# Petition — Grinnell Mutual Reinsurance Co. v. Empire Fire & Marine Insurance Co.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1353%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 466 U.S. 951

## Text

CASE NO.

—

FILED
MAR 1 1984

ALEXANDER , STEVag.

IN ‘tHE UNITED STATES SUPREME COURT

SPRING TERM
GRINNELL MUTUAL REINSURANCE COMPANY,
AN IOWA CORPORATION,
PETITIONER,
vs.

EMPIRE FIRE & MARINE INSURANCE COMPANY,
A NEBRASKA CORPORATION, ET AL,

RESPONDENTS.

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= — — — — — — — — — —. — — — — — — — — -- =

ON WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

Lowell A. O'Grady
O'GRADY, MORLEY & MORLEY, LTD.
P. O. Box 239

Grand Forks, ND 58206-0239
(701)772-7266

Attorneys for Petitioner

i

IN THE UNITED STATES SUPREME COURT
SPRING TERM

GRINNELL MUTUAL REINSURANCE COMPANY,
AN IOWA CORPORATION,

PETITIONER,
vs.

EMPIRE FIRE & MARINE INSURANCE COMPANY,
A NEBRASKA CORPORATION, ET AL,

RESPONDENTS.

PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

QUESTIONS PRESENTED FOR REVIEW

I. As long as a truck under permanent
ICC lease to an authorized and
regulated ICC common carrier, has
attached to it and displays an ICC
permit number and insignia of the ICC

common carrier, and as long as no

formal transfer possession of the . ay

11.

11
truck has been made back to the
non- regulated owner, will! the
regulated ICC motor carrier be
completely responsible for the
operation of the truck while the ICC
lease is in effect, and will the
regulated ICC carrier be deemed to
have the exclusive possession,
control and use of the truck
equipment for the duration of the ICC
lease?
When the regulated ICC carrier is
subject to the leasing rules and
regulations promulgated by the
Interstate Conmerce Commission, and
when the regulated ICC carrier has
entered into lease agreements with
the non-regulated truck owner, which
release agreements provide that the

carrier shall provide and maintain in

force for the leased motor vehicle
public liability insurance, is the

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111.

111 .

regulated ICC carrier solely
obligated to provide liability
insurance coverage covering the
leased truck while the ICC lease is
in effect?

In light of the ICC rules and
regulations concerning lease and
interchange of vehicles, and when an
ICC lease is in effect between the
truck owner and the regulated
carrier, does an exclusion in the
non-regulated truck owner's insurance
policy excluding coverage for any
automobile while rented to others by
the insured, exclude any coverage for
the insured vehicle while it is
covered by the ICC lease and while
the ICC lease regulations are in
effect and while the truck still
carries the ICC insignia and permit

number of the regulated ICC carrier?

(in this ease, the above insurance

iv

contract was issued to the
non-regulated truck owner and not to
the regulated ICC carrier.)

IV. Is a policy of insurance issued to n
insure the garage operations and
related service type operations,
intended to cover the liability
incurred when a truck engaged in
interstate commerce transportation
operations, and which truck has
attached to it the ICC permit and
insignia number of the reguiated ICC
carrier, is involved in a motor
vehicle accident causing injury to
third-parties?

V. When a truck engaged in interstate
commerce operations, and which
contains the ICC permit number and
insignia number of the regulated ICC .

ms carrier, is involved in an accident,
| is the regulated ICC carrier whose a
permit and insignia is ‘attached to ee

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1 ae the truck at the time, solely

responsible for any damage or 45
. liabilities arising out of the
operation of the truck?

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17 133

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LIST OF ALL PARTIES TO THE PROCEEDING IN
THIS COURT WHOSE JUDGMENT TS SOUGHT TO BE

11.

Grinnell Mutual Reinsurance

Company

Empire Fire & Marine Insurance

Company —

Matthew Youngren, an infant
Michael Youngren, an infant
John Youngren

Timothy Youngren

Sheri Emch

Hamel Service Company, Inc., an
Illinois corporation

Gilbert Culver, a resident of the
State of Illinvis

Excalibur Insurance Company of
Minnesota, a Texas Corporation

Riechmann Enterprises, Inc., a
Missouri corporation

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=
22
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=
2
Cee 5333333333333 42 p 8
2. Schedler ve. Rowley Interstate
III tet Co., 3658 N.E. Id 138

Cee 333 2 pP 8

3. Trans american Freight Lines
Inc., V. Brada er Fre
Systems, Inc., 7 ; 6

“96 S.Ct. 229 (1975)..p. 8

4. Wellman v. Liberty Mutual
Mut. Ins. Co., 456 5.0 131 (8th

. ‚( 735353321 p 8
A>
Statutes:

2101(c), Title 28 U.S.C.S.........p. 1
. ee
1 U:8.6)8. 6 280%. ........s, 00s
28 b. s. C. S. $$ 1332...........----p.

. ese
.

333 . w

Regulations:

49 C.F.R. Part 1057, et seq
(ICC Lease and Interchange of
vehicles). p 2,4, 9

The official opinion of the Eighth
Circuit Court of Appeals which we ask this
Court to review is contained at 722 F.2d
1400 (8th Cir. 1983.)

- STATEMENT OF THE GROUNDS ON WHICH
THE JURISDICTION OF THIS COURT TS INVOKED

1. The Judgment of the United States
Court of Appeals for th Eighth Circuit for
which Petitioner seeks review was dated
and entered on the 8th day of December,
1983. This was a new Opinion of the
Eighth Circuit Court of Appeals which had
vacated an earlier Opinion of the Eighth
Circuit Court of Appeals.

