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The Honorable Lyle E. Strom, United States District Judge

for the District of Nebraska. 

___________

No. 96-1081

___________

Nationwide Mutual Insurance *

Company, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* District of Nebraska.

Great West Casualty Company, *

*

Appellant. *

___________

 Submitted: September 11, 1996

 Filed: December 19, 1996 ___________

Before BEAM, HEANEY, and MURPHY, Circuit Judges. ___________

BEAM, Circuit Judge.

Great West Casualty Company (Great West) appeals the district

court's1 grant of summary judgment in favor of Nationwide Mutual

Insurance Company (Nationwide). We affirm. 

I. BACKGROUND

In this case, two insurance companies dispute their respective

status as primary or excess insurers. The underlying facts involve

an automobile accident in which James Peterson was killed. LeRoy

Shotkoski, a semi-tractor driver, had been delivering farm

equipment manufactured by Behlen Manufacturing, Inc. (Behlen).

Between deliveries, two stock tanks fell off the trailer and landed

on the road. Shotkoski did not notice the missing tanks until his
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Behlen actually leased the trailer from G.E. Capital Fleet

Services under a lease/purchase agreement. Behlen then charged

BMC Transportation Company (BMC) a monthly fee, equal to its

lease/purchase payment, for the use of the trailer. This

interrelationship between the two companies was likely due to the

fact that both Behlen and BMC were subsidiaries of Behlen

Marketing, Inc. 

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next stop. Meanwhile, Peterson, a local farmer, came upon the

tanks in his own vehicle. Peterson struck the tanks, rolled his

vehicle, and died in the accident. 

The trailer involved was owned by Behlen2 and was loaded with

Behlen equipment, by Behlen employees. The trailer was attached to

a semi-tractor owned by BMC Transportation Company (BMC). The

semi-tractor was then leased to Shotkoski under the business name

of K&L Enterprises. Under that agreement, Shotkoski was considered

the owner/operator of the semi-tractor. Great West insured the

semi-tractor and BMC under its business auto policy. Nationwide

insured the trailer and Behlen under its business auto policy and

its commercial general liability policy. 

Shotkoski, the semi-tractor driver, was under contract with

BMC to deliver Behlen equipment throughout Montana and the Dakotas.

Shotkoski had picked up the trailer at the Behlen plant yard in

Nebraska. After leaving the yard, Shotkoski secured the load of

equipment to the trailer. He also resecured the load several times

prior to the Peterson accident, after each delivery on his route.

Peterson's estate sued Behlen, BMC, and Shotkoski for wrongful

death. The complaint alleged that BMC and Behlen had negligently

loaded and supervised the loading of the trailer and that Shotkoski

negligently secured the load. Great West defended BMC and, because

of his contract with BMC, defended Shotkoski as well. Nationwide

subsequently requested that Great West also defend Behlen, arguing

that: (1) Behlen became a Great West insured when the trailer was

attached to the semi-tractor; (2) Nationwide's coverage of the
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trailer was excess when the trailer was attached to the semitractor; and (3) therefore, Nationwide's coverage was only

implicated to the extent that Great West's coverage was

insufficient to pay the judgment. Great West refused to defend

Behlen so Nationwide defended Behlen under a reservation of rights

agreement. Nationwide then filed a declaratory judgment action

seeking a ruling that Great West had primary coverage for the

Peterson lawsuit. 

The declaratory judgment action was removed to federal

district court in Ohio and later transferred to the District of

Nebraska. Meanwhile, the Peterson lawsuit was settled for

$400,000, with Great West paying $280,000 and Nationwide

contributing $120,000. After the settlement, Nationwide requested

reimbursement of its $120,000 contribution and the expenses

incurred in defending Behlen. Great West countered that Nationwide

had properly paid its part of the settlement because a Behlen

employee caused the accident by supplying a faulty stake to secure

the load. Great West also alleged that Behlen could not be an

"insured" under its business auto policy because the policy

excludes coverage for the loading and unloading of a covered auto

by non-employees. Therefore, Great West argued that Behlen was

only covered under the Nationwide policy. 

The parties filed cross-motions for summary judgment. The

district court ruled in favor of Nationwide. After first assuming

that the negligence at issue occurred during the loading of the

trailer, the district court found that the carrier, insured by

Great West, had assumed the risk of improper loading. The court

then found that Nationwide's coverage was excess and that Great

West's policy provided primary coverage for the accident. Because

the settlement was within Great West's policy limits, the court

held that Nationwide should be reimbursed its $120,000 and the

costs incurred in defending Behlen. Great West appeals.
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II. DISCUSSION

We review the entry of summary judgment de novo. Reich v.

