Complaint for State Declaratory Judgment — Progressive Casualty Insurance Company v. Mack Freight Service, Inc. et al., No. 2:22-cv-1707 (Dkt. 1, D.N.J.)
Summary
Progressive Casualty Insurance Company filed this complaint for declaratory judgment, dated March 25, 2022, in the U.S. District Court for the District of New Jersey, Civil Action No. 2:22-cv-1707, against Mack Freight Service, Inc., State National Specialty Insurance Company, Inc., B.F. Transport, Inc., Bladimir Fermin Cabrera and others. It concerns an accident on June 8, 2021 involving a tractor owned by B.F. Transport, Inc. and operated by Cabrera, for which Junior Smith has made a bodily injury claim. Progressive says it afforded B.F. Transport only Non-Trucking Automobile Liability (NTAL) insurance and that the tractor was leased to or under dispatch to Mack Freight Service, insured by State National. The complaint asks the court to declare that Mack Freight Service and State National must defend and indemnify B.F. Transport and Cabrera, and to award Progressive its costs.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Full text
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
(Newark Vicinage)
PROGRESSIVE CASUALTY INSURANCE Civil Action No. 2:22-cv-1707
COMPANY,
Plaintiff,
vs.
COMPLAINT FOR
MACK FREIGHT SERVICE, INC., STATE DECLARATORY JUDGMENT
NATIONAL SPECIALTY INSURANCE
COMPANY, INC., B.F. TRANSPORT, INC.,
BLADIMIR FERMIN CABRERA, JUNIOR
SMITH, MICHELLE L. BLAIR SMITH, ABC
INSURANCE COMPANIES 1-10 (SAID
NAMES AND IDENTITIES BEING
FICTITIOUS AND PRESENTLY
UNKNOWN); DEF CORPS. 1-10 (said names
and identities being fictitious and presently
unknown)JOHN DOES 1-10 (SAID NAMES
AND IDENTITIES BEING FICTITIOUS AND
PRESENTLY UNKNOWN) and alleges upon
information and belief as follows
Defendants
PREAMBLE
Plaintiff PROGRESSIVE CASUALTY INSURANCE COMPANY, by and through its
undersigned counsel, THE LAW OFFICES OF VANESSA L. KOPPEL, ESQ., LLC, hereby files
this Complaint for Declaratory Judgment against defendants MACK FREIGHT SERVICE, INC.,
STATE NATIONAL SPECIALTY INSURANCE COMPANY, INC., B.F. TRANSPORT, INC.,
BLADIMIR FERMIN CABRERA, JUNIOR SMITH, MICHELLE L. BLAIR SMITH; ABC
INSURANCE COMPANIES 1-10 (said names and identities being fictitious and presently
unknown); DEF CORPS. 1-10 (said names and identities being fictitious and presently unknown);
JOHN DOES 1-10 (said names and identities being fictitious and presently unknown) and alleges
upon information and belief as follows.
NATURE OF THE ACTION
1. This is an action for declaratory judgment seeking a declaration of the rights and
liabilities of PROGRESSIVE CASUALTY INSURANCE COMPANY and Defendants MACK
FREIGHT SERVICE, INC., STATE NATIONAL SPECIALTY INSURANCE COMPANY, INC.,
B.F. TRANSPORT, INC., BLADIMIR FERMIN CABRERA, JUNIOR SMITH, MICHELLE L.
BLAIR SMITH; ABC INSURANCE COMPANIES 1-10 (said names and identities being
fictitious and presently unknown); DEF CORPS. 1-10 (said names and identities being fictitious
and presently unknown)JOHN DOES 1-10 (said names and identities being fictitious and presently
unknown), regarding an accident that occurred on June 8, 2021.
2. PROGRESSIVE CASUALTY INSURANCE COMPANY afforded Non-Trucking
Automobile Liability (“NTAL”) insurance to the defendant B.F. TRANSPORT, INC. Upon
information and belief, at the time of the subject accident, a tractor owned by B.F. TRANSPORT,
INC. was being operated by defendant BLADIMIR FERMIN CABRERA.
3. Upon further information and belief, at the time of this accident and for some time
prior thereto, the subject-matter tractor was leased to and/or under dispatch to and/or acting in the
business of defendant MACK FREIGHT SERVICE, INC., a federally regulated trucking company
operated under US DOT number 332849 and which was owned and/or operated by DEF CORPS.
1-10 (said names and identities being fictitious and presently unknown); JOHN DOES 1-10 (said
names and identities being fictitious and presently unknown).