2. There was no rehearing sought
from the Circuit's new Opinion. ;

3. There is no cross-petition for 0
Writ of Certiorari involved hercin. 4

4. Pursuant to Section 2101(e) of 5
Title 28 u. s. C. s., this Court. has

jurisdiction to review a judgment or

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decree in a civil action rendered by a
court of appeals.

FEDERAL REGULATIONS INVOLVED

The federal regulations which this 7
case involves are contained at 49 b. 8. C. 8.
Section 304; 49 USCS Section 1107, and 49
CFR, Part 1057, concerning lease and
interchange of vehicles involved in
interstate commerce activities. The
pertinent text of these statutes and
regulations are set forth in the
accompanying appendix.

STATEMENT OF THE CASE

The underlying lawsuit arose out of a
three-vehicle accident on July 9, 1979,
near Belfield, North Dakota. A

5 tractor-trailer unit owned by Hamel

K Service Company and driven by one Gilbert
Ry

4. Culver, collided with an automobile driven

| by one Timothy Youngren. A truck driven
by one Sheri Emch was also involved. As a

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the Youngren automobile died and three
were injured.

At the time of the accident, the
tractor-trailer unit owned by Hamel
Service Company was subject to a
three-year ICC equipment lease to
Riechmann Enterprises, Inc., a regulated
interstate commerce motor carrier. The
owner of the tractor-trailer unit, namely
Ilamel Service Company, was not a regulated
or authorized interstate commerce carrier
or operator. At the time of the accident,
the tractor-trailer unit leased to
Riechmann Enterprises, the regulated
carricr, had displayed on it the ICC
permit number and insignia of Riecchmann
Enterprises, Inc. The truck was empty and
was on its way to pick up a load of goods
in Baker, Montana for return to the St.

Louis, Missouri area. It is also undis~
puted that at the time of the accident:
involving the leased motor a. N Cy

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4
leasing regulations promulgated by the
Interstate Commerce Commission, and
contained in 49 CFR, Part 1057 concerning
lease and interchange of vehicles, were in
effect. Furthermore, at the time of the
accident, formal transfer of the
possession of the truck had not been given
back to the non-regulated truck owner.
Therefore the leasing regulations and
requirements concerning the truck were
still in effect.

At the time of the accident, the
regulated ICC carrier had a policy of
liability insurance issued to it by
Excalibur Insurance Company of Minnesota.
That insurance was issucd and delivered to
specifically cover the operations of
Riechmann Enterprises, the regulated
carrier.

At the time of the aceident, the

truck owner, namely Hamel Service Company ,
noe in pt tame, ier of . mee

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policy of insurance, however, was issued

to cover the station operations, including

related service garage operations, of
5 Hamel Service Company. The policy was not
issued to insure any ICC hauling
operations. The policy excluded coverage
for an automobile while rented to others
by the insured.

A declaratory judgment action was

tried in the United States District Court
for the District of North Dakota,
Southwestern Division, The Honorable Bruce
M. Van Sickle presiding. Judge Van Sickle
declared that the policy of insurance :
issued by Excalibur Insurance Company to
the regulated carrier Riechmann
Enterprises, provided the primary
insurance coverage for the operation of
the leased semi tractor-trailer unit
involved in the accident. The District
Court held that any insurance coverage of
the petitioner was ‘secondary or excess.

8 /

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*

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6

-

On appeal of that determination to the

United States Court of Appeals for the
Eighth Circuit, the Eighth Circuit ;
reversed that part of the District Court's by
judgment and ruled that the garage

liability policy issued by the petitioner ‘
to the truck owner was the primary

insurance coverage and that the insurance
policy issued by Excalibur Insurance
Company to the regulated ICC carrier was
merely secondary or excess. The Eighth

Circuit specifically stated that the
exclusion in the petitioner's policy for
automobiles rented or leased to another a
did not apply, despite the undisputed fact ;
that at the time of the accident the ICC 4
lease agreement concerning the truck was 1
in effect. The Eighth Circuit noted that 5
: although the accident involving the truck | 7

occurred during the period of the lease,
at the time of the accident the owner
(Hamei) had retaken control of ‘the veniele

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* 2.

7
and had embarked on a trip for its own
benefit, and therefore the lease or rental
exclusion would not be effective.

BASIS OF FEDERAL JURISDICTION BELOW

Jurisdiction in the United States
District Court was based upon diversity of
citizenship of the parties and the
requisite amount in controversy, pursuant
to 28 U.S.C.A., Sections 1332 and 2201.
Jurisdiction in the Court of Appeals,
whose judgment review is sought, is
founded and based upon 28 U. S. C. A. Section
1291, and Rule 4, Federal Rules of
Appellate Procedure, since the appeal to
the Appeals Court by petitioner involved
an appeal of a final judgment or decision
from a district court.

ARGUMENT IN SUPPORT OF ALLOWANCE OF A WRIT

This Court should grant this writ and
review the decision of the United States
Court of Appeals for the Eighth Circuit
for the following reasons: 3

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Endorsement for Motor Carrier
Policies of Insurance;

Federal Statutes; ICC Leasing
Regulations.

Respectfully submitted this 2nd day

of March,

1984.

O'GRADY, " MORLEY & MORLEY, LTD.
212 South 4th St.

P. O. Box 239

Grand Forks, ND 58206-0239
(701) 772-7266

Attorneys for Petitioner

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1353%3A1. Public record. Not legal advice.