ConAgra, Inc., 987 F.2d 1357, 1359 (8th Cir. 1993). Summary

judgment is proper only when no genuine issue of material fact is

present and judgment should be awarded to the movant as a matter of

law. Commercial Union Ins. Co. v. Schmidt, 967 F.2d 270, 271 (8th

Cir. 1992). Applying these standards, we find no error in the

district court's grant of summary judgment for Nationwide. 

An insurance contract should be interpreted in the same way as

any other contract. Enterprise Tools, Inc. v. Export-Import Bank,

799 F.2d 437, 439 (8th Cir. 1986). If the words are unambiguous,

then they should be given their ordinary meaning. Id. The

district court found that Nationwide's comprehensive general

liability policy clearly excluded coverage for loading activities.

The district court then found that the business auto policies

issued by both Nationwide and Great West provided coverage for the

risk at issue. 

Nationwide's comprehensive general liability (CGL) policy

contains the following exclusion:

This insurance does not apply to:

. . .

g. "Bodily 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. Use includes

operation and "loading or unloading."

Appellant's Appendix at 84 (emphasis added). We agree with the

district court that this language excludes coverage for activities

involving the use and loading of the trailer. Therefore, by its
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Great West seems to argue that because the Peterson

complaint alleged improper loading on the part of Behlen,

Nationwide's insured, Nationwide must pay its share of the

Peterson settlement. This argument ignores the district court's

finding that at all relevant times, Shotkoski had assumed the

responsibility for the loading of the trailer.

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terms, Nationwide's CGL policy did not cover the accident at issue

here. 

The district court also found, however, that both the

Nationwide and Great West business auto policies provided coverage

for the risk involved in this accident. Its finding that

Nationwide's policy covered the risk was based on Behlen's

ownership of the trailer. Its finding that Great West covered the

risk was due to its conclusion that Shotkoski had assumed the risk

of improper loading. See, e.g., Franklin Stainless Corp. v. Marlo

Transport Corp., 748 F.2d 865, 868 (4th Cir. 1984). 

In finding that Shotkoski assumed the responsibility of safely

securing the load, thereby sharing the risk with his employer, BMC,

the district court relied on various facts. These facts showed

that although the trailer was loaded by Behlen employees, they did

so only to allow the trailer to be moved out of the Behlen lot.

Although the Behlen employees supplied the allegedly faulty stake,

there is no evidence that such stake caused the tanks to fall off

the trailer, except for Shotkoski's affidavit stating that he

believed the stake caused the tanks to fall. In other words,

despite Behlen's initial help in securing the load, Shotkoski still

assumed the risk of improper loading and maintained the duty to

secure the load.3

 Furthermore, Behlen was properly treated as an

insured under the Great West policy because the policy expressly

provides coverage for owners of a borrowed trailer while the

trailer is connected to a covered semi-tractor. Appellant's

Appendix at 135.

 
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We must next determine which of the two insurance policies

provided primary coverage for the accident. Great West's policy

provided as follows:

This Coverage Form's Liability Coverage is primary for

any covered "auto" while hired or borrowed by you and

used exclusively in your business as a "trucker" . . . .

[W]hile a covered "auto" which is a "trailer" is

connected to a power unit, this Coverage Form's Liability

Coverage is:

(1) On the same basis, primary or excess, as for the

power unit if the power unit is a covered "auto."

(2) Excess if the power unit is not a covered "auto."

Appellant's Appendix at 141. The Nationwide policy contains a

similar provision. Id. at 119. Because Great West provided

primary coverage for the power unit here, Great West carried the

primary insurance coverage for this accident. Because the $400,000

Peterson settlement was within Great West's policy limits, see id.

at 126, Great West should have paid the entire settlement amount.

Therefore, Nationwide should be reimbursed for its $120,000

contribution. 

Finally, despite Great West's claims to the contrary, the

district court properly awarded Nationwide its costs, expenses and

attorney fees for defending the Peterson lawsuit, following a

proper analysis of the reasonableness of those amounts. We have

considered the remainder of Great West's arguments and find them to

be without merit. 

III. CONCLUSION

Because the district court correctly granted summary judgment

in favor of Nationwide, we affirm the judgment of the district

court. 
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A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.