June 3, 2009, Plaintiffs served its Request for Production of Documents on Defendant's attorney, a true a correct copy of which is attached hereto, made part hereof and marked Exhibit "A." 3. Plaintiff's counsel received a request from Defense counsel for an extension to answer, which extension request was granted by Plaintiffs counsel. 4. Defendants provided an "answer" on or about July 16, 2009. 5. Defendant in its "answer" neglected and failed to completely and adequately answer Plaintiffs request for Production of Documents nor have they requested an extension or filed objections to same, in violation of the Pennsylvania Rules of Civil Procedure. 6. Defendant withheld documents known to be in their possession and has failed to completely respond to the following requests 1, 4, 5, 9, 22, 32, 35, 36 and 37. 7. Defendant's responses are inadequate and the following are examples of Defendant's failure to comply with the rules of Civil Procedure and the Rules regarding discovery: a. Defendant withheld the Ribb's Trucking insurance policy. b. Defendant has withheld all Ribb's cancellation notices. C. Defendant has withheld its communications with Plaintiffs claims agents and others. C. Defendant withheld all premium payment information while admitting it insured Ribb's Trucking. d. Defendant has concealed the identity of its employees or agents responsible for Ribb's insurance policy administration. e. Defendant has withheld its internal communication regarding the Ribb's insurance policy and cancellation thereof. Defendant withheld all information concerning the required reporting to the Federal Governmental Agency responsible for regulating its insured Ribb's. g. Defendant fails to identify the documents it produced. Defendant merely supplies a group of unidentified documents (79 pages) which appear to be declaration sheets, police reports, a few letters from a third party administrator, and litigation documents from another claim involving Ribb's. h. The Defendant attaches improper conditions on its responses. L The responses are not verified as required by the Rules of Civil Procedure. 8. The answers failed to comply with Rule 4009.12 in that each paragraph fails to identify all documents produced or made available in response to that question. Defendant has failed to identify any document or thing not produced or made available because of any objection that they are not within the scope of permissible discovery. Defendant's response is "conditional" and Defendant lists "conditions" as to production of documents, which conditions are not permitted by the Pennsylvania Rules of Civil Procedure. 9. Judge Edgar B. Bayley has denied a Motion for Summary Judgment and a Motion for Judgment on the Pleadings the issue in those motions was whether an MCS 90 affords insurance coverage to a subrogee and whether Plaintiff is entitled to the proceeds of an insurance policy. 10. Defendant counsel was asked to concur with this instant motion but as of this writing there was no reply. WHEREFORE, Plaintiff respectfully request that Your Honorable Court compel Defendants to answer Plaintiffs Request for Production of Documents and apply sanctions as permitted under Rule 4019 including, but not limited to, reasonable attorney fees and preclusion of defenses. PAUL F. D'EMILIO, ESQUIRE ATTORNEY FOR PLAINTIFF M ? OFFICE OF THE COURT ADMINISTRATOR CUMBERLAND COUNTY COURT OF COMMON PLEAS 1 Courthouse Square • Carlisle, PA 17013 Phone (717) 240-6201 Toll Free 1-888-697.0371 x6201 Fax (717) 240-6460 TFallor@ccpa.net viA FACSIMILE ONLY: (610) 338-0303 RE- Failure to Comply with Cumberland County Local Rule 208.3 (a) Motion to Compel All Defendants, to Answer Plaintiff's Request for Production of Documents and First Set of Interrogatories (2008-2216 and 2008-4474 Empire Fire and Marine Insurancc v. Patricio Leon and Ribb's Trucking, Inc.) Dear Mr. D'Smilio. Please note that due to your failure to comply with Cumberland County Local Rule 208.3(aX2) and/or Rule 208.3(a)(9), your motion will be held in the Court Administrator's Office until an amendment containing the missing information is tiled in the Protbonetary's Office. If after two notices no amendment has been filed, your motion will be sent back to the Prothonotary's office and placed in the file and no further action will be taken, Rule 208.3(a). Motions, (2) The motion shall state whether or not a Judge has ruled upon any other issue in the same or related matter, and, if so, shall sped the judge and the issue, (9) All motions and petitions shall contain a paragraph indicating that the concurrence of any opposing counsel ofrecord was sought and the response of said counsel; provided, that this requirement shall not apply to preliminary objections, motions for judgment on the pleadings, motions for summaryjudgment, petitions to open or strike judgments, and motions far post-trial relief. Please note that you do not need to file an additional proposed order or provide additional envelopes for service- Your amendment will be attached to the original motion. Please feel free to contact me if you have any questions or concerns regarding this matter. Sin96L--1 Trish Faiior Administrative Coordinator ?ME OF R 2039 AUG I ( Ah c 5 CUty 'A f y} j a'5 / F PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR, ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEY FOR PLAINTIFF EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF KUNTZ & SON INC. VS. PATRICIO LEON AND RIBB'S TRUCKING INC. EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF KUNTZ & SON INC. VS. RIBBS TRUCKING, INC. AND GREENWICH INSURANCE COMPANY COMMON PLEAS COURT OF CUMBERLAND COUNTY NO. 08-2216 CIVIL ACTION COMMON PLEAS COURT OF CUMBERLAND COUNTY NO. 08-4474 I, PAUL M. SCHOFIELD, JR., ESQUIRE, attorney for Plaintiff, does hereby certify that true and correct copy of the Amended Motion to Compel was served the 61h day of August, 2009, by first class mail, postage prepaid to the following: Anne Myers 1800 John F. Kennedy Boulevard Suite 1900 Philadelphia, A 19103 Date: 4f Paul M. Schofield, Jr., Esquire Identification No.: 81894 FILE it L OF THE- P", ARY 2009 l ?7' f f A AUG 0 4 2009? G. ?J EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF KUNTZ & SON INC. VS. PATRICIO LEON AND RIBB'S TRUCKING INC. EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF KUNTZ & SON INC. VS. RIBBS TRUCKING, INC. AND GREENWICH INSURANCE COMPANY ORDER COMMON PLEAS COURT OF CUMBERLAND COUNTY NO. 08-2216 CIVIL ACTION COMMON PLEAS COURT OF CUMBERLAND COUNTY NO. 08-4474 AND NOW, this 15TH day of SEPTEMBER, 2009, a Rule is issued upon the Defendants to Show Cause why Plaintiff's Motion to Compel should npt b,Q granted. r - Rule returnable on THURSLIkir', SEPT'E'MBER 24, 2009, at 930 a m in Courtroom # 3 of the Cumberland County Courthouse, Carlisle, Pa. 17013 By the Court: V "Anne R. Myers, Esquire Patrick C. Lamb, Esquire Marks, O'Neill, O'Brien & Courtney, P. C 1800 John F. Kennedy Blvd., Suite 1900 Philadelphia, PA 19103 CoP,rs rngtlL q?r s?o9 Paul F. D'Emilio, Esquire 905 W. Sproul Road, Suite 105 Springfield, PA 19064 v O XI -c r a.?Yxi ?? l5 ??r''i ? .•U 0 EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF KUNTZ & SON, INC., Plaintiff V IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-2216 CIVIL TERM PATRICIO LEON and RIBB-S TRUCKING, INC., Defendants EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF KUNTZ & SON, INC., Plaintiff V RIBB'S TRUCKING, INC., and GREENWICH INSURANCE: COMPANY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAWi NO. 08-4474 IN RE: STATUS CONFERENCE ORDER OF COURT AND NOW, this 2nd day of October, 2009, this being the time and place set for a status hearing in the above-captioned case, it is hereby ordered and directed that counsel for Empire Fire and Marine Insurance shall file a motion for consolidation of both of these cases on or before November 6, 2009. Greenwich Insurance Company shall file its reply on or before the close of business on November 20, 2009. It is further ordered and directed at the request of the parties that both cases will be listed for trial during the June 21, 2010, term of court. Counsel will be responsible for placing these matters on the list at the proper time and calling the cases for trial. The issue of whether or not the two cases can be tried in one week will remain an issue for pretrial conference. 08-2216 & 08-4474 Paul M. Schofield, Jr. Esquire For Plaintiff Anne Myers, Esquire For Greenwich Insurance Company :bg clap I Es ?PIaI LL =rte By the Court, M. L. Ebert, J ., J. FILED-OF, CE OF THE' PF07',nN0TA-Ry 2004 OCT -5 PM 2: 38 CUrr +?. IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY Empire Fire and Marine Inc., Co. as subrogee of Kuntz & Son, Inc., No. 08-4474 Civil Term Plaintiff, V. CIVIL ACTION Patricio Leon and Ribbs Trucking, Defendants, and Greenwich Insurance, Co., Garnishee. ORDER REGARDING PLAINTIFF'S MOTION TO COMPEL Pending before this Court is Plaintiff Empire Fire and Marine Ins., Co Motion to Compel more complete response to a Requests for Production of Documents that Empire served on Garnishee Greenwich Insurance, Co. ("Plaintiff's Motion to Compel"") Plaintiff's Motion to Compel was resolved by Stipulation of the Parties in which the Parties agreed that at issue in Plaintiff's Motion to Compel were two requests for production of documents for which documents have not been produced: 22. The name, home and business address of the employee of Greenwich Insurance Company or its agent who processed or notified any government agency regarding any change in status or validity of any insurance policy underwritten by Greenwich Insurance Company for Ribbs Trucking. 32. Any and all communications, documents, correspondence, inquiries or memorandums between Defendant Greenwich Insurance Company and the Federal Motor Vehicle Safety Administration. Greenwich Ins. has been working to locate the information sought in Requests For Production Nos. 22 and 32. But as of the date of the Stipulated Agreement, and after diligent investigation, Greenwich Ins. had not located documents responsive to Requests For Production Nos. 22 and 32. Greenwich agreed to continue in its search for the information requested in Request for Production No. 22. Greenwich further agreed to immediately provide all information necessary, in response to Request for Production No. 22-when located-so that Empire Ins. might depose, either through notice or subpoena the Greenwich employee or agent referenced in No. 22. Greenwich agreed to continue in its search for the information requested in Request for Production No. 32. Greenwich Ins. further agrees to provide all documents referenced in No. 32, without objection, immediately after they are located. As a result, Empire Ins. agrees to withdraw its Motion to Compel. Therefore IT IS on this / q day of October, 2009, ORDERED that Plaintiff's Motion to Compel a More Complete Response to Plaintiff's Requests for Production of Documents is hereby WITHDRAWN, as set forth above. J. ND: 4823-8978-3556, v. 1 1E RLcD u tTARY M9 OCT 14 Pii 3' 00 CtJd_ lO?I y?p? - clo t i as - , Pc" la F ,IQ.myizs 444y P-V&t6b PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR, ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEY FOR PLAINTIFF EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF KUNTZ & SON INC. VS. PATRICIO LEON AND RIBB'S TRUCKING INC. EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF KUNTZ & SON INC. VS. COMMON PLEAS COURT OF CUMBERLAND COUNTY NO. 08-2216 CIVIL ACTION COMMON PLEAS COURT OF CUMBERLAND COUNTY NO. 08-4474 RIBBS TRUCKING, INC. AND GREENWICH INSURANCE COMPANY CIVIL ACTION MOTION TO CONSOLIDATE Empire Fire and Marine Insurance company as Subrogee of Kuntz & Son, Inc. by their attorney, Paul F. D'Emilio, Esquire, requests that Your Honorable Court consolidate the above two actions for the following reasons: 1 Background in the case of Empire Fire and Marine Insurance Company as Subrogee of Kuntz & Son Inc. V. Patricio Leon and Ribbs Trucking Inc. No 08-2216 1. On August 11, 2006, a motor vehicle owned by Ribb's Trucking and insured by Greenwich was traveling southbound on 1-81, Hampden Township, Pennsylvania when the motor vehicle drifted across three lanes of travel and struck Plaintiffs Insured's vehicle. 2. As a result of the collision, Plaintiffs Insured suffered damages in the amount of Sixty Two Thousand One Hundred Thirty One and 00/100 Dollars ($62,313.00). Plaintiff compensated the Insured for such loss. 3. On April 8, 2008, Plaintiff filed a complaint in the Common Pleas Court of Cumberland County, No, 08-2216 captioned "Empire Fire and Marine Insurance Company as Subrogee of Kuntz & Son, Inc. v. Patricio Leon and Ribb's Trucking, Inc." Plaintiff's complaint is attached as Exhibit "A". 4. The Defendants in that case did not appear or responded to the complaint and on May 16, 2008, a notice of intent to enter default judgment was sent. Again, no appearance or response was made and default judgment was properly entered against Ribb's Trucking on June 9, 2008 in the amount of $62,131.00. 5. Ribb's Trucking is licensed by, and subject to, the Federal Motor Vehicle Carrier Safety Act of the United States of America and the rules and regulations promulgated thereunder by the Federal Motor Carrier Safety Administration (the "F.M.C.S.A."). 6. In order to comply with the F.M.C.S.A. minimum insurance requirements, Defendant Greenwich Insurance Company issued a property damages liability insurance policy to Defendant Ribb's Trucking, Inc., Policy Number EC-17592, effective December 1, 2004 for a term expiring on September 21, 2007. A certified copy of the 2 Motor Carrier Identification Reports and Company History Date details is attached to Plaintiffs motion for Summary Judgment and a copy is attached as Exhibit "B". 7. Once issued, federal law mandates that insurance policies remain in effect until replaced or canceled in strict accordance with special cancellation requirements mandated by federal law. 8. The F.M.C.S.A. was never notified of cancellation of the insurance policy prior to August 11, 2006, the date of the loss. Therefore, the policy was effective until September 21, 2007, well beyond the date of loss.. 9. Under the terms of the insurance policy, Defendant Greenwich is obligated to indemnify Plaintiff in this suit up to the limits of the policy. 10. Plaintiff has made a demand upon Defendant Greenwich as required by the terms and conditions of the insurance policy, but the Defendant has refused and neglected to do so. 11. Defendant Greenwich's refusal to indemnify Plaintiff for the amount of this suit up to the limit of liability of the policy is unreasonable, without basis and in bad faith. 12. On July 21, 2008, plaintiff issued Writ of Execution attaching the proceeds from the Greenwich Insurance Policy. 13. Greenwich has contested the attachment which is now pending in the case. Background of Case Empire Fire and Marine Insurance Company as Subrogee of Kuntz & Son Inc. Vs. Ribbs Trucking, Inc. and Greenwich Insurance Company Common Pleas Court of Cumberland County. No 08-4474. 15. In this case on July 25, 2008, Plaintiff filed a Declaratory Judgment action against Ribbs and Greenwich alleging the default judgment, the applicability of the Greenwich Insurance policy and requesting that the Court declare that the policy was in force and that the insured was Ribbs Trucking and that the insurance company has a 3 responsibility to indemnify Plaintiffs for the amounts paid to its insured. Plaintiffs complaint is attached as Exhibit "C". 