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TREQKNIA BANNISTER v. ACE AMERICAN INSURANCE COMPANY, ET AL.

United States District Court,

E.D. Louisiana.

TREQKNIA BANNISTER

v.

ACE AMERICAN INSURANCE COMPANY, ET AL.

CIVIL ACTION NO. 16-2830

|

Filed 05/04/2016

 

 

SECTION “F”

MARTIN L. C. FELDMAN UNITED STATES DISTRICT JUDGE

 

ORDER AND REASONS

*1 Before the Court is the plaintiff’s motion to remand. For the reasons that follow, the motion is DENIED.

 

 

Background

This litigation arises out of a car accident in New Orleans.

 

On March 17, 2015, Treqknia Bannister was driving on I-10 at or near the I-610 split in Orleans Parish when a vehicle (owned by FLCO Trucking Company or Mississippi Line Company and operated by Joseph Taylor) allegedly improperly changed lines, striking Ms. Bannister’s car. On February 24, 2016, Bannister sued ACE American Insurance Company, FLCO Trucking Company, Mississippi Lime Company, Joseph Taylor, and State Farm Mutual Automobile Insurance Company (in its capacity as uninsured/underinsured motorist carrier) in state court. On April 5, 2016, Mississippi Lime Company, FLCO Trucking Company, and ACE American Insurance Company removed the case to this Court, invoking the Court’s diversity jurisdiction. Ms. Bannister alleges that she “suffered severe and disabling injuries” in the accident and she seeks an award of monetary damages for “past physical pain and suffering, future physical pain and suffering, past, present, and future mental pain and suffering, past, present, and future medical expenses, loss of past and future earnings, loss of future earning capacity, past and future loss of enjoyment of life, permanent disability of the body, loss of consortium, and attorney’s fees.” The plaintiff now asks the Court to remand the case to Civil District Court in Orleans Parish.

 

 

I.

A.

Although the plaintiff challenges removal in this case, the removing defendant carries the burden of showing the propriety of this Court’s removal jurisdiction. See Jernigan v. Ashland Oil, Inc., 989 F.2d 812, 815 (5th Cir.), cert. denied, 510 U.S. 868, 114 S. Ct. 192, 126 L.Ed.2d 150 (1993); Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir. 1988). “Because removal raises significant federalism concerns, the removal statute is strictly construed.” Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir. 2008). Further, “any doubt as to the propriety of removal should be resolved in favor of remand.” Id.

 

 

B.

A defendant may generally remove a civil action filed in state court if the federal court has original jurisdiction over the case — that is, if the plaintiff could have brought the action in federal court from the outset. See 28 U.S.C. § 1441(a). To exercise diversity jurisdiction, complete diversity must exist between the plaintiffs and all of the properly joined defendants, and the amount in controversy must exceed $75,000. See 28 U.S.C. § 1332(a)(1). The only dispute here is whether the amount-in-controversy requirement is met.

 

To determine whether it has jurisdiction, the Court must consider the allegations in the state court petition as they existed at the time of removal. See Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002)(citing Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995)). Louisiana law requires that a plaintiff include “no specific amount of damages” in her prayer for relief. La. Code Civ. Proc. art. 893.1

 

*2 When the plaintiff has, therefore, alleged an indeterminate amount of damages, the removing party must prove by a preponderance of the evidence that the amount in controversy exceeds $75,000. Simon v. Wal-Mart Stores, 193 F.3d 848, 850 (5th Cir. 1999); see also De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995). This showing may be made by either (1) showing that it is facially apparent that the plaintiff’s claims likely exceed $75,000 or (2) setting forth “summary judgment type evidence” of facts in controversy that support a finding of the jurisdictional amount. Manguno, 276 F.3d at 723; Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999). “[I]f it is facially apparent from the petition that the amount in controversy exceeds $75,000 at the time of removal, post-removal affidavits, stipulations, and amendments reducing the amount do not deprive the district court of jurisdiction.” Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000). If the removing defendant cannot show that the amount in controversy is facially apparent, it may be able to prove “by setting forth the facts in controversy – preferably in the removal petition, but sometimes by affidavit –that support a finding of the requisite amount.” Luckett, 171 F.3d at 298. If the petition is ambiguous as to whether the alleged damages surpass the jurisdictional amount in controversy, the Court may consider a post-removal affidavit that clarifies the original complaint. Asociación Nacional de Pescadores a Pequeña Escala o Artesanales de Colombia (ANPAC) v. Dow Química de Colombia, 988 F.2d 559, 565 (5th Cir. 1993), abrogated on other grounds by Marathon Oil Co. v. Ruhgras, 145 F.3d 211, 214 (5th Cir. 1998), rev’d on other grounds, 526 U.S. 574 (1999).