4. An individual named JUNIOR SMITH has already made a bodily injury claim
against B.F. TRANSPORT, INC., MACK FREIGHT SERVICE, INC. and BLADIMIR FERMIN
CABRERA as a result of the accident, which is pending in the Supreme Court of New York,
Queens County under Index Number 716855/2021.
5. A declaration of the rights and obligations of the various claimants, insurers and
insureds involved in the June 8, 2021 occurrence is sought herein.
THE PARTIES AND VENUE
6. Plaintiff PROGRESSIVE CASUALTY INSURANCE COMPANY is a
corporation organized according to the laws of Ohio, with its principal place of business located
at 6300 Wilson Mills Road, Mayfield Village, Ohio, Cuyahoga County, 44143 and is authorized
to do business in New York and New Jersey.
7. Upon information and belief, defendant MACK FREIGHT SERVICE, INC. is a
corporation organized according to the laws of the State of New Jersey, with its principal place of
business located at 434 Kearny Avenue, Kearny, New Jersey, Hudson County. Upon information
and belief, MACK FREIGHT SERVICE, INC.’s corporate officers and registered agents for
service are/were located /resided at the time of the accident in Kearny, New Jersey, Hudson
County.
8. Upon information and belief, defendant STATE NATIONAL SPECIALTY
INSURANCE COMPANY is a corporation organized according to the laws of the State of Texas
and is authorized to do business in New Jersey, with a principal place of business located in
Bedford, Texas. STATE NATIONAL SPECIALTY INSURANCE COMPANY is an insurer
authorized to do business in and transacts business in the State of New Jersey.
9. Upon information and belief, defendant B.F. TRANSPORT, INC. is a New York
corporation, with a principal place of business located at 305 Vespucci Avenue, Copiague, New
York 11726. Upon information and belief, B.F. TRANSPORT, INC.’s corporate officers and
registered agents for service are/were located /resided at the time of the accident in Copiague,
New York,
10. Upon information and belief, BLADIMIR FERMIN CABRERA is a New York
resident, with a principal residence located in Copiague, New York, Suffolk County.
11. Upon information and belief, underlying tort plaintiff JUNIOR SMITH is a resident
of the state of New York and resided in Queens, New York at the time of the accident.
12. Upon information and belief, MICHELLE L. BLAIR SMITH was a passenger in
the motor vehicle operated by JUNIOR SMITH at the time of the accident.
13. Upon information and belief, ABC INSURANCE COMPANIES 1-10 are fictitious
entities whose identities and business locations are presently unknown.
14. Upon information and belief, DEF COMPANIES 1-10 are fictitious entities whose
identities and business locations are presently unknown
15. Upon information and belief, JOHN DOES 1-10 fictitious entities whose identities
and business locations are presently unknown.
JURISDICTION AND VENUE
16. This Court has jurisdiction over this matter under 28 U.S.C. § 1332 in that it arises
between citizens of different states and upon information and belief the matter in controversy
exceeds the sum or value of $75,000, exclusive of interest and costs, insofar as the value of the
right being protected and/or the injury being averred exceeds $75,000.
17. Venue is proper in this district under 28 USC § 1391(a)(2) and (b)(1) because this
declaratory judgment action involves the determination and interpretation of the rights and
liabilities of parties and insurers who are authorized to and did transact business in the State of
New Jersey, Hudson County, insofar as the motor carrier MACK FREIGHT SERVICE, INC. is
a New Jersey corporation with a principal place of business at the time of the accident located in
Kearny, Hudson County, New Jersey; the contracts between the parties were delivered and
executed in Kearny, Hudson County, New Jersey and the motor carrier insurance policy which is
one of the insurance policies at issue in this case was delivered by NATIONAL SPECIALITY
INSURANCE COMPANY to a New Jersey insured(s). Upon information and belief, a lease
agreement between MACK FREIGHT SERVICE, INC. and B.F. TRANSPORT, INC. was
executed and delivered in Kearny, Hudson County, New Jersey. Upon information and belief,
the STATE NATIONAL INSURANCE policy contains New Jersey endorsements and language
obligating disputes arising out of the coverage under the policy to be determined pursuant to New
Jersey law.
18. Prior to the date of the subject accident, plaintiff PROGRESSIVE CASUALTY
INSURANCE COMPANY issued to the defendant B.F. TRANSPORT, INC. a certain
Commercial Automobile Liability policy containing a Contingent Liability Endorsement –
Limited Liability Coverage for Non-Trucking use of an Automobile, known as a “Non-Trucking
Liability Policy” (NTL policy) designated as policy number XXXX696-2 with a policy period of
January 10, 2020 to January 10, 2021.
