National Union Fire Insurance Company Of Pittsburgh, PA v. TT Club Mutual Insurance LTD.

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
NATIONAL UNION FIRE INSURANCE 	:
COMPANY OF PTTSBURGH, PA., 	:
: 	Case No. 2:23-cv-3696
Plaintiff, 	:
: 	Judge Algenon L. Marbley
v. 	:
: 	Magistrate Judge Chelsea M. Vascura
TT CLUB MUTUAL INSURANCE LTD., 	:
:
Defendant. 	:
_____________________________________
TT CLUB MUTUAL INSURANCE LTD., 	:
:
Third-Party Plaintiff, 	:
:
v. 	:
:
UNITED SPECIALTY INSURANCE 	:
COMPANY, 	:
:
Third-Party Defendant. 	:
Opinion & Order
This matter is before the Court on Cross-Motions for Summary Judgment between Third-
Party Plaintiff, Counter Claimant, and Defendant TT Club Mutual Insurance LTD. (“TT Club”)
(ECF No. 63), and Plaintiff National Union Fire Insurance Company of Pittsburgh, PA. (“National
Union”) (ECF No. 65). Additionally, before this Court are Third-Party Defendant United Specialty
Insurance Company’s (“USIC”) Motion for Summary Judgment (ECF No. 60) and Motion to
Certify a Question of State Law to the Supreme Court of Ohio. (ECF No. 88). Plaintiff National
Union has also filed a Motion to Strike (ECF No. 73).
For the following reasons, this Court GRANTS USIC’s Motion for Summary Judgment
(ECF No. 60) and DENIES National Union’s Motion for Summary Judgment (ECF No. 65). TT
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Club’s First Amended Counterclaim for Reimbursement of Defense Costs as to the MCL Policy
is DENIED without prejudice and DENIED with prejudice as to the CGL Policy (ECF No. 63).
Finally, National Union’s Motion to Strike (ECF No. 73) is DENIED as moot.
I. 	BACKGROUND
This case is all about the obligations of three insurance companies. National Union, TT Club,
and USIC are insurers who provided coverage to Greatwide Dallis Mavis LLC (“Greatwide”), a
company offering both broker and motor carrier services. (ECF No. 27 at 14–16). Greatwide was
responsible for transporting a load of steel from Illinois to Ohio, when the truck hauling the steel
load collided with a passenger vehicle, resulting in death of one passenger and severely injuring
another. (ECF No. 1 at 2). Greatwide was sued for liability resulting from that collision in the
Franklin County Court of Common Pleas. Moyer et al. v. Simbad LLC, Case No. 19-cv-007808
(“Moyer Lawsuit”). (Id.). That case settled, and now the insurance companies dispute who had the
responsibility to defend Greatwide in the Moyer Lawsuit and contribute to Greatwide’s global
settlement payment.
These insurers’ obligations derive from a series of insurance policies issued to Greatwide and
implicated here. National Union issued two policies: the Motor Carrier Liability Policy and the
Commercial General Liability Policy. TT Club issued one policy: the TT Club Transporter
Operator Policy. USIC also issued one policy: the United Specialty Insurance Company
Commercial Excess Liability Policy.
Plaintiff National Union initially brought this suit against Defendant TT Club, seeking
declaratory relief establishing the limitations, rights, and obligations, if any, under National
Union’s Motor Carrier Liability Policy related to the Moyer Settlement and Lawsuit. (ECF No. 1
at 6). National Union contends its Motor Carrier Liability Policy is excess to TT Club’s Policy,
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and accordingly it is entitled to recovery of its settlement contribution via equitable subrogation or
equitable indemnification. (Id. at 6–7). In response, TT Club filed a counterclaim against National
Union, 	seeking 	indemnification 	of 	the 	defense 	costs 	it 	incurred 	to 	defend 	Greatwide,
indemnification of its settlement contribution, and a declaratory judgment establishing the rights
and obligations under the National Union policies and the TT Club Policy. (ECF No. 27 at 21–26).
Additionally, TT Club, as a Third-Party Plaintiff, then joined USIC, another insurer of Greatwide,
to the suit and filed a third-party complaint alleging that they also should have contributed to the
Moyer Settlement, and that TT Club is entitled to indemnification from them, too. (ECF No. 14).
A. Factual Background
1. 	The Moyer Lawsuit
In the underlying lawsuit, Greatwide, a truckload management company, entered a contract
with Alton Steel, Inc. to haul a shipment from Alton, Illinois to Painesville, Ohio. (ECF No. 1 at
2). Greatwide subsequently assigned the load to Simbad LLC. (Id.). During transport of the
shipment on March 26, 2019, a tractor-trailer driven by Simbad employee Bakhadir Kuzikov
crashed into the back of a car, seriously injuring the driver, Sarah Popovich, and killing her
passenger, Charlotte Finck. (Id.). On September 26, 2019, Sarah Popovich, Charles Popovich, and
Stephen Moyer, administrator of the estate of Charlotte Finck, (“Underlying Plaintiffs”) initiated
the Moyer Lawsuit against Greatwide, Simbad, and Kuzikov in the Franklin County Court of
Common Pleas. (Id.). The Underlying Plaintiffs contended that Greatwide knew that Simbad and
its drivers were unsafe and alleged negligence, negligence per se, recklessness, and loss of
consortium against Greatwide. (Id.).
Defendant TT Club agreed to defend Greatwide in the Moyer Lawsuit subject to a
reservation of rights. (Id. at 5). Similarly, National Union informed Greatwide that it would handle
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the Moyer Lawsuit subject to a reservation of rights under the National Union Policy but specified
that its Policy was in excess to the TT Club Policy, and that National Union was not presently
obligated to respond to the Moyer Lawsuit. (Id.). National Union also states that on June 20, 2022,
it informed TT Club of these views by letter. (Id.).
In response, TT Club disputed that its coverage was primary to the coverage provided under
the National Union Policy. (Id.). Ultimately, however, National Union and TT Club agreed to
participate on a 50/50 basis to resolve all claims against Greatwide while still reserving their
individual rights to seek recovery from each other. (Id. at 6). Accordingly, on July 1, 2022, the
Moyer Lawsuit reached a global settlement.1 (Id.). TT Club funded the entirety of Greatwide’ s
legal defense and paid $291,605.81 in legal fees in addition to its 50% contribution to the
settlement in the Moyer Lawsuit. (ECF No. 27 at 21).
Due to the settling of the Moyer Lawsuit, underlying issues of liability such as whether
Greatwide was liable as a motor carrier or as a broker of the Alton Steel load were never
determined. (Id. at 15). Thus, the Parties heavily dispute Greatwide’s true role in the Moyer
collision, as such is outcome determinative of the insurers’ contribution obligations in this current
case.
2. 	The Insurance Policies
There are four insurance policies at issue in this case: (1) the National Union Motor Carrier
Liability Policy (Policy No. 358-47-03) covering the policy period of June 28, 2018 to June 28,
2019 with a $2,000,000 per accident limit (“National Union MCL Policy”); (2) the National Union
Commercial General Liability Policy (Policy No. 192-99-80) covering the policy period of June
28, 2018 to June 28, 2019 with a $1,000,000 per occurrence limit (“National Union CGL Policy”);
1 The parties have filed portions of the cross-motions under seal. Thus, this Court will not reference the exact amount
of the Moyer Settlement.
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(3) the TT Club Transporter Operator Policy (Policy No. 8227/1207/002) for the period of October
30, 2017 to June 28, 2019 with a $5,000,000 per accident limit (“TT Club Policy”); and (4) the
United Specialty Insurance Company Commercial Excess Liability Policy (Policy No. USA
4217952) covering the period from June 28, 2018 through June 28, 2019 with a $5,000,000 each
occurrence limit (“USIC Policy”). (ECF Nos. 1-1, Exhibit A, at 2–4, Exhibit B, at 102–103; 64-1,
Exhibit B, at 34–35).
a) 	National Union MCL Policy
First, the National Union MCL Policy coverage provision provided that National Union
would “pay all sums [Greatwide] legally must pay as damages because of ‘bodily injury’ or
‘property damage’ to which this insurance applies, caused by an ‘accident’ and resulting from the
ownership, maintenance or use of a covered ‘auto’.” (ECF No. 1-1, Exhibit B, at 123). “Auto” is
defined as:
a. A land motor vehicle, “trailer” or semitrailer designed for travel on public roads; or
b. Any other land vehicle that is subject to a compulsory or financial responsibility law or
other motor vehicle insurance law where it is licensed or principally garaged.
(Id. at 133). Additionally, the National Union MCL Policy contained a section governing “Other
Insurance – Primary And Excess Insurance Provisions,” which provided, in relevant part:
e. Except as provided in paragraphs a., b., c. and d. above, this Coverage Form provided
primary insurance for any covered “auto” you own and excess insurance for any covered
“auto” you don’t own.
(Id. at 132).
b) 	National Union CGL Policy
In addition to the MCL Policy, National Union insured Greatwide under a Commercial
General Liability Policy (“CGL Policy”). (ECF No. 27 at 17). The CGL Policy provided that
National Union will “pay those sums that [Greatwide] becomes legally obligated to pay as
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damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies. We will
have the right and duty to defend the insured against any ‘suit’ seeking those damages. However,
we will have no duty to defend the insured against any ‘suit’ seeking damages for ‘bodily injury’
or ‘property damage’ to which this insurance does not apply. (ECF No. 64-1, Exhibit B, at 48).
Additionally, the CGL contained an “Aircraft, Auto or Watercraft” exclusion that bars coverage
for “‘[b]odily injury’ or ‘property damage’ arising out of the ownership, maintenance, use or
entrustment to others of any aircraft, ‘auto’ or watercraft owned or operated by or rented or loaned
to any insured.” (Id. at 51). Finally, the CGL Policy provided an “Other Insurance” clause
providing that “[t]his insurance is excess over…[a]ny of the other insurance, whether primary,
excess, contingent or on any other basis…[i]f the loss arises out of the maintenance or use of
aircraft, ‘autos’ or watercraft to the extent not subject to” the Aircraft, Auto or Watercraft
exclusion. (Id. at 59).
c) 	TT Club Policy
Next, Greatwide maintained a transportation broker liability policy with TT Club which
provided “we insure you for liabilities arising from your service as a transportation broker where
such service includes the arrangement for the transportation of cargo on a public road in the USA
or Canada by a motor carrier which you hire.” (ECF No. 1-1, Exhibit A, at 6). The Policy further
stated in relevant part:
T3 THIRD PARTY LIABILITIES
1 We insure you for your liability:
1.1. for the following, including resulting consequential loss:
1.1.1 physical loss/damage to third party property
1.1.2 death, injury or illness of any third party
…
2 We do not insure you under this Clause for liabilities:
…
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2.2 arising from the ownership, lease or operation by you/your employee of a road vehicle
which is required to be licensed.
…
G2 GENERAL TERMS
…
18 Double Insurance
If we and another insurer insure you for the same risk, we will exclude any claim to the
extent that it is recoverable from the other insurer, or would be recoverable except for a
double insurance exclusion.
…
G5 DEFINITIONS
...
Death, injury or illness
Includes hospital, medical and funeral expenses
….
Third party
Anyone other than us, the assured or a joint assured (or co-assured)
…
Third party property
any property of a third party except:
• cargo
• property leased to the assured or a joint assured (for example: equipment, land or
buildings)
(ECF No. 1-1, Exhibit A, at 14).
d) 	USIC Excess Policy
Finally, Greatwide maintained an excess policy with USIC which provided umbrella
liability coverage for liabilities excess to the National Union CGL Policy. (ECF No. 60 at 7). The
USIC Excess Policy provided that “[t]he insurance provided under this Coverage Part will follow
the same provisions, exclusions and limitations that are contained in the applicable ‘controlling
underlying insurance’, unless otherwise directed by this insurance.” (ECF No. 29-1 at 10). The
“Controlling Underlying Insurance Schedule” listed the National Union CGL Policy. (Id. at 3). As
such, the USIC Policy only provided coverage in excess of the CGL Policy’s “retained limit” of
$1,000,000 per occurrence. (Id. at 10). The USIC Policy also contained an “Automobile Liability”
exclusion that preluded coverage for “‘Injury or damage’ caused by an ‘occurrence’ and arising
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out of the ownership, maintenance, use or entrustment to others of any ‘auto’ owned or operated
by or rented or loaned to any insured.” (Id. at 36).
