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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BILLINGS DIVISION GREAT WEST CASUALTY COMPANY, a Nebraska Corporation, ) ) ) Plaintiff, ) ) ) vs. ) ) COBRA TRUCKING, INC., ALICE ) SIELER-ROHR, Individually and as ) Conservator for her Infant Son, Frank ) William Rohr, III, and as Personal ) Representative of the Estate of Frank ) William Rohr, Jr., ) ) Defendants. ) --------------------------------------------------------------) CV 12-10-BLG-RFC

ORDER

Plaintiff Great West Casualty Company has filed a Motion for Summary Judgment. Plaintiff asserts that it has no duty to defend or indemnify Cobra Trucking, Inc. ("Cobra") for the accident between Randall Dwyer, operating as Dwyer Trucking (collectively "Dwyer"), and the Sieler-Rohr vehicle. Plaintiff claims that because there is no coverage for Cobra's actions in arranging for the transportation of freight by a motor carrier, Cobra is not insured for any liability arising from the underlying accident pursuant to the insurance agreement between

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Great West and Cobra because the insurance policy between Great West and Cobra specifically excludes coverage for Cobra's broker operations. Defendant Alice Sieler-Rohr ("Sieler-Rohr") filed a Cross Motion for Summary Judgment. Sieler-Rohr argues that Dwyer was not hauling a brokered load and Great West must provide coverage. The parties have briefed the issue and the Court is prepared to rule.

BACKGROUND On August 3, 2011, a tractor/trailer driven by Dwyer was enroute from Roundup, Montana, to Casper, Wyoming, on U.S. Highway 191. Dwyer was returning to Casper after delivering a load of fracking sand for Cobra. Approximately 16 miles north of Billings, Dwyer crossed the centerline and struck the Sieler-Rohr vehicle. Frank William Rohr, Jr. was killed, his wife Alice was severely injured, and their infant son was also severely injured. Alice is seeking recovery under Great West's policy, base upon Dwyer's relationship with Great West's insured, Cobra. Dwyer was an owner/operator with his own DOT number and his own liability insurance. On July 18, 2011, Dwyer started hauling fracking sand for Cobra. Between July 18 and August 3, 2011, Dwyer hauled 16 loads of sand for
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Cobra. Cobra is a trucking company located in Casper, Wyoming. Cobra hauls fracking sand to well sites located in Wyoming, Montana, and Colorado. In the summer of 2011, Cobra was under contract with Halliburton and other well service companies to haul fracking sand. Cobra did not have enough of its own employees, tractors or trailers to handle all of the loads available under the Halliburton contract. To keep up with the work available under the Halliburton contract, Cobra contracted with owners/operators, including Dwyer. Cobra maintained a running list of available drivers. As loads became available, Cobra offered the load to a driver at the top of the list. If the driver at the top of the list declined the load or was unavailable, that driver was moved to the bottom of the list and the load was offered to the next driver on the list. Once a driver accepted a load, he was obligated to pick up the load at the rail spur in Casper. Cobra employees assisted in the loading process. A bill of lading was completed by a Cobra employee and listed Cobra as the carrier. The terms of the insurance policy demonstrate Plaintiff's intent to exclude "transportation broker operations" from coverage: Liability Coverage shall not apply to transportation broker or freight forwarder operations of the "insured". Plaintiff's Statement of Undisputed Facts

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