 

If the removing party satisfies its burden, the plaintiff can only defeat removal by showing that it is “legally certain that his recovery will not exceed the amount stated in the state complaint.” De Aguilar, 47 F.3d at 1412; see St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938) (“It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.”). Absent a statute that restricts recovery, “[l]itigants who want to prevent removal must file a binding stipulation or affidavit with their complaints; once a defendant has removed the case, St. Paul makes later filings irrelevant.” De Aguilar, 47 F.3d at 1412 (quoting In re Shell Oil Co., 970 F.2d 355, 356 (7th Cir. 1992) (per curiam)).

 

 

II.

In support of her contention that the amount-in-controversy requirement is not met, the plaintiff submits a Stipulation as to Damages in which she “stipulates that the amount in controversy does not exceed the sum of $75,000.00, exclusive of interest and costs.” The stipulation was filed along with the motion to remand on April 18, 2016. The defendants counter that, at the time of removal, it was facially apparent from the plaintiff’s petition that her claims, if proven at trial, would exceed $75,000 in value. Considering that the categories of damages alleged in her state court petition are substantial both in nature and quantity, the defendants submit that the plaintiff’s post-removal stipulation regarding the amount-in-controversy is nothing more than a calculated attempt to deprive the Court of its original jurisdiction. The Court agrees.

 

The Court finds that it is facially apparent from the plaintiff’s state court petition that she was seeking monetary damages in excess of $75,000 at the time the case was removed.1 She alleges that she suffered “severe and debilitating injuries” including “permanent disability,” and she seeks to recover for all sorts of past, present, and future categories of damages, including pain and suffering, and medical expenses; she also seeks to recover for lost earnings and lost earning capacity. Although generic, these are serious damage allegations that make it facially apparent that her claims exceed $75,000. Finally, the plaintiff has not shown “to a legal certainty” that her recovery will fall at $75,000 or below.2

 

*3 Accordingly, because more than $75,000 was in controversy at the time of removal, IT IS ORDERED that the motion to remand is hereby DENIED.3

 

All Citations

Slip Copy, 2016 WL 2347861

 

 

Footnotes

 

1

 

But, “if a specific amount of damages is necessary to establish … the lack of jurisdiction of federal courts due to insufficiency of damages[,]” then “a general allegation that the claim exceeds or is less than the requisite amount is required.” La. Code Civ. Proc. art. 893.

 

1

 

Notably, plaintiffs are required by the Louisiana Code of Civil Procedure to make a general allegation regarding the amount of damages when necessary to establish “the lack of jurisdiction of federal courts due to insufficiency of damages.” La. Code. Civ. Proc. Art. 893(A)(1). The plaintiff made no such allegation in her state court petition.

 

2

 

That the plaintiff has filed a stipulation regarding the amount-in-controversy does not change the outcome of her motion to remand. Not only is this stipulation insufficient in that it falls short of affirmatively waiving her right to collect damages greater than $75,000, the Court properly disregards such post-removal stipulations when it is facially apparent from the plaintiff’s petition that her claims exceed $75,000. See Gebbia, 233 F.3d at 883.

 

3

 

Quite obviously, if, as plaintiff infers, her case is worth less than $75,000, she will take some amount less in a possible settlement.

