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16 presents its Separate Statement of Facts in support of its Motion for Partial Summary
17 Judgment:
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1. On or about June 16, 2006, UHI and Cequent entered into a “Products
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Indemnification Agreement.” Paragraph 4 of the Products Indemnification
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June 30, 2008, through June 30, 2009, at policy HDO G23743735. (“ACE’s CGL
11 1)).
12 4. ACE issued a commercial umbrella liability policy to TriMas/Cequent at XOO
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G24638509 effective from June 30, 2008, through June 30, 2009. (“ACE’s Excess
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Policy” attached as Exhibit 4; UHI Complaint at ¶ 9 (Exhibit 1 to Dkt. # 1)).
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21 as the personal representative of the Estates of Daniel Jamela and Marigold Jamela,
22 and as the guardian and conservator of Mishael Jamela and Mariel Jamela (“the
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Jamela lawsuit”). (Jamela Complaint, attached as Exhibit 5). The named
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defendants in the Jamela lawsuit are UHI, Amerco, Inc., and U-Haul Co. of
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26 Nebraska. (Id.)
27 7. The Jamela lawsuit alleges that Mr. Jamela contacted U-Haul West Maple to obtain
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hitch and other towing equipment. (Id.) The U-Haul defendants allegedly attached
6 the towing equipment and trailer to Mr. Jamela’s 2005 Honda Pilot. (Id.)
7 8. Cequent manufactured the trailer hitch sold to Mr. Jamela. (UHI Complaint at ¶ 17
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(Exhibit # 1 to Dkt. # 1)).
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9. On July 1, 2008, Mr. Jamela was operating a 2005 Honda Pilot on Interstate 435 in
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16 10. Plaintiff in the Jamela lawsuit alleges various acts or omissions that potentially
17 caused the fatal accident, including:
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• UHI, Amerco, Inc., and U-Haul Co. of Nebraska represented that all
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equipment was in working order, was suitable for the 2005 Honda Pilot, and
21 the equipment could be safely towed behind the vehicle (Jamela Complaint
22 at ¶ 9, attached as Exhibit 5);
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• The Gross Vehicle Weight Rating of the loaded trailer exceeded the
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1 • The trailer hitch that was sold was too small to safely tow the trailer (Jamela
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Complaint at ¶ 11, attached as Exhibit 5);
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• The tires on the trailer were underinflated, and the air pressure varied
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6 Exhibit 5);
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• The brakes on the trailer did not function correctly and/or did not function at
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all (Jamela Complaint at ¶ 13, attached as Exhibit 5); and
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15 warn—speeds; (4) failure to warn—tow vehicle; (5) wrongful death; (6) survival
21 indemnified by ACE for the Jamela lawsuit. (UHI Complaint at ¶¶ 8, 32) (Exhibit #
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1 to Dkt. # 1). UHI seeks declaratory relief as to whether ACE has a duty to defend
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UHI. (UHI Complaint at ¶ 29) (Exhibit # 1 to Dkt. # 1). UHI also alleges that ACE
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25 breached its obligations by failing to provide a defense under the ACE Policies.
26 (UHI Complaint at ¶ 34) (Exhibit # 1 to Dkt. # 1). UHI further alleges that ACE did
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not timely respond to UHI's request for defense, and that UHI has been prejudiced
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Case 2:10-cv-00886-ROS Document 18 Filed 07/15/10 Page 5 of 7
1 because UHI did not accept the tender of defense. (UHI Complaint at ¶¶ 38-39)
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(Exhibit # 1 to Dkt. # 1).
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13. Under ACE’s Products Policy, Cequent has a $1,000,000 self-insured retention.
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(ACE’s Product Policy at Endorsement Number 2, attached as Exhibit 3). Cequent
21 costs), is paid by the insured and ACE in the same proportion as the amount each
22 contributed to the judgment or settlement. ACE’s Products Policy, Endorsement
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Number 2 at ¶ 4, attached as Exhibit 3). However, if the judgment or settlement
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does not exceed the deductible, or if the claim or suit is settled without payment of
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26 damages, all “Allocated Loss Adjustment Expense” is borne solely by the named
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1
28 ACE's CGL Policy has a nearly identical provision in Endorsement Number 2.
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Case 2:10-cv-00886-ROS Document 18 Filed 07/15/10 Page 6 of 7
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attached as Exhibit 2).
6 17. ACE's CGL Policy has a nearly identical provision to Endorsement Number 2 of the
7 Products Policy at its Endorsement Number 2. (ACE’s CGL Policy, Endorsement
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Number 2, attached as Exhibit 2).
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18. With respect to ACE’s Excess Policy, ACE’s duty to defend UHI is limited to three
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11 situations: (1) when damages are covered by “underlying insurance” but the limits
12 are exhausted by payment; (2) when damages are covered by “other insurance” (i.e.,
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policies not listed on ACE’s Excess Policy) but the “other insurance” is exhausted
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by payment; and (3) when there is no coverage under the “underlying insurance” or
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16 “other insurance,” and the applicable self-insured retention under ACE’s Excess
17 Policy has been exhausted. (ACE’s Excess Policy at ¶ III(A)(1-3), attached as
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Exhibit 4).
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19. Under ACE’s Excess Policy section entitled “Who is an Insured,” the Policy defines
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