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U-HAUL INTERNATIONAL, INC. v. ACE AMERICAN INSURANCE COMPANY Defendants Statement of Fact for Summary Judgment

ATTENTION: It is possible that this information may no longer be current and therefore may be inaccurate. The index contains both open and closed cases and is not a complete list of cases in which an ACE Insurance Group company is involved. This information is provided to give interested persons an idea of the issues disputed in the indexed cases. For a full understanding of a case, one should read the rest of the court file, including the response. For the most up-to-date and complete information on a case, visit www.pacer.gov or contact the clerk of the relevant court.

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Case 2:10-cv-00886-ROS Document 18
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Greg S. Como, SB# 013187 como@lbbslaw.com Adam S. Polson, SB# 022649 polson@lbbslaw.com LEWIS BRISBOIS BISGAARD & SMITH LLP Phoenix Plaza Tower II 2929 North Central Avenue, Suite 1700 Phoenix, Arizona 85012-2761 Telephone: 602.385.1040 Facsimile: 602.385.1051 Attorneys for Defendant ACE American Insurance Co.
UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA U-Haul International, Inc., a Nevada Corporation, Plaintiff, No. 10-cv-886 DEFENDANT’S SEPARATE STATEMENT OF FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT
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ACE American Insurance Co., a Pennsylvania Corporation, Defendant.
Pursuant to LRCiv 56.1(a), ACE American Insurance Company (“ACE”) hereby presents its Separate Statement of Facts in support of its Motion for Partial Summary Judgment: 1. On or about June 16, 2006, UHI and Cequent entered into a “Products Indemnification Agreement.” Paragraph 4 of the Products Indemnification Agreement provides as follows: Supplier [Cequent] represents and warrants that it has products liability insurance and commercial general liability insurance with commercially reasonable limits in effect at the time of execution of this Agreement and if so required by [UHI], that [UHI] will be named as an additional insured on either of those policies. [Cequent] shall deliver to [UHI], within thirty (30) days of the execution of this Agreement, a copy of the certificates of such insurance policies. Furthermore, [Cequent] agrees that it will not materially decrease or eliminate the coverages of such insurance policies without first giving thirty
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(30) days prior written notice to UHI. (Products Indemnification Agreement at ¶ 4, attached as Exhibit 1). 2. ACE issued a commercial general liability policy to TriMas/Cequent, effective from
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June 30, 2008, through June 30, 2009, at policy HDO G23743735. (“ACE’s CGL Policy” attached as Exhibit 2; UHI Complaint at ¶ 8 (Exhibit 1 to Dkt. # 1)). 3. ACE issued a products-completed operations policy to TriMas/Cequent, effective from June 30, 2008, through June 30, 2009 at policy HDO G23743693. (“ACE’s Products Policy” attached as Exhibit 3; UHI Complaint at ¶ 7 (Exhibit 1 to Dkt. # 1)). 4. ACE issued a commercial umbrella liability policy to TriMas/Cequent at XOO G24638509 effective from June 30, 2008, through June 30, 2009. (“ACE’s Excess Policy” attached as Exhibit 4; UHI Complaint at ¶ 9 (Exhibit 1 to Dkt. # 1)). 5. A Vendor’s Endorsement to ACE’s Products Policy provides coverage to any vendor whom Cequent has agreed to include as an additional insured. (ACE’s Products Policy at Endorsement Number 24, attached as Exhibit 3). 6. A wrongful death lawsuit was filed by Knowledge Chenyika on September 1, 2009, as the personal representative of the Estates of Daniel Jamela and Marigold Jamela, and as the guardian and conservator of Mishael Jamela and Mariel Jamela (“the Jamela lawsuit”). (Jamela Complaint, attached as Exhibit 5). The named defendants in the Jamela lawsuit are UHI, Amerco, Inc., and U-Haul Co. of Nebraska. (Id.) 7. The Jamela lawsuit alleges that Mr. Jamela contacted U-Haul West Maple to obtain
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equipment to move his family belongings from Omaha to Dallas. (Jamela Complaint at ¶ 8, attached as Exhibit 5). Mr. Jamela allegedly rented a 12 foot cargo trailer from the U-Haul defendants and also purchased from them a trailer
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hitch and other towing equipment. (Id.) The U-Haul defendants allegedly attached the towing equipment and trailer to Mr. Jamela’s 2005 Honda Pilot. (Id.) 8. Cequent manufactured the trailer hitch sold to Mr. Jamela. (UHI Complaint at ¶ 17 (Exhibit # 1 to Dkt. # 1)). 9. On July 1, 2008, Mr. Jamela was operating a 2005 Honda Pilot on Interstate 435 in Kansas. (Jamela Complaint at ¶ 16, attached as Exhibit # 5). Mr. Jamela apparently lost control of his vehicle, crossed the highway median, and collided head-on with a Peterbilt diesel tractor. (Id.) Mr. Jamela and his wife, Mrs. Jamela, died as a result of the accident. (Id.) 10. Plaintiff in the Jamela lawsuit alleges various acts or omissions that potentially caused the fatal accident, including: • UHI, Amerco, Inc., and U-Haul Co. of Nebraska represented that all equipment was in working order, was suitable for the 2005 Honda Pilot, and the equipment could be safely towed behind the vehicle (Jamela Complaint at ¶ 9, attached as Exhibit 5); • The Gross Vehicle Weight Rating of the loaded trailer exceeded the maximum applicable trailer weight specified by Honda (Jamela Complaint at ¶ 10, attached as Exhibit 5)
