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Cincinnati Insurance Co. v. Orten

United States District Court, M.D. Tennessee, Nashville Division

October 30, 2017

CINCINATTI INSURANCE COMPANY, Plaintiff,
v.
TRAVIS ORTEN, d/b/a TRAVIS ORTEN SUPER SUDS CAR WASH & LAUNDRETTE, MICHAEL FORRESTER, WILLIAM MILES, THE ESTATE OF JACOB ORT, by and through his Administrator, BRENDA L. NALIBOFF, and THE ESTATE OF KENDRA LEE, by and through her Administrator, SHEILA LEE, Defendants.

          MEMORANDUM & ORDER

          ALETA A. TRAUGER UNITED STATES DISTRICT JUDGE

         Pending before the court is a Joint Motion to Dismiss (Docket No. 43), filed by the defendants, Travis Orten, d/b/a Travis Orten Super Suds Car Wash & Launderette, Michael Forrester, William Miles, the Estate of Jacob Ort, by and through his Administrator, Brenda Naliboff (“Ort”), and the Estate of Kendra Lee, by and through her Administrator, Sheila Lee (“Lee”), to which the plaintiff, Cincinnati Insurance Company (“Cincinnati”), has filed a response (Docket. No. 46). For the reasons discussed herein, the motion will be denied.

         FACTS & PROCEDURAL HISTORY

         Cincinnati is an insurance company based and incorporated in Ohio. On June 23, 2015, Cincinnati issued separate Business Auto and Commercial Umbrella Liability coverage policies (the “Policies”) to Travis Orten Super Suds Car Wash, a Tennessee car wash business owned and operated by Travis Orten. The Policies ran through June 23, 2016, and included coverage of an automobile registered to Travis Orten Super Suds Car Wash. In relevant part, the Policies provided coverage for the registered automobile as follows:

A. Coverage
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 the ownership, maintenance or use of a covered ‘auto'.
We will also pay all sums an ‘insured' legally must pay as a ‘covered pollution cost or expense' to which this insurance applies, caused by an ‘accident' and resulting from the ownership, maintenance or use of covered ‘autos'. However, we will only pay for the ‘covered pollution cost or expense' if there is either ‘bodily injury' or ‘property damage' to which this insurance applies that is caused by the same ‘accident'.
We have the right and duty to defend any ‘insured' against a ‘suit' asking for such damages or a ‘covered pollution cost or expense'. However, we have no duty to defend any ‘insured' against a ‘suit' seeking damages for ‘bodily injury' or ‘property damage' or a ‘covered pollution cost or expense' to which this insurance does not apply. We may investigate and settle any claim or ‘suit' as we consider appropriate. Our duty to defend or settle ends when the Liability Coverage Limit of Insurance has been exhausted by payment of judgments or settlements.

         The Policies also provided commercial umbrella liability coverage as follows:

SECTION I - COVERAGE
A. Insuring Agreement
1. We will pay on behalf of the insured the ‘ultimate net loss' which the insured is legally obligated to pay as damages for ‘bodily injury', ‘personal and advertising injury' or ‘property damage' to which this insurance applies:
a. Which is in excess of the ‘underlying insurance'; or
b. Which is either excluded or not insured by ‘underlying insurance'.
2. This insurance applies to ‘bodily injury', ‘personal and advertising injury' or ‘property damage' only if:
a. The ‘bodily injury', ‘personal and advertising injury' or ‘property damage' is caused by an ‘occurrence' that takes place in the ‘coverage territory'; and
b. The ‘bodily injury' or ‘property damage' occurs during the policy period shown in the Declarations; or
c. The ‘personal and advertising injury' results from an ‘occurrence' that takes place during the policy period shown in the Declarations; and
d. Prior to the ‘coverage term' in which ‘bodily injury' or ‘property damage' occurs, or a ‘personal and advertising injury' offense is committed, you did not know, per Paragraph 5. [sic] below, that the ‘bodily injury' or ‘property damage' had occurred or had begun to occur, in whole or in part, or that the ‘personal and ...

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