Notably, the USIC Policy also contained a “Conditions” section providing in relevant part:
3. Duties in the Event of Occurrence, Offense, Claim or Suit.
a. You must see to it that we are notified
immediately of an “event”, regardless of the
amount, which may result in a claim under this
insurance.
However, if you notify any “controlling
underlying insurer” of an “event” involving
“bodily injury”, it is a precondition of
coverage, under this policy that you notify us
in writing within 14 days of notifying the
“controlling underlying insurer”.
***
Your failure to provide the written notice, identified
above, within the 14 days will be deemed to have
prejudiced the Company and voids all coverage of
an “event”, claim or suit.
***
d. No insured will, except at that insured's own cost, voluntarily make a payment, assume
any obligation, or incur any expense, other than for first aid, without our consent.
***
8. Other Insurance
If other valid insurance, whether collectible or not, is available to the insured for a loss we
cover, our obligations are limited as follows:
a. This insurance is excess over, and shall not contribute with any of the other
insurance, whether primary, excess, contingent or on any other basis. This condition
will not apply to insurance specifically written as excess over this Coverage Part.
***
(Id. at 12–13).
3. 	National Union Sues TT Club Seeking Recovery of National Union’s Moyer
Settlement Contribution
On November 3, 2023, National Union initiated the instant lawsuit against TT Club seeking
to recover its entire settlement contribution from TT Club. (ECF No. 1). National Union contends
that its MCL Policy, by the terms of its “Other Insurance” clause, is excess to the TT Club Policy,
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and accordingly National Union is entitled to a declaratory judgment and equitable subrogation or
indemnification of its settlement contribution. (Id. at 6–8).
4. 	TT Club’s Contentions and Counterclaim
In TT Club’s view, it shared a duty with National Union to defend and indemnify
Greatwide related to the Moyer Lawsuit under both their MCL and CGL Policies. (ECF No. 27 at
12). At the time that TT Club contributed to the Moyer Settlement, TT Club was entirely unaware
of the National Union CGL Policy, which TT Club contends was triggered by the Moyer accident
in addition to the MCL Policy. (Id. at 13). Accordingly, TT Club seeks to recover 1/2 of the legal
fees it incurred to defend Greatwide under the MCL Policy, or alternatively, 2/3 of the legal fees
it incurred if this Court determines the CGL Policy was also implicated. (Id.). Additionally, TT
Club argues that the “Other Insurance Provisions” in both National Union Policies are inapplicable
to TT Club because the policies cover different risks; however, if applicable, such provisions
would render TT Club an excess insurer. (Id. at 19–20). In the alternative, TT Club contends the
policies are at least mutually repugnant, meaning all three policies should have contributed on an
equal basis, with National Union contributing two thirds of the settlement funds and TT Club
contributing one-third. (Id.). As such, TT Club also contends it is entitled to equitable contribution,
subrogation, or indemnification against National Union for its settlement contribution. (Id. at 13).
TT Club also joined USIC in this litigation, noting that at the time of the Moyer Lawsuit,
TT Club was entirely unaware of the USIC Excess Policy. (ECF No. 14 at 2). TT Club contends
that National Union should have contributed to the settlement under its CGL Policy, and upon
exhaustion of the CGL Policy, USIC should have contributed funds under its Policy. (Id.). As such,
TT 	Club 	filed 	a 	third-party 	complaint 	seeking 	equitable 	contribution, 	subrogation, 	or
indemnification against USIC. (Id.).
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5. 	USIC’s Contentions
USIC denies that it has any defense or indemnity obligations related to the Moyer Lawsuit
because no one “tendered to USIC, provided notice to USIC or sought the consent of USIC prior
to the settlement of Moyer Litigation.” (ECF No. 29 at 13). USIC notes that it never received notice
of the Moyer Lawsuit until this current litigation. (Id.). In its counterclaim USIC seeks declaratory
relief providing the rights and responsibilities under its Policy as well as a declaration that TT Club
cannot recover from USIC because the USIC Policy was not triggered and TT Club/Greatwide
failed to provide notice or to seek consent prior to the Moyer Settlement. (Id. at 12–17).
B. Procedural Background
On May 12, 2025, USIC filed its Motion for Summary Judgment against Defendant TT
Club (ECF No. 60). TT Club then filed its Motion for Summary Judgment against National Union
and, additionally, sought summary judgment on Count I of TT Club’s First Amended Complaint
(ECF No. 63). Finally, on May 19, 2025, National Union filed its Motion for Summary Judgment
against TT Club (ECF No. 65). All parties filed their opposition motions to the motions for
summary judgment. (ECF Nos. 74, 75, 76).
On June 11, 2025, National Union filed a Motion to Strike the Expert Reports of Jeffrey
Stempel and Nigel Cooper cited in TT Club’s Motion for Summary Judgment. (ECF No. 73). TT
Club opposed the Motion (ECF No. 86).
Additionally, after summary judgment briefing concluded, USIC filed a Motion to Certify
a Question of State Law to the Supreme Court of Ohio (ECF No. 88), concerning whether “a
prejudice analysis [is] required to determine whether a liability insurer must indemnify its insured
for a settlement where: (1) the insurer did not have notice or a tender of the lawsuit or claim against
the insured until after the settlement; and (2) the insurer’s policy includes the following standard
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policy language: ‘No insured will, except at that insured’s own cost, voluntarily make a payment,
assume any obligation, or incur any expense, other than for first aid, without our consent.’” (Id.).
TT Club opposed the Motion to Certify. (ECF No. 90).
All motions are now ripe for this Court’s review.
II. 	STANDARD OF REVIEW
Summary 	judgment 	is 	appropriate 	“[i]f 	the 	pleadings, 	depositions, 	answers 	to
interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine
issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(c). The movant has the burden of establishing that there are no genuine issues of
material fact, which may be accomplished by demonstrating that the nonmoving party lacks
evidence to support an essential element of its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322–
23 (1986); Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388–89 (6th Cir. 1993).
In response, the nonmoving party must present “significant probative evidence” to show that “there
is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip Morris Cos., 8
F.3d 335, 339–40 (6th Cir.1993). “[S]ummary judgment will not lie if the dispute is about a
material fact that is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a
verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see
also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (concluding that
summary judgment is appropriate when the evidence could not lead the trier of fact to find for the
non-moving party).
The standard of review for cross-motions for summary judgment does not differ from the
standard applied when a motion is filed by one party to the litigation. Taft Broad. Co. v. United
States, 929 F.2d 240, 248 (6th Cir. 1991). In reviewing cross-motions for summary judgment,
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courts should “evaluate each motion on its own merits and view all facts and inferences in the light
more favorable to the non moving party.” Wiley v. United States, 20 F.3d 222, 224 (6th Cir. 1994).
Significantly, “[t]he filing of cross-motions for summary judgment does not necessarily mean that
the parties consent to resolution of the case on the existing record or that the district court is free
to treat the case as if it was submitted for final resolution on a stipulated record.” Taft Broad., 929
F.2d at 248 (citing John v. State of La. (Bd. of Tr. for State Colleges & Univ.), 757 F.2d 698, 705
(5th Cir. 1985)).
III. 	LAW AND ANALYSIS
A. Applicable Law
As a federal court exercising diversity jurisdiction, this Court will apply the law of the
forum state, Ohio. Stuckey v. Online Res. Corp., 2012 WL 468510, at *6, n.2 (S.D. Ohio Feb. 13,
2012). Accordingly, when there is dispute between parties as to which law applies, this Court
“appl[ies] the choice of law principles of the forum State, here Ohio.” Sims Buick-GMC Truck,
Inc. v. Gen. Motors LLC, 876 F.3d 182, 185 (6th Cir. 2017) (citation omitted). Under Ohio law,
“[i]f the two states would use the same rule of law or would otherwise reach the same result, it is
unnecessary to make a choice of law determination because there is no conflict of law.” Mecanique
C.N.C., Inc. v. Durr Env’t, Inc., 304 F. Supp. 2d 971, 975 (S.D. Ohio 2004) (Marbley, J.).
Here, the parties do not address overtly which law governs the policies, although, in a
majority of the arguments asserted, the parties rely on Ohio law. National Union recognizes that
while the policies were issued in Pennsylvania, the underlying accident occurred in Ohio, and there
is no conflict between the two jurisdictions. TT Club, however, makes a couple of arguments in
which they suggest Pennsylvania or English law may govern. Accordingly, as to issues when the
parties raise no conflict this Court applies Ohio law. Alternatively, as to the issues where TT Club
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asserts the law of another jurisdiction should apply, this Court will conduct an analysis pursuant
to Ohio’s choice of law rules.
B. National Union and TT Club’s Cross Motions for Summary Judgment
First, this Court will address the cross motions for summary judgment between National
Union and TT Club. National Union seeks summary judgment on all three counts of its Complaint:
(1) Declaratory Judgment; (2) Equitable Subrogation; and (3) Equitable Indemnification. (See ECF
Nos. 65-1 at 24; 1 at 6–7). In its Cross-Motion, TT Club seeks summary judgment on all three of
National Union’s claims. (ECF No. 64 at 6). Additionally, TT Club seeks summary judgment as
to Count I of its First Amended Counterclaim for equitable contribution, subrogation, or
indemnification from National Union for the $291,605.81 in defense costs that TT Club paid in
the Moyer Lawsuit. (Id. at 33; see also ECF No. 27 at 22).
To resolve these cross-motions, this Court must determine: (1) whether Greatwide acted a
motor carrier or a broker when it engaged Simbad to transport the Alton Steel load; (2) whether
both the National Union MCL Policy and the TT Club Policy covered Greatwide for its alleged
broker liability; (3) whether National Union’s CGL Policy applies at all; (4) whether the “Other
Insurance” clauses in National Union’s CGL and MCL Policies apply; (5) whether TT Club’s
“Double Insurance” clause is an excess clause or an escape clause; and (6) whether National Union
breached its duty to defend Greatwide.
1. 	Greatwide’s Role in the Underlying Accident
In the Moyer Lawsuit, the Underlying Plaintiffs alleged that Greatwide was the motor
carrier of the Alton Steel load but alleged in the alternative that Greatwide was the broker of the
load. (ECF No. 65-1 at 6). Given the settlement in that case, however, Greatwide was never
assigned ultimate liability as a broker or a motor carrier. (Id.). In the present lawsuit, the parties
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dispute which insurer had a duty to defend Greatwide, and which insurer was ultimately liable for
the Moyer Settlement. As such, this Court must first determine Greatwide’s role in the underlying
accident before it can rule. Moreover, if this Court cannot determine based on the record whether
Greatwide acted as a motor carrier or a broker, this Court cannot determine indemnification
obligations and summary judgment may be inappropriate. See Universal Med. Systems, Inc. v.
C.H. Robinson Worldwide, Inc., 2013 WL 12138550, at *3–4 (N.D. Ohio Feb. 6, 2013) (finding
summary judgment for claims under the Carmack Amendment inappropriate where there was a
genuine issue of fact as to a company’s role as a broker versus a motor carrier); see also Maxum
Indem. Co. v. Selective Ins. Co. of S.C., 2012-Ohio-2115, ¶ 23 (9th Dist.) (finding summary
judgment for defense costs and indemnification of a settlement between insurers inappropriate
where there was a genuine question of material fact as to whether the mutually insured’s
underlying conduct arose from professional liability versus business liability); Lexington Ins. Co.
v. DunnWell, LLC, 2016-Ohio-5311, ¶ 48 (9th Dist.) (“While the duty to defend arises when the
allegations in the complaint arguably fall within the policy’s coverage, ‘the duty to indemnify, on
the other hand, arises only if liability in fact exists under the policy.’… Before the trial court can
determine whether an insurance company has the duty to indemnify an insured, it must have proof
of the facts underlying the complaint.”) (citations omitted) (emphasis added).