16. Plaintiff's position is that Defendant's failure to indemnify Plaintiff and disclaim coverage is without basis and in bad faith. Basis for Request to Consolidate 17. These cases have common questions of law and fact and arise from the same transaction or occurrence and should be consolidated because: a. All the parties are identical. b. Each case turns on whether or not the Greenwich Liability Insurance policy is in effect. C. The evidence presented will be the same to determine whether or not the Greenwich Insurance policy was in force at the time of the collision. d. There will be no prejudice to any substantial right of any party to the action because all of the evidence will be presented in each of the cases e. There is no joinder of any additional parties. f. Both cases are being tried without a jury. g. The basic facts of the cases are exactly the same. h. The issues involved are exactly the same. i. There is a potential for inconsistent verdicts if the cases are not consolidated. j. It is in the interest of maximizing judicial economy to join the cases. k. The testimony of the parties would be the same in both actions. 1. The material facts are not in dispute. 4 Wherefore Plaintiff respectfully requests that your Honorable Court consolidate the above two cases. R ectfully bmittedI 'Paul F. D'Emilio, Esquire Attorney for Plaintiff PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR, ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEY FOR PLAINTIFF EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF KUNTZ & SON INC. VS. PATRICIO LEON AND RIBB'S TRUCKING INC. EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF KUNTZ & SON INC. VS. RIBBS TRUCKING, INC. AND GREENWICH INSURANCE COMPANY COMMON PLEAS COURT OF CUMBERLAND COUNTY NO. 08-2216 CIVIL ACTION COMMON PLEAS COURT OF CUMBERLAND COUNTY NO. 08-4474 CIVIL ACTION MEMORANDUM OF LAW Both of the above-captioned actions arise out of the same trucking accident which occurred on September 11, 2006 in Cumberland County As a result, Empire filed a subrogation action against Ribbs and took judgment for $62,313.00. In that case # 08-2216, Plaintiff attempted to enforce the judgment by filing a Writ of Execution and garnishing the proceeds of the Greenwich Insurance Company policy with Ribb's. 1 According to the Federal Motor Vehicle Safety Commission, Ribbs' policy was in full force and effect at the time of the collision. In the second case, # 08-4474 Plaintiff filed a declaratory judgment action asking the Court to declare that the same insurance policy issued by Greenwich was in full force and effect at the time of the collision and Greenwich owed a duty to indemnify Plaintiff. Rule 213(a) of the Pennsylvania Rules of Civil Procedure provides the following: (a) In any action pending in a county which involve common question of law or fact or which arise from the same transaction or occurrence the court on its own motion or on the motion fo any party may order a joint hearing or trial of any matter in issue in the actions, may order the actions consolidated, and may make orders that avoid unnecessary cost or delay. Rule 213(a) The Explanatory comment provides in part: The Rule provides that the cases may be consolidated where they involve "common questions of law or fact" or "which arise from the same transaction or occurrence." The basis of the Rules is the avoidance of multiple trials and proceedings involving common facts or issues or arising from the same transition or occurrence. Explanatory Comment-1990 Rule 213. A Court may order a consolidation for a joint trial or hearing at any stage of the proceedings. The strict wording of the Rule providing for consolidation warrants the joint trial of action when any question of law or fact is common to the several actions regardless of how small a part the common question plays in each action. Goodrich §213A:16 These particular case should be consolidated for the following reasons: M. All the parties are identical. n. Each case turns on whether or not the Greenwich Liability Insurance policy is in effect. 2 o. The evidence presented will be the same to determine whether or not the Greenwich Insurance policy was in force at the time of the collision. P. There will be no prejudice to any substantial right of any party to the action because all of the evidence will be presented in each of the cases q. There is no joinder of any additional parties. Both cases are being tried without a jury. S. The basic facts of the cases are exactly the same. t. The issues involved are exactly the same. U. There is a potential for inconsistent verdicts if the cases are not consolidated. V. It is in the interest of maximizing judicial economy to join the cases. W. There are common questions of law and fact. X. The testimony of the parties would be the same in both actions. Y. The material facts are not in dispute. It has long been held that a dispute over insurance policy is generally a proper case for consolidation because actions arise out of the same general occurrence, certain material facts are not in dispute, the testimony in both actions would be the same, there are common questions of law and fact. See Bredt v. Bredt 231 Pa. Super.67 (1974) WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an Order consolidating the above two actions. Respectfully submitted, L )aul F. D'Emilio, Esquire Attorney for Plaintiff 3 PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR, ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEY FOR PLAINTIFF EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF KUNTZ & SON INC. COMMON PLEAS COURT OF CUMBERLAND COUNTY VS. PATRICIO LEON AND NO. 08-2216 RIBB'S TRUCKING INC. CIVIL ACTION EMPIRE FIRE AND MARINE INSURANCE COMMON PLEAS COURT OF COMPANY AS SUBROGEE OF KUNTZ & CUMBERLAND COUNTY SON INC. VS. NO. 08-4474 RIBBS TRUCKING, INC. AND GREENWICH INSURANCE COMPANY CIVIL ACTION CERTIFICATE OF SERVICE I, Paul F. D'Emilio, Esquire, attorney for Plaintiff, do hereby certify that a true and correct copy of Plaintiffs Petition to Consolidate and Memorandum of Law has been served on the 111 day of November, 2009, upon the persons listed below by first class mail, postage prepaid, addressed as follows: Anne R. Myers, Esquire Kaufman, Dolowich, Voluck & Gonzo LLP 1777 Sentry Park West / Gwynedd Hall, Suite 301 Blue Bell, PA 194220 / 215-461-1100 Maul F. D'Emilio, Esquire Attorney for Plaintiff EXHIBIT "A" PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR, ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEY FOR PLAINTIFF INSURANCE EMPIRE FIRE AND MARINE COMPANY AS SUBROGEE OF KUNTZ & SON INC. 13810 FNB PARKWAY OMAHA, NE 68154 VS. PATRICIO LEON 2414 97T" STREET EAST ELMHURST, NY 11369 AND RIBB'S TRUCKING INC. 116 HOBART AVENUE BAYONNE, NJ 07002 NOTICE YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY 20 DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER„ GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Court Administrator 4th Floor, Cumberland Carlisle, PA 17013 (717) 240-6200 County Courthouse Lawyer Referral Service 4th Floor, Cumberland Carlisle, PA 17013 (717) 240-6200 County Courthouse .. 1AJ 1 D ? ? m _ . .s 5! < COMMON PLEAS COURT OF CUMBERLAND COUNTY NO. a$ - as It aivi( ler" CIVIL ACTION "ISO Le han demandado a usted on Is carte. Si usted quiere defenderse de estas demandes expuestas an [as pa etas sigulentes, usted tiene (20) dias de plazo a partir de Is feche de is demands y Is notificacion. Usted dabs presenter una apariende esaits o on persona o por abogado y archivar on Is cone sus defenses o sus obteaones a las demandas encontra de su persona. See ovisado quo si usted no se defiends, Is corte tomars medides y puede entrar una orden contra usted sin previo aviso o notification o por Cualgier queja o alivio qua espedido on Is peticion de demands. Usted puede perder dinero, sus propiededes o otros derechos importantes pare usted. LLEVE ESTA DEMANDA A UN ABQGADO INMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SLIFICIENTE PARA PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE LISTED PUEDE CONSEGUIR ASISTENCIA LEGAL. Court Administrator 4th Floor, Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 Lawyer Referral Service 4th Floor, Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 :?OM, RECORD unto sw n hand lr(" thl s of mid Coat at C01M, P'li . PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR, ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEY FOR PLAINTIFF EMPIRE FIRE AND MARINE INSURANCE COMMON PLEAS COURT OF COMPANY AS SUBROGEE OF KUNTZ & CUMBERLAND COUNTY SON INC. 13810 FNB PARKWAY OMAHA, NE 68154 NO. VS. PATRICIO LEON 2414 97TH STREET EAST ELMHURST, NY 11369 AND RIBB'S TRUCKING INC. 116 HOBART AVENUE CIVIL ACTION BAYONNE NJ 07002 NOTICE UNDER THE FAIR DEBT COLLECTION PRACTICES ACT, 15 U.S.C. §1601 (AS AMENDED) THE PENNSYLVANIA UNFAIR TRADE PRACTICES ACT AND CONSUMER PROTECTION LAW, 73 PA.CON.STAT.ANN. §201, ET. SEQ. ("THE ACTS") INASMUCH AS THE ACTS MAY APPLY, PLEASE BE ADVISED THAT THIS COMMUNICATION IS FROM A DEBT COLLECTOR. THIS IS AN ATTEMPT TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. COMPLAINT The Plaintiff, Empire Fire and Marine Insurance Company, by its attorney Paul F. D'Emilio, Esquire, bring action upon a cause whereof the following is a statement: The Plaintiff, Empire Fire and Marine Insurance Company (hereinafter "Empire") is a Nebraska Corporation engaged in the insurance business with a statutory home office located at13810 FNB Parkway, Omaha, NE 68154 and a main administrative office or principal place of business located at 1400 American Lane, Schaumburg, IL 60196. It is authorized to transact business and had transacted business in the Commonwealth of Pennsylvania. Plaintiff brings this action as subrogee of Kuntz & Son Inc. ("Insured") under a policy of insurance #CL0660838, issued by Plaintiff. 2. Defendant, Patricio Leon ("Leon"), is an individual residing at 2414 97th Street, East Elmhurst, NY 11369. 3. Defendant, Ribb's Trucking Inc. ("Ribb's"), is a corporation authorized to do business in the Commonwealth of Pennsylvania with a principal office at 116 Hobart Avenue, Bayonne, NJ 07002. 4. At all times hereinafter mentioned, the Defendant, Leon was the agent, servant, workman or employee of Defendant, Ribb's Trucking Inc. then and there engaged in the business of the Defendant, Ribb's Trucking Inc. acting within the course and scope of his employment. 5. On August 11, 2006, when a motor vehicle owned by the Defendant, Ribb's Trucking Inc. and operated by the Defendant, Leon was traveling southbound on 1-81, Hampden Township, Pennsylvania when he drifted across three lanes of travel and struck the Insured's vehicle causing the damages hereinafter described. 6. The Insured's vehicle was a total loss and Defendant is liable to Plaintiff for the damages as allowed by law thereto being is Fifty Four Thousand Seven Hundred Two and 02/100 ($54,702.02) Dollars plus the Insured's deductible of Two Thousand 2 Five Hundred and 001100 ($2,500.00) Dollars plus the towing and storage being Four Thousand Nine Hundred Twenty Eight and 981100 ($4,928.98) Dollars for a total of Sixty Two Thousand One Hundred Thirty One and 001100 ($62,131.00) Dollars. A true and correct copy of the checks issued are attached hereto, made part hereof and marked Exhibit "A." Count I Empire Fire and Marine Insurance Company v. Patricio Leon 7. Plaintiff incorporates by reference all of the allegations contained in paragraphs 1 through 6 inclusive of this Complaint as fully as though same were herein and set forth at length. 8. The said occurrence was do to the negligence of the Defendant, Leon in that he: a. did fail to have the motor vehicle under proper and adequate control; b. did operate the motor vehicle at an excessive rate of speed; C. did fail to apply the brakes in time to avoid the collision; d. did negligently apply the brakes; e. did fail to operate the vehicle in accordance with existing conditions; f. did fail to drive at a speed and in the manner that would allow him to stop within the assured clear distance ahead; g. did fail to keep a reasonable lookout for other vehicles lawfully on the road; h. did operate the motor vehicle without due regard for the rights, safety and position of the Insured at the point of aforesaid; 3 did operate the vehicle without Insurance; j. did fail to maintain financial responsibility under the laws of the Commonwealth of Pennsylvania and the Federal Motor Carrier Safety Administration; and k. did violate the various statutes and laws of the Commonwealth of Pennsylvania and County of Cumberland and Section 3714 of the Motor Vehicle Code, pertaining to the operation of motor vehicles. Count 11 Empire Fire and Marine Insurance Company v. Ribb's Trucking Inc. 9. Plaintiff incorporates by reference all of the allegations contained in paragraphs 1 through 8 inclusive of this Complaint as fully as though same were herein and set forth at length. 10. The occurrence was the result of the negligence of the Defendant Ribb's Trucking Inc., in that they: a. negligently entrust the vehicle to another operator for use when they knew, or with a reasonable exercise of due care should have known, that the operator was not capable of operating the motor vehicle properly; b. negligently entrust the motor vehicle to a person which they knew, or in the exercise of reasonable care should have known, was an incompetent driver; C. negligently entrust the motor vehicle to a person known, should have known or in the exercise of reasonable care would have known, was going to drive the vehicle in an improper, dangerous or reckless manner; d. negligently entrust the motor vehicle to another person who they knew, 4 should have known or in the exercise of due care would have known would cause damages to another; and e. negligently entrust the motor vehicle to a person who did not maintain financial responsibility as required by the laws of the Commonwealth of Pennsylvania. WHEREFORE, Plaintiff demands judgment against each Defendant in an amount in excess of Fifty Thousand and 00/100 ($50,000.00) Dollars together with costs of suit. Date: P I F. D' milio, Esquire Identification No.: 16654 e-mail address: pauld@demiliolaw.com Paul M. Schofield, Jr., Esquire Identification No.: 81894 e-mail address: pauls@demiliolaw.com 905 W. Sproul Road, Suite 105 Springfield, PA 19064 Telephone No.: 610-338-0338 Fax No.: 610-338-0303 5 VERIFICATION To OD , 5"M 77TH{ -Subrogation Representative with Empire Fire and Marine Insurance Company in the above captioned matter verifies that the facts contained in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. DATE. ?`?Icttc.a -A.