Opinion
Civil Action No. 03-0216.
May 4, 2004
MEMORANDUM/ORDER
This action arises from a Complaint for Declaratory Judgment filed by the Plaintiff, Vigilant Insurance Company ("Vigilant"), seeking a declaration that defendant Jean Presendieu is not an insured under a Vigilant auto insurance policy, alternatively, if it is found that Vigilant's policy provides coverage, Vigilant seeks a declaration that the defendants Travelers Indemnity Company of Illinois ("Travelers") and Fireman's Fund Insurance Company ("Fireman's Fund") have priority of coverage. This court may exercise subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 1332(a) because there is diversity of citizenship and the amount in controversy exceeds $75,000, exclusive of interests and costs. Venue is proper under 28 U.S.C. § 1391 as one or more of the Defendants are subject to personal jurisdiction in this District.
Incorrectly designated in the Complaint as Travelers Indemnity Company and Travelers Property Casualty, that party is substituted by Travelers Indemnity Co. of Illinois ("Travelers").
This case involves a tractor, owned by Taz Transportation, and a trailer, owned by Movie Movers, Inc., that were involved in an accident in Pennsylvania while being driven by Jean Presendieu, an employee of Fifty Fiddles, Inc., a New York company. The accident was allegedly caused by a phantom vehicle. This Court must determine which, if any, of three insurers provides Uninsured Motorist ("UM") coverage and determine the priority of the policies if more than one provides coverage. Presently before this Court are the parties' cross motions for summary judgment and the oppositions thereto.
I. Background
The facts of this case are largely undisputed. On January 18, 1999 Jean Presendieu, a New York resident, was returning a tractor trailer from New York to Virginia, where the tractor and trailer were licensed, registered, and primarily garaged (Aff. of Babbett B. Smith), when he was involved in a one-vehicle accident allegedly caused by a phantom driver in Chambersburg, Pennsylvania. He was driving the tractor trailer combination for his employer, Fifty Fiddles, Inc., a subsidiary of the New York company, Miramax Film Corporation. Fifty Fiddles is a motion picture production company formed for the purpose of producing a movie shot on location in New York. Mr. Presendieu claims he sustained serious injuries to his head, neck, back, shoulder, arms, legs and body as a result of being forced off the road by the phantom vehicle.
The tractor portion was owned by Babbett B. Smith doing business as Taz Transportation and was leased to Movie Movers, Inc., a separate but related company based in Virginia. The rental agreement between Taz Transportation and Movie Movers states that "[t]he equipment owner shall be responsible for having insurance coverage on their vehicle, when trucks are on rent." It also states, "Movie Movers shall make sure that the company renting the trucks has issued a Certificate of Insurance . . . nam[ing] Movie Movers as Additional Insured and Loss Payee."
Movie Movers in turn leased the truck, as well as the trailer portion of the combination that it owns, to Fifty Fiddles, Inc. The "Terms and Conditions" portion of the lease agreement between Movie Movers and Fifty Fiddles states that "[a]ll risk of loss or damage of said equipment from whatever cause during this agreement or before re-delivery to lessor, shall be assumed by Lessee." It further recites that, "[l]essee agrees to insure said equipment with liability insurance to adequately protect same and to name both Lessee and Lessor as insureds." Fifty Fiddles, Inc. was insured by a Fireman's Fund general liability and business auto policy (No. E 92 XXC 80363809) as well as an umbrella and excess liability policy (No. XSC-000-7451-7392). Movie Movers was insured by Travelers's policy (No. Y-810-413X2325) and Taz Transportation was insured by Vigilant's policy (No. 99 7943-34-84).
Jean Presendieu and his spouse, Marie Muriel Presendieu, sought uninsured motorists ("UM") coverage benefits under the Vigilant policy. Vigilant Insurance Company ("Vigilant") filed for Declaratory Judgment pursuant to 29 U.S.C. § 2201 to determine a question of actual controversy between the parties. Currently, Vigilant seeks a declaration that defendant Jean Presendieu is not an insured under the Vigilant policy, or in the alternative, a declaration that the Travelers Indemnity Company of Illinois' ("Travelers") and the Fireman's Fund Insurance Company's coverage have priority, and Vigilant is to be the last resource for uninsured motorist benefits owed to Jean Presendieu. (Pl. Vigilant Mot. at ¶ 1, 2.) The Presendieu's answered the Complaint and filed Counter Claims against Vigilant and Cross Claims against the other Defendants for Declaratory Judgment in their favor, declaring that Jean Presendieu is an insured under the Vigilant and Travelers' policies for $1 million per person, and that Fireman's Fund is liable to the limits of its coverage independent of any other coverage. Travelers filed an Answer, a Counter Claim against Vigilant and Cross Claims against the other Defendants contending its policy does not apply, while Fireman's Fund filed an answer but no cross claims against the other Defendants arguing its policies provide excess coverage over the policies issued by Vigilant and Travelers. All parties now seek summary judgment on these issues in their favor.