OOIDA RISK RETENTION GROUP, INC., Plaintiff, v. JEREMY GRIFFIN, LARRY L. LOVE AND JAMES STARKS D/B/A J STARKS ENTERPRISES

OOIDA RISK RETENTION GROUP, INC., Plaintiff, v. JEREMY GRIFFIN, LARRY L. LOVE AND JAMES STARKS D/B/A J STARKS ENTERPRISES, Defendants.

 

CIVIL NO. 2:15CV98

 

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA, NORFOLK DIVISION

 

2016 U.S. Dist. LEXIS 57469

 

 

April 29, 2016, Decided

 

 

COUNSEL:  [*1] For Ooida Risk Retention Group, Inc., Plaintiff: David Leslie Dayton, Randall Clair Lenhart, Jr., LEAD ATTORNEYS, Kalbaugh Pfund & Messersmith PC (Norfolk), Norfolk, VA USA; Jonathan Jay Kandel, Scott Wayne McMickle, PRO HAC VICE, McMickle, Kurey & Branch LLP, Alpharetta, GA USA.

 

For Jeremy Griffin, Defendant: Greg D. McCormack, LEAD ATTORNEY, Jarrett Lee McCormack, McCormack & McCormack, Virginia Beach, VA USA; Jeremiah Andrew Denton, IV, Jeremiah A. Denton III, P.C., Virginia Beach, VA USA.

 

JUDGES: ROBERT G. DOUMAR, UNITED STATES DISTRICT JUDGE.

 

OPINION BY: ROBERT G. DOUMAR

 

OPINION

 

ORDER

This matter comes before the Court on two separate motions filed by Plaintiff OOIDA Risk Retention Group, Inc. (“Plaintiff” or “OOIDA”) in connection with its request for a declaratory judgment that its commercial automotive policy does not cover a lawsuit arising as a result of injuries caused during a motor vehicle accident. OOIDA first moves the Court to enter summary judgment in its favor against defendant Jeremy Griffin (“Griffin”), the plaintiff in an underlying lawsuit who seeks recovery for injuries allegedly sustained during the accident. ECF No. 18. OOIDA contends it is entitled to summary judgment against Griffin because [*2]  the undisputed facts demonstrate it has no coverage obligation for the accident under the commercial automotive insurance policy it issued to James Starks d/b/a J Starks Enterprises (“Starks”) and no surety obligation under the “ENDORSEMENT FOR MOTOR CARRIER POLICIES OF INSURANCE FOR PUBLIC LIABILITY UNDER SECTIONS 29 AND 30 OF THE MOTOR CARRIER ACT OF 1980” (“MCS-90”) attached to the commercial automotive policy. Pl.’s Exhibit A, ECF No. 1-1, at 32-33. Second, OOIDA moves for entry of default judgment against remaining defendants Larry L. Love (“Love”) and Starks pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure. ECF No. 20. For the reasons set forth herein, OOIDA’s motions for summary judgment, ECF No. 18, and default judgment, ECF No. 20, are GRANTED.

 

  1. FACTUAL AND PROCEDURAL BACKGROUND

 

  1. THE PARTIES

OOIDA is an insurance company incorporated under the laws of Vermont and maintains a principal place of business in Missouri. Compl., ECF No. 1, at ¶ 1; Answer, ECF No. 9, at ¶ 1. Defendants Griffin, Love, and Starks are individuals residing in various cities located within the Commonwealth of Virginia. Compl., ECF No. 1, at ¶¶ 2-4; Answer, ECF No. 9, at ¶ 1. Additionally, James Starks d/b/a J Starks Enterprises is a sole proprietorship owned by James Starks. Id.