Generally, a broker coordinates the transportation of freight and cargo on behalf of its
customers whereas the motor carrier transports the load from Point A to Point B via a motor
vehicle. See 49 U.S.C. §§ 13102(2),(14),(16); Cox v. Total Quality Logistics, Inc., 142 F.4th 847,
856 (6th Cir. 2025) (“The [ Federal Aviation Administration and Authorization Act] defines
‘broker’ as any ‘person, other than a motor carrier or an employee or agent of a motor carrier, that
as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation,
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advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier
for compensation … And it defines ‘motor carrier’ as any ‘person providing motor vehicle
transportation for compensation.’ … Thus, the Act recognizes that brokers are entities that work
with motor carriers to sell, provide, and arrange for transportation via motor vehicles.”); Total
Quality Logistics, L.L.C. v. JK & R Express, L.L.C., 2022-Ohio-3969, ¶ 2 (12th Dist.) (noting TQL
is a broker that arranges for the transportation of its customers’ freight and cargo whereas JK & R
is a motor carrier that transports the cargo). In some instances, however, where a motor carrier that
was authorized and legally bound to transport a load itself assigns the load to a third party, that
motor carrier may still be deemed a motor carrier despite acting as a broker. See Diamond Trans.
Logistics, Inc. v. Kroger Co., 649 F. Supp. 3d 608, 630 (S.D. Ohio 2023) (citing 49 C.F.R. §
371.2(a)); see also Essex Ins. Co. v. Barrett Moving & Storage, Inc., 885 F.3d 1292, 1302 (11th
Cir. 2018)(“In any case, the operative inquiry is this: pursuant to the parties’ agreement, with
whom did the shipper entrust the cargo?”). As such, courts must analyze any written agreements
between the shipper and the company agreeing to transport the load before making a determination
as to the company’s role as a motor carrier or a broker.
Neither a company’s licensing status as a broker or a motor carrier, nor is its stated purpose
inherently dispositive; rather, courts will look to how the company held itself out in business
generally and specifically with the shipper. Universal Med. Systems, Inc., 2013 WL 12138550, at
*3; Sci. Bridge, LLC v. W & W Trucking, LLC, 2025 WL 703864, at *4 (N.D. Ohio Mar. 5, 2025)
(“[W]hether a company is a freight forwarder is determined by how it represents itself to the world
and its relationship to the shipper. Further, the Court must look to the services provided under the
contract. The relevant contract is the one between Scientific and Sunteck, not Sunteck and [the
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third-party].”)2; see also Essex, 885 F.3d at 1302 (“Where no [contract] exists, the question will
depend on how the party held itself out to the world, the nature of the party’s communications and
prior dealings with the shipper, and the parties’ understanding as to who would assume
responsibility for the delivery of the shipment in question”.)
Further, federal case law supports that the determination between a broker and motor
carrier is a case-by-case analysis that is “inherently fact-intensive and not well suited to summary
judgment.” Universal Med. Systems, Inc., 2013 WL 12138550, at *3 (citing Nipponkoa Ins. Co. v.
C.H. Robinson Worldwide, Inc., 2011 WL 671747, at *5 (S.D.N.Y. Feb. 18, 2011); see also Essex,
885 F.3d 1292 at 1302 (finding that the lower court’s summary judgment determination
inappropriate where there was a genuine issue of material fact as to whether the company accepted
legal responsibility to transport the load or communicated to the shipper that it was brokering the
shipment to a third party.).
a) 	National Union’s Argument as to Greatwide’s Role
In 	its 	Motion 	for 	Summary 	Judgment, 	National 	Union 	contends 	that 	Greatwide,
Greatwide’s defense counsel, and Greatwide’s expert all agree that Greatwide acted as the broker
of the load. (EFC No. 65-1 at 6–10). As support, National Union cites various email exchanges
arising out of the underlying Moyer lawsuit as support that Greatwide’s General Counsel, Matt
Bates, believed Greatwide acted as a broker and that such belief conflicted with TT Club’s beliefs.
(Id. at 7). National Union also argues that Robert Boroff, defense counsel retained by TT club to
defend Greatwide, ultimately stated that Greatwide acted as a broker, but that there was still a 50%
2 This Court notes that while a freight forwarder and a motor carrier are not the same, the analysis in Scientific Bridge
is relevant given freight forwarders may act as a carriers. See Transp. Revenue Management, Inc. v. First NH Inv.
Services Corp., 886 F. Supp. 884 n.2 (D.D.C. 1995). Additionally, the Northern District of Ohio conducted the same
analysis that federal courts use to analyze whether an entity is a broker or motor carrier to assess the entity at issue in
Scientific Bridge.
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chance a jury would find Greatwide liable as a motor carrier out of confusion or anger. (Id. at 7–
8). Additionally, National Union contends that the expert report of Anette Sandberg, former
administrator of the Federal Motor Carrier Safety Administration (“FMCSA”), establishes that
Greatwide acted as a broker. (Id. at 9). Sandberg was initially retained by TT Club to assess
Greatwide’s status as a broker versus as a motor carrier, because of the settlement, however,
Sandberg did not complete her report for the underlying Moyer action. (Id.). National Union has
since retained Sandberg to complete her assessment for the current litigation. (Id.). In both her
report and deposition, Sandberg opined, based on her professional experience as the former
Administrator of the FMCSA, that given Simbad, not Greatwide, bound itself to the load and
assigned the driver, Greatwide was the broker and not the motor carrier. (Id.). Ultimately, however,
National Union contends that it does not have to prove whether Greatwide acted as a broker of the
Alton Steel load to be entitled to indemnification. (ECF No. 84 at 4). In National Union’s view,
given that its recoupment claim is based on its “Other Insurance” clause arguments, it believes its
policy is excess to the TT Club Policy regardless of any finding of liability as a motor carrier or a
broker. (Id.).
b) 	TT Club’s Argument as to Greatwide’s Role
TT Club argues that Greatwide’s status as a broker or a motor carrier involves disputed
issues of fact that should preclude summary judgment on the issue. (ECF No. 75 at 9). As support
for its arguments, TT Club offers its expert, James Wescoe, an attorney experienced in personal
injury and wrongful death cases involving motor carriers and brokers. In his report, Wescoe
concluded that, given the disputed material facts at play, the Moyer action would have gone to a
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jury trial rather than being resolved on dispositive motions.3 (Id. at 11). Moreover, Wescoe stated
that the Moyer evidence supported the Underlying Plaintiffs’ theory that Greatwide acted as a
motor carrier. (Id.). TT Club additionally highlights that the contract between Alton Steel and
Greatwide labeled Greatwide as the motor carrier, and that witnesses for Alton Steel acknowledged
there was no documentation indicating that Greatwide was permitted to broker loads for Alton
Steel. (Id. at 11–12). Finally, TT Club contends that the subjective views of Greatwide or the
advocacy positions taken by its attorneys in the underlying lawsuit are irrelevant to the actual
exposure Greatwide faced. (Id.).
c) 	The Court’s Analysis of Greatwide’s Role
After a review of the record, this Court finds that a genuine issue of material fact exists as
to whether Greatwide was a motor carrier or a broker in the underlying action. Universal Med.
Systems, Inc., 2013 WL 12138550, at *3–4. As a threshold matter, this Court is not persuaded by
National Union’s citation to communications between Greatwide and the insurers regarding
settlement of the underlying lawsuit, as such communications and legal positions do not actually
glean insight into Greatwide’s role. Instead, this Court must first determine any obligations under
the contract between Alton Steel and Greatwide. Notably, however, this Court was not provided
the entire Contract Carrier Transportation Service Agreement between Greatwide and Alton Steel.
Hence, this Court must rely only on the characterizations of the agreement in each party’s expert
reports.
On August 8, 2018, Alton Steel and Greatwide entered the relevant Agreement. (ECF No.
61-2, Sandberg Expert Report at 5). The Sandberg Expert Report explains that the Agreement
3 James Wescoe was initially retained by TT Club in the Moyer Litigation to provide expert testimony regarding
Greatwide’s potential liability from the accident involving the Alton Steel load. (ECF No. 70-3 at 2). Wescoe prepared
an expert report in this case on December 20, 2024. (Id.).
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between 	Alton 	and 	Greatwide 	contained 	an 	identical 	provision 	to 	the 	Contract 	Carrier
Transportation Service Agreement between Alton Steel and CRST, a company that provided Alton
Steel a full-time dispatcher/coordinator that handled all Alton Steel shipments. (Id.). The Contract
Carrier Transportation Service Agreement between Alton Steel and CRST stated “[c]arrier agrees
to attempt to meet the special needs of Shipper by providing it with a complete transportation
service that is both flexible and reliable.” (Id.). Sandberg opines that this identical provision
supports the fact that Greatwide was authorized to broker loads on behalf of Alton Steel. (Id.). The
report also notes that nothing in the Contract Carrier Transportation Service Agreement between
Greatwide and Alton Steel prohibited Greatwide from brokering loads. (Id.). Additionally, CRST
and Alton Steel also had a “Letter of Understanding” that allowed CRST to assign to their own
trucks first and to “arrange for secondary trucking companies to handle the freight.” (Id.). The
report provides that pursuant to the Letter of Understanding, CRST brokered Alton Steel loads to
other motor carriers and also provided other brokers Alton Steel loads who then brokered the loads
themselves to a motor carrier. (Id.).
As further support that Greatwide acted as a broker, the Sanberg Expert Report cited the
deposition of Steve Horton, a representative of CRST sub-contracted by Alton Steel who was
responsible for scheduling outbound shipments for Alton Steel. (ECF No. 61-2, Sandberg Expert
Report at 7). According to Horton, while Greatwide was listed as a motor carrier in the bill of
lading between Greatwide and Alton Steel, it was understood that the company listed as the motor
carrier was not necessarily the motor carrier. (Id.). Horton provided that he routinely would enter
into the comments field of the bill of lading the name of the actual motor carrier so that Alton Steel
employees would know who was picking up the load, despite a different name being listed in the
bill of lading. (Id.). As for this particular load, Horton testified that Simbad was listed in the
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comments section as the motor carrier. (Id. at 8). Such testimony indicates that there may have
been an understanding between Alton Steel and Greatwide that Greatwide was brokering the loads
despite it appearing otherwise on paper.
Further, Greatwide’s corporate representative testified that it provided both broker and
motor carrier services to Alton Steel and attested that Greatwide believed it was acting as a broker
with respect to the load at issue. (ECF No. 61-2, Exhibit H at 12, 41). Additionally, the Sandberg
Expert Report states that since entering into its Agreement with Alton Steel in 2018, Greatwide
brokered all Alton Steel loads to other motor carriers. (ECF No. 61-2, Sandberg Expert Report at
10).
On the other hand, TT Club notes that Alton Steel CEO, Jeff Dorries, testified that he was
unaware of any agreement with Greatwide that specifically authorized Greatwide to broker loads.
(ECF No. 70-3, Wescoe Expert Report at 12). Dorries contended that under the Letter of
Understanding, CRST had authority to transport loads themselves or to broker them to another
motor carrier. (Id.). Notably, once CRST assigned the load to another motor carrier, Alton Steel
was to enter into a Contract Carrier Transportation Service Agreement with the motor carrier—
such as the one between Greatwide and Alton Steel that was to only apply to transport of loads,
not brokering. (Id.). Dorries ultimately admitted that while the Agreement did not expressly
authorize brokering, it did not expressly prohibit brokering. (Id.). Rick Purdy, an agent for CRST,
also attested that in his view Greatwide was the motor carrier and the Contract Carrier
Transportation Service Agreement between Alton Steel and Greatwide did not apply to brokering
loads, but acknowledged there was no specific prohibition. (Id.).
Other Alton Steel representatives, such as Mike Cook, testified that Alton Steel paid no
attention to the comments section Horton referred to and thus would not have known whether
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Greatwide or another carrier picked up the load. (Id. at 14). Additionally, CRST corporate designee
Timothy Barth attested that he was not aware Greatwide was acting as a broker for any Alton Steel
loads. (Id.). In sum, such testimony presents a genuine issue of material fact regarding the true
nature of the relationship between Greatwide and Alton Steel.