It was not expressly stated in the pleadings and motions before the court whether Mrs. Presendieu is seeking benefits for loss of consortium from each company. We assume that the liability of the insurance companies to Mr. Presendieu will determine the liability to Mrs. Presendieu.
II. Standard for Review
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The party moving for summary judgment has the initial burden of showing the basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986). Once the movant adequately supports its motion pursuant to Rule 56(c), the burden shifts to the nonmoving party to go beyond the mere pleadings and present evidence through affidavits, depositions, or admissions on file to show that there is a genuine issue for trial. See id. 477 U.S. at 324, 106 S.Ct. 2553. A genuine issue is one in which the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 (1986). The court must draw all reasonable inferences in the light most favorable to the nonmovant. See American Flint Glass Workers, AFL-CIO v. Beaumont Glass Company, 62 F.3d 574, 578 (3d Cir. 1995). However, a party opposing summary judgment must do more than just rest upon mere allegations, general denials or vague statements. Trap Rock Indus. Inc. v. Local 825, 982 F.2d 884, 890 (3d Cir. 1992). The issues before the Court are ripe for summary judgment.
III. Discussion
The issues presented in the cross-motions for summary judgment are: (1) Which, if any, of the three insurance policies provide UM coverage to Mr. Presendieu; and (2) If more than one policy provides coverage, what is the priority of payment among the applicable policies? Of course, each insurer claims it does not provide coverage and alternatively, if it does, it will provide only in excess of the coverage of the other insurers.
"Determination of insurance policy coverage is a question of law to be decided by the court." PECO Energy co. v. Boden, et. al., 64 F.3d 852, 855 (3d Cir. 1995). The goal is to "ascertain the intent of the parties as manifested by the language of the written instrument." Madison Construction Co. v. Harleysville Mutual Insurance. Co., 557 Pa. 595, 606, 735 A.2d 100, 106 ( Pa. 1999). In Pennsylvania, words of an insurance policy are given their "plain and ordinary meaning" when they are "clear and unambiguous." St. Paul Fire and Marine Insurance Co. v. United States Fire Insurance Co., 655 F.2d 521, 524 (3d Cir. 1981) (citing Eastern Associated Coal Corp. v. Aetna Casualty Surety Co., 632 F.2d 1068, 1075 (3d Cir. 1980); Pennsylvania Manufacturers' Association Insurance Co. v. Aetna Casualty Surety Co., 426 Pa. 453, 457, 233 A.2d 548, 551 (1967)). "A court should read policy provisions to avoid ambiguities, if possible, and not torture the language to create them." Id. Interpreting the unambiguous language of the contract is a matter of law for the court; however, ambiguities in the wording adopted by the insurance company must be resolved in favor of the insured. Id. (citing, Daburlos v. Commercial Insurance Co., 521 F.2d 18, 25-26 (3d Cir. 1975); Sykes v. Nationwide Mutual Insurance Co., 413 Pa. 640, 643, 198 A.2d 844, 845 (1964); Cadwallader v. New Amsterdam Casualty Co., 396 Pa. 582, 587, 152 A.2d 484, 487 (1959)). All three insurers have meticulous, yet complexly worded, endorsements that amend and modify in certain circumstances certain aspects of the policies of the entities involved. The court addresses the liability imposed by each policy in turn.
1. Vigilant's Policy
The owner of the tractor, Taz Transportation, was insured with Vigilant Insurance Company ("Vigilant"), a New York insurer, for various forms of insurance including $1,000,000 in UM coverage under business auto policy no. (99) 7943-84-84. For purposes of UM coverage, the policy states that Vigilant agrees to pay "all sums the insured is legally entitled to recover as damages from the owner or driver of an uninsured motor vehicle." The general policy defines the term "insured" as "anyone occupying a covered vehicle." It is clear that the vehicle involved in the accident is a "covered auto" under the Vigilant policy. According to the Declarations page, a "covered auto" is an owned auto and, for liability coverage, a trailer the insured does not own connected to a truck the insured does own.