- 1/7 Subrogation Representative cz_ 6 Exhibit "A" ti EMPIREINDEMNITY INSURAr COMPANY 5528731 uaia~HNtttttwsiw tuwJ } I XECUTIVc OFFICES: 13810 FNB PARKWAY' OMAHA, NEBRASKA 68154 No. CHECK NO. DATE OF CHECK DATE OF LOSS POLICYNO CLAIM NO 20061030 20060811 CLO660838 402940 PAY * * *054 *THOUSAND* 7 *HUNDRED*02*DOLLARS & 02 CENTS. RE FULL, PAYMENT ON 2000 STERLING $54702.02 0 -1 EMPIRE FIRE AND MARINE INSURANCE CO. fKKUNTZ AND SON INC TWO SIGNATURES REQUIRED OVER $5,000.00 _VOID AFTER 180 DAYS TO THE BY ?1 n ORDER OF BY N011,141 - NEGOTIABLE REMITTANCE ADVICE • DETACH BEFORE DEPOSITING CHECK INSURED AGENTCODE M P LOSS ADJUST PAYMENT MENT KUNTZ AND SO EXPENSE 5825 83 FEDERAL ID N 0 Iw/OVERNIGHT 1 138000 MAIL EMPIRE FIRE AND MARINE INS. CO. TO OMAHA, NEBRASKA L J .;rvi,?n({ EMPIR&INDEMNITYINSURA COMPANY 552717'. IVttlttfiSKH x=' ?TiVF OFFICES: 13810 FNB PARKWAY' vMAHA, NEBRASKA 68154 No, CHECK NO. DATE OF CHECK DATE OF LOSS POLICYNO CLAIM NO 20061011 20060811 CLO660838 402940 PAY ***004*THOUSAND*9*HUNDRED*28*DOLLARS & 98 CENTS. RE TOW/STORAGE INV #262420100 $ 4928.98 0 RIVER'S TRUCK CENTER EMPIRE FIRE AND MARINE INSURANCE CO. TWO SIGNATURES REQUIRED OVER $5,000.00 -VOID AFTER 180 DAYS TO THE BY ORDER OF BY NON - NEGOTIABLE INSURED KUNTZ AND REMITTANCE ADVICE - DETACH BEFORE DEPOSITING CHECK SO AGENTCODE MID 5825 LOSS ADJUST PAYMENT MENT E%POds E 83 FEDERAL ID N 0 [W/OVERN.IGHT 1 1380 00 MAIL EMPIRE FIRE AND MARINE.INS. CO. TO OMAHA, NEBRASKA L J 104u EXHIBIT "B" I 10 U.S. Department of Transportation Federal Motor Carrier Safety Administration I HEREBY CERTIFY that the annexed are true copies, in their entirety, of two Motor Carrier Identification Reports dated July 17, 2008, and August 28, 2008, and eight computer printouts of Company History Date details. in the Federal Motor Carrier Safety Administration (FMCSA) Signed and dated at Washington, D.C. this 28th day October 2008 by Herman Dogan -ly.---? FMCSA Records Officer (Tine) Y CERTIFY that Herman Dogan d the foregoing certificate, is now, and was at the time of signing, FMCSA Records Officer, F otor Carrier Safety Administration, Department of Transportation an It faith and credit should be given his certificate as such. IN WITNESS WHEREOF, I have hereunto subscribed my name, and caused the seal of the Department of Transportation to be affixed this 28th day of October Two-Thousand Eight For the SECRETARY OF TRANSPORTATION -5 t?? Ce rtifying Officer Jane S. Tamai, Acting Chief, Management Information & Directives Division Form MCSA-64 ACSA Motor Carrier ,SDOT Number: 815546 Docket Number: MC362306 Legal Name: RIBB'S TRUCKING, INC. DBA (Doing-Business-As) Name Addresses Business Address: Business Phone: Mail Address: Mail Phone: Authorities Common Authority: Contract Authority: Broker Authority: Property: Private: 116 HOBART AVE BAYONNE, NJ 07002 (201) 339-0054 Business Fax: Fax: (201) 339-0090 INACTIVE NONE NONE YES NO Insurance Requirements: Mail Fax: Application Pending: NO Application Pending: NO Application Pending: NO Passenger: NO Enterprise: NO F U C S A Undeliverable Mail: NO Household Goods: NO BIPD Exempt: NO BIPD Waiver: NO BIPD Required: $750,000 BIPD on File: $0 Cargo Exempt: YES Cargo Required NO Cargo on File: NO BOC-3: NO Bond Required: NO Bond on File: NO Older process agent filings may not be shown in the database. To Inquire N a carrier has process agents, even if they are not shown here, please call (202)358-7069. Comments: 8/5/03 - NAME CHANGE - OMC172630 - ASSIGNED TO BEA ALEXANDER - 6/13/03 - NAME CHANGE - OMC172630 - ASSIGNED TO WILLIE DAVIS, 6/17/03 - REJECTION LETTER Active/Pending Insurance: Form: Type: Posted Date: Policy/Surety Number. Coverage From: $0 To: $0 Effective Date: Cancellation Date: Rjected Insurances: Form: Type: Policy/Surety Number: Coverage From: $0 To: $0 Received: Rejected: Rejected Reason: in Date: October 20, 2008 Page 1 of 8 Data Source: Licensing and Insurance in Time: 13:41 11-carrier ACSA Motor Carrier JSD6 T P4umber' 815546 Dockr+t Number MC362306 LogM Name RIBB'S TRUCKING, INC. DBA (Doing-Business-As) Name Insurance History: FiMCSA Form: 91X Type: BIPD/Primary Policy/Surety Number. TRK 0000 269 Coverage From $0 To: $1,000,000 Effective Date From: 01/23/2001 To: 08/0212001 Disposition: Cancelled Insurance Carrier REPUBLIC WESTERN INSURANCE COMPANY Attn: LORRAINE MARTIN Address: 2727 NORTH CENTRAL AVENUE PHOENIX, AZ 85004 US Telephone: (602) 263 - 6755 Fax: (602) 745 - 6413 Form: 91X Type: B11313/Primary Policy/Surety Number. CT7653358099-991 Coverage From $0 To: $1,000,000 Effective Date From: 01/26/2000 To: 04/05/2000 Disposition: Cancelled Insurance Carrier SENTRY SELECT INSURANCE COMPANY Attn: LINDA HAMMERSCHMIDT Address: 1800 NORTH POINT DR STEVENS POINT, WI 54481 US Telephone: (800) 610 - 4888 Fax: (715) 346 - 8913 Form: 91X Type: BIPD/Primary Policy/Surety Number: CT7653358099-991 Coverage From $0 To: $1,000,000 Effective Date From: 04/0512000 To: 07/13/2000 Disposition: Cancelled Insurance Carrier SENTRY SELECT INSURANCE COMPANY Attn: LINDA HAMMERSCHMIDT Address: 1800 NORTH POINT DR STEVENS POINT, WI 54481 US Telephone: (800) 610 - 4888 Fax: (715) 346 - 8913 Form: 91X Type: BIPD/Primary Policy/Surety Number: CA29010096 Coverage From $0 To: $1,000,000 Effective Date From: 0612412004 To: 12101/2004 Disposition: Replaced Insurance Carrier ARI MUTUAL INSURANCE COMPANY Attn: TUCKER ERICSON, SVP Address: 133 FRANKLIN CORNER ROAD LAWRENCEVILLE, NJ 08648 US Telephone: (800) 820 - 4506 Fax: (609) 882 - 4088 .un Date: October 20, 2008 Page 2 of 8 Data Source: Licensing and Insurance un Time: 13:41 fl-carrier `4CSA Motor Carrier 6DOT Number. 815546 ,locket Number: MC362306 Legal Name: RIBB'S TRUCKING, INC. DBA (Doing-Business-As) Name insurance History: _??Ii?? FIINCSA Form: 91X Type: B11213/Primary Policy/Surety Number. LWI10030301 Coverage From $0 To: $1,000,000 Effective Date From: 06124/2003 To: 06/24/2003 Disposition: Replaced Insurance Carrier LINCOLN GENERAL INSURANCE COMPANY MIDWEST OFF Attn: SCOTT D. WOLLNEY/ PRESIDENT & CEO Address: 150 NORTHWEST POINT BLVD. 6TH FL. ELK GROVE VILLAGE, IL 60007 US Telephone: (847) 700 - 8606 Fax: (847) 700 - 8610 Form: 91X Type: BIPD/Prlmary Policy/Surety Number: LWI10030301 Coverage From $0 To: $1,000,000 Effective Date From: 0612412003 To: 09/1112003 Disposition: Name Changed Insurance Carrier LINCOLN GENERAL INSURANCE COMPANY MIDWEST OFF Attn: SCOTT D. WOLLNEY/ PRESIDENT & CEO Address: 150 NORTHWEST POINT BLVD. 6TH FL. ELK GROVE VILLAGE, IL 60007 US Telephone: (847) 700 - 8606 Fax: (847) 700 - 8610 Form: 91X Type: BIPO/Prlmary Policy/Surety Number. CT7653358099-991 Coverage From $0 To: $1,000,000 Effective Date From: 07/1312000 To: 0810212000 Disposition: Replaced Insurance Carrier SENTRY SELECT INSURANCE COMPANY Attn: LINDA HAMMERSCHMIDT Address: 1800 NORTH POINT DR STEVENS POINT, WI 54481 US Telephone: (800) 610 - 4888 Fax: (715) 346 - 8913 Form: 91X Type: B11213/Primary Policy/Surety Number: TRK 0000 269 Coverage From $0 To: $1,000,000 Effective Date From: 08/02/2000 To: 01/23/2001 Disposition: Cancelled Insurance Carrier REPUBLIC WESTERN INSURANCE COMPANY Attn: LORRAINE MARTIN Address: 2727 NORTH CENTRAL AVENUE PHOENIX, AZ 85004 US Telephone: (602) 263 - 6755 Fax: (602) 745 - 6413 tun Date: October 20, 2008 Page 3 of 8 Data Source: Licensing and insurance tun Time: 13:41 Ii carrier £j(CSA Motor Carrier 3DOT Whbet: 815546 docket Number: MC362306 Legal Name: RIBB'S TRUCKING, INC. DBA (Doing-Business-As) Name Insurance History: F M C ? A Form: 91X Type: B111213/Primary Policy/Surety Number: CT7653358099-991 Coverage From $0 To: $1,000,000 Effective Date From: 08101/1999 To: 01/26/2000 Disposition: Cancelled Insurance Carrier SENTRY SELECT INSURANCE COMPANY Attn: LINDA HAMMERSCHMIDT Address: 1800 NORTH POINT DR STEVENS POINT, WI 54481 US Telephone: (800) 610 - 4888 Fax: (715) 346 - 8913 Form: 91X Type: BIPD/Primary Policy/Surety Number. LWI10030301 Coverage From $0 To: $1,000,000 Effective Date From: 06/2412003 To: 06/2412004 Disposition: Cancelled Insurance Carrier LINCOLN GENERAL INSURANCE COMPANY MIDWEST OFF Attn: SCOTT D. WOLLNEY/ PRESIDENT & CEO Address: 150 NORTHWEST POINT BLVD. 6TH FL. ELK GROVE VILLAGE, IL 60007 US Telephone: (847) 700 - 8606 Fax: (847) 700 - 8610 Form: 91X Type: BIPD/Primary Policy/Surety Number. CAA2006057 Coverage From $0 To: $1,000,000 Effective Date From: 08/01/2001 To: 08/01/2001 Disposition: Replaced Insurance Carrier HIGHLANDS INSURANCE CO. Attn: ANDREA SEUREN Address: P.O. BOX 6426, 1000 LENOX DR. LAWRENCEVILLE, NJ 08648 US Telephone: (800) 288 - 8898 Fax: (609) 219 - 1780 Form: 91X Type: BIPD/Primary Policy/Surety Number. H08293855 Coverage From $0 To: $1,000,000 Effective Date From: 09/20/2007 To: 05/14/2008 Disposition: Cancelled Insurance Carrier ACE AMERICAN INSURANCE COMPANY Attn: MARK WHITER Address: 436 WALNUT STREET PHILADELPHIA, PA 19106 US Telephone: (215) 640 - 4551 Fax: (215) 761 - 5611 in Date: October 20, 2008 Page 4 of 8 Data Source: Licensing and Insurance in Time: 13:41 li_carrier CSA Motor Carrier "6DOT Number: 815546 docket Number: MC362306 Legal Name: RIBB'S TRUCKING, INC. DBA (Doing-Business-As) Name Insurance History: ]FM FA Form: 91X Type: BIPD/Primary Policy/Surety Number: CAA2006057 Coverage From $0 To: $1,000,000 Effective Date From: 08101/2001 To: 01/0912002 Disposition: Cancelled Insurance Carrier HIGHLANDS INSURANCE CO. Attn: ANDREA SEUREN Address: P.O. BOX 6426, 1000 LENOX DR. LAWRENCEVILLE, NJ 08648 US Telephone: (800) 288 - 8898 Fax: (609) 219 - 1780 Form: 91X Type: BIPD/Primary Policy/Surety Number: AE00017592 Coverage From $0 To: $1,000,000 Effective Date From: 12/01/2004 To: 09/21/2007 Disposition: Cancelled Insurance Carrier GREENWICH INSURANCE COMPANY Attn: SHEILA KELLEY Address: 1201 N. MARKET STREET WILMINGTON, DE 19801 US Telephone: Fax: Form: 34 Type: CARGO Policy/Surety Number: MTC 0000 249 Coverage From $0 To: $5,000 Effective Date From: 01/23/2001 To: 0810212001 Disposition: Cancelled Insurance Carrier REPUBLIC WESTERN INSURANCE COMPANY Attn: LORRAINE MARTIN Address: 2727 NORTH CENTRAL AVENUE PHOENIX, AZ 85004 US Telephone: (602) 263 - 6755 Fax: (602) 745 - 6413 Form: 34 Type: CARGO Policy/Surety Number: CT7653358099-991 Coverage From $0 To: $5,000 Effective Date From: 01/26/2000 To: 04105/2000 Disposition: Cancelled Insurance Carrier SENTRY SELECT INSURANCE COMPANY Attn: LINDA HAMMERSCHMIDT Address: 1800 NORTH POINT DR STEVENS POINT, WI 54481 US Telephone: (800) 610 - 4888 Fax: (715) 346 - 8913 un Date: October 20, 2008 Page 5 of 8 Data Source: Licensing and Insurance li carrier un Time: 13:41 $A Motor Carrier 6DOT Number: 815546 FDocket Number: MC362306 Legal Name: RIBB'S TRUCKING, INC. DBA (Doing-Business-As) Name Insurance History: FMCSA Form: 34 Type: CARGO Policy/Surety Number. CT7653358099-991 Coverage From $0 To: $5,000 Effective Date From: 0410512000 To: 07/13/2000 Disposition: Cancelled Insurance Carrier SENTRY SELECT INSURANCE COMPANY Attn: LINDA HAMMERSCHMIDT Address: 1800 NORTH POINT DR STEVENS POINT, WI 54481 US Telephone: (800) 610 - 4888 Fax: (715) 346 - 8913 Form: 34 Type: CARGO Policy/Surety Number: CT7653358099-991 Coverage From $0 To: $5,000 Effective Date From: 07113/2000 To: 0810212000 Disposition: Replaced Insurance Carrier SENTRY SELECT INSURANCE COMPANY Attn: LINDA HAMMERSCHMIDT Address: 1800 NORTH POINT DR STEVENS POINT, WI 54481 US Telephone: (800) 610 - 4888 Fax: (715) 346 - 8913 Form: 34 Type: CARGO Policy/Surety Number. MTC 0000 249 Coverage From $0 To: $5,000 Effective Date From: 0810212000 To: 01/23/2001 Disposition: Cancelled Insurance Carrier REPUBLIC WESTERN INSURANCE COMPANY Attn: LORRAINE MARTIN Address: 2727 NORTH CENTRAL AVENUE PHOENIX, AZ 85004 US Telephone: (602) 263 - 6755 Fax: (602) 745 - 6413 Form: 34 Type: CARGO Policy/Surety Number. CT7653358099-991 Coverage From $0 To: $5,000 Effective Date From: 08/01/1999 To: 01/26/2000 Disposition: Cancelled Insurance Carrier SENTRY SELECT INSURANCE COMPANY Attn: LINDA HAMMERSCHMIDT Address: 1800 NORTH POINT DR STEVENS POINT, WI 54481 US Telephone: (800) 610 - 4888 Fax: (715) 346 - 8913 un Date: October 20, 2008 Page 6 of 8 Data Source: Licensing and Insurance un Time: 13:41 _ Motor Carrier SDOT Number: 815546 Docket Number: MC362306 Legal Name: RIBB'S TRUCKING, INC. DBA (Doing-Business-As) Name Insurance History: Original Action Disposition Action Form: 34 Type: CARGO Policy/Surety Number. NE0609 Coverage From $0 To: $5,000 Effective Date From: 08108/2003 To: 08/08/2004 Disposition: Cancelled Insurance Carrier UNDERWRITERS AT LLOYDS LONDON Attn: LLOYD'S ILLINOIS INC Address: 181 W. MADISON, SUITE 3870 CHICAGO, IL 60602 US Telephone: (312) 407 - 6214 Fax: (312) 407 - 6629 • If a carrier is in compliance, the amount of coverage will always be shown as the required Federal minimum ($5,000 per vehicle, $10,000 per occurrence for cargo insurance and $10,000 for bond/trust fund). The carrier may actually have higher levels of coverage. " If a carrier is in compliance, the amount of coverage will always be shown as the required Federal minimum ($5,000 per vehicle, $10,000 per occurrence for cargo insurance and $10,000 for bond/trust fund). The carrier may actually have higher evels of coverage. 'If a carrier is in compliance, the amount of coverage will always be shown as the required Federal minimum ($5,000 per vehicle, $10,000 per occurrence for cargo insurance and $10,000 for bond/trust fund). The carrier may actually have higher svels of coverage. If a carrier is in compliance, the amount of coverage will always be shown as the required Federal minimum ($5,000 per ehicle, $10,000 per occurrence for cargo insurance and $10,000 for bond/trust fund). The carrier may actually have higher wels of coverage. ,uthority History: Sub No. Authority Type MOTOR PROPERTY COMMON CARRIER MOTOR PROPERTY COMMON CARRIER MOTOR PROPERTY COMMON CARRIER MOTOR PROPERTY COMMON CARRIER iding Application: ithority Type GRANTED 11/07/2006 REVOKED REINSTATED 11/01/2004 OUT OF SERVICE REINSTATED 01/05/2004 REVOKED GRANTED 08/10/1999 REVOKED _ Ali FUCSA 05/20/2008 11/06/2006 08/16/2004 10/19/2001 Filed Status Insurance BOC-3 Date: October 20, 2008 Page 7 of 8 Data Source: Licensing and Insurance Time: 13:41 li carrier ;€AMptor Carrier JOT Number: 815546 -- icket Number: MC362306 _egal Name: RIBB'S TRUCKING, INC. F U C S A DBA (Doing-Business-As) Name Revocation History: Authority Type COMMON COMMON COMMON I at Searva DatP_ 2nd Serve Date Reason 04/17/2008 07/12/2004 __-- 08/28/2001 _ 05/20/2008 08/16/2004 10/19/2001 INVOLUNTARY REVOCATION INVOLUNTARY REVOCATION INVOLUNTARY REVOCATION )ate: October 20, 2008 Page 8 of 8 Data Source: Licensing and Insurance li carrier 'ime: 13:41 - • Filer: 13335 00 GREENWICH INSURANCE COMPANY `*• ?' Carrier: MC 362306 815546 RIBB'S TRUCKING, INC. 'DBIK Name : Form: 91X Cancelled by: 35 Status: H Type: 1 BIPD Received Date: 12/06/2004 0 Coverage: P Primary maximum: 1000 Underlying: Effective Date: 12/01/2004 Policy/Surety No.: AEC0017592 12/06/2004 Entry User / Date: WEB lodified User / Date: :ancellations Method: CANCEL Received Date: 08/22/2007 Effective Date: 09/21/2007 08/22/2007 Entry User / Date: WEB Comment: EXHIBIT "C" PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR., ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEY FOR PLAINTIFF EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF KUNTZ & SON INC. 13810 FNB PARKWAY OMAHA, NE 68154 VS. COMMON PLEAS COURT OF CUMBERLAND COUNTY NO. OS- g47y 3vit Teri. RIBBS TRUCKING, INC. C'P a n `? 116 HOBART AVENUE '''`` BAYONNE, NJ 07002 F= C 11 AND - - GREENWICH INSURANCE COMPANY -- 70 SEAVIEW AVENUE STAMFORD, CT 06902 NOTICE YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER„ GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 AVISO LE HAN DEMANDADO A LISTED EN LA CORTE. SI USTED QUIERE DEFENDERSE DE ESTAS DEMANDAS EXPUESTAS EN LAS PAGINAS SIGUIENTES, LISTED TIENE (20) DIAS DE PLAZO A PARTIR DE LA FECHA DE LA DEMANDA Y LA NOTIFICACION. LISTED DEBE PRESENTAR UNA APARIENCIA ESCRITA 0 EN PERSONA 0 POR ABOGADO Y ARCHIVAR EN LA CORTE SUS DEFENSAS O SUS OBJECIONES A LAS DEMANDAS ENCONTRA DE SU PERSONA. SEA AVISADO QUE SI LISTED NO SE DEFIENDE, LA CORTE TOMARA MEDIDAS Y PUEDE ENTRAR UNA ORDEN CONTRA LISTED SIN PREVIO AVISO 0 NOTIFICACION 0 POR CUALQIER QUEJA 0 ALIVIO QUE ESPEDIDO EN LA PETICION DE DEMANDA. LISTED PUEDE PERDER DINERO, SUS PROPIEDADES 0 OTROS DERECHOS IMPORTANTES PARA LISTED. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE PARA PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE USTED PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 FROM RECORD ?®¦n?{ ?$/ unto ??y?y try h--j-V *n N !W at said Court at W WA, P; . , vm1. d n ly - 4'-Cp8 PAUL F. D-EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR., ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEY FOR PLAINTIFF EMPIRE FIRE AND MARINE INSURANCE COMPANY AS SUBROGEE OF KUNTZ & SON INC. 13810 FNB PARKWAY OMAHA, NE 68154 VS. RIBBS TRUCKING, INC. 116 HOBART AVENUE BAYONNE, NJ 07002 AND GREENWICH INSURANCE COMPANY 70 SEAVIEW AVENUE STAMFORD CT 06902 COMMON PLEAS COURT OF CUMBERLAND COUNTY NO. DECLARATORY JUDGMENT ACTION Plaintiff by its attorney, Paul F. D'Emilio, Esquire, brings this action upon a cause whereof the following is a statement: 1. The Plaintiff, Empire Fire and Marine Insurance Company (hereinafter "Empire") is a Nebraska Corporation engaged in the insurance business with a statutory home office located at13810 FNB Parkway, Omaha, NE 68154 and a main administrative office or principal place of business located at 1400 American Lane, Schaumburg, IL 60196. It is authorized to transact business and had transacted business in the 1 v Commonwealth of Pennsylvania. 2. Defendant Greenwich Insurance Company is a liability insurance company authorized to do business within the Commonwealth of Pennsylvania having a principal place of business at Seaview House, 70 Seaview Avenue, Stamford, CT 06902-6040. 3. Ribbs Trucking, Inc. is a corporation authorized to do business in the Commonwealth of Pennsylvania with a principal office at 116 Hobart Avenue, Bayonne, NJ 07002 4. On August 11, 2006, when a motor vehicle owned by the Defendant, Ribb's Trucking Inc. and insured by the Defendant Greenwich Insurance Company was traveling southbound on 1-81, Hampden Township, Pennsylvania when the vehicle drifted across three lanes of travel and struck Plaintiff's Insured's vehicle causing the damages hereinafter described. 5. The Insured's vehicle was a total loss and Defendant is liable to Plaintiff for the damages as allowed by law thereto being is Fifty Four Thousand Seven Hundred Two and 02/100 ($54,702.02) Dollars plus the Insured's deductible of Two Thousand Five Hundred and 00/100 ($2,500.00) Dollars plus the towing and storage being Four Thousand Nine Hundred Twenty Eight and 98/100 ($4,928.98) Dollars for a total of Sixty Two Thousand One Hundred Thirty One and 00/100 ($62,131.00) Dollars. A true and correct copy of the checks issued are attached hereto, made part hereof and marked Exhibit "A." 6. A Complaint was filed in the Common Pleas Court of Cumberland County, No. 08-2216 on April 8, 2008 captioned in the matter of Empire Fire and Marine Insurance 2 Company as Subrogee of Kuntz & Son, Inc. v. Patricio Leon and Ribb's Trucking, Inc. A true and correct copy of the Complaint is attached hereto and made part hereof and marked Exhibit "B". 7. The service of the Complaint was made on the Defendants on April 11, 2008 and Notice to Enter Default Judgment was given. 8. A Default Judgment was entered against the Defendant Ribbs Trucking on June 9, 2008 in the sum of $62,131.00. 9. Defendant Ribbs Trucking, Inc. (U.S. Dot 815546) is licensed by and subject to the Federal Motor Vehicle Carrier Safety Act of the United States of America and the rules and regulations promulgated by the Federal Motor Vehicle Carrier Safety Administration thereunder. 10. According to the records of the Federal Motor Vehicle Safety Commission, Defendant Greenwich Insurance Company issued a Property damage liability insurance policy to Defendant Ribb's Trucking, Inc. effective December 1, 2004 for a term expiring on September 21, 2007. Policy number EC-17592 11. Federal regulations state that the policy must remain in effect until it is replaced or cancelled according to special cancellation requirements which are independent of the policy's cancellation requirements. (49 C.F.R. 387.313) 12. The policy was effective as of the date of the loss and in effect until September 21, 2007 according to F.M.C.S.A. regulations. 13. F.M.C.S.A. was never notified of cancellation of the insurance prior to the loss. 14. The policy issued by the Defendant was valid, binding and effective at the time of the injury and Plaintiff as Judgment Creditor of Greenwhch's insured is the beneficiary of 3 the liability insurance policy. 15. Under the terms of the insurance policy, Defendant is obligated to and to indemnify Plaintiff in the suit up to the limits of the policy. 16. Plaintiff has made a demand upon Defendant as required by the terms and conditions of the policy to provide coverage as required under the policy, but the Defendant has refused and neglected to do so. 17. Defendant's disclaimer of liability is without basis and in bad faith. 18. As a result of Defendant's disclaimer, Plaintiff may be required to retain counsel to defend herself in the suit and to incur attorney's fees and costs in connection with the defense. 19. There is a just and actual controversy between the parties. 20. Failure to adjudicate the claims contained herein will result in eminent and inevitable litigation between the parties. WHEREFORE, Plaintiff respectfully requests your Honorable Court enter judgment as follows: A. Declare Defendant, Greenwich Independent Insurance Company, to be obligated to indemnify Plaintiff for the amount of its judgment up to the limits of liability of the policy. B. Order Defendant to bear all future costs of the defense; D. Award attorney's fees and expenses to Plaintiff for fees and expenses for bringing this action; and E. Lastly, grant such other relief as the Court may deem appropriate. Paul F. D'Emilio, Esquire Attorney for Plaintiff 4 VERIFICATION ¦ 11 Mary K. Mashek, Subrogation Representative with Empire Fire and Marine Insurance Company in the above captioned matter verifies that the facts contained in the foregoing Declaratory Judgment Action are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. DATE: It ?r& Representative 1'r RlLEC.D r OF THE 2009hOll - 4 r! 49 iNl Kaufman Dolowich Voluck & Gonzo, LLP BY: Anne R. Myers, Esquire amyers@kdvglaw.com ATTORNEY I.D. NO. 201900 1777 SENTRY PARK WEST GWYNEDD HALL, SUITE 301 BLUE BELL, PENNSYLVANIA 19422 (215) 461-1100 (tel) (215) 461-1300 (fax) Empire Fire and Marine Ins. Co. as subrogree of Kuntz & Son, Inc. Plaintiff, V. Patricio Leon and Ribbs Trucking Defendants. Empire Fire and Marine Ins. Co. as subrogree of Kuntz & Son, Inc. Plaintiff, V. Patricio Leon and Ribbs Trucking Defendants, and Greenwich Insurance Co. Garnishee. ATTORNEYS FOR DEFENDANT, GREENWICH INSURANCE CO. COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 08-2216 CIVIL TERM CIVIL ACTION COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 08-4474 CIVIL TERM CIVIL ACTION DEFENDANT GREENWICH INSURANCE CO.'S RESPONSE IN OPPOSITION TO MOTION TO CONSOLIDATE FOR PURPOSES OF TRIAL Defendant Greenwich Insurance Co., ("Greenwich Insurance") by and through its attorneys, Kaufinan Dolowich Voluck & Gonzo, LLL, files this Opposition to Plaintiff's Motion Page 1 of I I . d to Consolidate, for purposes of trial. Parties have agreed to the consolidation of this matter, for the purposes of discovery. Greenwich Insurance objects to the consolidation of this matter for the purposes of trial in order to avoid prejudice to the detriment of its substantive rights. 1. Admissions and Denials. 1. It is admitted that on August 11, 2006, a motor vehicle owned by Ribbs Trucking was traveling southbound on I-81, Hampden Township, Pennsylvania, when it struck Plaintiff's insured's vehicle. It is denied that Ribbs Trucking was insured by Greenwich Insurance on August 11, 2006. The insurance policy that Greenwich issued to Ribbs Trucking expired on December 1, 2005, nearly a year and a half before the August 11, 2006 auto accident. 2. It is admitted that Plaintiffs insured Kuntz & Son suffered damages in the amount of $62,313.00. It is further admitted that Plaintiff compensated its insured for those damages. 3. It is admitted that on April 8, 2008, Plaintiff filed a complaint in this Court, Civ. Action No. 08-2216, captioned Empire Fire and Marine Insurance Company as subogree of Kuntz & Son, Inc. v. Patricio Leon and Ribbs Trucking, Inc. The inference that Greenwich Insurance was named as a defendant in Civil Action No. 08-2216 is expressly denied. 4. It is admitted that Patricio Leon and Ribbs Trucking, Inc. did not appear before this Court in Civ. Action No. 08-2216, and that on May 16, 2008 a notice of intent to enter default against Ribbs Trucking was sent. The inference that Greenwich Insurance was required to make an appearance in Civ. Action no. 08-2216, on or before May 16, 2008 is expressly denied. Similarly the inference that Greenwich Insurance is somehow bound by the May 16, 2008 notice of intent to enter default against Ribbs Trucking is expressly denied. Page 2 of 11 5. It is admitted that Ribbs Trucking was licensed by and subject to the Federal Motor Vehicle Carrier Safety Act and the rules and regulations promulgated by the Federal Motor Carrier Safety Administration. 6. It is admitted that Greenwich Insurance issued Policy Number EC-17592 contained an MCS-90 endorsement. It is further admitted that a certified copy of the Motor Carrier Identification Reports and Company History Date is attached to Plaintiffs Motion to Consolidate as Exhibit B. It is denied that Greenwich Insurance issued Policy Number EC- 17592, effective December 1, 2004, in order to comply with the F.M.C.S.A. minimum insurance requirements. As the Supreme Court of this Commonwealth has made clear, and MSC-90 endorsement does not constitute insurance coverage per se. Progressive Cas. Ins. Co. v. Hoover, 809 A.2d 353, 360 n.I l l (Pa. 2002). Rather the endorsement establishes the minimum levels of financial responsibility required of companies in the business of transporting property in "interstate or foreign commerce." 49 C.F.R. §§ 387.3, 387.5, and 387.9. The purpose of an MCS-90 endorsement is not to provide one insurance carrier with a cause of action against another. Rather the purpose of an MCS-90 endorsement is to ensure that a financially responsible party will be available to compensate innocent third parties injured in accidents with trucks owned by such companies. Maryland Cas. Co. v. City Delivery Serv., Inc., 817 F. Supp. 525, 530 (M.D. Pa. 1992). It is in essence a "suretyship by the insurance carrier to protect the public." Canal Ins. Co. v. Underwriters at Lloyd's London, 435 F.3d 431, 442 n.4 (3'd Cir. 2006). Page 3 of I 1 7. It is denied that once issued federal law mandates that an insurance policy with an MCS-90 endorsement remains in effect until replaced or canceled in strict accordance with special cancelation requirements mandated by federal law, for all the reasons set forth in paragraph 6, above. Moreover, the majority of federal circuit courts have held that the MCS-90 endorsement does not affect the allocation of loss amount insurer, and therefore excludes the relief sought by Plaintiff before this Court. The United States Court of Appeals for the Seventh Circuit explains: The purpose of the federal statute and regulations is to ensure that an ICC carrier has independent financial responsibility to pay for losses sustained by the general public arising out of its trucking operations. However, once it is clear that there are sufficient funds available to safeguard the public, the inquiry change: the pertinent question is whether the federal policy of assuring compensation for loss to the public prevents courts from examining the manner in which private agreements or state laws would otherwise allocate the ultimate financial burden of the injury. We agree with the majority view that I.C.C. public policy factors are frequently determinative where protection of a member of the public is at stake, but those factors cannot be invoked by another insurance company which contracted to insure a specific risk and which needs no equivalent protection. Travelers Ins. Co. v. Trans. Ins. Co., 787 F.2d 1133, 1140 (7" Cir. 1986). 8. It is admitted that the F.M.C.S.A. was not notified of the cancelation of Greenwich Insurance issued Policy Number EC-17592. It is denied that Greenwich Insurance issued Policy Number EC-17592 was subject to cancellation. Rather Greenwich Insurance issued Policy Number EC-17592 expired on its own terms. It is denied that Greenwich Insurance issued Policy Number EC-17592 was in effect until September 21, 2007, for the benefit of Plaintiff, for all the reasons set forth in paragraphs 6 and 7, above. Moreover, the Third Circuit of Appeals, which governs the interpretation of federal law for several states, including our Commonwealth, subscribes to the majority view set forth by the Seventh Circuit, and cited in paragraph 7 above. The Third Circuit has held that responsibility among motor carriers and their insurers must be determined by state law, not by federal requirements. See Page 4 of 11 Caroline Cas. Ins. Co. v. Ins. Co. of N. Am., 595 F.2d 128, 139-40 (3d Cir. 1979). The Third Circuit reasons that "where the case is concerned with responsibility as between insurance carries, and not with the federal policy of protecting the public, ICC considerations are not detenninative and a court should consider the express terms of the parties' contracts. See Carolina Cas. Ins., 595 F.2d at 139. 9. It is denied that Defendant Greenwich is obligated to indemnity Plaintiff for up to the limits of the policy, for all the reasons set forth in paragraphs 6-8, above. Moreover, the Third Circuit, whose interpretation of federal law governs this Commonwealth, has found that the federal regulations upon which Plaintiff relies "are not so radically intrusive as to absolve . . .. insurers of otherwise existing obligations under applicable state tort law doctrines or under contracts allocating financial risk among private parties." Carolina Cas. Ins. Co. v. Ins. Co. of N. Am., 595 F.2d 128, 138 (3'd Cir. 1979). Empire Fire and Marine contracted to insure Kuntz & Son, Inc. in the event that it was involved in an accident with an uninsured or underinsured vehicle. Empire Fire and Marine should not be allowed to avoid the costs of that contractual promise by reliance on federal regulations that were formulated to protect members of the public, rather than insurance carriers. 10. It is admitted that Plaintiff has made a demand upon Defendant Greenwich for indemnification. It is denied that Defendant Greenwich is obligated to indemnify Plaintiff for all the reasons set forth in paragraphs 6-9, above. 11. It is denied that Greenwich's refusal to indemnify Plaintiff for the amount of this suit, up to the limit of the policy is unreasonable and without basis and in bad faith for the reasons set for in paragraphs 6-9, above. Page 5 of 11 12. It is admitted that Plaintiff issued a Write of Execution in an effort to attach the process of the Greenwich Policy Policy Number EC-17592. It is denied that Plaintiff has the right to do so for the reasons set forth in paragraphs 6-9, above. 