19. NTAL coverage is a limited type of coverage which is only designed to provide
protection when a vehicle is not hauling freight and/or under the control of a motor carrier or
otherwise acting in the course of a motor carrier’s business.
20. If an accident occurs while a vehicle is engaged in business use or is being used for
any business purpose, it is referred to as a “trucking loss,” as opposed to a “non-trucking loss” and
coverage is provided by the insurer of the motor carrier under whose exclusive control the vehicle
is operating and in whose business the vehicle is operating to the exclusion of the NTL insurer.
21. Plaintiff PROGRESSIVE CASUALTY INSURANCE COMPANY only issues
NTAL policies to insureds whose vehicles are subject to a long term lease agreement to a
designated motor carrier licensed by the Interstate Commerce Commission and U.S. Department
of Transportation, which promulgates various liability insurance requirements with which such
motor carriers must comply for protection of the general public in case of bodily injury and/or
property damage.
22. In this case, upon information and belief, the defendant B.F. TRANSPORT, INC.
was under permanent lease to defendant MACK FREIGHT SERVICE, INC. pursuant to an
Independent Contractor Agreement executed between B.F. TRANSPORT, INC. incepting prior to
the accident and continuing on to and including the date of the accident. Upon information and
belief, this lease agreement was in full force and effect at the time the underlying motor vehicle
accident took place on June 8, 2021.
23. Applicable federal law requires all such governmentally regulated motor carriers
such as MACK FREIGHT SERVICE, INC. to procure and maintain automobile liability insurance
for the protection of the general public.
24. All such federally regulated motor carriers are required to have an MCS-90
Endorsement on file at all times, which must be issued by a licensed insurer and which must
warrant at least $750,000 (Seven Hundred Fifty Thousand dollars) of liability coverage is in effect
and further provide (with exceptions not relevant here) that such insurer has virtually no defenses
to payment of a judgment suffered by its insured.
25. Pursuant to the lease agreement and in compliance with federal law, defendant
MACK FREIGHT SERVICE, INC. was obligated to maintain trucking insurance coverage for
protection of the public pursuant to federal regulations.
26. Prior to the June 8, 2021 accident, the defendant STATE NATIONAL
SPECIALITY INSURANCE COMPANY had issued a policy of Commercial Trucking
Automobile Liability Insurance to defendant MACK FREIGHT SERVICE, INC. which was, upon
information and belief, designated as policy number ACP2900003880.
27. Upon information and belief, this policy was in full force and effect on the date of
the accident.
FACTUAL ISSUES
28. On June 8, 2021, defendant BLADIMIR FERMIN CABRERA was operating a
2015 Freightliner tractor owned by B.F. TRANSPORT, INC. which was attached to a trailer which
was involved in an accident with a vehicle owned and operated by JUNIOR SMITH.
29. As a result of the accident, JUNIOR SMITH has presented a bodily injury claim
against defendants B.F. TRANSPORT, INC., BLADIMIR FERMIN CABRERA and MACK
FREIGHT SERVICE, INC. in the Supreme Court of New York, Queens County, under Index
Number 716855/2021.
30. Upon information and belief, the defense and indemnification of B.F.
TRANSPORT, INC. and BLADIMIR FERMIN CABRERA with respect to the bodily injury claim
of JUNIOR SMITH has been tendered to defendants MACK FREIGHT SERVICE, INC. and to
NATIONAL SPECIALITY INSURANCE COMPANY as the Trucking Liability insurance carrier
of MACK FREIGHT SERVICE, INC.
31. STATE NATIONAL SPECIALTY INSURANCE COMPANY has wrongfully
refused to accept said tender of coverage on behalf of B.F. TRANSPORT, INC. and BLADIMIR
FERMIN CABRERA with respect to the bodily injury claim of B.F. TRANSPORT, INC.
32. At the time of the accident, however, B.F. TRANSPORT, INC. and BLADIMIR
FERMIN CABRERA was/were under lease to and acting in the business of MACK FREIGHT
SERVICE, INC.
33. Upon information and belief, the basis therefor being standard policy language
utilized in the trucking industry, the definition of “insured” under the NATIONAL SPECIALITY
INSURANCE policy issued to MACK FREIGHT SERVICE, INC. includes B.F. TRANSPORT,
INC. and BLADIMIR FERMIN CABRERA and the Independent Contractor Agreement between
B.F. TRANSPORT, INC. and MACK FREIGHT SERVICE, INC. was an “insured contract” as
that term is defined under the policy.