Taz Transportation, owner of the truck, is the named insured; however, Vigilant claims that Jean Presendieu is not an insured under the policy. Vigilant argues an employee or agent of the lessee or rentee is not an insured and neither is any person operating an auto with any of their permission. Vigilant reasons the statement in the general policy must be read in conjunction with the Endorsement CA 20 14 01 87 to the Vigilant policy concerning leased and rented vehicles ("Lease Endorsement"), which states that lessees are not insured. (Vigilant MSJ at 3).
The endorsement states:
The Leasing or Rental Concerns — Second Level Coverage
The Limit of Insurance shown in the Schedule replaces the Limit of Insurance shown elsewhere in the policy or in any lease or rental agreement that requires a lessee or rentee to provide primary insurance for you, subject to the following provisions:
1. For the difference between the Limit of Insurance shown in the Schedule and the Limit of Insurance shown in any lease or rental agreement that requires a lessee or rentee to provide primary insurance for you, WHO IS AN INSURED applies except that none of the following is an "insured":
a. The lessee or rentee;
b. Any employee or agent of the lessee or rentee; and
c. Any person operating an `auto' with the permission of any of the above.
Defendants, on the other hand, contend the general policy's "insured" definition is controlling for several reasons. First they argue the Lease Endorsement is not applicable because it does not apply to Uninsured Motorist coverage. The endorsement states that it modifies the "Business Auto Coverage Form" and the "Truckers Coverage Form" and does not specifically mention the Uninsured Motorist Insurance Form. Secondly, they argue the endorsement refers to "any lease or rental agreement that requires a lessee or rentee to provide primary insurance for you," and Mr. Presendieu is not an employee of a lessee with whom the owner has this type of agreement because Mr. Presendieu works for Fifty Fiddles, not Movie Movers. Moreover, there is no agreement between Taz Transportation and Fifty Fiddles, and the agreement between Taz Transportation and Movie Movers does not require the lessee to provide primary coverage, it merely requires that a renter name Movie Movers as an additional insured and Loss Payee. Lastly, they argue the endorsement merely provides for the replacement of limits, but there is no difference between the limits in the lease (which there are no limits specified) and the limits in the policy, which are $1,000,000. The Defendants claim, as an occupier of a covered vehicle, Jean Presendieu is an insured under the uninsured motorist provision of the Vigilant policy. (Presendieu at 23, 24).
To determine whether the Presendieu's are insureds under the Vigilant policy, we must apply the well-established rules regarding interpretation of insurance contracts spelled out above. We find the general insurance contract generated by Vigilant covers Mr. Presendieu as an occupier of a covered vehicle. When parsing the language of the Lease Endorsement we find it does not apply. A limited construction of the Lease Endorsement reveals it is applicable only to (1) differences in coverage and (2) when the lessee or rentee is required to provide primary insurance. When that exists, they are not insured, but since this is not the case here, they are considered insureds under the general policy, which is amended by the UM endorsement. Given the fact that the company wrote the policy, and this is its language, I give the policy this limited construction in favor of the insured and conclude that the second level coverage does not on its face apply to this situation. Reading the policy as a whole, I find the Lease endorsement modifies the general policy; however, the accident at issue is covered by the UM endorsement, which has its own definitions. The UM endorsement section D. specifically defines "Who Is Insured" as "[a]nyone else [besides you or a family member] occupying a covered auto or a temporary substitute for a covered auto." (Emphasis deleted).
Jean Presendieu is an insured when reading the policy as a whole. See Atlantic Mut. Ins. Co., 857 F. Supp. 423, 427 (E.D.Pa. 1994). As the Lease Endorsement does not apply, the UM Endorsement is controlling. The Vigilant policy provides coverage and, assuming arguendo, other insurance is found to apply, we look to the UM policy's "other insurance" provision to determine priority. The Vigilant policy is primary as is stated in the Uninsured Motorist Insurance Endorsement under its "other insurance" provision. It will share pro rata with any policy with equivalent uninsured motorist coverage. As support for this finding, when looking to section F. "Changes in Conditions," the policy states regarding "other insurance" that "the policy covering a motor vehicle occupied by the injured person at the time of the accident" is first in priority." A policy is not to be read so as to render a portion superfluous.Lower Paxton Twp. v. USFG, 557 A.2d 393, 402 ( Pa. Super. 1989). Assuming that every portion of the policy has a purpose and reading apparently inconsistent terms in favor of the insured, I will give meaning to the definition of insured as it appears in the Uninsured Motorist Insurance Endorsement. I find that because the Vigilant policy covers the motor vehicle occupied by the injured person at the time of the accident and because its "other insurance" provision expressly states it, the Vigilant policy is primary.