Looking to the expert reports, Sandberg’s report concluded that Greatwide’s conduct
equated to that of a broker, while Wescoe’s report focused on Greatwide’s potential exposure had
the Moyer lawsuit gone to trial. Moreover, while Wescoe did not opine explicitly as to what he
believed Greatwide’s role was in the matter, he declared that Greatwide faced far greater exposure
as a motor carrier than a broker, and further that the Moyer court would not have ruled as to
Greatwide’s identity on summary judgment. (ECF No. 61-2, Wescoe Expert Report at 26–27).
Although the expert reports are not inherently in conflict given that the Wescoe Report opines on
potential exposure and not Greatwide’s status as a motor carrier or broker, this Court’s job is not
to weigh evidence or make credibility determinations between experts. See Phillips v. Cohen, 400
F.3d 388, 399 (6th Cir. 2005). Further, case law is clear that the relationship between Greatwide
and Alton Steel, the underlying contracts between the two, and how Greatwide held itself out are
all relevant to the analysis of determining Greatwide’s role. See Universal Med. Systems, Inc.,
2013 WL 12138550, at *3; Sci. Bridge, LLC v. W & W Trucking, LLC, 2025 WL 703864, at *4
(N.D. Ohio Mar. 5, 2025). Ultimately, however, the testimony of the employees involved as to
what was common practice between the parties, in addition to what was understood between the
parties with regard to this specific load, brings more questions than answers. See Universal Med.
Systems, Inc., 2013 WL 12138550, at *3 (finding a genuine dispute of material fact as to a
company’s identity where evidence was submitted that lower level employees of the shipper
understood the company in question was brokering the load but the shipper contended
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communications with the company President and the Agreement between the parties indicated the
company in question was a broker). Finally, without the relevant contracts in their entirety it is
difficult for the Court to determine what Greatwide was legally authorized and bound to do with
regard to the Alton Steel load. Diamond, 649 F. Supp. 3d at 630 (noting that motor carriers are not
brokers when they assign a load they accepted and agreed to transport themselves).
Accordingly, this Court finds that there are genuine issues of material fact regarding
Greatwide’s role as a broker or motor carrier in the underlying action. Thus, for reasons discussed
further below (see Section III.B.2, supra), this Court finds that the dispute of material fact as to
Greatwide’s role directly impacts National Union’s ability to prove its recoupment claim.
2. 	Declaratory Judgment
Next, National Union seeks declaratory relief establishing the limitations, rights, and
obligations, if any, under the National Union MCL Policy. (ECF No. 1 at 6). Courts consider five
factors in determining whether to declare the rights of litigants: “(1) whether the declaratory action
would settle the controversy; (2) whether the declaratory action would serve a useful purpose in
clarifying the legal relations in issue; (3) whether the declaratory remedy is being used merely for
the purpose of ‘procedural fencing’ or ‘to provide an arena for a race for res judicata;’ (4) whether
the use of a declaratory action would increase friction between our federal and state courts and
improperly encroach upon state jurisdiction; and (5) whether there is an alternative remedy which
is better or more effective.” United Specialty Ins. Co. v. Cole's Place, Inc., 936 F.3d 386, 396 (6th
Cir. 2019) (alteration omitted) (quoting Grand Trunk W. R.R. Co. v. Consol. Rail Corp., 746 F.2d
323, 326 (6th Cir. 1984)). Ultimately, however, courts have substantial discretion when granting
declaratory relief. Byler v. Air Methods Corp., 823 Fed. App’x 356, 365 (6th Cir. 2020).
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Here, declaratory judgment as to the obligations under the policies at play would clarify
the legal relations at issue by declaring which insurer(s) would be liable relative to Greatwide’s
determination as a broker or motor carrier under their respective policies. As such, this Court
issuing a declaration of how these policies interact may be outcome determinative of the current
controversy. As to the third factor, the liability of Greatwide in the Moyer action was never
determined, and the insurance policies will be analyzed against each other for the first time in this
current action. Thus, there are no res judicata concerns. As to factor four, there will be no
encroachment on state law as this Court will invoke Ohio law to determine how the contracts are
to be interpreted. Finally, this Court does not see an alternative or more judicially efficient
resolution than to declare the obligations of the policies under the law. As such, this Court will
exercise its jurisdiction to declare the rights and obligations under the relevant insurance policies.
Under Ohio law, insurance policies are interpreted by the same rules of construction
applicable to other contracts, and words in the policy must be given their plain and customary
meaning. See Walker ex rel. Est. of Walker v. Albers Ins. Agency, 2019-Ohio-1316, ¶ 20 (1st Dist.);
see also Diamond Trans. Logistics, Inc. v. Kroger Co., 649 F. Supp. 3d at 620. Further, while the
insured has the burden of demonstrating coverage under the policy and proving a loss, the insurer
bears the burden of proving an exclusion. Schmidt v. Travelers Indem. Co. of Am., 101 F. Supp.
3d 768, 776 (S.D. Ohio 2015) (citations omitted). As such, “[e]xclusionary language in insurance
policies must be clear and exact.” Id. (citation omitted).
National Union contends that its MCL Policy is excess to the TT Club Policy. Given that
the TT Club Policy covers up to $5,000,000 in liability, National Union argues that its MCL Policy
is not implicated in the Moyer settlement which is less than the coverage offered under the TT
Club Policy. (Id.). Neither party disputes that the TT Club Policy covers Greatwide’s broker
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liability. (ECF No. 65-1 at 10). National Union, however, contends that its MCL Policy covers
Greatwide’s liability as both a broker and a motor carrier. (Id. at 11). TT Club opposes this
argument. (ECF No. 64 at 14–19). In TT Club’s view, the National Union Policy only covers motor
carrier liability, and accordingly the policies cover different risks. (ECF No. 62-1 at 1–5). As such,
TT Club contends that National Union’s “Other Insurance Clauses” do not apply and the National
Union MCL Policy is primary insurance as a matter of law. (Id. at 3).
To establish the limitations, rights, and obligations under the National Union MCL Policy,
this Court must determine: (1) whether the National Union MCL Policy covered Greatwide for its
alleged broker liability in addition to its motor carrier liability; (2) whether if at all National
Union’s CGL Policy applies; (3) whether the National Union MCL Policy’s “Other Insurance”
clause applies; (4) whether TT Club’s “Double Insurance” clause is an excess clause or an escape
clause; and (5) whether National Union had a duty to defend Greatwide.
a) 	Coverage Under the National Union MCL Policy
The MCL Policy provides that National Union “will pay all sums an ‘insured’ legally must
pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies,
caused by an ‘accident’ and resulting from the ownership, maintenance or use of a covered
‘auto’”. (ECF No. 65-1 at 11) (emphasis added). Notably, the MCL Policy does not explicitly
define “covered auto.” The Policy does, however, contain a “Description of Covered Auto
Designation Symbols” section which designates the symbol “61” which is defined as “Any ‘Auto’”
for “Covered Autos Liability.” (Id.).
National Union relies on the reasoning of the state court of appeals in Hill v. Stony Ridge
Inn S. Ltd., to interpret what is deemed a “covered auto” in the MCL Policy. See 1997 WL 746058
(12th Dist. Dec. 1, 1997). In Hill, the relevant insurance policy contained a nearly identical
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provision to National Union’s MCL Policy.4 The declarations of the policy in Hill specified that
“covered autos” included autos falling within “Category 1” of the “Description of Covered Auto
Designation Symbols” section.5 Hill, 1997 WL 746058, at * 4. Category 1, like symbol “61” in
the MCL Policy, specified that it included “any auto.” Id. Given that “any auto” was not defined
further, the court reasoned that:
Besides the “any auto” designation [in category 1], the Description of Covered Auto
Designation Symbols contains limited categories “2” through “9”. These limited categories
include autos that are owned, hired, or used by a business.3 Thus, when the policy is read
in its entirety, the term “any auto” logically refers to all autos falling within the subsequent
limited categories “2” through “9”.
Id. at *5. In sum, the Hill court reasoned that “any auto” was essentially an umbrella term that
captured all other types of autos specified in the section. Applying this same logic, National Union
contends that its MCL Policy covers all autos specified in its policy’s “Description of Covered
Auto Designation Symbols” section, which includes autos not owned by Greatwide that are leased,
hired, rented or borrowed and are used in connection with Greatwide’s business. (ECF No. 65-1
at 11). The National Union MCL Policy’s “Description of Covered Auto Designation Symbols”
section provides:
4 In relevant part, the Hill Policy provides: “We will pay all sums an ‘insured’ legally must pay as damages because
of ‘bodily injury’ or ‘property damage’ to which this insurance applies, caused by an ‘accident’ and resulting from the
ownership, maintenance or use of a covered ‘auto.’” Hill, 1997 WL 746058, at *4.
5 In relevant part, the Hill Policy’s Description of Covered Auto Designation Symbols section provides:
SYMBOL DESCRIPTION
1 = ANY “AUTO”
2 = OWNED “AUTOS” ONLY. * * *
3 = OWNED PRIVATE PASSENGER “AUTOS” ONLY. * * *
4 = OWNED “AUTOS” OTHER THAN PRIVATE PASSENGER “AUTOS” ONLY. * * *
5 = OWNED “AUTOS” SUBJECT TO NO-FAULT. * * *
6 = OWNED “AUTOS” SUBJECT TO A COMPULSORY UNINSURED MOTORISTS LAW. * * *
7 = SPECIFICALLY DESCRIBED “AUTOS.” * * *
8 = HIRED “AUTOS” ONLY. Only those “autos” you lease, hire, rent or borrow. This does not include any
“auto” you lease, hire, rent or borrow from any of your employees or partners or members of their households.
9 = NONOWNED “AUTOS” ONLY. Only those “autos” you do not own, lease, hire, rent or borrow that are
used in connection with your business. This includes “autos” owned by your employees or partners or
members of their households but only while used in your business or personal affairs.
Id. at *5, n.3
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SYMBOLS | DESCRIPTION OF COVERED AUTO DESIGNATION SYMBOLS
61 | ANY “AUTO”
62 | OWNED “AUTOS” ONLY. * * *
***
68 | HIRED “AUTOS” ONLY. Only those “autos” you lease, hire, rent or borrow.
This does not include any “auto” you lease, hire, rent or borrow from any of your
employees or partners or members of their households.
***
71 | NONOWNED “AUTOS” ONLY. Only those “autos” you do not own, lease,
hire, rent or borrow that are used in connection with your business. This includes
“autos” owned by your employees or partners or members of their households but
only while used in your business or personal affairs.
(ECF No. 1-1 at 122). Further, the MCL Policy’s “Schedule of Coverages and Covered Autos”
section provides that symbol “61” indicates which autos are included in the “covered autos”
liability. (Id. at 103). Applying the same logic from Hill, when the policy is read in its entirety, the
umbrella term “any auto” logically refers to all autos falling within the eleven subsequent symbol
descriptions. Given one of the symbols is “71” indicating “Nonowned ‘Autos’ Only[,]” National
Union contends that the Policy covers autos not owned, but used by Greatwide in connection with
its business, such as the tractor-trailer owned and operated by Simbad in this case.
TT Club disputes that its Policy and the National Union MCL Policy cover the same risk.
(ECF No. 64 at 14–20). TT Club argues its policy covers “risks associated with errors, omissions,
or negligence resulting from the insured providing services as a broker – not the risks of
transporting or delivering goods, which are auto liability risks.” (Id. at 15). Further, TT Club
contends that National Union conflates loss with risk, and that risk and loss are distinct. (Id. at 16)
(citing Gull Indus., Inc. v. Granite State Ins. Co., 493 P.3d 1183 (Wash. App. 2021)). In TT Club’s
view, just because the policies may cover the same loss of the Moyer accident, does not mean the
policies cover the same risk of “professional negligence in providing transportation broker
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services.” (Id. at 18). TT Club further contends that even if the policies both cover the risk of
broker liability, the risk is not the same, as it pertains to motor carrier liability. (Id. at 21).
Notably, TT Club makes no comment as to National Union’s reliance on Hill to ascertain
its interpretation of the term “covered auto.” Nor does TT Club engage the text of the MCL Policy
to argue for a different interpretation. Instead, TT Club contends that the National Union MCL
Policy only covers risks associated with accidents resulting from the use of “covered autos” as
opposed to the risks associated with negligence in arranging for transportation or delivery of
another carrier. (ECF No. 75 at 14). TT Club, however, cites no case law to support its contention.