13. It is admitted that Greenwich has contested Plaintiff's attachment of Greenwich Insurance issued Policy Number EC-17592. 14. Paragraph 14 was omitted in Plaintiff's Motion to Consolidate. 15. It is admitted that Plaintiff named Greenwich Insurance as a defendant in a declaratory judgment action pending before this Court, Civ. Action No. 08-4474, captioned Empire Fire and Marine Insurance Company as subgrogee of Kutnz & Son, Inc. v. Ribbs Trucking, Inc. and Greenwich Insurance Company. It is further admitted that Plaintiff asks that this Court declare that Greenwich Insurance issued Policy Number EC-17592 was in force at the time of the August 11, 2006 accident and that Greenwich must indemnify Plaintiff for the amounts that Plaintiff paid to its insured. It is denied that Plaintiff is entitled to the relief it requests of this Court for all the reasons set forth in paragraphs 6-9, above. 16. It is denied that Greenwich's refusal to indemnify Plaintiff and disclaim coverage is without basis and in bad faith for the reasons set for in paragraphs 6-9, above. II. Arguments and Authorities in Opposition to Plaintiffs Motion to Consolidate 17. Greenwich Insurance is not a defendant in case No. 08-2216, pending before this Court. In case No. 08-2216, Plaintiff Empire Fire and Marine Ins. Co. ("Plaintiff Empire Insurance") seeks to execute a judgment against Patricio Leon and Ribbs Trucking by attaching the proceeds from Greenwich Insurance Policy No. AE00017592. 18. In Case No. 08-4474, Plaintiff Empire Insurance seeks a declaratory judgment that Defendant Greenwich to be obligated to indemnify Plaintiff for the amount of the judgment Page 6 of 11 in Case No. 08-2216, and that Defendants must bear all future defense costs and pay attorney's fees and costs. 19. Under Pa. R.C.P. No. 213(a) a trial judge has discretion whether or not to consolidate actions involving common questions arising out of the same transaction. With respect to the instant actions, Plaintiff Empire Insurance has failed to demonstrate how consolidation will promote judicial efficiency or fairness to the parties. Plaintiff Empire Insurance asserts that the propriety of consolidation is a foregone conclusion simply because both actions arise out of the same transaction. Plaintiff Empire Insurance, however, ignores the fundamental unfairness to Greenwich Insurance that will flow from consolidation. Consolidation of separate actions involving, on the one hand, enforcement of a default judgment against certain defendants and on the other, a declaratory judgment action against another defendant, will substantially prejudice the substantive rights of the parties. 20. In addition, because this Court is managing both actions, this Court will be able to prevent inconsistent proceedings. Pa. R.C.P. No. 213(a) states that: In actions pending in a county which involve a common question of law or fact or which arise from the same transaction or occurrence, the court on its own motion or on the motion of any party may order a joint hearing or trial of any matter in issue in the actions, may order the actions consolidated, and may make orders that avoid unnecessary cost or delay. 21. The rule must not be exercised in favor of consolidation when there is a potential of prejudice to any party. Motorists Mut. Ins. Co. v. Miller, 1986 Pa. Dist. & Cnty. Dec. LEXIS 318 (Pa. C.P. 1986). In Motorist Mut. Ins., the court refused to order consolidation of the cases because it reasonably believed a jury would be impacted favorably to the plaintiff in a subrogation claim against the operator of a motor vehicle. Id. at 633. Since the vehicle operator was likely without funds to pay a verdict, the only other parties that would have solvency to pay the verdict were the opposing defendants. Id. Page 7 of 1 1 22. Here, as in Motorist Mut. Ins., where a default judgment has already been entered against Defendants Patricio Leon and Ribbs Trucking, the consolidation of the cases will likely prejudice Greenwich Insurance based on its perceived "deep pockets." No detennination has been made as to Greenwich Insurance's liability. By consolidating these cases, Plaintiff Empire Insurance seeks to treat Greenwich Insurance's alleged liability as a forgone conclusion. As in Motorist Mut. Ins., if Defendants Patricio Leon and Ribbs Trucking are perceived as less able to pay the default judgment, the combination of these cases snakes it more likely that Greenwich Insurance will be held responsible to Plaintiff Empire Insurance. Accordingly, Pa. R.C.P. No. 213(a) should not be exercised. 23. In detennining whether actions should be consolidated, the courts consider such factors as judicial economy, minimization of delay, consistency of verdicts, expenses for parties involved, similarity of factual circumstances, amount and complexity of facts to be considered by the jury, whether similarity of legal issues can be easily resolved by the same jury, and possibility of duplication of issues. See Altschuler v. Altschuler, 334 Pa. Super. 111, 482 A.2d 1106 (1984); Manger v. Dunning, 23 Pa. D. & C.3d 554 (C.P. 1982); Anchor Motor Freight, Inc. v. Koser, 10 Pa. D. & C.3d 497 (1979). However, consolidation should be denied where the types of actions involved are dissimilar or where the burden of proof in the different actions differed. Associated Indem. Corp. v. Davis, 51 F. Supp. 835 (D. Pa. 1943). 24. In Associated Indem., the court considered whether a declaratory judgment action and a case proceeding by writ of attachment execution seeking to reach funds in satisfaction of a judgment should be consolidated. The court observed that the two actions were "widely divergent types of action." Id. at 836. The attachment proceedings were highly technical in nature because the Commonwealth of Pennsylvania's statutes and rules of procedure were Page8of11 required to be strictly followed. Id. "An action of this type cannot be consolidated with another action of such different nature without a resulting conflict of procedures." Id. 25. Here Plaintiff Empire Insurance attempts to combine cases similar to those that were rejected in Associated Indem. Plaintiff Empire Insurance's action for declaratory judgment and writ of execution to attach proceeds from the insurance policy are "widely divergent types of action." Although the two cases arise from a common set of facts, Plaintiff Empire Insurance is effectively attempting to mix apples and oranges. The consolidation of these actions would create numerous difficulties for Greenwich Insurance including, but not limited to, difficulties with discovery request and responses, statutory time limits, set off by garnishee, and plea of nulla bona. 26. Further, the burden of proof in a declaratory judgment action involving insurance litigation is often elusive. Fireman's Fund Insurance Co. v. Videfreeze Corp., 540 F.2d 1171, 1174 (3d Cir. 1976), cert. denied, 429 U.S. 1053 (1977). Since the burden of proof "may rest upon different parties in the different cases" consolidation should be avoided in this case because it could result in unnecessary confusion. Associated Indem., 51 F. Supp. at 837. III. Conclusion. For the reasons set forth herein, Defendant Greenwich respectfully requests that Plaintiff Empire Fire and Marine's Motion for Consolidation be denied. Page 9 of 11 Respectfully submitted this -Vday of November, 2009. KAUFMAN DOLOWICH VOLUCK & GONZO LLP Anne R. Myers, Esq. Attorney I.D. No. 20190 1777 Sentry Park West Gwynedd Hall, Suite 301 Blue Bell, Pennsylvania 19422 (215) 461-1100 (215) 461-1300 (fax) amyers@kdvglaw.com Attorneys for Greenwich Insurance Co. Page 10 of 11 CERTIFICATE OF SERVICE I, Anne R. Myers, hereby certify that on November, 2009 1 caused a true and correct copy of the foregoing DEFENDANT GREENWICH INSURANCE CO.'S OPPOSITION TO PLAINTIFF EMPIRE FIRE AND MARINE'S MOTION INSURANCE CO.'S MOTION FOR CONSOLIDATION to be sent via U.S. Mail to all parties of record to the parties listed below: Paul F. D'Emilio, Esquire Paul M. Schofield, Jr., Esquire James P. McCoy, Esquire 905 W. Sproul Road, Suite 105 Springfield, PA 19064 Patricio Leon 2414 97th Street East Elmhurst, NY 11369 Ribb's Trucking Inc. 116 Hobart Avenue Bayonne, NJ 07002 KAUFMAN DOLOWICH VOLUCK & GONZO LLP Anne R. Myers, Esq. ND: 4819-6907-0597, v. 1 Page 11 of 11 Lli THE P,1? r -NOTARY 209 NOY 23 IPM 2: 31 2 ,--? ; EMPIRE FIRE AND MARINE IN THE COURT OF COMMON PLEAS OF INS. CO. as subrogree of CUMBERLAND COUNTY, PENNSYLVANIA KUNTZ & SON, INC. V. PATRICIO LEON and NO. 2008 - 2216 CIVIL TERM RIBBS TRUCKING EMPIRE FIRE AND MARINE INS. CO. as subrogree of KUNTZ & SON, INC. V. Nt17H PATRICIO LEON and NO. 2008 - 44;9-CIVIL TERM RIBBS TRUCKING and GREENWICH INSURANCE CO. ORDER OF COURT AND NOW, this 25TH day of NOVEMBER, 2009, it appearing that Garnishee Greenwich Insurance Co. objects to Plaintiff's Motion to Consolidate, the parties are directed to list the matter for Argument Court in accordance with the Local Rules of Court at a time that is mutually convenient. By_ the Court Edward E. Guido, J. Paul F. D'Emilio, Esquire Anne R. Myers, Esquire ?.o t ?.s .-rte r,c 7[ c 1; f?RY 2009 NUN 30 c l I : 20 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) - - - -- - -- - -------- - - - ---- ---- - ------------- ------ - ------------------ - ---------- CAPTION OF CASE (entire caption must be stated in full) Empire Fire and Marine Insurance Company as Subrogee of Kuntz & Son Inc. vs. Ribb's Trucking Ins. and Greenwich Insurance Co. 08 4474 No. Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Motion to Consolidate 2. Identify all counsel who will argue cases: (a) for plaintiffs: Paul F. D'Emilio, Esquire 905 W. Sproul Road, Suite 105, Springfield, PA 19064 (Name and Address) (b) for defendants: Anne R. Myers, Esquire 1777 Sentry Parkway West, Gwynedd Hall, Suite 301, (Name and Address) Blue Bell, PA 19422 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Print your name Plaintiff Date: I a " 16 ` C'f Attorney for INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. Paul F. D'Emilio, Esquire C,q C-- A, 'X" TW7 T A a . (+ ILI 31 IF i,:` is ?.. EMPIRE FIRE AND MARINE INS. CO. as subrogee of KUNTZ & SON, INC., Plaintiff VS. PATRICIO LEON and RIBBS TRUCKING, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-2216 CIVIL EMPIRE FIRE AND MARINE INS. CO. as subrogee of KUNTZ & SON, INC., Plaintiff vs. PATRICIO LEON and RIBBS TRUCKING, Defendants and IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-4474 CIVIL GREENWICH INSURANCE CO., Garnishee b co ca IN RE: PLAINTIFF'S MOTION TO CONSOLIDATE FOR PURPOSES OF TRIAL ORDER AND NOW, this Z 4 day of March, 2010, it appearing that both of the captioned cases will be tried without a jury and involve similar questions of insurance coverage, the motion of the plaintiff to consolidate these matters for the purposes of trial is GRANTED. BY THE COURT, i Hess, P. J. Paul F. D'Emilio, Esquire For the Plaintiff ?e R. Myers, Esquire For Greenwich Insurance Co. atricio Leon 2414 97th Street East Elmhurst, NY 11369 ./PZ"6b's Trucking Inc. 116 Hobart Avenue Bayonne, NJ 07002 :rlm eopirs .?Z?t" I 3?a?rv 1 Kaufman Dolowich Voluck & Gonzo, LLP BY: Anne R. Myers, Esquire Helen C. Lee, Esquire ATTORNEY I.D. NOS. 201900/79761 1777 SENTRY PARK WEST GWYNEDD HALL, SUITE 301 BLUE BELL, PENNSYLVANIA 19422 (215) 461-1100 (tel) (215) 461-1300 (fax) ATTORNEYS FOR DEFENDANT, GREENWICH INSURANCE CO. Empire Fire and Marine Ins. Co. as COURT OF COMMON PLEAS subrogree of Kuntz & Son, Inc. CUMBERLAND COUNTY Plaintiff, V. No. 08-2216 CIVIL TERM Patricio Leon CIVIL ACTION and Ribbs Trucking Defendants. Empire Fire and Marine Ins. Co. as COURT OF COMMON PLEAS subrogree of Kuntz & Son, Inc. CUMBERLAND COUNTY Plaintiff, V. No. 08-4474 CIVIL TE Patricio Leon CIVIL ACTION and Trucking Defendants, - and Jayy Greenwich Insurance Co. Garnishee. ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Defendant, Greenwich Insurance Co., with regard to the above-captioned matter. Respectfully submitted, KAUFMAN DOLOWICH VOLUCK & GONZO LLP BY: d6?? Helen C. Lee, Esquire r ? Kaufman Dolowich Voluck & Gonzo, LLP BY: Anne R. Myers, Esquire Helen C. Lee, Esquire ATTORNEY I.D. NOS. 201900/79761 1777 SENTRY PARK WEST GWYNEDD HALL, SUITE 301 BLUE BELL, PENNSYLVANIA 19422 (215) 461-1100 (tel) (215) 461-1300 (fax) Empire Fire and Marine Ins. Co. as subrogree of Kuntz & Son, Inc. Plaintiff, V. Patricio Leon and Ribbs Trucking Defendants. Empire Fire and Marine Ins. Co. as subrogree of Kuntz & Son, Inc. Plaintiff, V. Patricio Leon and Ribbs Trucking : Defendants, and Greenwich Insurance Co. Garnishee. ATTORNEYS FOR DEFENDANT, GREENWICH INSURANCE CO. COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 08-2216 CIVIL TERM CIVIL ACTION COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 08-4474 CIVIL TERM CIVIL ACTION CERTIFICATE OF SERVICE I, Helen C. Lee, Esquire, hereby certify that on June 1, 2010 I caused a true and correct copy of my Entry of Appearance to be hand delivered to: Paul F. D'Emilio, Esquire Paul M. Schofield, Jr., Esquire James P. McCoy, Esquire 905 W. Sproul Road, Suite 105 Springfield, PA 19064 and sent via First Class, U.S. Mail to the parties listed below on June 1, 2010; Patricio Leon 2414 97`h Street East Elmhurst, NY 11369 Ribb's Trucking Inc. 116 Hobart Avenue Bayonne, NJ 07002 KAUFMAN DOLOWICH VOLUCK & GONZO LLP --*,--& &A Helen . Lee, Esquire Kaufman Dolowich Voluck & Gonzo, LLP BY: Anne R. Myers, Esquire Helen C. Lee, Esquire ATTORNEY I.D. NO. 201900/79761 1777 SENTRY PARK WEST GWYNEDD HALL, SUITE 301 BLUE BELL, PENNSYLVANIA 19422 (215) 461-1100 (tel) (215) 461-1300 (fax) Empire Fire and Marine Ins. Co. as subrogree of Kuntz & Son, Inc. Plaintiff, V. Patricio Leon and Ribbs Trucking ATTORNEYS FOR DEFENDANT, GREENWICH INSURANCECCO. T-j COURT OF COMMON PLEAS CUMBERLAND COUNTY Defendants. No. 08-2216 CIVIL TERM CIVIL ACTION Empire Fire and Marine Ins. Co. as subrogree of Kuntz & Son, Inc. Plaintiff, v. Patricio Leon and Ribbs Trucking and Greenwich Insurance Co. COURT OF COMMON PLEAS CUMBERLAND COUNTY Defendants, No. 08-4474 CIVIL TERM CIVIL ACTION Garnishee DEFENDANT GREENWICH INSURANCE CO.'S MOTION FOR SUMMARY JUDGMENT Defendant Greenwich Insurance Co., ("Greenwich Insurance") by and through its attorneys, Kaufinan Dolowich Voluck & Gonzo, LLP, hereby files this Motion for Summary Judgment. For the reasons set forth below, there are no genuine issues of material fact and Defendant Greenwich Insurance is entitled to summary judgment as a matter of law. Page 1 of 9 I. STATEMENT OF UNDISPUTED FACTS 1. On or about December 1, 2004, Defendant Greenwich Insurance issued liability policy number AE00017592 ("Greenwich Policy") to Ribbs Trucking. See, Greenwich Policy, attached as Exhibit A. 2. The Greenwich Policy contained an "Endorsement for Motor Carrier Policies of Insurance for Public Liability Under Sections 29 and 30 of the Motor Carrier Act of 1980" ("MCS-90 endorsement"). See, MCS-90 Endorsement, attached as Exhibit B. 3. On December 1, 2005, the Greenwich Policy expired because Ribbs Trucking failed to provide underwriting information. See, Notice of Nonrenewal of Insurance, Exhibit C. 4. Eight months after the Greenwich Policy expired, on August 11, 2006, a garbage truck owned by Ribbs Trucking was traveling southbound on I-81, Hampden Township, Pennsylvania and struck a large commercial truck owned by Kuntz & Son, Inc. See, Police Report, attached as Exhibit D. 5. As a result of this collision, Plaintiffs insured Kuntz & Son, Inc. suffered damages to its truck in the amount of $62,131.00. See, Complaint in No. 08-2216, attached as Exhibit E, at ¶6. 