Atlas Intermodal Trucking Service, Inc. v. United Fire & Casualty Co.

973 S.W.2d 174, 1998 Mo. App. LEXIS 1431, 1998 WL 436045
CourtMissouri Court of Appeals
DecidedJuly 31, 1998
DocketNo. 72565
StatusPublished
Cited by11 cases

This text of 973 S.W.2d 174 (Atlas Intermodal Trucking Service, Inc. v. United Fire & Casualty Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Atlas Intermodal Trucking Service, Inc. v. United Fire & Casualty Co., 973 S.W.2d 174, 1998 Mo. App. LEXIS 1431, 1998 WL 436045 (Mo. Ct. App. 1998).

Opinion

CRANDALL, Judge.

United Fire & Casualty Co. appeals the grant of summary judgment in favor of Atlas Intermodal Trucking Service, Inc. We reverse and remand.

Anheuser-Busch, Inc. (AB) brought an action for breach of contract and breach of warranty against Crown Cork & Seal Co., Inc. (CCS) in the U.S. District Court for the Eastern District of Missouri. AB made the following allegations. CCS manufactures and distributes bottle caps also referred to as crowns that are affixed to the top of beer bottles. On March 7, 1991, CCS shipped 61,600 gross of the crowns to AB’s Van Nuys brewery. AB received the crowns on March 15, 1991. Three days later, AB began bottling its beer using the crowns it received on March 15, 1991. On April 12, 1991 and for the next several days, AB received complaints that bottles of its beer had an “off-flavor and a musty, moldy odor.” AB determined that all allegedly contaminated bottles were capped with the March 15 crowns. Chemical analysis revealed that some of the beer produced with the March 15 crowns was contaminated by trichloranisole (TSA), “an odorous compound used in pesticides/fungicides.” Subsequent analysis revealed that the container used to ship the crowns was also contaminated by TSA. CCS and AB concluded that migration of the TSA from the floor boards of the shipping container to the crowns was the cause of the “off-flavor and musty odor” in AB’s beer. AB destroyed approximately 175,000 eases of beer that were capped with the March 15 crowns.

CCS brought a third party action against Intermodal Management Co. in business as Genex Terminal Co. (Genex) for breach of contract and negligence.1 CCS alleged it entered into a contract with Genex, a freight broker, where Genex agreed to arrange for shipment of the March 15 crowns to AB’s Van Nuys brewery. CCS also alleged the container used for the crowns was transported “via arrangements made by Genex, the freight broker.” CCS sought damages for the amount it paid in settlement to AB and also sought additional damages, fees, and costs.

Genex brought a fourth party action against Atlas Intermodal Trucking Service, Inc. (Atlas Intermodal) for breach of contract, negligence, Carmack Amendment liability, indemnification, and contribution.2 Genex alleged it “contacted Atlas [Intermo-dal] to pick up an empty container, inspect the empty container to ensure its safety and suitability for the transportation of commodities, transport the empty container to CCS, load and/or inspect the loading and count of the CCS crowns, and deliver the loaded container to the origin rail ramp at Remington, Indiana, for subsequent transportation to Los Angeles, California.” Genex alleged further that Atlas Intermodal or one of its [176]*176authorized agents, representatives, or subcontractors picked up the container used to transport the March 15 crowns, transported the container to CCS for loading, and transported the loaded container from the CCS facility to the origin rail ramp in Remington, Indiana. Genex asked the court to order Atlas Intermodal to pay all or a proportionate share of sums that may be adjudged against Genex in favor of the third party plaintiff.

Thereafter, Atlas Intérmodal brought an action against United Fire & Casualty Co. (United) for declaratory judgment and breach of contract. Atlas Intermodal alleged that United issued a commercial general liability policy to Atlas Intermodal that was effective from February 1, 1991 to February 1, 1992. Atlas Intermodal alleged further that despite proper notice of the claim and the underlying fourth party suit, United “wrongfully and without reasonable basis” refused to defend. Atlas Intermodal sought $53, 936.96 for defense costs and $75, 000 for settlement costs. In its answer, United asserted as one affirmative defense that under the terms and exclusions of the insurance policy, it did not have a duty to defend or indemnify Atlas Intermodal.

The following is derived from certain exhibits including the depositions of Dallam Thompson, Michael Thompson, and Duane Schumacher. United is an Iowa corporation. Atlas Intermodal was incorporated in Illinois in 1985. Atlas Warehouse Co. was incorporated in Iowa in 1936. Duane Schumacher, a Cedar Rapids, Iowa insurance agent, handled all insurance policies for the companies including the one at issue here. Atlas Inter-modal with an address in Galesburg, Illinois and Atlas Warehouse Co. with an address in Burlington, Iowa are listed on the policy. The “policy period” is shown as being from February 1, 1991 to February 2, 1992. The policy has Illinois endorsements regarding cancellation and renewal, punitive or exemplary damages, and child molestation exclusion. In February 1991, Dallam Thompson served as President of Atlas Warehouse Co. and as Vice-President of Atlas Intermodal. He owned all the stock of the two companies. Michael Thompson served as President of Atlas Intermodal in February 1991. Prior to February 1991, Atlas Warehouse performed “general” trucking. Atlas Intermodal began its “general” trucking operation on February 1, 1991 when Atlas Warehouse Co. sold its trucks and “moved over” its employees to Atlas Intermodal. Dallam Thompson stated that the corporate headquarters for Atlas Intermodal was in Iowa but that the “Illinois charter says it’s in Galesburg.” Michael Thompson worked in Galesburg, Illinois and he stated “[bjasically I was in charge” of Atlas Intermodal’s total operation except for accounting functions including payroll, woi’k-ers’ compensation, and insurance functions which were all performed in Burlington, Iowa. Dallam Thompson worked in Burlington, Iowa and he handled all insurance matters relating to Atlas Intermodal. Atlas In-termodal’s Remington, Indiana office was the “dispatch office” involved with the tractor and container used to pick up the crowns. Repairs on the trucks were performed at “various locations” depending on where they were located, such as Galesburg, Illinois, Remington, Indiana, or Iowa.

Atlas Intermodal and United filed motions for summary judgment. The court granted Atlas Intermodal’s motion and denied United’s motion. In its judgment, the court stated that Illinois law was applicable. Interpreting Illinois law, the court held that United had a duty to defend Atlas Intermo-dal in the fourth party action brought by Genex, insurance coverage was not barred by certain policy exclusions, and United was estopped from disclaiming coverage. The court awarded Atlas Intermodal $75,000 for the settlement, $53,936.96 for the defense costs, and prejudgment interest. United filed a motion to reconsider. The court amended, as stipulated by the parties, the amount of prejudgment interest and denied United’s motion in all other respects. This appeal followed.

When considering appeals from summary judgment, we review the record in the light most favorable to the non-movant, and give that party the benefit of all reasonable inferences. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). A party [177]*177moving for summary judgment “bears the burden of establishing a right to judgment as a matter of law on the record as submitted; any evidence in the record that presents a genuine dispute as to the material facts defeats the movant’s prima facie showing.” Id. at 882. “Facts set forth by affidavit or otherwise in support of a party’s motion are taken as true unless contradicted by the non-moving party’s response to the summary judgment motion.” Id.

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973 S.W.2d 174, 1998 Mo. App. LEXIS 1431, 1998 WL 436045, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atlas-intermodal-trucking-service-inc-v-united-fire-casualty-co-moctapp-1998.