THE INDEPENDENT CONTRACTOR AGREEMENT BETWEEN MACK FREIGHT
SERVICE, INC. and BLADMIR FERMIN/B.F. TRANSPORT
34. Upon information and belief, at some time prior to June 8, 2021, B.F.
TRANSPORT, INC. (designated as “Contractor”) entered into an Independent Contractor
Agreement with MACK FREIGHT SERVICE, INC., a federally regulated motor carrier operating
in interstate transportation pursuant to operating rights granted to MACK FREIGHT SERVICE,
INC. by the Federal Motor Carrier Safety Administration.
35. Per the Independent Contractor Agreement, B.F. TRANSPORT, INC. was to
furnish certain equipment for providing transportation Service to B.F. TRANSPORT, INC., to wit,
and as specifically identified in Addendum A to the Agreement, a 2015 Freightliner tractor bearing
VIN ending in Z7282 (the tractor involved in the subject-matter accident).
36. Pursuant to this Independent Contractor Agreement and pursuant to applicable
federal law, MACK FREIGHT SERVICE, INC. took “exclusive possession, use and control” of
the equipment and “assume[d] complete responsibility for the operation of the equipment” during
the term of the Agreement.
37. Pursuant to the Independent Contractor Agreement, B.F. TRANSPORT, INC. was
to display the placarding of MACK FREIGHT SERVICE, INC. on the equipment, as required by
federal law to identify to the public at large that the vehicle was under the exclusive possession,
use and control of MACK FREIGHT SERVICE, INC., a federally regulated motor carrier.
38. This Independent Contractor Agreement recites to the Insuring requirements
mandated by federal law, 49 CFR Section 376.12(j) and states that MACK FREIGHT SERVICE,
INC. as the federally regulated motor carrier, has a duty to maintain “insurance coverage in the
amounts set forth in 49 CFR Section 387.”
39. Pursuant to this Agreement, B.F. TRANSPORT, INC. was required to maintain
Non-Trucking Liability and/or Bobtail Insurance with coverage amounts of at least $1 million and
B.F. TRANSPORT, INC. was required to name MACK FREIGHT TRANSPORT, INC. as an
additional insured on the Non-Trucking Liability and Bobtail Insurance policies procured pursuant
to the requirements of the Agreement.
40. Furthermore, this Agreement requires that the coverage purchased by B.F.
TRANSPORT, INC. is to be “primary” over any coverage purchased by MACK FREIGHT
SERVICE, INC.
41. The Independent Contractor Agreement contains the following indemnification
clause:
VI. INDEMNIFICATION
A. CONTRACTOR [B.F. Transport, Inc.] hereby agrees to indemnify, defend and hold harmless,
including, but not limited to, reasonable attorneys’ fees and court costs, CARRIER [Mack Freight
Service, Inc.] , its directors, officers, employees or agents from and against any injury
(including death), damage or loss arising under or in connection with this ICA.
B. CONTRACTOR [B.F. Transport, Inc.] shall indemnify, defend and hold harmless the CARRIER
for any damage, injury (including death), or loss arising from the use of any additional equipment,
including but not limited to, power take-off units (PTO) that may be used by CONTRACTOR in
the course of this ICA for any reason.
THE PROGRESSIVE CASUALTY INSURANCE COMPANY POLICY ISSUED TO
B.F. TRANSPORT, INC.
42. PROGRESSIVE CASUALTY INSURANCE COMPANY issued a Commercial
Auto Policy to B.F. TRANSPORT, INC. under policy number XXXX9696-2 with a policy period
of January 10, 2020 to January 10, 2021 and a Combined Single Policy limit of $500,000. This
policy contains Contingent Liability Endorsement – Limited Liability Coverage for Non-Trucking
use of an Automobile (hereinafter referred to as the “PROGRESSIVE NTL policy”).
43. The PROGRESSIVE NTL policy contains the following Insuring Agreement
PART I – LIABILITY TO OTHERS
INSURING AGREEMENT – LIABILITY TO OTHERS
Subject to the Limits of Liability, if you pay the premium for liability coverage for the insured auto involved, we will
pay damages, other than punitive or exemplary damages for bodily injury, property damage, and covered pollution
cost or expense, for which an insured becomes legally responsible because of an accident arising out of the ownership
maintenance or use of that insured auto. However, we will only pay for the covered pollution cost or expense if the
same accident also caused bodily injury or property damage to which this insurance applies.
We will settle or defend, at our option, any claim or lawsuit for damages covered by this part I. We have no duty to
settle or defend any lawsuit, or make any additional payments, after the Limit of Liability for this coverage has been
exhausted by payment of judgments or settlements.