6. Kuntz & Son, Inc. was compensated for the damages to its truck under its own liability policy number CL0660838 issued by Plaintiff Empire Insurance ("Empire Policy"). See, Exhibit E, Complaint in No. 08-2216 at ¶1 and Exhibit F, Empire Policy No. CL 0660838. 7. Defendant Greenwich Insurance notified the Federal Motor Carrier Safety Administration of the cancellation of the Greenwich Policy on August 22, 2007. See, Certified Motor Carrier Report for Ribbs Trucking, Exhibit G. Page 2 of 9 8. On September 7, 2007, Plaintiff Empire Insurance, as subrogee of its insured Kuntz & Son, Inc., made a claim against the Greenwich Policy which was denied as outside the term of the policy, which ended on December 1, 2005. See, Letter dated October 16, 2007, Exhibit H. II. PROCEDURAL HISTORY 9. On April 8, 2008, Plaintiff Empire Insurance, as subrogee of its insured Kuntz & Son, Inc., filed a complaint in this Court, Civil Action No. 08-2216 seeking to be reimbursed for payments for property damage that it made to its insured as a result of the collision on August 11, 2006. Defendant Greenwich Insurance was not named in that lawsuit. 10. Because neither Patricio Leon nor Ribbs Trucking, Inc. appeared before this Court, a default judgment in the amount of $62,131.00 was entered against Ribbs Trucking on June 9, 2008. See, Default Judgment, attached as Exhibit I. 11. On July 11, 2008, Plaintiff Empire Insurance then filed a Praecipe for Writ of Execution seeking to attach the proceeds of the expired Greenwich Policy. See, Praecipe for Writ of Execution, Exhibit J. 12. On September 18, 2008, Plaintiff Empire Insurance instituted a second action before this Court, an action for declaratory judgment against Greenwich Insurance, Civ. Action No. 08-4474 seeking indemnification for the amounts that it paid out to its insured, contending that it is entitled to the proceeds of the Greenwich Policy because the MCS-90 endorsement applied and the policy was not effectively cancelled under the Federal Motor Carrier Safety Administration regulations until September 21, 2007. Page 3 of 9 13. On or about January 21, 2009, and before any discovery took place in this matter, Plaintiff filed a motion for summary judgment in Civil Action No. 08-4474 which was denied by the Court. 14. On or about March 9, 2009, and before any discovery took place in this matter, Defendant Greenwich Insurance filed a motion for judgment on the pleadings in Civil Action No. 08-2216 which was denied by the Court. 15. On March 3, 2010, both Civil Action Nos. 08-2216 and 08-4474 were consolidated by the Court. III. LEGAL ARGUMENT A. An MSC 90 Endorsement is meant to benefit private citizens not insurance carriers. 16. The Supreme Court of this Commonwealth has made clear, an MSC-90 endorsement does not constitute insurance coverage per se. Progressive Cas. Ins. Co. v. Hoover, 809 A.2d 353, 360 n.I l l (Pa. 2002). Rather the endorsement establishes the minimum levels of financial responsibility required of companies in the business of transporting property in "interstate or foreign commerce." 49 C.F.R. §§ 387.3, 387.5, and 387.9; See also, Maryland Casualty Co. v. City Delivery Service Inc., 817 F.Supp. 525, 531 (M.D. Pa. 1993). 17. The Third Circuit Court of Appeals, which governs the interpretation of federal law for several states, including our Commonwealth, has held that the MCS-90 endorsement does not alter the rights and responsibilities amongst insurance carriers. See, Maryland Casualty Co. v. City Delivery Service Inc., 817 F.Supp. at 531, citin , Carolina Casualty Ins. Co. V. Insurance Co. of N. Am., 595 F.2d 128 (3d Cir. 1979). 18. As long as the public interest has been satisfied and innocent third parties have been compensated for their injuries, insurance companies may allocate risk amongst themselves Page 4of9 in accordance with state insurance and contract law. Maryland Casualty Co., 817 F.Supp. at 531; See also, Travelers Ins. Co. v. Transport Ins. Co., 787 F.2d 1133, 1140 (7th Cir. 1986). 19. This is in line with the majority of federal courts which hold that the rules and regulations promulgated by the Federal Motor Carrier Safety Administration, in conformity with the Federal Motor Vehicle Carrier Safety Act, do not affect the allocation of loss between insurance carriers. See, Travelers Ins. Co.., 787 F.2d at 1140; Occidental Fire & Casualty Co v. Int'l Ins. Co., 804 F.2d 983, 986 (7°i Cir. 1986); Carter v. Van gilder, 803 F.2d 189, 192 (5th Cir. 1986); Grinnell Mut. Reinsurance Co. v. Empire Fire & Marine Ins. Co., 722 F.2d 1400 (8th Cir. 1983); Carolina Cas. Ins. Co. v. The Underwriters Ins. Co., 569 F.2d 304, 313 (5th Cir. 1978); Prestige Cas. Co. v. Michigan Mut. Ins. Co., 99 F.3d 1340, 1348 (6th Cir. 1996). 20. In other words, the MCS-90 endorsement is only invoked where the protection of a member of the public is at stake and the endorsement cannot be utilized by another insurance company which contracted to insure a specific risk and is thus not subject to equivalent public policy consideration. See, Travelers Ins. Co. v. Trans. Ins. Co., 787 F.2d 1133, 1140 (7th Cir. 1986). 21. Thus, the purpose of an MCS-90 endorsement is in essence a "suretyship by the insurance carrier to protect the public." Canal Ins. Co. v. Underwriters at Lloyd's London, 435 F.3d 431, 442 n.4 (3rd Cir. 2006). 22. As aptly put by the court in Canal Ins. Co. v. Carolina Casualty Ins. Co., 59 F.3d 281, 283 (1st Cir. 1995), "[w]e consider the ICC endorsement to be, in effect, suretyship by the insurance carrier to protect the public -- a safety net ... It simply covers the public when other coverage is lacking." See also, Zurich American Ins. V. Grand Avenue Transport, 2010 U.S. Dist. LEXIS 15582, *21-26 (N.D. CA February 23, 2010) [emphasis added]. Page 5 of 9 23. In the instant case, other coverage was not lacking as Kuntz & Sons, Inc. was covered by its own commercial policy with Plaintiff Empire Insurance. 24. This is not a situation where an innocent third party was underinsured or uninsured. 25. Because Plaintiff's insured was already compensated, the MCS-90 endorsement was not triggered by the accident. This is an issue between two insurance companies. 26. Plaintiff Empire Insurance is not entitled to indemnification from Greenwich Insurance on an expired policy, when its' insured had full coverage for which Empire Insurance had received a premium payment. See, James R. Lilly, "Insurance Coverage and Conflicting Interpretations of the MCS-90," 74 Def. Couns.J. 343, 349 (Oct. 2007) ("A majority of jurisdictions hold that the MCS-90 has no affect on the allocation of coverage among insurers; once the injured party is compensated, the endorsement is ignored"). 27. Plaintiff Empire Insurance seeks to improperly use the MCS-90 endorsement to allocate its losses to Defendant Greenwich Insurance. 28. Plaintiff Empire Fire and Marine should not be permitted to avoid the costs of its contractual promise by reliance on federal regulations that were formulated to protect members of the public, rather than insurance carriers. B. The MCS-90 Endorsement Protection is Not Triggered by Plaintiff Empire Insurance Merely Because of its Status as a Subrogee 29. Plaintiff's status as a subrogee of Kuntz & Son, Inc. does not allow it coverage under the MCS-90 endorsement. 30. As subrogee of Kuntz & Son, Inc., Plaintiff Empire Insurance "stands in the shoes" of the insured. Johnson v. Beane, 664 A.2d 96, 100 (Pa. 1995). Certainly, had the Page 6 of 9 Greenwich Policy been in effect at the time of the accident, Plaintiff Empire Insurance would have been able to stand in the shoes of its insured and be entitled to indemnification for the amounts it paid out to its insured. 31. However, the Greenwich Policy was not in effect at the time of the accident and Kuntz & Sons, Inc. was not entitled to indemnification for property damage from the proceeds of that policy under contract law. Plaintiff Empire Insurance, as subrogee, has no greater rights than those held by the subrogor. Bell v. Slezak, 812 A.2d 566, 574 (Pa. 2002). 32. The issue is clouded only by the fact that if Kuntz & Son, Inc. had not had other insurance coverage, the MCS-90 endorsement may have been triggered and coverage may have been found due to the delay in reporting the cancellation of the policy to the Federal Motor Carrier Safety Administration. 33, However, Kuntz & Sons, Inc. was compensated by Plaintiff Empire Insurance. Plaintiff Empire now stands in the shoes of a fully compensated insured and the public policies reasons behind the MCS-90 endorsement, to protect the uninsured or underinsured public, do not apply. 34. Similarly, the Pennsylvania Supreme Court in Ario v. Reliance Ins. Co., 980 A.2d 588, 596 (Pa. 2009), found that once an insured was compensated, the subrogee insurer was in a lesser priority position than if its insured had never been compensated in a claim against an insolvent insurer under the Insurance Department Act. ("Act"). This is because the language of the Act provides that once a claimant has already been compensated, the claimant is not entitled to priority over those who have not yet been compensated. Id. at 595. Page 7 of 9 35. Once Kuntz & Sons, Inc. was compensated, Plaintiff Empire Insurance as subrogee cannot gain the status of an uncompensated claimant entitled to coverage under the Greenwich Policy pursuant to the MCS-90 endorsement. 36. Moreover, it would be against public policy to allow the MCS-90 endorsement to be utilized to attach the proceeds of a policy, which had been expired for over nine months prior to the accident, to indemnify a party that has already been compensated. 37. There are no outstanding issues of fact, and defendant is entitled to judgment in its favor as a matter of law. WHEREFORE, Defendant Greenwich Insurance Company respectfully requests that this Honorable Court grant summary judgment in favor of the defendant and against the plaintiff Empire Fire and Marine Ins. Company. KAUFMAN DOLOWICH VOLUCK & GONZO LLP BY: Anne Myers, Esq. Helen C. Lee, Esq. Attorney I.D. No. 201900/79761 1777 Sentry Park West Gwynedd Hall, Suite 301 Blue Bell, Pennsylvania 19422 (215) 461-1100 (215) 461-1300 (fax) amyers@kdvglaw.com _Attorneys for Greenwich Insurance Co. Page 8 of 9 CERTIFICATE OF SERVICE I, Helen C. Lee, hereby certify that on June 1, 2010, I caused a true and correct copy of the foregoing DEFENDANT GREENWICH INSURANCE CO.'S MOTION FOR SUMMARY JUDGMENT and MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT to be hand delivered to: Paul F. D'Emilio, Esquire Paul M. Schofield, Jr., Esquire James P. McCoy, Esquire 905 W. Sproul Road, Suite 105 Springfield, PA 19064 and sent via U.S. Mail to the parties listed below on June 1, 2010: Patricio Leon 241497 th Street East Elmhurst, NY 11369 Ribb's Trucking Inc. 116 Hobart Avenue Bayonne, NJ 07002 KAUFMAN DOLOWICH VOLUCK & GONZO LLP le n C. Lee, Esq. ND: 4819-1334-1446, v. I Page 9 of 9 KAUFMAN DOLOWICH VOLUCK & GONZO, LLP BY: Anne R. Myers, Esquire Helen C. Lee, Esquire Attorney I.D. No. 201900/79761 1777 Sentry Park West Gwynedd Hall, Suite 301 Blue Bell, Pennsylvania 19422 (215) 461-1100 (tel) (215) 461-1300 (fax) Empire Fire and Marine Ins. Co. as subrogree of Kuntz & Son, Inc. Plaintiff, V. Patricio Leon and Ribbs Trucking Defendants Attorneys for Defendant, Greenwich Insurance Co. COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 08-2216 CIVIL TERM CIVIL ACTION Empire Fire and Marine Ins. Co. as subrogree of Kuntz & Son, Inc. Plaintiff, V. Patricio Leon and Ribbs Trucking and Defendants, Greenwich Insurance Co. Garnishee COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 08-4474 CIVIL TERM CIVIL ACTION DEFENDANT GREENWICH INSURANCE CO.'S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT Defendant Greenwich Insurance Co., ("Greenwich Insurance") by and through its attorneys, Kaufman Dolowich Voluck & Gonzo, LLP, hereby submits this memorandum of law in support of its Motion for Summary Judgment. I. Factual Background On or about December 1, 2004, Defendant Greenwich Insurance issued liability policy number AEC0017592 ("Greenwich Policy") to Ribbs Trucking. See, Policy, attached as Exhibit A. The Greenwich Policy contained an "Endorsement for Motor Carrier Policies of Insurance for Public Liability Under Sections 29 and 30 of the Motor Carrier Act of 1980" ("MCS-90 endorsement"). See, MCS-90 Endorsement, attached as Exhibit B. One year later, on December 1, 2005, the Greenwich Policy expired because Ribbs Trucking failed to provide underwriting information. See, Notice of Nonrenewal of Insurance, Exhibit C. Eight months after the Greenwich Policy expired, on August 11, 2006, a garbage truck owned by Ribbs Trucking was traveling southbound on I-81, Hampden Township, Pennsylvania, when it struck a large commercial truck owned by Kuntz & Son, Inc. See, Police Report, attached as Exhibit D. As a result of this collision, Kuntz & Son, Inc. suffered damages to its truck in the amount of $62,131.00, for which it was compensated under its liability policy number CL0660838 issued by Plaintiff Empire Insurance. Defendant Greenwich Insurance notified the Federal Motor Carrier Safety Administration of the cancellation of the Greenwich Policy on August 22, 2007. See, Certified Motor Carrier Report for Ribbs Trucking, Exhibit G. Thereafter, on September 7, 2007, Plaintiff Empire Insurance made a claim against the Greenwich Policy which was denied as coverage for Ribbs Trucking had expired on December 1, 2005. See, Letter dated October 16, 2007, Exhibit H. II. Procedural History On April 8, 2008, Plaintiff Empire Insurance, as subrogee of its insured Kuntz & Son, Inc., filed a complaint in this Court, Civil Action No. 08-2216 against Ribbs Trucking and its driver Patricio Leon seeking to be reimbursed for payments for property damage that it made to 2 its insured as a result of the collision on August 11, 2006. Defendant Greenwich Insurance was not named in that lawsuit. Neither Patricio Leon nor Ribbs Trucking, Inc. appeared before this Court and a default judgment in the amount of $62,131.00 was entered against Ribbs Trucking on June 9, 2008. Plaintiff Empire Insurance then filed a Praecipe for Writ of Execution seeking to attach the proceeds of the expired Greenwich Policy. Soon thereafter on September 18, 2008, Plaintiff Empire Insurance instituted a second action before this Court, for declaratory judgment against Greenwich Insurance in Civil Action No. 08-4474, seeking indemnification for the amounts that it paid out to its insured, contending that it is entitled to the proceeds of the Greenwich Policy because the MCS-90 endorsement applied and the policy was not effectively cancelled under the Federal Motor Carrier Safety Administration regulations until September 21, 2007. On or about January 21, 2009, and before any discovery took place in this matter, Plaintiff filed a motion for summary judgment in Civil Action No. 08-4474 which was denied by this Court. On or about March 9, 2010, and before any discovery took place in this matter, Defendant Greenwich Insurance filed a motion for judgment on the pleadings in Civil Action No. 08-2216 which was denied by the Court. On March 3, 2010, upon Plaintiffs motion and Defendant Greenwich Insurance's objection, both Civil Action Numbers 08-2216 and 08-4474 were consolidated by this Court for purposes of trial. III. Legal Argument A. Standard of Review 3 The Declaratory Judgments Act describes the power of courts to "declare rights, status, and other legal relations...." Juban v. Schermer, 751 A.2d 1190, 1193 (Pa. Super. 