B. Other Insurance.
1. For any covered auto you own this policy provides primary insurance. For any covered auto you don't own, the insurance provided by this policy is excess over any other collectible insurance.
2. When two or more policies cover on the same basis, either excess or primary, we will pay only our share. Our share is the proportion that the limit of our policy bears to the total of the limits of all the policies covering on the same basis.
2. The Fireman's Fund Policy
Fireman's Fund insured Miramax Film Corporation and its subsidiary Fifty Fiddles, both New York companies, as Named Insureds. Under the Fireman's Fund commercial general liability and business auto policy (E 92 XXC 80363809), Mr. Presendieu is an insured under Section II. A. 1. "Who is an Insured Amended." (Fireman's Fund CA 70 07 01 87.) In that section the policy states that an insured is "anyone using a covered auto you hire." To determine whether the tractor and trailer are covered autos, we look towards "Item Two Schedule of Coverages and Covered Autos" of the policy where we see the symbols "8. Hired Autos Only" and "9. Nonowned Autos Only." In the Business Coverage Form, "Section I-Covered Autos," those symbols are defined. Hired autos includes "only those `autos' you lease, hire, rent or borrow. This does not include any `auto' you lease, hire, rent, or borrow from any of your employees or partners or members of their households." (Fireman's Fund Policy at 2 of 7). As the tractor and trailer are both autos leased by Fifty Fiddles and neither are owned by Fifty Fiddles, each is a covered auto under the policy.
Although this policy was issued in New York and Mr. Presendieu is a New York resident, the accident in this case occurred in Pennsylvania. The policy does not contain an Uninsured Motorist Insurance endorsement; however, it does provide coverage based on an "out-of-state" coverage extension. To the extent Fireman's Fund provides coverage for an accident allegedly caused by a phantom vehicle, it is under that extension for the use of the vehicle in a state outside of New York under the laws of that state. Coverage is not disputed here. In dispute is whether the policy is primary or excess to other collectible insurance.
Section II, A. 2. b. Out of State Coverage Extensions states:
"While a covered "auto" is away from the state where it is licensed we will . . . (2) Provide the minimum amounts and types of other coverages, such as no-fault, required of out of state vehicles by the jurisdiction where the covered "auto" is being used. We will not pay anyone more than once for the same elements of loss because of these extensions.
The extent of that liability is pending in Southern District of New York in a separate action, Fireman's Fund Insurance Company v. Jean Presendieu, et al. We have not been asked to render a declaration of whether Fireman's Fund is liable for $15,000 minimum coverage required under Pennsylvania law, or the $1,000,000 minimum under Virginia law. The New York matter has been stayed pending the outcome of this action.
Where the policy sets forth in unambiguous language the terms of the insurance contract, the Court must accept that language as controlling. See St. Paul Fire and Marine Insurance Co. v. United States Fire Insurance Co., 655 F.2d 521 (3d Cir. 1981). The Fireman's Fund policy's "Other Insurance" provision provides that:
a. For any covered "auto" you don't own, the insurance provided by this Coverage Form is excess over any other collectible insurance. However, while a covered "auto" which is a "trailer" is connected to another vehicle, the Liability Coverage this Coverage Form provides for the "trailer" is:
(1) Excess while it is connected to a motor vehicle you do not own.
(2) Primary while it is connected to a covered "auto" you own.
b. Regardless of the provisions of paragraph a. above, this Coverage Form's Liability Coverage is primary for any liability assumed under an "insured contract."
Even having determined that the plain language of the "other insurance" clause brings Fireman's coverage into excess, Vigilant and Travelers vigorously argue that section b. of the above provision makes the Fireman's policy primary as a liability under an insured contract. I find no merit in that argument.