ADDITIONAL DEFINITIONS USED IN THIS PART ONLY
A. When used in Part I – Liability to Others, insured means:
1. You with respect to an insured auto.
2. Any person while using, with your permission, and within the scope of that permission, an insured
auto you own, hire or borrow, except:
(a) A person while he or she is working in a business of selling, leasing, repairing, parking, storing,
servicing, delivering or testing autos, unless that business is yours and it was so represented in your
application.
(b) A person, other than one of your employees, partners (if you are a partnership), members (if
you are a limited liability company), officers or directors (if you are a corporation) or a lessee or
borrower or any of their employees, while he or she is moving property to or from an insured
auto.
(c) The owner or anyone else from whom the insured auto is leased, hired or borrowed unless
the insured auto is a trailer connected to a power unit that is an insured auto. However, this
exception does not apply if the insured auto is specifically described on the declarations page.
For purposes of this subsection A.3., an insured auto you own includes any auto specifically described
on the declarations page.
3. Any other person or organization, but only with respect to the legal liability of that person or
organization for acts or omissions of any person otherwise covered under this Part I- Liability
to others
44. The PROGRESSIVE NTL policy issued to B.F. TRANSPORT, INC. contains the
following Contingent Liability Endorsement, which excludes business use of the truck:
Form 1797 (10/07)
NEW YORK CONTINGENT LIABILITY ENDORSEMENT – LIMITED LIABILITY
COVERAGE FOR NON-TRUCKING USE OF AN AUTOMOBILE
Except as specifically modified in this endorsement, all provisions of the Commercial Auto Policy apply.
We agree with you that the insurance provided under your Commercial Auto Policy is modified as follows:
PART I – LIABILITY TO OTHERS
A. Under the Additional Definitions Used in This Part Only section:
1. Insured does not include anyone engaged in the business of transporting property by auto for hire
who is liable for your conduct.
B. The following exclusions are added:
Coverage under this Part I, including our duty to defend, does not apply to an insured auto or any attached
trailer while operated, maintained, or used:
1. To carry property in any business, or while such property is being loaded onto or unloaded
from the insured auto or an attached trailer; or
2. In the business of anyone to whom the auto or any attached trailer is leased or rented.
These exclusions apply whether or not the insured is being compensated for the use of the insured auto. However,
the above exclusions apply only if there is other valid and collectible liability insurance, whether on an excess,
umbrella, contingent and/or non-contributing basis, applicable to the insured auto and that provides the minimum
kinds and limits of coverage required by New York law.
Limit of Liability
The following is added to Limit of Liability:
4. Coverage Required by Financial Responsibility Law
a. Any coverage legally deemed to be included in the policy by reason of financial responsibility or
insurance laws or regulation of any state or government agency shall not exceed minimum limits
required by such law or regulation.
b. If any of the provisions of this endorsement are held to be void or unenforceable under the law of
any jurisdiction for any reason, including, but not limited to, violation of any statute or contravention
of public policy, we will not pay any sums in excess of minimum amount subject to minimum
financial responsibility of such jurisdiction, and then only after all other valid and collectible
insurance available to you in the absence of the policy has been exhausted.
ALL OTHER TERMS, LIMITS AND PROVISIONS OF THIS POLICY REMAIN UNCHANGED.
45. The PROGRESSIVE NTL policy contains the following provisions, conditions and
exclusions:
PART I – LIABILITY TO OTHERS
INSURING AGREEMENT – LIABILITY TO OTHERS
Subject to the Limits of Liability, if you pay the premium for liability coverage for the insured auto involved,
we will pay damages, other than punitive or exemplary damages, for bodily injury, property damage and
covered pollution cost or expense, for which an insured becomes legally responsible because of an accident
arising out of the ownership, maintenance or use of that insured auto. However, we will only pay for the
covered pollution cost or expense if the same accident also caused bodily injury or property damage to which
this insurance applies.
We will settle or defend, at our option, any claim or lawsuit for damages covered by this Part I. We have
no duty to settle or defend any lawsuit, or make any additional payments, after the Limit of Liability for this
coverage has been exhausted by payment of judgments or settlements.
EXCLUSIONS – PLEASE READ THE FOLLOWING EXCLUSIONS CAREFULLY. IF AN EXCLUSION
APPLIES, COVERAGE FOR AN ACCIDENT OR LOSS WILL NOT BE AFFORDED UNDER THIS PART I-
LIABILITY TO OTHERS.
Coverage under this Part I, including our duty to defend, does not apply to:
...
2. Contractual
Any liability assumed by an insured under any contract or agreement, unless the agreement is an
insured contract that was executed prior to the occurrence of any bodily injury or property damage.