2000), citin , 42 Pa.C.S. §7531, et seq. Declaratory judgment actions are particularly well suited for questions regarding construction of insurance contracts involving determinations of a claimant is entitled to indemnification. Liberty Mutual Insurance Co. v. S.G.S. Co., 318 A.2d 906, 907-908 (1974); Warner v. Continental/ CNA Insurance Companies, 688 A.2d 177, 180 (Pa. Super. 1996), UP. denied, 698 A.2d 68 (1997). The issue of whether a particular loss is covered by a policy may be decided in a declaratory judgment action byway of a motion for summary judgment. Bowers v. Estate of Feathers, 671 A.2d 695, 697 (Pa. Super. 1995), app. denied, 705 A.2d 1303 (1997). Pennsylvania Rule of Civil Procedure 1035.2 governs the procedures and standards for summary judgment: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, a party may move for summary judgment in whole or in part as a matter of law. (1) Whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) If, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Id. The purpose of a motion for summary judgment is to create judicial efficiency and economic rationality by minimizing unnecessary litigation. Phaff v. Gerner, 303 A.2d 826, 829 (Pa. 1973); Liles v. Balmer, 567 A.2d 691, 692 (1981). See also, Wolloch v. Aiken, 815 A.2d 594, 596 (Pa. 2002) (The purpose of Rule 1035.2 is to "weed out meritless cases after discovery has been 4 completed" and eliminate such cases prior to trial.) Summary judgment is appropriate after the relevant pleadings are closed, and whenever there is no genuine issue of any material fact as to a necessary element of the cause of action, which could be established by additional discovery. Pa.R.C.P. 1035.2; see also, Lyman v. Boonin, 635 A.2d 1029 (Pa. 1993); Hopewell Estates, Inc. v. Kent, 646 A.2d 1192 (Pa. Super. 1994). In the instant case, there is no genuine issue of any material fact and Defendant Greenwich Insurance is entitled to summary judgment as a matter of law. B. An MSC 90 Endoresement is Meant to Benefit Private Citizens not Insurance Carriers. The Supreme Court of this Commonwealth has made clear that an MSC-90 endorsement does not constitute insurance coverage per se. Progressive Cas. Ins. Co. v. Hoover, 809 A.2d 353, 360, n.I 1 (Pa. 2002). Rather the endorsement establishes the minimum levels of financial responsibility required of companies in the business of transporting property in "interstate or foreign commerce." 49 C.F.R. §§ 387.3, 387.5, and 387.9. The purpose of an MCS-90 endorsement is not to provide one insurance carrier with a cause of action against another but to ensure that a financially responsible party will be available to compensate innocent third parties injured in accidents with trucks owned by such companies. Maryland Cas. Co. v. City Delivery Serv., Inc., 817 F. Supp. 525, 530 (M.D. Pa. 1992). The Third Circuit Court of Appeals, which governs the interpretation of federal law for several states, including our Commonwealth, has held that the MCS-90 endorsement does not alter the rights and responsibilities of insurance carriers. Maryland Casualty Co. v. City Delivery Service, Inc., 817 F.Supp. 525, 531 (M.D. Pa. 1993), citin , Carolina Casualty Ins. Co. v. Insurance Co. of N. Am., 595 F.2d 128 (3d Cir. 1979). As long as the public interest has been satisfied and innocent third parties have been compensated for their injuries, insurance 5 companies may allocate risk amongst themselves in accordance with state insurance and contract law. Id.; See also, Travelers Ins. Co. v. Transport Ins. Co., 787 F.2d 1133, 1140 (7t1i Cir. 1986). This is in line with the majority of federal courts which hold that the rules and regulations promulgated by the Federal Motor Carrier Safety Administration, in conformity with the Federal Motor Vehicle Carrier Safety Act, do not affect the allocation of loss between insurance carriers. See, Prestige Cas. Co. v. Michigan Mut. Ins. Co., 99 F.3d 1340, 1348 (6th Cir. 1996) (finding that the ICC endorsement applies only to situations in which a claim is being asserted by a shipper or a member of the public, and has no application as among insurers); Travelers Ins. Co. v. Transport Ins. Co., 787 F.2d at 1140; Occidental Fire & Casualty Co. v. Intl Ins. Co., 804 F.2d 983, 986 (7th Cir. 1986); Carter v. Van gilder, 803 F.2d 189, 192 (5th Cir. 1986); Grinnell Mut. Reinsurance Co. v. Empire Fire & Marine Ins. Co., 722 F.2d 1400 (8th Cir. 1983) ("While the ICC regulations do require a motor carrier to maintain public liability insurance and make a carrier liable to the public for negligent acts of the vehicle's driver whenever the carrier's number is displayed, the regulations do not fix the liability between insureds or insurance companies."); Carolina Cas. Ins. Co. v. The Underwriters Ins. Co., 569 F.2d 304, 313 (5th Cir. 1978) ("ICC policy factors are frequently determinative where protection of a member of the public or a shipper is at stake, but those factors cannot be involved by another insurance company which contracted to insure a specific risk and which needs no equivalent protection"); Allstate Ins. Co. v. Liberty Mut. Ins. Co., 368 F.2d 121 (3d Cir. 1966) (finding that I.C.C. Regulations are not dispositive in a coverage dispute between two insurance carriers") The United States Court of Appeals for the Seventh Circuit explains: The purpose of the federal statute and regulations is to ensure that an ICC carrier has independent financial responsibility to pay for losses sustained by the general public arising out of its trucking operations. However, once it is clear that there are sufficient funds available to safeguard the public, the inquiry changes: the pertinent question is 6 whether the federal policy of assuring compensation for loss to the public prevents courts from examining the manner in which private agreements or state laws would otherwise allocate the ultimate financial burden of the injury. We agree with the majority view that I.C.C. public policy factors are frequently determinative where protection of a member of the public is at stake, but those factors cannot be invoked by another insurance company which contracted to insure a specific risk and which needs no equivalent protection. Travelers Ins. Co. v. Trans. Ins. Co., 787 F.2d at 1140. [emphasis added]. Thus, the purpose of an MCS-90 endorsement is in essence a "suretyship by the insurance carrier to protect the public." Canal Ins. Co. v. Underwriters at Lloyd's London, 435 F.3d 431, 442 n.4 (3rd Cir. 2006). As aptly put by the court in Canal Ins. Co. v. Carolina Casualty Ins. Co., 59 F.3d 281, 283 (151 Cir. 1995), "[w]e consider the ICC endorsement to be, in effect, suretyship by the insurance carrier to protect the public -- a safety net ... It simply covers the public when other coverage is lacking." See also, Zurich American Ins. V. Grand Avenue Transport, 2010 U.S. Dist. LEXIS 15582, *21-26 (N.D. CA February 23, 2010). In the instant case, other coverage was not lacking as Kuntz & Sons, Inc. was covered under its own commercial policy with Plaintiff Empire Insurance. This is not a situation where an innocent third party was underinsured or uninsured, triggering public interest protection served by the MCS-90 endorsement. Because Plaintiffs insured was already compensated, the MSC-90 endorsement was not triggered by the accident. This is an issue between two insurance companies. Plaintiff Empire Insurance is not entitled to indemnification from Greenwich Insurance on an expired policy, when its insured had full coverage for which Empire Insurance had received a premium payment. See, James R. Lilly, "Insurance Coverage and Conflicting Interpretations of the MCS-90," 74 Def. Couns.J. 343, 349 (Oct. 2007) ("A majority of jurisdictions hold that the MCS-90 has no affect on the allocation of coverage among insurers; once the injured party is compensated, the endorsement is ignored"). 7 Plaintiff Empire Insurance seeks to improperly use the MCS-90 endorsement to allocate its losses to Defendant Greenwich Insurance. Plaintiff Empire Insurance should not be allowed to avoid the costs of its contractual promise with Kuntz & Sons, Inc. by reliance on federal regulations that were formulated to protect members of the public, rather than insurance carriers. A review of the facts not in dispute demonstrate that there was no policy insuring Ribbs Trucking at the time of the accident from which Plaintiff Empire Insurance can claim indemnification. As the MCS-90 endorsement was not intended to extend coverage to an insurance company, which requires no public policy consideration, Plaintiff Empire Insurance is not entitled to indemnification from Defendant Greenwich Insurance, and the consolidated action for the Writ of Execution and the Action for Declaratory Judgment must be dismissed with prejudice. C. The MCS-90 Endorsement Protection is Not Tri ered by Plaintiff Empire Insurance Merely Because of its Status as a Subrogee As subrogee of Kuntz & Son, Inc., Plaintiff Empire Insurance "stands in the shoes" of its insured. Johnson v. Beane, 664 A.2d 96, 100 (Pa. 1995); Wimer v. Pa. Em p. Benefit Trust Fund, 939 A.2d 843, 853 (Pa. 2007). "Subrogation is the equity called into existence for the purpose of enabling a party secondarily liable, but who has paid the debt, to reap the benefit of any securities which the creditor may hold against the principal debtor, and by the use of which the party paying may thus be made whole." Paxton Nat'l Ins. Co. v. Brickajlik, 522 A.2d 531, 532 (Pa. 1987). Certainly, had the Greenwich Policy been in effect at the time of the accident, Plaintiff Empire Insurance would have been able to stand in the shoes of its insured and be entitled to indemnification for the amounts it paid out to its insured. But the fact is that the Greenwich Policy was not in effect at the time of the accident. Thus, it is undisputable that Kuntz & Sons, Inc. was not entitled to indemnification from the 8 expired Greenwich Policy. As subrogee, Plaintiff Empire Insurance was also not entitled to indemnification. "A subrogee has no greater rights than those held by the subrogor." Bell v. Slezak, 812 A.2d 566, 574 (Pa. 2002). The issue is clouded only by the fact that under the Federal Motor Vehicle Carrier Safety Act, coverage under the Greenwich Policy could have been triggered had Kuntz & Sons, Inc. lacked other coverage. See, Canal Ins. Co. v. Carolina Casualty Ins. Co., 59 F.3d 281, 283 (1St Cir. 1995).1 But because Kuntz & Sons, Inc., as discussed supra, was covered by its own commercial policy and was compensated, the MCS-90 endorsement was not triggered. More importantly, Plaintiff Empire Insurance, as subrogee, now stands in the shoes of a fully compensated insured and the public policies reasons behind the MCS-90 endorsement, to protect the uninsured or underinsured public, do not apply. The case Ario v. Reliance Ins. Co., 980 A.2d 588, 596 (Pa. 2009) is instructive. Ario involved claims for indemnification by subrogee insurer against an insolvent insurer of the tortfeasor under the Insurance Department Act ("Act''). Id. at 590-91. In that case, the Pennsylvania Supreme Court found that under the Act, once an insured was compensated, the subrogee insurer was in a lesser priority position than if its insured had not been compensated. Id. at 596. This is because the language of the Act provides that if a claimant has already been compensated, that claimant is not entitled to priority over those who have never been compensated. Id. at 595. In other words, once its insured was compensated, the subrogee insurer could not gain the status of an uncompensated claimant, as it was standing in the shoes of a compensated claimant. Similarly, once Kuntz & Sons, Inc. was compensated, Plaintiff Empire Had Defendant Greenwich Insurance given prompt notification to the Federal Motor Carrier Safety Administration of the Greenwich Policy's cancellation, even if Kuntz & Sons, Inc. had had no other available coverage, the MCS-90 endorsement would not have applied. 9 Insurance as subrogee cannot gain the status of an uncompensated claimant entitled to coverage under the Greenwich Policy pursuant to the MCS-90 endorsement. Because its insured is not an uncompensated claimant, the MCS-90 endorsement does not apply and there is no coverage or indemnification due under the expired Greenwich Policy to either Kuntz & Sons, Inc. or Plaintiff Empire Insurance. Plaintiff's subrogee status does not entitle it to indemnification and therefore excludes the relief sought by Plaintiff Empire Insurance before this Court. D. It is Against Public Policy to Allow MCS-90 Endorsements to Apply to Insurance Companies. Last, it would be against public policy to allow the MCS-90 endorsement to be utilized to attach the proceeds of a policy, which had been expired for over nine months prior to the accident, to indemnify a party that has already been compensated. The far-reaching effects of the MCS-90 endorsement, i.e., finding coverage where none exists, are permitted simply to protect the innocent public who lack adequate coverage when involved in an accident with a commercial vehicle used for interstate commerce. The purpose for the MCS-90 endorsement cannot be twisted and used by insurance companies to allocate their own financial risk. In effect, Plaintiff Empire Insurance asks that because Defendant Greenwich Insurance did not meet the strict cancellation requirements of the Federal Motor Carrier Safety Administration, which is in existence to protect the public, that it be allowed a windfall and collect against a cancelled, expired policy. IV. CONCLUSION There is no issue of fact in the instant case. The Greenwich Policy had an MCS-90 endorsement. However, the protection to the public offered by the MCS-90 endorsement was not triggered in this instance because Plaintiffs insured Kuntz & Sons, Inc. was fully 10 compensated for damages arising out of the accident. Consequently, Plaintiff Empire Insurance as subrogee for the insured cannot invoke the MCS-90 endorsement and is not entitled to indemnification from the expired policy issued by Defendant Greenwich. Respectfully Submitted, KAUFMAN DOLOWICH VOLUCK & GONZO LLP By. Anne Myers, Esquire Helen C. Lee, Esquire Attorneys for Defendant Greenwich Insurance Company Dated: June 1, 2010 ND: 4815-5486-0550, v. 1 CA~pL PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) Empire Fire and Marine Ins. Co. as subrogree of Kuntz & Son, Inc. Plaintiff, v. Patricio Leon and Ribbs Trucking and Greenwich Insurance Co. Defendants, Garnishee. COURT OF COMMON PLEAS . CUMBERLAND COUNTY No. 08-4474 CIVIL TERM ' CIVIL ACTION om` ~ ; t ' . Y _ _. ~.._ - . ~ r- -, T"i rW ~ ~,, ~_... ,_._ -- ~' ~ , ;. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's `-;. _ demurrer to complaint, etc.): -:.