Additionally, TT Club argues that prior characterizations of the National Union Policy in
correspondence between the insurers indicate that National Union admitted the policies do not
address the same risk. (ECF No. 64 at 15–16). Thus, in TT Club’s view, the policies cover different
risks and thus the “Other Insurance” clause National Union claims would render the MCL Policy
in excess to the TT Club Policy is inapplicable. (Id. at 15–16).
For the purposes of declaring limitations, rights, and obligations under the MCL Policy,
this Court need not look beyond the plain language of the MCL Policy. Johnson v. Am. Fam. Ins.,
2005-Ohio-1776, ¶ 23 (6th Dist.) (In the context of declaratory judgment finding that “[w]here the
policy language is clear and unambiguous, its terms must be applied without engaging in any
construction.”). Moreover, to determine whether the MCL Policy covers broker liability, this Court
need not opine on Greatwide’s role as a broker or motor carrier in the underlying accident. This
Court finds no limiting language within the relevant policy provision that precludes the MCL
Policy coverage from extending to risks associated with arranging for the transportation or delivery
of another carrier. Instead, this Court finds that the MCL Policy covers not just liability related to
accidents, but it covers any “property” or “bodily” injury damage arising out of an accident and
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resulting from the use of non-owned autos used in connection with Greatwide’s business. It is not
preclusive that the word accident appears in the policy provision, as the language indicates that the
MCL policy would cover accidents that resulted from brokered autos. Accordingly, this Court
interprets such plain and broad words to encompass liability related to brokering.
Thus, the tractor-trailer involved in the Moyer Lawsuit falls under the broad “covered auto”
definition, as it is an auto that Greatwide did not own but used in connection with its business. (See
ECF No. 1-1 at 123). Given that the policy explicitly covers damage related to the use of “covered
autos,” which National Union has effectively demonstrated includes autos not owned by Greatwide
but used in connection with its business, the National Union MCL Policy covers the liability of
Greatwide if it were acting as a broker and using a Simbad auto to move the Alton Steel load.
Accordingly, and contrary to TT Club’s contention, the National Union MCL Policy covers
broker liability in addition to motor carrier liability.
b) 	Coverage Under the National Union CGL Policy
It is undisputed that the National Union CGL Policy covers Greatwide’s broker liability.
(ECF No. 65-1 at 12). It is disputed, however, whether National Union’s CGL Policy excludes
motor carrier liability. (ECF No. 76 at 17). National Union contends that the “Auto Exclusion” in
the CGL policy bars coverage if Greatwide were deemed to be a motor carrier because Greatwide
would have been “operating” the Alton Steel load. (ECF No. 65-1 at 12). This Court disagrees. In
relevant part, the CGL exclusion specifies that it excludes coverage for bodily injury arising from
the use of an “auto” owned or operated by Greatwide. (Id.). Notably, the CGL Policy does not
define operate. Under Ohio law, however, to operate means to physically drive the vehicle; thus,
even if Greatwide were deemed a motor carrier due to its contractual obligations (see Diamond,
649 F. Supp. 3d at 630), Greatwide was not the “operator” of the Alton Steel load, Simbad was.
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O.R.C. 4511.01(HHH) (“‘Operate’ means to cause or have caused movement of a vehicle,
streetcar, or trackless trolley.”); see also Riffle v. State Auto. Mut. Ins. Co., 1979 WL 210072, at
*2–3 (8th Dist. Apr. 5, 1979) (finding the defendant did not operate the vehicle where he did not
physically drive the vehicle); see also Tibbs v. Ernst Enterprises, Inc., 2009-Ohio-3042, ¶ 25 (2nd
Dist.) (“A person is qualified to operate a commercial motor vehicle if he is physically qualified
to drive.”). As such, the “Auto Exclusion” does not apply here. Accordingly, the Moyer lawsuit
allegations implicated the CGL Policy under both broker and motor carrier liability.
c) 	The Applicability of “Other Insurance” Clauses
Now that this Court has established that both the MCL Policy and the TT Club Policy cover
broker liability, it must determine how the policies interact if Greatwide is a broker. Under Ohio
law, if two policies cover the same risk, the court should look to “other insurance” clauses to
determine the priority of policies. Great Am. Ins. Co. of New York v. Philadelphia Indem. Ins. Co.,
2022-Ohio-1160, ¶ 22 (1 st Dist.). Further, there are three primary types of “other insurance” clauses
that dictate how the policies interact with one another: (1) pro rata clauses; (2) excess clauses; and
(3) escape clauses. See Young, Bekeny & Mesko, Ohio Insurance Coverage, Section 8:5 (2025).
At issue in this case are excess and escape clauses.
“An excess clause typically states that the insurance is available only after any other
available coverage is exhausted, and an escape clause, as the name implies, states that the insurance
does not apply at all if there is other available insurance.” Id. Here, the Parties dispute the extent
to which “other insurance” clauses apply in this case, which types of clauses (excess or escape)
are at play, and how the clauses interact if at all. (See ECF Nos. 64 at 21–33; 65-1 at 13–18).
As a general matter under Ohio law, when one policy contains an escape clause and another
policy contains an excess clause, the excess clause is given effect over the escape clause. See State
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Farm Mut. Auto. Ins. Co. v. Home Indem. Ins. Co., 23 Ohio St.2d 45, 47–48 (1970). Alternatively,
when two excess clauses are at play, “the two insurers become liable in proportion to the amount
of insurance provided by their respective policies.” Buckeye Union Ins. Co. v. State Auto. Mut. Ins.
Co., 49 Ohio St.2d 213, 218 (1977).
National Union argues that because the National Union Policy and the TT Club Policy
cover a shared risk of broker liability, Ohio law instructs that courts look to “other insurance”
clauses to determine which policy applies. (ECF No. 65-1 at 13). In National Union’s view, the
MCL Policy is excess to the TT Club Policy because its “Other Insurance” clause provides “this
Coverage Form provides primary insurance for any covered ‘auto’ you own and excess insurance
for any covered ‘auto’ you don’t.” (ECF Nos. 65-1 at 14; 1-1 at 131–132) (emphasis added).
Further, National Union contends that TT Club’s “Double Insurance” provision is an escape clause
and that Ohio law supports enforcing excess clauses over escape clauses. (ECF No. 65-1 at 15–
18).
In TT Club’s view, even if the policies provide overlapping risk for broker liability, the TT
Club Policy does not cover automobiles or motor carrier liability which prevents the application
of the “other insurance” clauses entirely. (ECF No. 64 at 21, 24). TT Club also contends that the
MCS-90 Endorsement included in the National Union MCL Policy vitiates the MCL Policy’s
“Other Insurance” clause. (Id. at 22) (citing Prestige Cas. Co. v. Michigan Mut. Ins. Co., 99 F.3d
1340 (6th Cir. 1996)). MCS-90 endorsements are “federally mandated endorsements to motor
carrier insurance policies” meant to “ensure that members of the public receive compensation for
highway accidents.” Redland Ins. Co. v. Singleton, 2009 WL 10689370, at *6 (N.D. Ohio June 29,
2009). Finally, TT Club argues in the alternative that its Policy is either excess to the MCL Policy
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or liable for the Moyer lawsuit on an equal shares basis, given that both policies contain excess
clauses. (Id. at 25).
(1). National Union’s “Other Insurance” Clause
First, this Court must address TT Club’s arguments that the National Union MCL Policy’s
“Other Insurance” clause is inapplicable. (ECF No. 64 at 21). As noted above, the MCL “other
insurance” provision states “this Coverage Form provides primary insurance for any covered
‘auto’ you own and excess insurance for any covered ‘auto’ you don’t.” (ECF Nos. 65-1 at 14; 1-
1 at 131–132) (emphasis added). It is undisputed that the MCL provision is an excess clause. It is
disputed, however, whether application of this clause would cause a windfall given the two policies
cover an “overlapping risk” of broker liability, but not the risk of motor carrier liability. Under
Ohio law, “before [one] policy can ride as excess insurance, the other policy must be made to walk
as primary insurance.” State Farm, 23 Ohio St.2d at 47. Although this Court will not read in
restrictions to the MCL Policy’s “Other Insurance” clause that contradicts its plain meaning, the
TT Club Policy cannot be made to ride as primary coverage for a risk it does not cover.
Accordingly, if Greatwide is deemed liable as a motor carrier, the MCL Policy would not be
rendered excess as there would be no other primary motor carrier insurance and no reason to look
to “other insurance” provisions. Alternatively, if Greatwide is deemed a broker, this Court finds
that the MCL excess clause must apply, given the two policies cover the same broker liability risk.
(2). The Impact of National Union’s MCS-90 Endorsement
Next, this Court must determine whether the MCL Policy’s MCS-90 Endorsement vitiates
its “other insurance” clause. The MCS-90 endorsement provides “no condition, provision,
stipulation, or limitation contained in the policy, this endorsement, or any other endorsement . . .
shall relieve the company from liability or from the payment of any final judgment within the
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limits of liability herein described.” (ECF No. 1-1, Exhibit B). According to TT Club, the
endorsement makes the MCL Policy primary as a matter of law. (ECF No. 64 at 22–24). Relying
on Prestige Cas. Co. v. Mich. Mut. Ins. Co., TT Club contends that the Sixth Circuit construes
such endorsements to negate any clauses that have the effect of limiting liability, including excess
clauses. (ECF No. 64 at 22–24) (citing 99 F.3d at 1348–1349). This Court finds that TT Club’s
reliance on Prestige is misplaced given that in Prestige, the Sixth Circuit applied Michigan law.
See Redland, 2009 WL 10689370, at *6 (holding that Sixth Circuit precedent supports that prestige
is only binding on cases applying Michigan law).
In Redland, the Northern District of Ohio noted that in diversity cases the relevant state law
should apply to interpret MCS-90 endorsements. There the court reasoned:
In the instant matter, Ohio law applies. Consequently, Prestige is inapplicable and Ohio law
will be used to interpret Redland's MCS-90 endorsement. The Ohio Supreme Court holds that
federal law must be applied when interpreting a MCS-90 endorsement. Lynch v. Yob, 95 Ohio
St.3d 441, 445, 768 N.E.2d 1158 (2002). In Lynch, the court noted that federal circuit court
decisions 	interpreting 	the 	endorsements 	have 	more 	persuasive 	value 	than 	state 	court
decisions. Id. at 448, 768 N.E.2d 1158.
The Sixth Circuit has explicitly addressed the issue of whether a MCS-90 endorsement alters
the priority of insurances. Pillings v. Va. Prop. & Cas., 95 Fed. Appx. 126, 129 (2004).
In Pillings, the court held that insurance priority is not altered despite the presence on the MCS-
90 endorsement of a marked box indicating the insurance is primary. Id. at 129. Furthermore,
the court is to leave the insurance contract in “full force and effect” when interpreting the
endorsement language. Id. The Court, therefore, finds that the marked box on Redland's
endorsement is irrelevant in determining the priority of insurance. Since the Court must give
effect to limiting language in the policy, Redland's coverage remains excess as a matter of law.
(Id.). Accordingly, when it comes to broker liability, the National Union MCL Policy is not
primary as a matter of law because the “Other Insurance” clause here has effect and renders it
excess.
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(3). TT Club’s “Double Insurance” Clause
Next, this Court must determine whether TT Club’s “Double Insurance” clause is an excess
clause or an escape clause, and how the “Double Insurance” clause would interact with the MCL
Policy’s excess clause if Greatwide were deemed a broker. TT Club contends that its “Double
Insurance” clause is an excess clause, not an escape clause. (ECF No. 64 at 25). In relevant part,
the TT Club “Double Insurance” clause provides: “[i]f we and another insurer insure you for the
same risk, we will exclude any claim to the extent that it is recoverable from the other insurer or
would be recoverable except for a double insurance exclusion.” (ECF No. 65-1 at 2–3). TT Club
contends that an escape clause “declares that the insurer is not liable to cover an insured if there is
other valid and collectible insurance covering the risk” whereas an excess clause “contained in an
other insurance provision purports to make an otherwise primary policy excess insurance should
another primary policy cover the loss.” (ECF No. 64 at 25) (quoting Ashcraft v. Grange Mut. Cas.