Under the New York Changes endorsement, an "insured contract" is "[t]hat part of any contract or agreement entered into, as part of your business, by you or any of your employees, pertaining to the rental or lease of any auto." The other insurance companies argue that the lease between Fifty Fiddles and Movie Movers is an insurance contract because it provides that Fifty Fiddles was supposed to provide primary liability coverage. Fireman's Fund argues the agreement between Movie Movers and Fifty Fiddles was not an insured contract because the New York Changes only apply to vehicles principally garaged in New York. Fireman's Fund further argues its policy does not respond until the limits of the Vigilant and Travelers policies are exhausted because, as a matter of law, policies with excess clauses (the driver's policy) provide secondary coverage over policies with pro rata policies (the vehicle owners' policies).
Using the Pennsylvania rules of construction, I will give the words of the New York Changes endorsement their plain and ordinary meaning. The New York Changes endorsement does not apply because it specifically limits its applicability to autos licensed and garaged in New York.
To determine whether the lease agreement is an insurance contract under the policy, I look to "Section V-Definitions," provision E. That provision reads:
E. "Insured contract" means:
1. A lease of premises;
2. A sidetrack agreement;
3. An easement or license agreement in connection with vehicle or pedestrian private railroad crossings at grade;
4. Any other easement agreement, except in connection with construction or demolition operations on or within 50 feet of a railroad;
5. An indemnification of a municipality as required by ordinance, except in connection with work for a municipality; or
6. That part of any other contract or agreement pertaining to your business under which you assume the tort liability of another to pay damages because of "bodily injury" or "property damage." Tort liability means a liability that would be imposed by law in the absence of any contract or agreement.
Of the six (6) categories defining insurance contract, the lease agreement could only arguably be categorized by number 6. As Fireman's Fund argues, this action does not involve a third party claim, but rather an insured making a claim for coverage under his own policy; therefore, number six does not apply. But even, assuming arguendo, it fit within the language of the sixth enumerated item, this action would be excluded by the further provision, which goes on to say: "[a]n "insured contract" does not include that part of any contract or agreement: 1. That pertains to the loan, lease or rental of an `auto' to you." If the lease agreement is not an insurance contract, the provisions which indicate excess and not primary control. Whatever the extent of Fireman's Fund's liability obligations are determined to be under the policy, Fireman's Fund provides excess coverage over any other collectible insurance.
3. The Travelers Policy
Travelers Indemnity Company of Illinois issued a business auto policy to Movie Movers, the owners of the trailer attached to the tractor at the time of the accident. Mr. Presendieu seeks coverage under this policy as an occupier of a covered auto. Travelers argues that only the trailer is covered under its policy and Mr. Presendieu was not occupying the trailer at the time of the accident as is required by the definition of an "insured." The other parties to the action claim that when Mr. Presendieu was occupying the truck portion of the vehicle, he was also occupying the trailer; therefore, Travelers's policy is applicable and should contribute on a pro rata basis. (Fireman's MSJ at 15). Fireman's Fund also argues that the truck is covered under the definition of a covered auto within the Uninsured Motorist endorsement. Reading the policy as a whole and interpreting any ambiguities against the insurer, I conclude Mr. Presendieu is an insured under the Travelers policy.
With regard to UM coverage, Travelers agrees to pay an insured "in accordance with the Virginia Uninsured Motorists Insurance Law, all sums the insured is legally entitled to recover as damages from the owner or driver of an uninsured motor vehicle." The policy states in "Section D. "Who Is An Insured":
1. You or any family member. 2. Anyone else occupying a covered auto. 3. Anyone for damages he or she is entitled to recover because of bodily injury to which this coverage applies, sustained by another insured under 1. or 2. above.
The Uninsured Motorist Insurance endorsement states "`occupying' means in, upon, getting in, on, out or off." Travelers argues that Presendieu was not occupying the trailer because he did not have a physical presence in or on the trailer at the time of the accident. Edwards v. Government Employees Ins. Co., 256 Va. 128, 500 S.E.2d 819 (Va. 1998).
While the parties have not vigorously argued choice of law in regard to the various policies, there is no conflict between Virginia and Pennsylvania law in this instance. In the Virginia statute, Virginia Code § 38.2-2206(B) and the Virginia caseEdwards, a claimant becomes an insured under the statute by use of a covered vehicle. Edwards did not find occupancy as it was defined in the policy in that case; however, it found statutory use. In addition, Pennsylvania applies the Contrisciane four prong test to define occupying. Utica Mutual Insurance Company v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984). As under Virginia law, the focus is on use. The Pennsylvania Supreme Court held a person will be occupying a vehicle within the meaning of the policy when the following criteria are met:
(1) there is a causal relation or connection between the injury and the use of the insured vehicle;
(2) the person asserting coverage must be in a reasonably close geographic proximity to the insured vehicle, although the person need not be actually touching it;
(3) the person must be vehicle oriented rather than highway or sidewalk oriented at the time; and
(4) the person must also be engaged in a transaction essential to the use of the vehicle at the time.Id. at 336.