 

  1. THE POLICY

OOIDA issued a commercial automotive [*3]  policy with James Starks d/b/a/ J Starks Enterprises as the named insured that was effective from December 20, 2012 until December 20, 2013 (“the Policy”). Pl.’s Exhibit A, ECF No. 1-1, at 2; see also Compl., ECF No. 1, at ¶ 8; Answer, ECF No. 9, at ¶ 3. The Policy includes a “MOTOR CARRIER COVERAGE FORM” which describes the type of liability coverage provided, along with various terms, exclusions, limitations and conditions. Pl.’s Exhibit A, ECF No. 1-1, at 34-52. This form also provides definitions of “Covered Auto Designation Symbol[s]” used in the Policy to identify covered automobiles. Id. Section II of the Motor Carrier Coverage Form provides, in relevant part, that OOIDA:

 

[W]ill 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”.

[W]ill have the right and duty to defend any “insured” against a “suit” asking for such damages or a “covered pollution cost or expense”. However, [OOIDA] ha[s] no duty to defend any “insured” against a “suit” seeking damages for “bodily injury” or “property damage” or a “covered pollution cost or [*4]  expense” to which this insurance does not apply. [OOIDA] may investigate and settle any claim or “suit” as [it] consider[s] appropriate. [OOIDA’s] duty to defend or settle ends when the Liability Coverage Limit of Insurance has been exhausted by payment of judgments or settlements.

 

 

Id. at 36. The primary question in this case is whether the vehicles involved in the accident were “covered ‘autos'” under this provision of the Policy. The “covered ‘autos'” identified in this section are defined in Section I of the Motor Carrier Coverage Form based upon the corresponding “Covered Auto Designation Symbol” used in the Policy’s Motor Carrier Coverage Form Declarations. Id. at 34 (“The [covered auto designation] symbols entered next to a coverage on the Declarations designate the only “autos” that are covered “autos”.). For liability coverage, the Policy’s Motor Carrier Coverage Form Declarations identifies symbol “67” for “covered autos.” Id. at 6. In turn, Section I of the Motor Carrier Coverage Form describes symbol 67 as “Specifically Described ‘Autos,'” which are further defined as “[o]nly those ‘autos’ described in the Item Three of the Declarations for which a premium cha[r]ge is shown (and for Liability Coverage any “trailers” you do [*5]  not own while attached to any power unit described in the Item Three).” Id. at 34. Item Three — Schedule of Covered Autos You Own, found in the Motor Carrier Coverage Form Declarations, refers to “FORM # RPL 11 01 12 95” for a description of covered autos. Id. at 6. Form RPL 11 01 12 95, titled Schedule of Covered Autos You Own, lists two vehicles as covered autos: (1) a 1998 Freightline/Conv Tractor, Serial No. W1827025; and (2) a 2006 Vangard/Van Trailer, Serial No. 6M602646. Id. at 75.

In addition to the liability coverage provided in the Policy’s Motor Carrier Coverage Form and Declarations, the Policy includes liability coverage pursuant to an attached MCS-90 endorsement, which in relevant part states that:

 

The insurance policy to which this endorsement is attached provides automobile liability insurance and is amended to assure compliance by the Insured, within the limits stated herein, as a motor carrier of property, with Sections 29 and 30 of the Motor Carrier Act of 1980 and the rules and regulations of the Federal Motor Carrier Safety Administration (FMCSA).

In consideration of the premium stated in the policy to which this endorsement is attached, the insurer (the company) agrees to pay, within the limits of liability [*6]  described herein, any final judgment recovered against the insured for public liability resulting from negligence in the operation, maintenance or use of motor vehicles subject to the financial responsibility requirements of Section 29 and 30 of the Motor Carrier Act of 1980 regardless of whether or not each motor vehicle is specifically described in the policy and whether or not such negligence occurs on any route or in any territory authorized to be served by the Insured or elsewhere . . . . It is understood and agreed that no condition, provision, stipulation, or limitation contained in the policy, this endorsement, or any other endorsement thereon, or violation thereof, shall relieve the company from liability or from the payment of any final judgment within the limits of liability herein described, irrespective of the financial condition, insolvency or bankruptcy of the insured . . . .

 

 

Pl.’s Exhibit A, ECF No. 1-1, at 32.