Co., 2008-Ohio-1519, ¶ 16 (10th Dist.)).
Accordingly, TT Club attempts to distinguish its policy as an excess clause by arguing that
because the “Double Insurance” provision provides TT Club will not provide coverage “to the
extent that it is recoverable” from another insurer, as opposed to stating “if there is other valid
and collectible insurance[,]” the provision is clearly an excess clause. (Id. at 26).
National Union contends that the “Double Insurance” clause is an escape clause as
indicated by TT’s Club’s representations of the same clause in other lawsuits. (ECF No. 65-1 at
16). National Union highlights that in Travelers Prop. Cas. Co. of Am. v. TT Club Mut. Ins. Ltd,
2022 WL 988001 (S.D. Ga. 2022), TT Club expressly informed the court that its “‘Double
Insurance’ ‘is . . . an escape clause which excludes an insurer’s liability for loss where other
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coverage is available.’” (Id. at 16). Thus, National Union argues that “Double Insurance” provision
is unenforceable under Ohio law given Ohio law does not enforce escape clauses. (Id. at 17).
When interpreting an insurance policy, words and phrases used must be given their natural
and commonly accepted meaning. Clarendon Nat'l Ins. Co. v. Lexington Ins. Co., 312 F. Supp. 3d
639, 647 (N.D. Ohio 2018). Here, the parties do not contend ambiguity exists in the wording of
the TT Club “Double Insurance” clause; rather, the parties dispute the characterization of the
clause. Thus, this Court need not look to extrinsic evidence,6 but must interpret the language of
the clause on its face in light of the definitions of escape and excess clauses as provided by Ohio
case law.
Ohio law is clear that “[a]n ‘escape clause’ declares that the insurer is not liable to cover an
insured if there is other valid and collectible insurance covering the risk.” Mitchell v. Motorists
Mut. Ins. Co., 2005-Ohio-3988, ¶ 25 (citing 15 Couch, Insurance (3d Ed.2004), Section 219:36).
While “[a]n ‘excess clause’ contained in an ‘other insurance’ provision purports to make an
otherwise primary policy excess insurance should another primary policy cover the loss.” Id.
Most notably, the TT Club “Double Insurance” clause makes no explicit reference to the
policy being “excess,” unlike Ohio cases finding “other insurance” clauses to be excess.7 While
this Court is unaware of a magic words requirement to establish the existence of an excess clause,
6 TT Club offers the expert testimony of Nigel Cooper to support its argument that its “Double Insurance” clause is an
excess clause, not an escape clause. (ECF No. 64 at 27). In TT Club’s view, given that the TT Club Policy specifies it
is governed by English law, expert testimony may aid the Court in the proper interpretation of the clause. (Id. at 28).
Notably, however, TT Club does not contend that English law applies to National Union, or to this dispute generally.
(Id.). Accordingly, TT Club’s reliance on Cooper’s Report is more akin to citing extrinsic evidence, which this Court
will not analyze where the policy language is unambiguous. Diamond Trans. Logistics, Inc. v. Kroger Co., 649 F.
Supp. 3d at 620.
7 This Court examined various Ohio cases that interpreted insurance policies containing excess clauses that explicitly
included the word “excess.” See Cincinnati Ins. Co. v. Motorists Mut. Ins. Co., 2010-Ohio-5176, ¶ 23 (6th Dist.);
Trinity Universal Ins. Co. v. Gen. Acc. Fire & Life Assur. Corp., 138 Ohio St. 488, 489 (1941); Progressive Direct Ins.
Co. v. Motorists Mut. Ins. Co., 2011-Ohio-315, ¶ 9 (1st Dist.); Nationwide Mut. Fire Ins. Co. v. Wood, 2008-Ohio-
4335, ¶ 22 (9th Dist.); Pierson v. Wheeland, 2006-Ohio-1316, ¶ 18 (9th Dist.); Bertsch v. Nationwide Mut. Ins. Co.,
2003-Ohio-1105, ¶ 16 (5th Dist.).
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the consistency of the language used to indicate excess clauses in Ohio guides this Court’s
interpretation. TT Club provides no authority where Ohio courts have found an insurance policy
containing language limiting its application “to the extent” that it is recoverable from another
insurer, to constitute an escape clause.8 Nor has this Court identified any such cases. Thus, this
Court looks to Monroe Guar. Ins. Co. v. Hartford Steam Boiler Inspection & Ins. Co., 2000 WL
522326 (11th Dist. Mar. 31, 2000) for guidance on how “to the extent” has been interpreted under
Ohio law.
In Monroe, two insurers, Monroe and Hartford, were implicated due to a lightning strike
that caused significant property damage to a construction company’s property. Id. at 1–2. Both
insurers contained “other insurance” excess clauses with nearly identical language. Id. at 3.
Additionally, the Hartford Policy contained a provision that “expressly excluded lightning as a
valid cause of loss to the extent that another insurance policy provided coverage for that particular
peril.” Id. at 4. After an unfavorable decision at the trial court level, Monroe appealed the trial
court’s finding that its policy was primary over Hartford’s policy based on its belief that the
Hartford lightning exclusion acted as an escape clause which is not enforced over excess clauses.
Id. (citing State Farm, 23 Ohio St.2d at 46–48). The court of appeals reasoned that:
We recognize that the general rule as promulgated by the Supreme Court in State
Farm is that an excess clause will be given effect when it conflicts with an escape
clause. The scenario in State Farm, however, only encompassed one excess clause
and one escape clause. In the case at bar, both the Monroe Guaranty and Hartford
Steam Boiler policies contained excess clauses wherein the companies attempted
to disclaim primary liability when “there is other insurance covering the same loss
or damage[.]”… Since lightning was a specified cause of loss in the Monroe
Guaranty policy, the lightning exclusion in the Hartford Steam Boiler policy
became operative.
8 Case law in other jurisdictions indicate that the phrase “to the extent” is indicative of an escape clause. See
Seaman and Schulze, Allocation of Losses in Complex Insurance Coverage Claims, Section 5:3 (2025) (“If there is
‘other insurance’ available, the application of an escape clause extinguishes the insurer’s liability to the extent of that
other insurance.”) (citations omitted).
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Id. at 4.
In sum, the Monroe court found State Farm to be inapplicable given that there were two
excess clauses at play in addition to the Hartford lightning exclusion, which the court did not deny
contained escape clause language. As such, the Monroe court did not put Monroe’s excess clause
in competition with Hartford’s lightning exclusion, given Hartford also had an excess clause.
While the court of appeals did not rule in Monroe’s favor, its analysis of the lighting exclusion is
instructive. Notably, the court reasoned that the Hartford Policy, which “excluded lightning as a
valid cause of 	loss to the extent that 	another insurance policy provided coverage[,]” was
“specifically drafted to exclude lightning as a covered cause of loss when that peril was covered
by another insurance policy maintained by Hardrives Paving.” Id. at 4–5.
Applying the Monroe court’s logic, this Court finds that the TT Club clause was drafted
in a manner that unequivocally excludes liability when another policy provides coverage.
Accordingly, this Court finds that the TT Club “Double Insurance” clause is more akin to an escape
clause than it is an excess clause.9 Given that under Ohio law excess clauses are given effect over
escape clauses, this Court finds that the National Union MCL Policy is excess to the TT Club
Policy when it comes to broker liability. State Farm, 23 Ohio St.2d at 48 (“There being no other
‘primary,’ in contradt to ‘excess,’ insurance available to the driver, the [escape] clause is
insufficient to prevent liability from attaching to the insurer who designed it.”).
9 TT Club also contends that its “Double Insurance” clause and National Union’s “Other Insurance” clause are at
minimum mutually repugnant, and therefore the parties should be liable on an equal shares basis. (ECF No. 64 at 30–
33). Given that this Court has established that the “Double Insurance” clause is in fact an escape, clause and not an
excess clause, this Court need not address such arguments or TT Club’s related contentions that Pennsylvania law
should govern any allocation of damages between conflicting excess clauses. (Id.).
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(4). National Union CGL Policy’s “Other Insurance” Clause
Finally, National Union contends that if its CGL Policy applies at all, it also applies on an
excess basis as the Policy states the insurance “is excess over…[a]ny of the other insurance,
whether primary, excess contingent or on any other basis…[i]f the loss arises out of the
maintenance or use of aircraft, ‘autos’ or watercraft to the extent not subject to” the Auto
Exclusion. (ECF No. 65-1 at 14) (emphasis added). As to the CGL Policy, this Court finds that
given it also undisputedly covers broker liability, it only applies on an excess basis with regard to
broker liability.
Since both the National Union MCL Policy (covering up to $2,000,000 per accident) and
the CGL Policy (covering up to $1,000,000 per accident) are excess to the TT Club Policy
(covering up to $5,000,000 per accident), National Union would be entitled to recover the payment
that it contributed to the Moyer Settlement from TT Club, if Greatwide were deemed a broker.
Alternatively, if Greatwide were deemed a motor carrier, National Union would be liable for the
settlement.
3. 	National Union’s Claims for Equitable Subrogation and Indemnification of the Moyer
Settlement
Next this Court will address National Union’s claims for recoupment of its settlement
contribution. “It is well settled that one secondarily liable, who is forced to pay because of the
refusal, or failure after demand, of the one primarily liable to discharge the obligation, has the right
of indemnity from the one primarily liable.” Aetna Cas. & Sur. Co. v. Buckeye Union Cas. Co.,
157 Ohio St. 385, 392 (1952). Further, “‘applying the principles of equity and natural justice,’ the
secondary insurer possesses an equitable right to recover from the primary insurer, as well as a
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right to recover by way of subrogation under the policy.” Ins. Co. of N. Am. v. Travelers Ins. Co.,
118 Ohio App.3d 302, 314 (8th Dist. 1997) (citing Aetna Cas. & Sur., 157 Ohio St. at 393–94).
National Union contends that TT Club was primarily liable for the Moyer Settlement, and
therefore National Union is entitled to recover its settlement contribution from TT Club.
Additionally, National Union contends that TT Club had a primary duty to indemnify Greatwide,
whereas National Union had a secondary duty to indemnify Greatwide. TT Club counters that
National Union cannot recover its contribution from, nor is it entitled to indemnification for, the
Moyer Settlement because the policies do not cover the same risk, and alternatively because the
“other insurance” clauses in the policies render National Union primary to the TT Club Policy in
the event they do cover the same risk. (ECF No 64 at 13–31).
A threshold issue here, however, is that this Court cannot declare which policy was
primarily liable where the policies are not identical and Greatwide’s role as a motor carrier or a
broker was never determined. See Maxum Indemnity Co., 2012-Ohio-2115, ¶ 28 (“[U]nder both
insurers’ ‘other insurance’ clauses, a determination of ultimate liability coverage must be made in
order to determine primary and excess of coverage, since, if Selective had no ultimate liability to
cover Maze’s claim, it would be neither a primary nor an excess insurer under either policy’s ‘other
insurance’ provisions.”). As discussed, such a determination directly impacts which insurer is
primarily liable. See Section III.B.1, supra. Accordingly, this Court cannot grant summary
judgment for equitable subrogation or equitable indemnification where there is a genuine issue of
material fact as to Greatwide’s identity as a broker or motor carrier.
4. 	TT Club’s First Amended Counterclaim for Reimbursement of Defense Costs
In addition to its cross motion for summary judgment on National Union’s claims, TT Club
moved for summary judgment on Count I of its First Amended Complaint. TT Club seeks
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reimbursement of 2/3 of the defense costs it incurred in defending Greatwide via equitable
contribution, subrogation, or indemnification from National Union under both the MCL and CGL
policies. (ECF No. 29 at 21–22). Under Ohio law, “[a]n insurer has an absolute duty to defend an
action when the complaint contains an allegation in any one of its claims that could arguably be
covered by the insurance policy[,]” which is distinct from its duty to indemnify. Sharonville v. Am.