Under these circumstances the trailer, which is admittedly a covered auto, is being towed by a truck that contributed to the injury, but is not a covered auto. I predict that both the Virginia and Pennsylvania courts would find coverage. Under the Virginia statute or under Pennsylvania's definition of occupancy, there is liability as both turn on the use of the vehicle. Both the truck and the trailer were involved in the same accident and the movement of the trailer allegedly added to the severity of the injuries; therefore, there is a causal connection between the injury and the use of the insured vehicle, an essential element of both states' inquiries. The trailer was connected to the truck at the time of the accident; therefore, there was a close proximity between the person asserting coverage, Mr. Presendieu, and the insured vehicle. Mr. Presendieu was driving the tractor-trailer combination at the time of the injury; therefore, he was vehicle oriented as opposed to street or sidewalk oriented. In order to perform the functions essential to his transportation of the trailer, Mr. Presendieu had to be in the cab of the truck and the injuries he sustained may not have been the same or as severe had the trailer not been connected to the truck. Thus, driving the tractor-trailer combination was essential to the use of the vehicle at the time of the accident and an integral part of Mr. Presendieu's mission as required by both Virginia and Pennsylvania law. This case clearly satisfies the tests for both using and occupying the trailer. See id.;See also Edwards, 256 Va. 128.
As to the priority of the Travelers policy's coverage, the policy states in the Section IV. 5.a. "Other Insurance" provision that the coverage is primary for an owned auto, but excess for a trailer connected to a motor vehicle, you do not own. Here, the trailer, owned by the insured, is connected to a truck the insured does not own. I find Travelers's coverage will share in the excess pro rata with Fireman's Fund.
Section F.1. "Other Insurance" of the Uninsured Motorist Insurance endorsement does not relate to this accident and does not change this aspect of the other insurance provision.
IV. Conclusion
Applying the principles of contract interpretation, we conclude that Mr. Presendieu is an insured under the Vigilant Uninsured Motorist policy. Vigilant's is the only policy that would be primary for the first one million dollars of coverage. The coverage of Fireman's Fund is excess over other collectible insurance and will share in the excess pro rata. Mr. Presedieu is an insured as an occupier of a covered vehicle under the Travelers Uninsured Motorist policy. The Travelers policy provides excess coverage pro rata with Fireman's Fund.
ORDER
AND NOW, on this ____ day of May, 2004 upon consideration of the parties cross-motions for summary judgment and oral argument, IT IS HEREBY ORDERED that:1. Plaintiff Vigilant's request for a Declaratory Judgment is DENIED. Defendant, Jean Presendieu and Marie Muriel Presendieu's Counter Claim for Declaratory Judgment is GRANTED and it is ORDERED, DECLARED, and DECREED that:
a. Jean Presendieu and Marie Muriel Presendieu's are insureds under the Vigilant Uninsured Motorist Insurance Policy;
b. Vigilant's coverage is primary; and
c. Vigilant has the obligation to provide uninsured motorist benefits to Jean Presendieu and Marie Muriel Presendieu in an amount not to exceed $1,000,000 per person.
2. The Fireman's Fund Motion for Summary Judgment is GRANTED in part, and it is ORDERED, DECLARED, and DECREED that Fireman's Fund's policies are excess to the Vigilant insurance policy. Fireman's Fund will be responsible to pay for benefits up to the limits of its coverage. The court makes no decision as to the amount of coverage Fireman's Fund is obligated to provide. The cross claims of the Presendieus and Travelers' are DENIED in so far as they seek a declaration that Fireman's Fund provides primary coverage.
4. The Motion for Summary Judgment of Travelers is DENIED. The Presendieu's cross claim against Travelers for a declaration that they are an insured is GRANTED. In so far as they seek a declaration that Travelers provides primary coverage, it is DENIED. Jean Presendieu is an insured under the Travelers policy. Travelers will be responsible to pay pro rata with Fireman's Fund excess uninsured motorist benefits in an amount not to exceed $1,000,000.