A party seeking summary judgment bears the initial responsibility of informing the court of the basis for the motion, and identifying "those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.'" Celotex Corp. 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. On May 2, 1994, Consolidated filed a motion for summary judgment against the government and on May 10, 1994, the government was substituted as the sole defendant in the case. On April 11, 1994, Indiana was dismissed from the litigation. The government also filed a motion for summary judgment against Consolidated. On April 1, 1994, the government filed a motion to dismiss Indiana because Consolidated had acknowledged in its answer that it had issued the automobile insurance policy upon which the government made its third-party claim. On March 21, 1994, the government and Consolidated filed a stipulation of facts. Consolidated's counter-claim consisted of a request for declaratory judgment as to the meaning and effect of the policy, and, in particular, the public and livery conveyance exclusion. The third-party defendants moved for dismissal and requested an award of costs. However, they alleged that Martin was not covered by Consolidated's liability policy at the time of the accident because she was using her vehicle as a "public or livery conveyance." The policy excluded coverage for such use. They conceded that the policy was in effect at the time of the accident. In their answer, they claimed that Indiana had not issued an auto liability insurance policy to Martin, but admitted that Consolidated had. Consolidated and Indiana responded with an answer and counter-claim against the government on January 31, 1993. In addition, the government filed a motion asking that it be substituted in place of Martin, pursuant to 28 U.S.C. The government claimed that because it was an insured under the policy issued to Martin, the third-party defendants were obligated to defend and indemnify it for any claims brought against Martin as the result of the accident. On December 23, 1993, the government filed an answer to Pender's complaint along with a third-party complaint against the Indiana Insurance Company ("Indiana") and Consolidated, alleging breach of contract and negligence. Pender initiated this action with a complaint against Martin and the government for personal injuries pursuant to the Federal Tort Claims Act, on September 21, 1993. For the reasons discussed below, the United States' motion will be granted and Consolidated's motion will be denied. Consolidated denied coverage under a provision of the insurance policy which excludes coverage when a vehicle is used as a "public or livery conveyance." This cause is now before the court on cross-motions for summary judgment on the third-party suit between the government and Consolidated. In turn, the government, by a third-party complaint, sought indemnity under an insurance policy issued by third-party defendant Consolidated Insurance Company ("Consolidated") to Martin. Pender also named the United States as a defendant. §§ 2671-2680, alleging that the defendant, Lynn Martin ("Martin"), a United States Postal Service ("U.S.P.S.") employee, negligently caused personal injuries arising out of an automobile accident. Plaintiffs, Catherine, Sammy, and Mary Pender, ("Pender") brought this action pursuant to the Federal Tort Claims Act, 28 U.S.C. Yeakey, Daniels Sanders Pianowski Hamilton *1131 and Todd, Elkhart, IN, for Indiana Ins. *1130 Marcel Katz, Lafayette, IN, for plaintiffs.Ĭlifford D. INDIANA INSURANCE COMPANY and Consolidated Insurance Company, Third-Party Defendant. UNITED STATES of America, Defendant and Third-Party Plaintiff,
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