 

  1. THE ACCIDENT

On the night of January 14, 2013, Larry L. Love was involved in an accident with Griffin on Route 460 in or near the town of Windsor, located in Isle of Wight County, Virginia. See Compl., ECF No. 1, at ¶ 15; Answer, ECF No. 9, at ¶ 6; Pl.’s Mem. in Supp. Mot. [*7]  Summ. J., Ex. A, ECF No. 19, at ¶ 2; Compl. Ex. B, ECF No. 1-2, at ¶ 1. The parties agree that at the time of the accident Griffin was riding a bicycle and Love was driving a 1998 Volvo truck-tractor that he owned bearing a VIN ending in 746513, which is not listed as a covered auto in the Policy. See Compl., ECF No. 1, at ¶ 15; Answer, ECF No. 9, at ¶ 6; Def.’s Mem. in Opp’n, ECF No. 21, at 2. At the time of the accident, the parties agree a trailer was attached to Love’s Volvo truck-tractor. Pl.’s Mem. in Supp. Mot. Summ. J., ECF No. 19, at ¶ 14; Def.’s Mem. in Opp’n, ECF No. 21, at 3.

As a result of the accident, Griffin filed suit against Love and Starks in the Circuit Court for the County of Isle of Wight, Virginia on January 13, 2015. See Compl., Ex. B, ECF No. 1-2. In the underlying suit, Griffin alleges that Love operated his vehicle negligently and, as a direct and proximate result of his negligence, caused Griffin serious and permanent injuries. Id. at 4. In addition, Griffin alleges in the underlying suit that Love was operating his vehicle as an employee or agent of J Starks Enterprises and therefore Starks is vicariously liable for Love’s alleged negligence. Id.

Love states, through [*8]  a declaration submitted by OOIDA, that he was not transporting goods or property for compensation at the time of the accident and that the trailer attached to the Volvo truck-tractor “was either a Wabash or a Great Dane” trailer, neither of which was insured by OOIDA. Pl.’s Mem. in Supp. Mot. Summ. J., Ex. A, ECF No. 19-1, at ¶ 4. Love also indicates that, at the time of the accident, he was not traveling, nor had any intention of traveling, across any state lines. Id. at ¶¶ 5-6. OOIDA contends these facts are the only facts supported by evidence and are therefore undisputed. In his memorandum in opposition to OOIDA’s Motion for Summary Judgment, however, Griffin contends inferences may be drawn that: (1) that the trailer attached to Love’s Volvo truck-tractor may have been the 2006 Vangard/Van trailer listed in the Policy; (2) that the attached trailer may not have been empty; (3) that Love may have been hired by J Starks Enterprises to transport goods or property; and (4) that Love may have intended to cross state lines. Def.’s Mem. in Opp’n, ECF No. 21, at 3, 5-6. These contentions are pure supposition. To support these inferences, Griffin relies exclusively on unsupported arguments [*9]  in his opposition memorandum and an unauthenticated and potentially inadmissible police crash report submitted with his opposition memorandum, which identifies J Starks Enterprises under the Commercial Motor Carrier Name, includes Starks’ United States Department of Transportation (“USDOT”) number, and indicates Love was driving westbound on Route 460. Id.; see also Def.’s Mem. In Opp’n Ex. A, ECF No. 21-1.

As discussed in greater detail infra, even if crash report is admissible, the facts related in the police crash report do not provide a reasonable basis for the inferences asserted by Griffin. Although the Court must draw any permissible inference from the underlying facts in a light most favorable to Griffin, the suggested inferences are too tenuous and speculative to be within the range of reasonable possibility, particularly in light of competing facts and inferences to the contrary as contained in Love’s declaration. As a result, Griffin has not satisfied his burden of presenting specific facts or permissible inferences that show a genuine dispute as to the facts governing this matter.

