Ohio Security Insurance Company is suing Utica National Insurance Company of Texas, arguing Utica's commercial auto policy must take over the defense of an insured supplier sued by an injured worker.
The complaint, filed April 29 in the US District Court for the Eastern District of New York, traces back to a project site at 148-09 90th Avenue in Queens. On November 3, 2021, Ronald Abimelec Adino Marquez says he was struck by a metal pipe as a Coastal Supply Group driver was unloading it from a delivery truck. Marquez sued Coastal in Queens Supreme Court, seeking damages of more than $75,000.
For a time, the two insurers shared Coastal's defense on an equal basis. Ohio Security agreed to chip in because Marquez's pleadings were not specific about how the accident happened, and it reserved the right to bow out if the facts pointed to an auto loss.
According to the filing, Marquez's sworn deposition testimony has now done exactly that. He testified that the Coastal driver was removing metal pipes from the truck when one of them struck him.
That, Ohio Security argues, settles the question. Its commercial general liability policy "expressly excludes coverage for bodily injury arising out of the ownership, maintenance or use of an auto," the complaint states - and the policy defines "use" to include loading and unloading. The Utica policy, by contrast, covers Coastal "for liability arising out of the use of the Coastal delivery truck, including loading and unloading."
Ohio Security says it asked Utica to take over the full defense. Utica, the complaint alleges, "has failed and/or refused to do so."
The carrier is asking the court to declare that Utica must defend and indemnify Coastal on a primary and non-contributory basis, that Ohio Security owes nothing, and that it can withdraw from the underlying case. It is also seeking fees and costs.
The dispute lands on a familiar fault line in commercial insurance: the seam between the CGL and the commercial auto policy. Loading and unloading is the seam that gets fought over most.
The allegations have not been tested in court. Utica has not yet filed a response, and no court has ruled.
