NEFF TOWING SERVICE v. US Fire Ins. Co.

652 N.W.2d 604, 264 Neb. 846
CourtNebraska Supreme Court
DecidedNovember 1, 2002
DocketS-01-960
StatusPublished
Cited by9 cases

This text of 652 N.W.2d 604 (NEFF TOWING SERVICE v. US Fire Ins. Co.) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
NEFF TOWING SERVICE v. US Fire Ins. Co., 652 N.W.2d 604, 264 Neb. 846 (Neb. 2002).

Opinion

652 N.W.2d 604 (2002)
264 Neb. 846

NEFF TOWING SERVICE, INC., Appellee,
v.
UNITED STATES FIRE INSURANCE CO., doing business through Crum & Forster Insurance, appellant.

No. S-01-960.

Supreme Court of Nebraska.

November 1, 2002.

*606 Thomas M. Locher, Thomas M. Braddy, Omaha, and Ralph A. Froehlich, Bellevue, of Locher, Cellilli, Pavelka & Dostal, L.L.C., Omaha, for appellant.

Eugene L. Hillman and Patricia McCormack, of Hillman, Forman, Nelsen, Childers & McCormack, Omaha, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, and MILLER-LERMAN, JJ.

STEPHAN, J.

In this declaratory judgment action, United States Fire Insurance Co. (USFIC) appeals from an order of the district court for Douglas County determining that an insurance policy issued to Neff Towing Service, Inc. (Neff Towing), provided liability coverage for a property damage claim asserted against Neff Towing. We reverse, based upon our conclusion that the claim falls within an exclusion to the liability coverage provided by the policy.

BACKGROUND

The relevant facts are either stipulated or uncontroverted. Neff Towing is a Nebraska corporation with its principal place of business in Omaha, Nebraska. It is engaged in the business of providing towing and trucking services. USFIC is a New York corporation with its home office located in the State of New York. USFIC issued insurance policy No. 136 145274 3 to Neff Towing, effective December 10, 1993, to December 10, 1994. The policy, referred to as a "Garage Policy," defines "`[g]arage operations'" as follows:

"Garage operations" means [sic] the ownership, maintenance or use of locations for garage business and that portion of the roads or other accesses that adjoin these locations. "Garage operations" includes [sic] the ownership, *607 maintenance or use of the "autos" indicated in SECTION I of this Coverage Form as covered "autos." "Garage operations" also include all operations necessary or incidental to a garage business.

The term "`[a]uto'" is defined by the policy to mean "a land motor vehicle, trailer or semi-trailer." A schedule in the policy lists "autos" owned by Neff Towing, including a 1985 GMC wrecker and a 1984 Freightliner tractor. The policy includes both "Liability Coverage" and "Garagekeepers Coverage," which are described in separate sections of the policy.

Under the Liability Coverage, the term covered "autos" includes the scheduled vehicles owned by the insured, as well as certain hired and nonowned vehicles used in connection with the insured's garage business. The Liability Coverage provides, under the heading "`Garage Operations'—Covered `Autos'":

We will pay all sums an "insured" legally must pay as damages because of "bodily injury" or "property damage" to which this insurance applies, caused by an "accident" and resulting from "garage operations" involving the ownership, maintenance or use of covered "autos."

....

We have the right and duty to defend any "suit" asking for such damages.... However, we have no duty to defend "suits" for ... "property damage" ... not covered by this Coverage Form.

The "Exclusions" section of the Liability Coverage provides that coverage does not apply to property damaged while in the insured's "care, custody or control."

Under the separate "Garage Coverage Form" provided by the policy, a covered "auto" is defined as "[a]ny customer's `auto' while left with your `garage operations' for service, repair, storage or safekeeping." The Garagekeepers Coverage obligates USFIC to

pay all sums the "insured" legally must pay as damages for "loss" to a covered "auto" or "auto" equipment left in the "insured's" care while the "insured" is attending, servicing, repairing, parking or storing it in your "garage operations"... [c]aused by ... (1)[t]he covered "auto's" collision with another object; or (2)[t]he covered "auto's" overturn.

The Garagekeepers Coverage further provided that USFIC had the "right and duty to defend any `suit' asking for these damages," but no duty to defend suits for losses which were not covered.

On November 12, 1994, Neff Towing was called to tow a disabled tractor-trailer unit owned by CRST, Inc., from a location near mile marker 17 on Interstate 80 east of Council Bluffs, Iowa. Neff Towing dispatched two towing vehicles to the scene of the disabled CRST tractor-trailer unit. One towing unit was a 1985 GMC wrecker, and the other was a 1984 Freightliner tractor. Neff Towing's GMC wrecker removed the disabled tractor from the scene, leaving the trailer unattached. While Neff Towing was attempting to attach its Freightliner tractor to the trailer, the trailer tipped onto its side and was damaged. Neff Towing's employee left the scene without attaching the trailer to the towing unit. On the following day, the president of Neff Towing returned to the scene where he observed CRST loading cargo from the damaged trailer onto another tractor-trailer, which was then driven away. Neff Towing then righted the damaged empty trailer and towed it away for repairs. Pursuant to the Garagekeepers Coverage under the aforementioned policy, USFIC paid CRST $9,187.99 in full settlement of the damage to its trailer. The Garagekeepers Coverage did not extend to the cargo which had been *608 contained in the trailer at the time of damage. Unlike the Liability Coverage which covers "`property damage,'" defined as "damage to or loss of use of tangible property," the Garagekeepers Coverage is limited to paying for damages to a covered "`auto'" or "`auto' equipment."

Thereafter, CRST filed suit against Neff Towing, alleging that CRST delivered and transferred possession of the trailer to Neff Towing for the purpose of towing the trailer from the roadside on November 12, 1994, and that when CRST reclaimed possession of the trailer on the following day, its contents were damaged in the amount of $53,438, which CRST sought to recover with interest. Neff Towing filed an answer specifically alleging that "on or about November 12, 1994, defendant Neff Towing did come into possession of a trailer owned and operated by the plaintiff for purposes of towing said trailer." Neff Towing specifically denied that "the contents of the trailer, while in the possession of [Neff Towing] were damaged in the nature and to the extent as alleged in plaintiff's petition."

When Neff Towing's tender of the defense of this action to USFIC was declined, Neff Towing filed this declaratory judgment action in which it sought a determination that coverage for the cargo loss claim was afforded under the Liability Coverage of the USFIC Garage Policy described above. Both parties filed motions for summary judgment. At the hearing on the motions, arguments centered upon whether the claim of CRST was excluded by the "care, custody or control" exclusion in the policy's Liability Coverage. Counsel for USFIC argued that the exclusion applied because Neff Towing judicially admitted, in its answer to the petition filed by CRST, that it had taken possession of the trailer. Based upon the stipulated facts, the pleadings in the underlying action, and an uncontroverted affidavit, counsel for Neff Towing argued that the CRST trailer was "knocked over and damaged" before it ever came under the "care, custody, and control" of Neff Towing, and therefore the exclusion did not apply.

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Cite This Page — Counsel Stack

Bluebook (online)
652 N.W.2d 604, 264 Neb. 846, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neff-towing-service-v-us-fire-ins-co-neb-2002.