 

  1. PROCEDURAL HISTORY

On March 6, 2015, OOIDA filed a Complaint seeking declaratory judgment [*10]  that it has no duty to indemnify or defend the Defendants and no surety obligation under the attached MCS-90 endorsement. ECF No. 1. On May 18, 2015, Griffin filed his Answer. ECF No. 9. Both Love and Starks failed to make any appearance and, as a result, OOIDA moved for entry of default as to Love and Starks on July 6, 2015. On July 7, 2015, the Clerk of the Court entered default against Love and Starks pursuant to Rule 55(a) of the Federal Rules of Civil Procedure. ECF No. 15.

On April 1, 2016, OOIDA moved for summary judgment against Griffin. ECF Nos. 18, 19. Shortly thereafter, on April 13, 2016, OODIA moved for entry of default judgment against Love and Starks. ECF No. 20. Griffin responded to OOIDA’s motion for summary judgment on April 15, 2016, ECF No. 21, to which OOIDA replied on April 21, 2016, ECF No. 22. To date, Love and Starks have not filed any appearances or pleadings. The Court dispenses with oral argument because the facts and legal contentions are adequately presented in the materials before this Court and argument would not aid the decisional process.

 

  1. LEGAL ANDARDS

 

  1. SUMMARY JUDGMENT

OOIDA moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. A party is entitled to summary judgment if “there is no genuine dispute as to any [*11]  material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); see also Kelley v. United Parcel Service, Inc., 528 Fed. Appx. 285, 2013 WL 2480211, at *1 (4th Cir. 2013). The moving party has the initial burden of showing that no genuine dispute of material facts exists; however, “[o]nce a [moving party] makes a properly supported motion for summary judgment, the burden shifts to the [nonmoving party] to set forth specific facts showing that there is a genuine issue for trial.” Sylvia Development Corp. v. Calvert County, Md., 48 F.3d 810, 817 (4th Cir. 1995).

When reviewing a motion for summary judgment, the Court must “draw any permissible inference from the underlying facts in the light most favorable to the party opposing the motion.” Tuck v. Henkel Corp., 973 F.2d 371, 374 (4th Cir.1992), cert. denied, 507 U.S. 918, 113 S. Ct. 1276, 122 L. Ed. 2d 671 (1993); see also EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405 (4th Cir. 2005). However, “only ‘reasonable’ inferences from the evidence need be considered by the court.” Sylvia Development Corp., 48 F.3d at 818. The Court of Appeals for the Fourth Circuit has further elaborated on this principle, indicating that “[p]ermissible inferences must still be within the range of reasonable possibility . . . and it is the duty of the court to withdraw the case from the jury when the necessary inference is so tenuous that it rests merely upon speculation and conjecture.” Id. (quoting Ford Motor Co. v. McDavid, 259 F.2d 261, 266 (4th Cir. 1958) cert denied [*12] , 358 U.S. 908, 79 S. Ct. 234, 3 L. Ed. 2d 229 (1958)). “Whether an inference is reasonable cannot be decided in a vacuum; it must be considered ‘in light of the competing inferences’ to the contrary.” Id. (citing Matsushita Elect. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)).

Thus, “[c]onclusory or speculative allegations do not suffice, nor does a mere scintilla of evidence in support of [the nonmoving party’s] case,” to defeat an otherwise properly supported motion for summary judgment. Kelley, 528 Fed. Appx. 285, 2013 WL 2480211, at *1 (quoting Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002)). “Accordingly, to deny a motion for summary judgment, ‘[t]he disputed facts must be material to an issue necessary for the proper resolution of the case, and the quality and quantity of the evidence offered to create a question of fact must be adequate to support a jury verdict.'” Standard Fire Ins. Co. v. Armstrong, 2013 U.S. Dist. LEXIS 65784, 2013 WL 1933828, at *2 (E.D. Va. May 8, 2013) (quoting Thompson v. Everett, Inc. v. Nat’l Cable Adver., LP, 57 F.3d 1317, 1323 (4th Cir. 1995)).