However, this exclusion does not apply to liability for damages that an insured would have in the absence
of a contract or agreement.
46. The PROGRESSIVE NTL policy additionally contains the following General
Definitions:
GENERAL DEFINITIONS
The words and phrases below, whether in the singular, plural or possessive, have the following special meanings
when appearing in boldface type in this policy, and in endorsements issued in connection with this policy, unless
specifically modified.
6. “Insured Contract” means:
a. A lease of premises;
b. A sidetrack agreement;
c. Any easement or license agreement, except in connection with construction or demolition
operations or within 50 feet of a railroad;
d. An obligation, as required by ordinance, to indemnify a municipality, except in connection with
work for a municipality;
e. That part of any other contract or agreement pertaining to your business (including
indemnification of a municipality in connection with work performed for a municipality) under
which you assume the tort liability that is vicariously imposed on another for your negligence
or that of your employees or agents;
f. That part of any contract or agreement, entered into as part of your business, for the rental of an
insured auto. However, such contract or agreement shall not be considered an insured contract
to the extent that it obligates you or any of your employees to pay for property damage to any
auto rented or leased to you or any of your employees.
An “insured contract” does not include that part of any contract or agreement:
...
3. That holds a person or organization engaged in the business of transporting property by auto for
hire harmless for your use of an insured auto over a route or territory that person or organization
is authorized to serve by public authority.
DECLARATORY RELIEF
COUNT ONE
47. Plaintiff PROGRESSIVE CASUALTY INSURANCE COMPANY incorporates
paragraphs 1 through 46 of this Complaint herein by reference with the same force and effect as if
fully set forth at length.
48. Plaintiff PROGRESSIVE CASUALTY INSURANCE COMPANY alleges that
defendant B.F. TRANSPORT, INC. was under lease to and otherwise acting in the business of
defendant MACK FREIGHT SERVICE, INC. at the time of this occurrence on June 8, 2021.
49. Upon information and belief, the basis therefor being the standard policy language
used in the trucking industry, the definition of “insured” in said policy, which would include B.F.
TRANSPORT, INC. and BLADIMIR FERMIN CABRERA and the Independent Contractor
Agreement previously in effect between B.F. TRANSPORT, INC. and MACK FREIGHT
SERVICE, INC. at that time was an insured contract.
50. That upon information and belief, MACK FREIGHT SERVICE, INC. was insured
by defendant STATE NATIONAL SPECIALTY INSURANCE COMPANY pursuant to a
Commercial Automobile Liability insurance policy at the time of this loss, and upon information
and belief the policy number was ACP2900003880 and that, upon information and belief, STATE
NATIONAL SPECIALITY INSURANCE COMPANY received timely notice of said claim.
51. That if this Court should find that B.F. TRANSPORT, INC. and BLADIMIR
FERMIN CABRERA was/were under lease to and/or under dispatch to and/or acting on behalf of
or in the business of defendants MACK FREIGHT SERVICE, INC. at the time of the accident
and/or that the aforesaid lease agreement between B.F. TRANSPORT, INC. and MACK
FREIGHT SERVICE, INC. was in effect at the time of the accident, then, upon information and
belief, STATE NATIONAL SPECIALTY INSURANCE COMPANY becomes B.F.
TRANSPORT, INC.’s and BLADIMIR FERMIN CABRERA CABRERA’s primary insurer and
owes a duty to defend and indemnify B.F. TRANSPORT, INC. and BLADIMIR FERMIN
CABRERA against any claims which have been brought by JUNIOR SMITH or any other
claimants or any other insurer and to pay any award or settlement which may be obtained against
B.F. TRANSPORT, INC. and BLADIMIR FERMIN CABRERA in any underlying action, to the
exclusion of the PROGRESSIVE CASUALTY INSURANCE NTL policy issued to B.F.
TRANSPORT, INC..
52. That if this Court should find that B.F. TRANSPORT, INC. and BLADIMIR
FERMIN CABRERA were under lease to and/or under dispatch to and/or acting on behalf of or
in the business of defendant MACK FREIGHT SERVICE, INC., a federally regulated motor
carrier on the date of the occurrence, MACK FREIGHT SERVICE, INC. and/or STATE
NATIONAL SPECIALTY INSURANCE COMPANY, its insurer, is obligated to afford coverage
to B.F. TRANSPORT, INC. and BLADIMIR FERMIN CABRERA for the within occurrence to
the exclusion of the DRIVE NEW JERSEY Commercial Auto policy issued to B.F. TRANSPORT,
INC.