~ ~ 'c ~~ Defendant Greenwich Insurance Co 's Motion for Summary Judarnent `"° '~ ~~ Identify all counsel will argue cases: (a) for Plaintiffs: Paul F D'Emilio Esguire/Paul M Schofield Jr Esquire -The Law Office of Paul F. D'Emilio 905 W. Sproul Road. Suite 105, ~rinQfield PA 19064 (Name and Address) (b) for Defendants: Anne R Myers Esquire/Helen C Lee Esquire - Kaufinan Dolowich Voluck & Gonzo LLP_ 1777 Sentry Park West Gwynedd Hall Suite 301 Blue Bell PA 19422 (Name and Address) 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: August 18 2010 " ~ ~ n- _~~Gt'.f/~C. 1. Signature Helen C. Lee, Esquire Print your name Date: ~ 02~ ~ Greenwich Insurance Co. Attorney for Defendant INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. EMPIRE FIRE AND MARINE INS. CO. as subrogee of KUNTZ & SON, INC., Plaintiff v. PATRICIO LEON and RIBB' S TRUCKING, Defendants and GREENWICH INSURANCE COMPANY, Garnishee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW c NO. 08-2216 CIVIL TERM EMPIRE FIRE AND MARINE INS. CO. as subrogee of KUNTZ & SON, INC., Plaintiff V. RIBBS TRUCKING, INC.,: and GREENWICH INSURANCE COMPANY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- LAW NO. 08-4474 CIVIL TERM IN RE: MOTION FOR SUMMARY JUDGMENT FILED BY GARNISHEE/DEFENDANT GREENWICH INSURANCE COMPANY BEFORE HESS, P.J., OLER and MASLAND, JJ. ORDER OF COURT AND NOW, this 13`h day of September, 2010, upon consideration of the motion for summary judgment filed by Defendant/Garnishee Greenwich Insurance Company, and for the reasons stated in the accompanying opinion, the motion is denied. BY THE COURT, J Wesley Oler, Jr., ` J aul F. D'Emilio, Esq. Paul M. Schofield, Jr., Esq. 905 W. Sproul Road Suite 105 Springfield, PA 19064 Attorneys for Plaintiff ,-- 'Anne R. Myers, Esq. Helen C. Lee, Esq. KAUFMA.N DOLOWICH VOLUCK & GONZO, LLP 1777 Sentry Park West Gwynedd Hall, Suite 301 Blue Bell, PA 19422 Attorneys for Garnishee/Defendant, Greenwich Insurance Co. atricio Leon 2414 97`1' Street East Elmhurst, NY 11369 Defendant, pro Se /ibbs Trucking, Inc. 116 Hobart Avenue Bayonne, NJ 07002 Defendant, pro Se eop ?'ES m a L ?.?c?, 4// kl to EMPIRE FIRE AND MARINE INS. CO. as subrogee of KUNTZ & SON, INC., Plaintiff V. PATRICIO LEON and RIBB' S TRUCKING, Defendants and GREENWICH INSURANCE COMPANY, Garnishee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-2216 CIVIL TERM EMPIRE FIRE AND : IN THE COURT OF COMMON PLEAS OF MARINE INS. CO. as : CUMBERLAND COUNTY, PENNSYLVANIA subrogee of KUNTZ & SON, INC., Plaintiff : CIVIL ACTION - LAW V. RIBBS TRUCKING, INC.,: and GREENWICH INSURANCE COMPANY, Defendants : NO. 08-4474 CIVIL TERM IN RE: MOTION FOR SUMMARY JUDGMENT FILED BY GARNISHEE/DEFENDANT GREENWICH INSURANCE COMPANY BEFORE HESS, P.J., OLER and MASLAND, JJ. OPINION and ORDER OF COURT OLER, J., September 13, 2010. In these consolidated cases involving an interesting issue of insurance law, one motor vehicle insurance carrier, in the capacity of a subrogee of its insured, seeks to recover from another motor vehicle insurance carrier on a liability policy issued by the latter to its insured. More specifically, Plaintiff Empire Fire and Marine Insurance Company (Empire), as subrogee of a vehicle owner to which it provided insurance coverage, seeks to recover on a policy issued by Garn.isheelDefendant Greenwich Insurance Company (Greenwich) to another vehicle owner, where the Greenwich policy had generally lapsed but remained effective as to one of its federally-mandated endorsements. For disposition at this time is a motion for summary judgment filed by Greenwich seeking, for the third time,t a pre-trial termination of the case in its favor.' For the reasons stated in this opinion, the request will again be denied. STATEMENT OF FACTS Reduced to the simplest terms, the facts of this case which do not seem to be in dispute may be stated as follows: Plaintiff Empire Fire and Marine Insurance Company provided motor vehicle insurance coverage to the owner of a vehicle which was damaged in an accident by a motor carrier with lapsed motor vehicle insurance that had been issued by Defendant Greenwich Insurance Company.' A certain endorsement on the lapsed policy, however, remained in effect at the time ' Defendant Greenwich Insurance Co.'s Motion for Judgment on the Pleadings, filed Mar. 10, 2009; Defendant Greenwich Insurance Co.'s Motion for Reconsideration or in the Alternative Motion for an Amendment of the Court's Order To Certify an Interlocutory Appeal, filed May 29, 2009; Defendant Greenwich Insurance Co.'s Motion for Summary Judgment, filed June 1, 2010 (hereinafter Def. Mot. for Summary Judgment, filed June 1, 2010). See Def. Mot. for Summary Judgment, filed June 1, 2010. 3 Def. Mot. for Summary Judgment, filed June 1, 2010; Plaintiffs Answer to Defendant Greenwich Insurance Co.'s Motion for Summary Judgment, filed July 1, 2010 (hereinafter Pl.'s An. to Def. 's Mot, for Summary Judgment, filed July 1, 2010). 2 of the accident, pursuant to a federal regulation, by reason of Greenwich's failure to have notified a federal agency of the lapse in coverage.4 The endorsement on this primary insurances policy that remained in effect was federally mandated for motor carriers such as the insured to assure financial responsibility6 and included the following federally-prescribed language: The insurance policy to which this endorsement is attached provides automobile liability insurance and is amended [by this endorsement] to assure compliance by the insured, within the limits stated herein, as a motor carrier of property, with Sections 29 and 30 of the Motor Carrier Act of 1980 and the rules and regulations of the Federal Motor Carrier Safety Administration (FMCSA). In consideration of the premium stated in the policy to which this endorsement is attached, the insurer (the company) agrees to pay, within the limits of liability described herein, any final judgment recovered against the insured for public liability resulting from negligence in the operation, maintenance or use of motor vehicles subject to the financial responsibility requirements of Sections 29 and 30 of the Motor Carrier Act of 1980 regardless of whether or riot each motor vehicle is specifically described in the policy and whether or not such negligence occurs on any route or in any territory authorized to be served by the insured or elsewhere. Such insurance as is afforded, for public liability, does not apply to injury to or death of the insured's employees while engaged in the course of their employment, or property transported by the insured, designated as cargo. It is understood and agreed that no condition, provision, stipulation, or limitation contained in the policy, this endorsement, or any other endorsement thereon, or violation thereof, shall relieve the company from liability or from the payment of any final judgment, within the limits of liability herein described, irrespective of the financial condition, insolvency or bankruptcy of the insured. However, all terms, conditions, and limitations in the policy to which the endorsement is attached shall remain in full force and effect as binding between the insured and the company. The insured agrees to reimburse the company for any payment made by the company on account of any accident, claim, or suit involving a breach of the terms of the policy, and for any payment that the company would not have been obligated to make under the provisions of the policy except for the agreement contained in this endorsement. It is further understood and agreed that, upon failure of the company to pay any final judgment recovered against the insured as provided herein, the Def. Mot. for Summary Judgment, ¶?, filed June 1, 2010; Pl.'s An. to Def.'s Mot. for Summary Judgment, filed July 1, 2010. See Exhibit B (Endorsement for Motor Carrier Policies of Insurance for Public Liability Under Sections 29 and 30 of the Motor Carrier Act of 1980), affixed to Def.'s Mot. for Summary Judgment, filed June 1, 2010; Pl.'s An, to Def.'s Mot. for Summary Judgment, filed July 1, 2010. Illinois Central RR Co. v. Dupont, 326 F.3d 665, 668 (5th Cir. 2003). 3 judgment creditor may maintain an action in any court of competent jurisdiction against the company to compel such payment. The limits of the company's liability for the amounts prescribed in this endorsement apply separately to each accident and any payment under the policy because of any one accident shall not operate to reduce the liability of the company for the payment of final judgments resulting from any other accident! Greenwich's insured was an entity "subject to the FMCSA's [Federal Motor Carrier Safety Administration's] registration requirements" within the meaning of this provisions In the above-captioned case docketed at No. 08-2216 Civil Term, a default judgment in the amount of $62,131.00 was entered against Greenwich's insured in connection with property damage allegedly suffered by Empire's insured in the accident.`'' Having paid its insured on its policy,10 Empire now seeks to recover from Greenwich as the tortfeasor's insurer.I I DISCUSSION On a motion for summary judgment, the record must be viewed "in the light most favorable to the nonmoving party, resolving all doubts as to the existence of a genuine issue of material fact against the moving party." Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 585-86, 812 A.2d 1218, 1221 (2002). Summary judgment is not appropriate unless `'the facts are so clear that reasonable minds cannot differ." Id., at 586, 812 A.2d at 1222. The general principle of civil law that a tortfeasor is liable to a tortfeasee for harm caused by the tort is., of course, applicable to motor vehicle accident See Exhibit B (Endorsement for Motor Carrier Policies of Insurance for Public Liability Under Sections 29 and 30 of the Motor Carrier Act of 1980), affixed to Def.'s Mot. for Summary Judgment, tiled June 1, 2010; PL's An, to Def.'s Mot. for Summary Judgment, filed July 1, 2010. See Declaratory Judgment Action, ¶9, filed July 25, 2008. 9 See Praecipe for Judgment and Assessment of Damages, filed June 9, 2008. 10 See Def.'s Mot. for Summary Judgment, ¶T 5-6, filed June 1, 2010; Pl.'s An. to Def.'s Mot. for Summary Judgment, filed July 1, 2010. I' Greenwich appears in the action at No. 08-2216 as a garnishee, and in the action at No. 08- 4474 as a defendant. 4 cases. 12 In insurance law, it is also generally accepted that an insurer of a tortfeasee that has paid pursuant to the policy will be subrogated to the rights of its insured as against the tortfeasor.13 Furthermore, in Pennsylvania (a) a motor vehicle insurance carrier, as a subrogee of its insured, may maintain an action against a putative tortfeasor who has caused property damage covered by the policy and may, in the event of a judgment in its favor, join as garnishee the tortfeasor's motor vehicle insurance carrier for purposes of execution on the judgment 14 and (b) a declaratory judgment action is an appropriate vehicle to determine the issue of the existence of coverage under a motor vehicle insurance policy. 15 In these cases, both procedures are being employed by Empire. From these principles of Pennsylvania law it follows as a general rule that, as between a motor vehicle insurance carrier for a tortfeasor and a motor vehicle insurance carrier for a tortfeasee, the tortfeasor's insurer will be responsible for property damage suffered by the tortfeasee.16 Under a federal regulation, a motor carrier of property is, again in general, required to maintain a certain level of financial responsibility 17 and, if that responsibility is provided by virtue of insurance, to have included in the insurance '' See Pusl v. Means, 2009 PA Super 192, ¶¶17-18, 982 A.2d 550, 555-56 '' Public Service Mut. Ins. Co. v. Kidder-Friedman, 1999 PA Super 310, ¶7, 743 A.2d 485, 488. Subrogation rights can arise contractually and/or be based upon equitable principles. llalora v. Pennsylvania Employees Benefit Trust Fund, 595 Pa. 574, 587-88, 939 A2d 312, 320 (2007). " See generally Wiilkosz v. Employer's Liability Assur. Corp., 13 D. & C. 2d 746 (Erie Co. 1957). 1' Pressley v. Travelers Prop. Cos. Corp., 2003 PA Super 58, ?19, 817 A.2d 1131, 1137-38. 16 See generally Fireman's Fund Ins. Co. v. Empire Fire & Marine Ins. Co., 152 F. Supp. 2d 687, 689 (E.D. Pa. 2001). 1' Motor Carrier Act of 1980, 49 C.F.R. §387 et seq., P.L. 96-296, July 1, 1980, 94 Stat. 793. 5 policy a so-called MCS-90 endorsement. 18 The prescribed form of the endorsement has been quoted above. 19 It has been noted, however, that "where [a] case is concerned with responsibility as between insurance carriers, and not with the federal policy of protecting the public, [federal] considerations are not determinative and a court should consider the express terms of the parties' contracts." Carolina Casualty Insurance Company v. Insurance Company of North America, 595 F.2d 128, 138 (3d Cir. 1979). In other words, the mere fact that by reason of a federal regulation a motor carrier must, through insurance or otherwise, secure the public against loss from its negligence does not mean that an indemnity agreement between the insured carrier and another insured tortfeasor with respect to responsibility for such damages, or state law on the subject, will be disregarded.20 In the present case, the state of the present record does not lead the court to conclude that the position of Empire as subrogee of the putative tortfeasee is inimical as a matter of law either to private agreement or legal precedent in the Commonwealth. Accordingly, the following order of court will be entered: ORDER OF COURT AND NOW, this 13t1' day of September, 2010, upon consideration of the motion for summary judgment filed by DefendantlGarnishee Greenwich Insurance Company, and for the reasons stated in the accompanying opinion, the motion is denied. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 18 See Canal Ins. Co. v. Underwriters at Lloyd's London, 435 F.3d 431, 442 (3d. Cir. 2006) 19 See text accompanying note 3-4, supra. 20 Cf. Carolina Cas. Ins. Co. v. Insurance Co. of North America, 595 F.2d 128 (3d. Cir. 1979). 6 Paul F. D'Emilio, Esq. Paul M. Schofield, Jr., Esq. 905 W. Sproul Road Suite 105 Springfield, PA 19064 Attorneys for Plaintiff Anne R. Myers, Esq. Helen C. Lee, Esq. KAUFM.AN DOLOWICH VOLUCK & GONZO, LLP 1777 Sentry Park West Gwynedd Hall, Suite 301 Blue Bell, PA 19422 Attorneys for Garnishee/Defendant, Greenwich Insurance Co. Patricio Leon 2414 97`h Street East Elmhurst, NY 11369 Defendant, pro Se Ribbs Trucking, Inc. 116 Hobart Avenue Bayonne, NJ 07002 Defendant, pro Se 7 PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D.# 16654 PAUL M. SCHOFIELD, JR., ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEY FOR THE PLAINTIFF FILED-OFFICE OF THE pROTHONOTAM 2011 jpN, -3 Pik 3.30 CU PENS ISYLV" COU?bTy EMPIRE FIRE AND MARINE INSURANCE COMMON PLEAS COURT OF COMPANY AS SUBROGEE OF KUNTZ & CUMBERLAND COUNTY SON INC. vs. NO. 08-4474 RIBB'S TRUCKING, INC. AND GREENWICH INSURANCE COMPANY PRAECIPE TO DISCONTINUE AND END TO THE PROTHONOTARY, P.C.: Kindly mark the above-entitled matter discontinued and ended upon payment of your cost only. Date: 1/6" Paul M. Schofield, Jr., Esquire Identification No.: 81894 e-mail address: pauls@demiliolaw.com Paul F. D'Emilio, Esquire Identification No.: 16654 e-mail address: pauld@demiliolaw.com 905 W. Sproul Road, Suite 105 Springfield, PA 19064 Telephone No.: 610-338-0338 Fax No.: 610-338-0303