Emp. Ins. Co., 109 Ohio St.3d 186, 2006-Ohio-2180, 846 N.E.2d 833, ¶ 13; see also Lexington
Ins. Co. v. DunnWell, LLC, 2016-Ohio-5311, ¶ 44 (9th Dist.) (opining that the duty to defend is
greater than the duty to indemnify). Thus, once an insurers policy obligations are triggered, the
insurer is required to defend the insured on all claims regardless of their applicability to the policy.
Sharonville, 2006-Ohio-2180, ¶ 13. Further, “[t]hese principles apply equally to situations where
the allegations set forth in the complaint could arguably be covered by two insurers.” Maxum
Indem. Co., 2012-Ohio-2115, ¶ 16 (citing Ins. Co. of N. Am., 118 Ohio App.3d at 314). “However,
once the insurer is able to establish that there is no set of facts that would bring the allegations of
the complaint within coverage of its policy, its duty to defend is extinguished.” Id. ¶ 17.
Here, TT Club contends that National Union breached its duty to defend Greatwide under
both the MCL and the CGL Policies. (ECF No. 64 at 34). Accordingly, TT Club seeks
reimbursement for two-thirds of its defense costs related to defending Greatwide (Id.).
a) 	Duty to Defend Under the MCL Policy
First, TT Club argues that because the underlying allegations in the Moyer Lawsuit
involved an auto accident, National Union’s obligations to defend were triggered under the MCL
Policy. In TT Club’s view, National Union’s failure to defend Greatwide entitles TT Club to
reimbursement. (Id.). TT Club further argues that the National Union “Other Insurance” clause is
inapplicable for the same reasons cited above, see Section III.B.2.c, supra, in addition to the fact
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that the clause does not specify that the policy is specifically excess to the duty to defend. (ECF
No. 64 at 36). TT Club also highlights that National Union’s intent can be gleaned by looking to
the CGL policy’s “Other Insurance” clause, which explicitly states that National Union will have
no duty to defend when it is excess. (Id. at 38).
In response, National Union contends that its “Other Insurance” clause voids its obligation
to reimburse TT Club, given its Policy contains an excess clause, whereas TT Club’s Policy
contains an escape clause. (ECF No. 74 at 21).
This Court notes that National Union fails to address TT Club’s argument that for the
“other insurance” clause to apply, it must specifically reference the duty to defend. (Id.). National
Union cites to Great Am. Ins. Co.., 2022-Ohio-1160, ¶ 26 as proof that Ohio law enforces “other
insurance” 	clauses 	in 	relation 	to 	the 	duty 	to 	defend. 	(Id.). 	National 	Union, 	however,
mischaracterizes TT Club’s argument and the case law on which it relies. TT Club does not assert
that “other insurance” clauses do not apply to the duty to defend, but that such clauses must
explicitly state that the provision applies to the duty to defend. (ECF No. 64 at 37).
In Great American, the court enforced an “other insurance” clause that rendered an insurers
policy excess with regard to the duty to defend where the policy explicitly stated that it applied to
the duty to defend. Great American, 2022-Ohio-1160, ¶ 26 (“[T]he ‘Other Insurance’ clause in
Philadelphia’s policy specifically refers to when Philadelphia’s policy regarding its duty to defend
is ‘excess.’ The clause states that even if Philadelphia ultimately has a duty to ‘pay a claim as a
result of loss,’ the ‘[p]olicy shall be excess over any other policy under which another insurer has
a duty to defend a claim.’ The meaning of this clause is that if another insurance company has a
duty to defend even the claims that Philadelphia may be obligated to indemnify, then the
Philadelphia policy is excess with regard to the duty to defend.”). Thus, while the Great American
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court does provide support that “other insurance” clauses should be considered in assessing the
duty to defend, Great American is factually distinct from the case sub judice given that the “other
insurance” clause involved there was narrowly tailored with regard to the duty to defend. Id.; see
also IMG Worldwide, Inc. v. Westchester Fire Ins. Co., 572 F. App'x 402, 410 (6th Cir. 2014)
(analyzing and applying an “other insurance” clause to the duty to defend where the clause
specifically referenced the duty to defend).
As established above, the MCL Policy was implicated in the Moyer lawsuit based on
allegations related to both broker and motor carrier liability. (See III.B.2.a, supra). Given that the
National Union MCL Policy’s “Other Insurance” clause does not specifically reference that the
policy is excess in relation to the duty to defend, this Court finds that the excess clause was not
clearly drafted in a way that demonstrates intent to apply to the duty to defend. Further, National
Union has not established that there is no set of facts that would bring the allegations of the
complaint within coverage of its policy. Maxum, 2012-Ohio-2115, ¶ 17. As such, absent proof that
its duty to defend was extinguished, National Union was obligated to defend Greatwide based on
the Moyer allegations alone. Id. ¶¶ 16–17. Accordingly, this Court finds that National Union
breached its initial duty to defend Greatwide.
In terms of reimbursement, however, this Court finds that TT Club is not entitled to
reimbursement of the defense costs incurred to defend Greatwide at this stage. Under Ohio law,
an insurer may seek indemnification where there was improper denial of a defense by a primary
insurer. Ins. Co. of N. Am., 118 Ohio App.3d at 314; Aetna Cas. & Sur. Co., 157 Ohio St. at 392;
IMG Worldwide, Inc. v. Great Divide Ins. Co., 704 F. App'x 562, 567 (6th Cir. 2017). Given there
is a genuine issue of material fact as to whether Greatwide acted a motor carrier or a broker, this
Court cannot make a determination regarding which insurer was primary or excess to establish
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who was required to pay Greatwide’s defense costs. Maxum, 2012-Ohio-2115, ¶¶ 24–28. As such,
TT Club’s First Amended Counterclaim for Reimbursement of Defense Costs Under the National
Union MCL Policy is DENIED without prejudice.
b) 	Duty to Defend Under the CGL Policy
TT Club also contends that National Union breached its duty to defend under the CGL
Policy given the allegations of the Moyer Lawsuit fell under the policy, National Union had notice
of the allegations due to its MCL Policy, and accordingly, should have evaluated duties under the
CGL Policy. (ECF No. 64 at 38–40). Additionally, TT Club contends the “Other Insurance” clause
in the CGL Policy does not apply as the policies do not cover the same risk. (Id.). Moreover, TT
Club argues that the CGL Auto Exclusion does not preclude National Union’s duty to defend. (Id.
at 39). Alternatively, National Union contends that it had no duty to evaluate its duties under the
CGL Policy, and even if the CGL Policy applies, its “Other Insurance” clause precludes its duty
to defend. (ECF No. 74 at 25).
National Union’s CGL exclusion specifies that it excludes coverage for bodily injury
arising from the use of an “auto” owned or operated by Greatwide. (ECF No. 65-1 at 24). Under
Ohio law, to operate means to physically drive the vehicle. See Riffle, 1979 WL 210072, at *2–3.
Thus, even if Greatwide were deemed a motor carrier, Greatwide was not the “operator” of the
Alton Steel load, Simbad was. As such, the exclusion does not apply here. Further, it is undisputed
that both the CGL Policy and the TT Club Policy both cover the same risk of broker liability.
Accordingly, the Moyer lawsuit allegations implicated the CGL Policy under both broker and
motor carrier liability.
TT Club, however, has already conceded that the CGL Policy’s “Other Insurance” clause
specifically references that it is excess regarding its duty to defend. (ECF No. 64 at 38).
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Accordingly, this Court finds that where two policies cover the same risk, and one contains an
excess clause specifically referencing the duty to defend, the duty to defend is abolished on behalf
of the insurer with the excess clause. See Great American, 2022-Ohio-1160, ¶ 26. As such,
National Union had no duty to defend Greatwide under the CGL Policy.
For the reasons stated above, TT Club’s Motion for Summary Judgment as to its First
Amended Counterclaim for Reimbursement of Defense Costs Under the National Union CGL
Policy (ECF No. 63) is DENIED with prejudice.
C. National Union’s Motion to Strike
National Union filed a Motion to Strike or Exclude TT Club’s Expert Reports of Nigel
Cooper and Jeffrey Stempel. (ECF No. 73). National Union also moves to strike portions of an
email conversation between Mathhew Bates of Greatwide and a representative of Lexington
Insurance Company. (Id.). Considering this Court did not rely on the expert reports or the email in
its ruling on the summary judgment motions above, the Motion is DENIED as moot.10
D. USIC’s Motion to Certify
1. 	State-Law Question Certification Standard of Review
Federal courts have the discretion to decide whether to certify questions to the state
supreme court. Tri Cnty. Wholesale Distributors, Inc. v. Labatt USA Operating Co., 2014 WL
32307, at *2 (S.D. Ohio Jan. 6, 2014) (Marbley, J.) (citing Pennington v. State Farm Mut. Auto.
Ins. Co., 553 F.3d 447, 450 (6th Cir. 2009)). The Ohio Supreme Court Rules of Practice provide:
The Supreme Court may answer a question of law certified to it by a court of the
United States. This rule is invoked if the certifying court, in a proceeding before it,
issues a certification order finding there is a question of Ohio law that may be
determinative of the proceeding and for which there is no controlling precedent in
the decisions of this Supreme Court.
10 See Hamilton Cnty. Emergency Commc'ns Dist. v. Level 3 Commc'ns, LLC, 845 F. App'x 376, 389–390 (6th Cir.
2021) (finding that the district court did not err in denying motion to strike as moot where it did not rely on the report).
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Ohio S. Ct. Prac. R. 9.01(A).
Simple “difficulty in ascertaining local law provides an insufficient basis for certification.”
Tri Cnty. Wholesale Distributors, Inc., 2014 WL 32307, at *2 (quoting Duryee v. U.S. Dep’t of the
Treasury, 6 F. Supp. 2d 700, 704 (S.D. Ohio 1995)). Because “certification to the Supreme Court
of Ohio . . . entails more delay and expense than would an ordinary decision of the state question
on the merits by the federal court,” Drown v. Wells Fargo Bank, NA, 2010 WL 4939963, at *2
(S.D. Ohio Nov. 30, 2010) (quoting Lehman Bros. v. Schein, 416 U.S. 386, 394 (1974)) (internal
quotations omitted), certification is inappropriate when “a district court . . . believes that it can
resolve an issue of state law with available research materials already at hand, and makes the effort
to do so.” Id. (quoting Lehman Bros, 416 U.S. at 395).
To decide in favor of certification, then, federal courts must find that “there is a question
of Ohio law that may be determinative of the proceeding and for which there is no controlling
precedent in the decisions of this Supreme Court.” Ohio S. Ct. Prac. R. 9.01(A). Even if a federal
court answers both inquiries in the affirmative, it must also consider if it can resolve the issue of
state law with the materials at hand. Tri Cnty. Wholesale Distributors, Inc., 2014 WL 32307, at *2
(quoting Drown, 2010 WL 4939963, at *2). Only if a court finds that there is a genuine dearth of
guidance from state court precedent, so much so that it would be extremely difficult to examine
properly the questions presented, should it elect to certify a question to the Ohio Supreme Court.
Id.
2. 	State-Law Question Certification Law and Analysis
USIC’s Motion to Certify proposed the following question for certification to the Ohio
Supreme Court:
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Is a prejudice analysis required to determine whether a liability insurer must
indemnify its insured for a settlement where: (1) the insurer did not have notice or
a tender of the lawsuit or claim against the insured until after the settlement; and
(2) the insurer’s policy includes the following standard policy language: “No
insured will, except at that insured’s own cost, voluntarily make a payment, assume
any obligation, or incur any expense, other than for first aid, without our consent.”
(ECF No. 88 at i).
As set fortph above, to certify a question to the Ohio Supreme Court, this Court must be
satisfied that: (1) the question involves Ohio law that may be outcome-determinative of the
proceeding; and (2) there is no controlling Ohio Supreme Court precedent. Ohio S. Ct. Prac. R.
9.01(A); Stevens v. City of Columbus, 2020 WL 7021422, at *2 (S.D. Ohio Nov. 30, 2020). This
Court maintains the discretion to decline certification even if the movant satisfies both prongs. Tri
Cnty. Wholesale Distributors, Inc., 2014 WL 32307, at *2.
