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Posted by: Tanja Trezise on Jan 31, 2013

Court: TN Court of Appeals

Attorneys 1:

Gordon C. Aulgur, Nashville, Tennessee, for the appellant, Erie Insurance Exchange.

Attorneys 2:

Joseph M. Huffaker, Nashville, Tennessee, for the appellee, Columbia National Insurance Company.

Judge(s): CLEMENT

This is a declaratory judgment action wherein one insurance company, which provided general liability insurance coverage to the insured, asserts that another insurance company, which provided the same insured with automobile insurance coverage, had the primary duty to pay the cost of defending and to indemnify the insured in a third-party tort action filed pursuant to Tennessee Code Annotated § 50-6-112. The plaintiff insurer asserts that the defendant insurer had the primary duty to provide and pay the cost of the defense in that action and to indemnify the insured pursuant to its automobile insurance policy because an additional insured was operating a “boom truck” owned by the insured that was listed under the defendant’s auto policy when the injury to the third-party plaintiff occurred. Both insurers filed motions for summary judgment. The trial court denied the plaintiff’s motion and granted summary judgment to the defendant insurer holding that the plaintiff, not the defendant, is liable for providing and paying the cost of the defense and for indemnifying the insured in the third-party tort action. We affirm.