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DeCaro Doran Obtains Summary Judgment in Virginia in Favor of Insurer in Declaratory Judgment Action Asserting No Coverage for Vehicle Not Listed on Commercial Auto Policy

September 5, 2023

In Progressive Northern Insurance Company v. M&J Auto Center, LLC, et al, Civil Action No. 4:22cv13 (E.D.V.A., Newport News Division, July 31, 2023) Steve Bergeron of our office obtained summary judgment in federal court where the issue was whether a flat-bad truck involved in a fatal auto accident was covered under a commercial auto policy Progressive issued to M&J Auto Center, LLC, a body shop that also provided towing services. 

After conducting extensive discovery, Steve argued that, because the flat-bed truck was: 1) not listed on M&J’s policy, 2) was owned by another towing company, SD Hunt, LLC, 3) was insured under a policy issued to SD Hunt, and 4) was being operated by a driver who, evidence suggested, was an employee of SD Hunt, the flat-bed truck could not be considered an “insured auto” under the M&J Policy.  Defendants included other commercial entities and their insurers, who argued: 1) that the flat-bed truck was a “hired or borrowed” auto pursuant to an oral subcontract between M&J and SD Hunt, and 2) that language in certain endorsements to the Progressive Policy made the language defining an “insured” or “covered” auto under the Policy ambiguous.  Defendants argued that, because of the alleged ambiguity, the Court must construe the Policy against Progressive and in favor of coverage for the flat-bed truck. 

Steve demonstrated that the undisputed facts did not support a finding that the flat-bed truck was a “hired or borrowed” auto, that the Policy language defining an “insured” or “covered” auto was not ambiguous, and that the undisputed facts established that the flat-bed truck was not an “insured auto” under the Policy.  For these reasons, the Court held that, under the terms of the Policy, Progressive did not owe coverage or a duty to defend any claims against M&J Auto Center arising from the accident.  A copy of the full opinion may be obtained by contacting Steve Bergeron at