USIC seeks determination of whether it needed to establish that it was prejudiced by TT
Club and/or Greatwide’ s failure to notify USIC of the Moyer Lawsuit and Settlement given that
its Policy contained a voluntary-payment provision. (ECF No. 88 at i). As to the first prong, USIC
asserts that if it is determined that a prejudice analysis was not required, then TT Club’s claims
against USIC fail based on the voluntary payment provision alone. (Id. at 2). TT Club does not
oppose this contention. This Court thus finds that the first prong is met. As to the second prong,
however, the parties disagree as to whether there is controlling Ohio Supreme Court precedent that
speaks directly to the question USIC seeks to certify.
According to USIC, there is no controlling precedent from the Ohio Supreme Court
addressing the specific issue of whether a prejudice analysis is required when the policy involved
contains a voluntary payment provision. (ECF No. 88 at 3).
TT Club contends that the Ohio Supreme Court has already definitively answered the
USIC’s question in Ferrando v. Auto-Owners Mut. Ins. Co., 781 N.E.2d 927, 947 (Ohio 2002) as
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indicated by the Sixth Circuit’s decision in ACE Am. Ins. Co. v. Zurich Am. Ins. Co., 2024 WL
945246 (6th Cir. Mar. 5, 2024). (ECF No. 90 at 3). In ACE American, Ace sought equitable
contribution from two other insurers, Zurich and Discover, related to a lawsuit that Ace had failed
to notify Zurich and Discover of until four years after its initiation and Ace had incurred nearly $5
million in defense fees. ACE American, 2024 WL 945246, at *1. The district court originally held
that Zurich and Discover were not required to demonstrate prejudice given they had not been
notified of the underlying litigation. ACE Am. Ins. Co. v. Zurich Am. Ins. Co., 2022 WL 16534826,
at *8 (S.D. Ohio Oct. 28, 2022). The Sixth Circuit overturned the district court’s decision, finding
that Ohio law requires insurers to demonstrate that they were prejudiced by untimely notice of
underlying litigation so as to be released from its coverage obligations. ACE Am., 2024 WL
945246, at *4–5. (“[T]he weight of the relevant data shows Ferrando’s rule is universal. For these
reasons, the district court erred in declining to conduct the prejudice inquiry mandated by
Ferrando”). Thus, on remand, the district court conducted the Ferrando prejudice inquiry and
extended it to a voluntary payment provision like the one at issue in this case. ACE Am. Ins. Co. v.
Zurich Am. Ins. Co., 765 F. Supp. 3d 705, 721–723 (S.D. Ohio 2025).
While this Court acknowledges the specific question posed by USIC has not been posed to
the Ohio Supreme Court directly, this Court finds the Ohio Supreme Court’s decision in Ferrando
renders certification unnecessary. Ferrando instructs that as a general matter, to avoid obligation,
insurers who received delayed notice of claims must demonstrate that they were prejudiced by the
lack of notice. Ace Am., 2024 WL 945246, at *4. Thus, the Ohio Supreme Court is unlikely to rule
differently simply because an insurer has a voluntary payment provision, given that Ferrando
expressly considered the public policy implications involved in allowing an insurer to escape
liability based on procedural reasons. Id. Further, this Court finds that the legal inquiry into
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whether a prejudice analysis is required in light of a voluntary payment provision is readily
resolvable given the available materials. As indicated by TT Club, precedent on this very issue
already exists in the Southern District. (ECF No. 90 at 3–6); Ace Am., 765 F. Supp. 3d 705 at 717
(“Ultimately, this Court concludes that, following Ferrando, the Ohio Supreme Court likely would
apply a prejudice requirement for violations of voluntary payment provisions.”).
Accordingly, this Court declines to exercise its discretion to certify USIC’s question to the
Supreme Court of Ohio. As such, USIC’s Motion to Certify (ECF No. 88) is DENIED.
E. USIC’s Motion for Summary Judgment
In its Motion for Summary Judgment, USIC argues that TT Club is not entitled to equitable
contribution, subrogation, or indemnification from USIC because: (1) TT Club cannot reallocate
the amounts paid in the Moyer Settlement in a manner that allows recovery from USIC; (2) the
USIC Policy is excess to all other relevant policies; (3) the USIC policy excludes coverage for the
Moyer accident; and (4) USIC is not obligated to provide equitable contribution to the Moyer
Settlement as it was never notified of the Moyer Lawsuit or Settlement prior to being joined in this
case. (ECF No. 60 at 1).
USIC highlights that the Moyer Lawsuit did not determine whether Greatwide was liable
as a motor carrier or as a broker, as previously discussed in Section III.B.1, supra. (ECF No. 60 at
9). Specifically, USIC argues that Greatwide’s liabilities were never separated or allocated, and
instead TT Club and National Union entered a settlement on a 50-50 basis without deciding
allocation of liability under the relevant Policies. (Id.). USIC therefore argues that because
Greatwide and TT Club failed to allocate liability in the underlying action, it may not reallocate
liability after the fact. (Id. at 11).
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Next USIC contends that it is excess to all other policies and expressly excess to the
National Union CGL Policy. (Id.). USIC thus argues that TT Club cannot seek contribution from
USIC without demonstration that it never owed anything for the Settlement but cannot do so due
to its failure to allocate in the Moyer Lawsuit. (Id. at 12). USIC also contends that it is not obligated
to provide equitable contribution as both its Policy and the National Union CGL Policy expressly
preclude coverage for automobile liability. (Id. at 13).
Finally, USIC argues that it is not responsible for costs incurred without its notice or
consent given the express voluntary payment provision in its policy, as well as the fourteen days
loss notice policy.11 (Id. at 14).
TT Club counters with several points. First, it argues that is unnecessary that the allocation
be determined in the underlying lawsuit, as the insurer may submit evidence that would create a
reasonable basis of allocation to this Court for segregation of the covered damages. (ECF No. 76
at 8). Second, TT Club contends that the National Union CGL Policy is not in excess to the TT
Club Policy, and accordingly the USIC Policy cannot be in excess to the TT Policy. (Id. at 10).
Relying on Buckeye Union and Monroe Guaranty, TT Club argues that Ohio law only looks to
other insurance clauses to resolve priority coverage issues “where two insurance polices cover the
same risk.” (Id.) (emphasis added). TT Club contends, that in this case, although both the CGL
Policy and the TT Club Policy were implicated by the same loss at issue in Moyer, they do not
cover the same risk. (Id. at 13). TT Club asserts that its Policy does not take priority over the
National Union CGL Policy or USIC’s Policy, which is expressly in excess to the CGL Policy.
11 USIC’s Voluntary Payment Provision provides that “[n]o insured will, except at that insured’s own cost, voluntarily
make a payment, assume any obligation, or incur any expense, other than for first aid, without our consent.” (ECF No.
29-1 at 12).
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(Id. at 16). Moreover, in TT Club’s view, once the CGL Policy was exhausted, USIC was obligated
to contribute to the Settlement under a theory of vertical exhaustion. (Id.).
Third, TT Club contests that the auto exclusion clauses in USIC’s Policy are applicable
because the “exclusions [only] apply to bodily injury ‘arising out of the ownership, maintenance,
use or entrustment to others’ of any ‘auto’ ‘owned or operated by or rented or loaned to any
insured.’” (Id. at 17). Thus, TT Club contends the exclusion does not apply as Simbad—not
Greatwide—owned and operated the auto involved in the accident, and further, there was no
finding that Greatwide was liable as a motor carrier to establish that it “used” the auto. (Id.).
Finally, TT Club contends that in order to succeed on its lack of notice arguments, USIC needed
to demonstrate prejudice as a result of Greatwide’s breach but ultimately failed to do so. (Id. at
18–20).
First, this Court will address USIC’s reallocation argument, where USIC contends that
because liability was not allocated in the underlying Moyer Lawsuit, the opportunity to do so has
expired. In support of its contention, USIC relies primarily on Howell v. Richardson, 544 N.E.2d
878 (1989). In Howell, the Ohio Supreme Court found that where a determination of negligence
as to a tortfeasor’s liability was found in an underlying suit, an insurer cannot relitigate the
determination in a subsequent action. Id. at 368. USIC additionally cites a string of cases in which
Ohio courts rely on Howell to establish that insurers who fail to intervene are barred from
relitigating liability. (ECF No. 78 at 6). As TT Club indicates, however, the Moyer Lawsuit settled
prior to any finding of liability, and accordingly there is no underlying determination to relitigate
in the instant litigation. Thus, Howell does not support USIC’s arguments here. Further, under
USIC’s reallocation argument, an insurer would never have any incentive to settle without a
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determination of liability out of fear that it would never be able to recover contribution from other
insures later. Accordingly, USIC’s allocation argument fails.
Despite such, TT Club cannot establish it is entitled to indemnification from USIC, or any
other party, where Greatwide’s role in the underlying accident has not been determined. As USIC
emphasizes (ECF Nos. 60 at 12; 76 at 6–10), TT Club must still bridge the evidentiary gap: it must
show a concrete basis on this record to segregate broker-based exposure from motor-carrier-based
exposure, rather than asking the Court to hypothesize how a trier of fact “would have” allocated
liability in the underlying case. Bank One, N.A. v. Echo Acceptance Corp., 522 F. Supp. 2d 959,
971 (S.D. Ohio 2007). As mentioned above, there are genuine issues of material fact as to
Greatwide’s status, and therefore, this Court cannot determine rights of indemnification. See
Section III.B.1, supra.
Next, this Court will address USIC’s voluntary payment provision and lack of notice
arguments. As discussed in Section III.D, supra, a prejudice analysis is required to establish
coverage has been forfeited despite a policy’s voluntary payment provision and a lack of notice of
the relevant claims to an insurer. See ACE, 765 F. Supp. 3d at 717–18. Under Ferrando, the Court
must conduct a two-prong analysis: (1) first, the court must determine whether the insurer did not
receive reasonable notice that resulted in a breach of contract; (2) then, the court must determine
whether the breach resulted in prejudice such that the coverage must be forfeited. Westfield Ins.
Co. v. Russo, 2005-Ohio-5942, ¶ 14 (9th Dist.) (citing Ferrando v. Auto-Owners Mutual Ins. Co.,
781 N.E.2d at 947)).
Here, the parties do not dispute that there was a delay in notice. Thus, this Court looks only
to prong two of the analysis. USIC contends that it was prejudiced by not being afforded the
opportunity to be involved in the Moyer Settlement when allocation of the “mixed” damages was
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still possible. (ECF No. 60 at 18). TT Club contends the settlement was for a reasonable amount
given the risk that Greatwide would be deemed a motor carrier, as indicated by the Wescoe Expert
Report. (ECF No. 76 at 20). Additionally, TT Club contends that USIC’s presence at an earlier
stage would not have impacted the outcome. (Id.).
Given USIC was not given the opportunity to participate in the settlement or negotiate
liability, USIC suffered “plain” prejudice from the delayed notice. In Canton Drop Forge, the
Sixth Circuit ruled that there was “plain prejudice” where “[the insured’s] delay prevented [the
insurer] from having any involvement in negotiating the liability for which it later handed [the
insurer] the bill.” Canton Drop Forge, Inc. v. Travelers Cas. & Sur. Co., 2021 WL 5895789, at *2
(6th Cir. Dec. 14, 2021). The Sixth Circuit further specified, that “[the insured’s] arguments that
[the insurer] would have done nothing to reduce liability or cleanup costs [were] speculative and
fail[ed] to show a lack of prejudice” Id. Similarly, here, TT Club’s arguments that USIC’s presence
at settlement would not have made a difference are merely speculative. As such, USIC is within
its right to deny coverage under its Policy given the unreasonable notice given for the underlying
Moyer Lawsuit and Settlement. USIC’s Motion for Summary Judgment (ECF No. 60) is
GRANTED.
IV. 	CONCLUSION
For the following reasons, this Court GRANTS USIC’s Motion for Summary Judgment
(ECF No. 60). Additionally, National Union’s Motion for Summary Judgment (ECF No. 65) is
DENIED. TT Club’s First Amended Counterclaim for Reimbursement of Defense Costs as to the
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MCL Policy is DENIED without prejudice and DENIED with prejudice as to the CGL Policy
(ECF No. 63). National Union’s Motion to Strike (ECF No. 73) is DENIED as moot.
IT IS SO ORDERED.
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: March 19, 2026
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