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GREENE v. HANOVER INS. CO.5/23/1997
Johnnie Greene sustained injuries in an automobile accident. His vehicle was involved in a collision with a vehicle driven by Scott James Vance. Greene filed this action against Scott's employer's insurance carrier, Hanover Insurance Company and Massachusetts Bay Insurance Company (collectively, "Hanover"). The trial court held that Hanover did not provide insurance coverage in this case and entered a summary judgment accordingly. Because we conclude that neither Hanover's primary policy nor its umbrella policy provides coverage in this case, we affirm.
Prior to 1993, Hanover had sold two insurance policies to Vance Electrical Contractors, Inc. ("VEC"). The first policy (the "Primary Policy") provided business automobile liability coverage to VEC. Scott Vance was an employee of VEC. He had a driving record that reflected a driver's license suspension for driving under the influence , several accidents, and at least two speeding tickets. Consequently, Hanover refused to provide automobile liability coverage to VEC with respect to Scott. The Primary Policy contained an exclusion endorsement (the "Primary Endorsement") that specifically excluded Scott from coverage under the Primary Policy.
The second policy Hanover sold to VEC (the "Umbrella Policy") provided commercial liability coverage to VEC. The Umbrella Policy contained an endorsement (the "Umbrella Endorsement") that excluded coverage for personal injury and property damage liability arising from the "use or entrustment" of VEC's vehicles.
On January 9, 1993, Greene's vehicle was involved in a collision with one of VEC's vehicles, which was being driven by Scott. Greene was severely injured and Scott was killed. Greene initially sued Scott's estate, VEC, and First of Georgia Insurance Company ("First Georgia"), which had issued a policy that covered Scott, as a result of the automobile accident. Because Hanover's policy specifically excluded Scott from coverage, Hanover did not defend Scott's estate against Greene's claims.
Greene reached pro tanto settlements with VEC and First Georgia. The case proceeded to a nonjury trial against Scott's estate. After a trial on the merits, Greene received a judgment in his favor in the amount of $3,350,000, less a $500,000 set-off ($400,000 paid on behalf of VEC by Progressive Insurance Company and $100,000 paid by First Georgia) for monies previously paid through the pro tanto settlements, leaving an unpaid judgment of $2,850,000.
Because the balance of the judgment had not been paid by Scott's estate, Greene commenced an action pursuant to Ala. Code 1975, § 27-23-2, against Hanover and the administrator of Scott's estate. Greene argued that despite the wording of the Primary Endorsement and the Umbrella Endorsement, both the Primary Policy and the Umbrella Policy covered Scott. Specifically, Greene argued that the Primary Endorsement was inapplicable to Scott because that endorsement incorrectly listed Scott's name as "James Scott Vance" instead of "Scott James Vance." Without objection from Greene, the trial court allowed parol evidence to show that the transposition of Scott's first and middle names was a mistake, and that both parties to the insurance contract (i.e., VEC and Hanover) had intended for Scott to be excluded from coverage. Accordingly, the trial court entered a summary judgment for Hanover.
On appeal, Greene argues that the summary judgment was improper because, he says: (1) the Primary Endorsement was ineffective to exclude Scott; and (2) the Umbrella Policy provides coverage for Scott. For the summary judgment to be proper, Hanover had to make a prima facie showing that no genuine issue of material fact existed and that it was en
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