COUNT TWO
53. Plaintiff PROGRESSIVE CASUALTY INSURANCE COMPANY incorporates
paragraphs 1 through 52 of this Complaint herein by reference with the same force and effect as if
fully set forth at length.
54. The policy of Non-Trucking Automobile Liability Insurance which
PROGRESSIVE CASUALTY INSURANCE COMPANY issued to B.F. TRANSPORT, INC.
was issued in reliance upon B.F. TRANSPORT, INC.’s representation that the equipment/vehicle
in question was under permanent lease to a governmentally regulated motor carrier, MACK
FREIGHT SERVICE, INC. This is because governmentally regulated motor carriers are required
by federal law to carry at least $750,000 in primary liability coverage for the general public, which
is contained in the MCS-90 Endorsement which, upon information and belief, is contained in the
STATE NATIONAL SPECIALITY policy issued to MACK FREIGHT SERVICE, INC.
55. In addition to the obligations imposed by federal law, the Independent Contractor
Agreement between B.F. TRANSPORT, INC. and MACK FREIGHT SERVICE, INC. obligated
MACK FREIGHT SERVICE, INC. to comply with all federal regulations, which clearly include
public liability insurance, at its own expense.
56. The MCS-90 Endorsement aforesaid is all-encompassing and imposes obligations
upon STATE NATIONAL SPECIALTY INSURANCE COMPANY which go far beyond the
provisions of ordinary vehicle policies. This was promulgated as a policy decision at the federal
level for the purposes of insuring an elevated degree of financial responsibility and to further
protect injured persons on the highways from the vagaries of coverage disputes. First, the
endorsement defines “Motor Vehicle” very broadly, as follows:
Motor vehicle means a land vehicle, machine, truck, tractor, trailer or semi-trailer
propelled or drawn by mechanical power and used on a highway for transporting
property, or any combination thereof.
57. Second, the endorsement makes it clear that the insurer’s obligations are absolute
whether or not any particular equipment is scheduled on the policy:
In consideration of the premium stated in the policy to which this endorsement is
attached, the insurer (the company) agrees to pay within the limits of liability
described herein, any final judgment recovered against the insured for public
liability resulting from negligence in the operation, maintenance or use of motor
vehicles subject to the financial responsibility requirements of Sections 29 and 30
of the Motor Carrier Act of 1980 regardless of whether or not each motor vehicle is
specifically described in the policy and whether or not such negligence occurs on any
route or in any territory authorized to be served by the insured or elsewhere.
58. It is also beyond dispute as a matter of law that the vitality of the MCS-90
Endorsement is not affected by the fact that the liability of the named insured thereon may be
alleged or in fact be passive and vicarious, as opposed to active negligence.
COUNT THREE
59. Plaintiff PROGRESSIVE CASUALTY INSURANCE COMPANY incorporates
paragraphs 1 through 58 of this Complaint herein by reference with the same force and effect as if
fully set forth at length.
60. The PROGRESSIVE CASUALTY NTL policy issued to B.F. TRANSPORT, INC.
excludes coverage for contractual liability, as aforesaid.
61. There is no coverage afforded (defense or indemnification) under the
PROGRESSIVE CASUALTY NTL policy issued to B.F. TRANSPORT, INC. for any contractual
claims asserted by or on behalf of MACK FREIGHT SERVICE, INC. and such claims are and
were denied, to the extent that Non-Trucking Liability endorsement excludes coverage for the
business use of the tractor trailer combination vehicle in the transportation business of MACK
FREIGHT SERVICE, INC. at the time of the accident.
62. Furthermore, assuming that the NTL Endorsement did not apply, the Independent
Contractor Agreement would not qualify as an “insured contract” under the terms of the
Progressive policy, insofar as the indemnification agreement requires that B.F. TRANSPORT,
INC. hold MACK FREIGHT SERVICE, INC., a federally regulated trucking company engaged
in the business of transporting property by auto for hire, harmless for B.F. TRANSPORT, INC.’s
use of an insured auto over a route or territory that MACK FREIGHT SERVICE, INC. is
authorized to serve by public authority.
63. To the extent that MACK FREIGHT SERVICE, INC. or any other party asserts a
claim for breach of contract for failure to procure the insurance coverage required by the
Independent Contractor Agreement, there is no coverage for these contractual claims under the
PROGRESSIVE NTL policy, as these claims would be excluded under the contractual liability
exclusion, which excludes coverage for breach of contract claims, which include both breach of
contractual duties in performance of the work and breach of contractual obligations to procure
insurance.