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• The trailer hitch that was sold was too small to safely tow the trailer (Jamela Complaint at ¶ 11, attached as Exhibit 5); • The tires on the trailer were underinflated, and the air pressure varied considerably amongst the tires (Jamela Complaint at ¶ 12, attached as Exhibit 5); • The brakes on the trailer did not function correctly and/or did not function at all (Jamela Complaint at ¶ 13, attached as Exhibit 5); and • The trailer lights and/or electrical system were non-functional (Jamela Complaint at ¶ 14, attached as Exhibit 5). 11. Plaintiff in the Jamela lawsuit states the following counts against UHI, Amerco, Inc., and U-Haul Co. of Nebraska: (1) negligence; (2) strict liability; (3) failure to warn—speeds; (4) failure to warn—tow vehicle; (5) wrongful death; (6) survival action; (7) negligent infliction of emotional distress—Mishael Jamela; and (8) punitive damages. (Jamela Complaint at ¶¶ 18-59, attached as Exhibit 5). 12. On March 22, 2010, UHI filed the present action against ACE. UHI alleges that it is an additional insured on the ACE Policies, and is entitled to be defended and indemnified by ACE for the Jamela lawsuit. (UHI Complaint at ¶¶ 8, 32) (Exhibit # 1 to Dkt. # 1). UHI seeks declaratory relief as to whether ACE has a duty to defend UHI. (UHI Complaint at ¶ 29) (Exhibit # 1 to Dkt. # 1). UHI also alleges that ACE breached its obligations by failing to provide a defense under the ACE Policies. (UHI Complaint at ¶ 34) (Exhibit # 1 to Dkt. # 1). UHI further alleges that ACE did not timely respond to UHI's request for defense, and that UHI has been prejudiced
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because UHI did not accept the tender of defense. (UHI Complaint at ¶¶ 38-39) (Exhibit # 1 to Dkt. # 1). 13. Under ACE’s Products Policy, Cequent has a $1,000,000 self-insured retention.
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(ACE’s Product Policy at Endorsement Number 2, attached as Exhibit 3). Cequent is responsible for paying the first $1 million in defense costs, settlements, or judgments for claims arising under the Policy. (Id.) 14. Endorsement Number 2 to ACE’s Products Policy provides in part as: You [Cequent] and we [ACE] mutually agree that the Claim Service Organization shown in the Schedule [ESIS, Inc.] will provide investigation, administration, adjustment, and settlement services, and will provide for the defense of all claims or “suits” arising under this policy. Accordingly, you agree with us that we shall have no duty to defend any such “suit”, [nor] to pay any “allocated loss adjustment expense” with respect to such claim or “suit” except as provided in paragraph 4 below. (ACE’s Products Policy, Endorsement Number 2 at ¶ 2, attached as Exhibit 3) (emphasis added).1 15. Under ACE’s Products Policy, if the amount of the judgment or settlement exceeds the $1,000,000 deductible, all “Allocated Loss Adjustment Expense” (i.e., defense costs), is paid by the insured and ACE in the same proportion as the amount each contributed to the judgment or settlement. ACE’s Products Policy, Endorsement Number 2 at ¶ 4, attached as Exhibit 3). However, if the judgment or settlement does not exceed the deductible, or if the claim or suit is settled without payment of damages, all “Allocated Loss Adjustment Expense” is borne solely by the named
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ACE's CGL Policy has a nearly identical provision in Endorsement Number 2.
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insured (Cequent). (Id.) 16. ACE’s CGL Policy excludes coverage for liability arising from the ProductsCompleted Operations hazard. (ACE's CGL Policy, Endorsement Number 28,
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attached as Exhibit 2). 17. ACE's CGL Policy has a nearly identical provision to Endorsement Number 2 of the Products Policy at its Endorsement Number 2. (ACE’s CGL Policy, Endorsement Number 2, attached as Exhibit 2). 18. With respect to ACE’s Excess Policy, ACE’s duty to defend UHI is limited to three situations: (1) when damages are covered by “underlying insurance” but the limits are exhausted by payment; (2) when damages are covered by “other insurance” (i.e., policies not listed on ACE’s Excess Policy) but the “other insurance” is exhausted by payment; and (3) when there is no coverage under the “underlying insurance” or “other insurance,” and the applicable self-insured retention under ACE’s Excess Policy has been exhausted. (ACE’s Excess Policy at ¶ III(A)(1-3), attached as Exhibit 4). 19. Under ACE’s Excess Policy section entitled “Who is an Insured,” the Policy defines as an insured “[a]ny person or organization, if insured under ‘underlying insurance’, provided that coverage provided by this policy for any such insured will be no broader than coverage provided by ‘underlying insurance.’" (ACE’s Excess Policy at II(B)(1)(b)(6), attached as Exhibit 4).
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RESPECTFULLY SUBMITTED July 15, 2010. LEWIS BRISBOIS BISGAARD & SMITH LLP By ___/s/Adam S. Polson ______________________ Greg S. Como Adam S. Polson Attorneys for ACE American Insurance Company CERTIFICATE OF SERVICE I hereby certify that on July 15, 2010, I electronically transmitted the foregoing document to the Clerk’s office using the Court's CM/ECF System and thereby served all counsel of record in this matter. /s/ Danielle Strickland
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