PRAYER FOR RELIEF
WHEREFORE, plaintiff PROGRESSIVE CASUALTY INSURANCE COMPANY
respectfully requests that this Court declare its rights and responsibilities as follows:
(a) That this Court adjudge and declare that MACK FREIGHT SERVICE, INC., and
its insurer, STATE NATIONAL SPECIALTY INSURANCE COMPANY are obligated to defend
and indemnify B.F. TRANSPORT, INC. and BLADIMIR FERMIN CABRERA in connection
with any claim whatsoever, including but not limited to, claims for personal injury, No-Fault
benefits and claims of subrogation which have or may arise out of the June 8, 2021 occurrence, to
the exclusion of the PROGRESSIVE CASUALTY INSURANCE COMPANY’s Non-Trucking
Liability policy herein at issue based upon the fact that B.F. TRANSPORT, INC. and BLADIMIR
FERMIN CABRERA were operating in the course of defendant MACK FREIGHT SERVICE,
INC.’s business at the time of the accident and that B.F. TRANSPORT, INC. was under a
permanent lease agreement with defendant MACK FREIGHT SERVICE, INC.;
(b) That this Court adjudge, determine and declare that if MACK FREIGHT SERVICE,
INC. as the lessor in the lease agreement maintained trucking automobile liability coverage which
was in force on the date of the occurrence herein as required by the terms of the lease agreement
and federal law, that such trucking automobile liability coverage, whether with STATE
NATIONAL SPECIALTY INSURANCE COMPANY or otherwise, affords coverage with respect
to this occurrence to the exclusion of the PROGRESSIVE CASUALTY INSURANCE
COMPANY policy concerning the June 8, 2021 occurrence;
(c) That if B.F. TRANSPORT, INC. was under lease to defendant MACK FREIGHT
SERVICE, INC. at the time of this loss, its insurer, STATE NATIONAL SPECIALTY
INSURANCE COMPANY is obligated to defend and indemnify B.F. TRANSPORT, INC. and
BLADIMIR FERMIN CABRERA with respect to any claims which have or may arise from the
June 8, 2021 occurrence;
(d) That if B.F. TRANSPORT, INC. was transporting property for, under dispatch to
and/or acting in the business of defendant MACK FREIGHT SERVICE, INC. at the time of this
loss, its insurer, STATE NATIONAL SPECIALTY INSURANCE COMPANY is obligated to
defend and indemnify B.F. TRANSPORT, INC. and BLADIMIR FERMIN CABRERA with
respect to any claims which have or may arise from the June 8, 2021 occurrence to the exclusion
of the PROGRESSIVE CASUALTY INSURANCE COMPANY Commercial Auto policy issued
to B.F. TRANSPORT, INC.;
(e) That to the extent that MACK FREIGHT SERVICE or any other party asserts a
claim for breach of contract for failure to procure the insurance coverage required by the
Independent Contractor Agreement, there is no coverage for these contractual claims under the
PROGRESSIVE NTL policy, as these claims would be excluded under the contractual liability
exclusion, which excludes coverage for breach of contract claims, which include both breach of
contractual duties in performance of the work and breach of contractual obligations to procure
insurance.
(f) That this Court adjudge, determine and declare that PROGRESSIVE CASUALTY
INSURANCE COMPANY is entitled to reimbursement of all defense costs, fees and expenses
incurred in defending B.F. TRANSPORT, INC. and BLADIMIR FERMIN CABRERA in the
underlying tort action; and
(g) That this Court adjudge, determine and declare that PROGRESSIVE CASUALTY
INSURANCE COMPANY is entitled to the costs and disbursements of the within declaratory
judgment action, including but not limited to attorneys’ fees and costs of suit; and
(h) That this Court grant PROGRESSIVE CASUALTY INSURANCE COMPANY
such further and other relief as this Court may deem just, proper and equitable.
Dated: March 25, 2022
LAW OFFICES OF VANESSA L. KOPPEL, ESQ., LLC
By: ____________________________________
VANESSA L. KOPPEL, ESQ.
LAW OFFICES OF VANESSA L. KOPPEL, ESQ., LLC
Red Bank Corporate Center
157 Broad Street
Suite 204
Red Bank, New Jersey 07701
(732) 487-2320
vkoppel@vkoppel-law.com
Attorneys for Plaintiff
PROGRESSIVE CASUALTY INSURANCE COMPANY
File and source
- File
- gov.uscourts.njd.493088.1.0.pdf
- Size
- 251,344 bytes
- SHA-256
- 56d03805595f93fe03eef15a704e637b2e753c3d8160e57925a16c6c783286a6
- Our copy
- gov.uscourts.njd.493088.1.0.pdf
- Original
- archive.org