 

  1. DEFAULT JUDGMENT

Rule 55 of the Federal Rules of Civil Procedure authorizes the entry of default when a “party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend.” After entry of the default, and upon application by the non-defaulting party, a default judgment may be entered. See Fed. R. Civ. P. 55(b). Where the claim is not for a sum certain, the plaintiff must apply to the Court for entry of a default judgment. Id.; see also EMI Apr. Music, Inc. v. White, 618 F. Supp. 2d 497, 505 (E.D. Va. 2009). “Although the clear policy of the [Federal] Rules [of Civil Procedure] is to encourage dispositions of claims [*13]  on their merits . . . trial judges are vested with discretion, which must be liberally exercised, in entering such judgments and in providing relief therefrom.” United States v. Moradi, 673 F.2d 725, 727 (4th Cir. 1982). The Court must “exercise sound judicial discretion in determining whether the judgment should be entered, and the moving party is not entitled to default judgment as a matter of right.” EMI Apr. Music, Inc., 816 F. Supp. 2d at 505. In exercising its discretion, the Court may consider factors from the record. Id.

 

III. ANALYSIS

 

  1. DUTY TO DEFEND AND INDEMNIFY

As a threshold matter, the Court must determine the jurisdiction whose law governs OOIDA’s duty to defend and indemnify under the Policy. Courts sitting in diversity must apply the forum state’s substantive law. Salve Regina Coll. v. Russell, 499 U.S. 225, 226, 111 S. Ct. 1217, 113 L. Ed. 2d 190 (1991) (citing Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 82 L. Ed. 1188 (1938)). In addition, a federal court hearing a state law claim must apply state law in accordance with the forum state’s choice of law rules. See In re Merritt Dredging Co., Inc., 839 F.2d 203, 205 (4th Cir. 1988) (citing Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941)).

Virginia law provides that “generally, the law of the place where an insurance contract is written and delivered controls issues as to its coverage.” Buchanan v. Doe, 246 Va. 67, 70-71, 431 S.E.2d 289, 9 Va. Law Rep. 1446 (1993) (citing Lackey v. Virginia Sur. Co., 209 Va. 713, 715, 167 S.E.2d 131 (1969)); see also Seabulk Offshore, Ltd. V. American Home Assur. Co., 377 F.3d 408, 418-19 (4th Cir. 2004). It is undisputed that the Policy at issue in this case was delivered to Starks in the Commonwealth of Virginia and thus Virginia law governs OOIDA’s duties to defend and indemnify under [*14]  the Policy. Pl.’s Mem. in Supp. Mot. Summ. J., ECF No. 19, at 6-7; Def.’s Mem. in Opp’n, ECF No. 21, at 3.

Under Virginia law, “an insurance policy is a contract to be construed in accordance with the principles applicable to all contracts.” Seabulk Offshore, Ltd., 377 F.3d at 418-19 (citing Graphic Arts Mut. Ins. Co. v. C.W. Warthen Co., 240 Va. 457, 397 S.E.2d 876, 7 Va. Law Rep. 895 (Va. 1990)). It is well established under Virginia law that “when the language in an insurance policy is clear and unambiguous, courts do not employ rules of construction; rather, they give the language its plain and ordinary meaning and enforce the policy as written.” Day v. Mount Vernon Fire Ins. Co., 2013 U.S. Dist. LEXIS 11171, 2013 WL 314827, at *4-5 (E.D. Va. Jan. 23, 2013) (quoting P’ship Umbrella, Inc. v. Fed. Ins. Co., 260 Va. 123, 530 S.E.2d 154 (Va. 2000)); see also Seabulk Offshore, 377 F.3d at 418-19. In contrast, when language in the insurance policy is “ambiguous and the intentions of the parties cannot be ascertained, the policy must be construed strictly against the insurer and liberally in favor of the insured.” Seabulk Offshore, 377 F.3d at 418-19. Such ambiguity may exist when “the contract’s language is of doubtful import, is susceptible of being . . . understood in more than one way or of having more than one meaning, or refers to two or more things at the same time.” Mount Vernon Fire Ins., 2013 U.S. Dist. LEXIS 11171, 2013 WL 314827 at *4 (quoting Pocahontas Mining LLC v. CNX Gas Co., LLC, 276 Va. 346, 666 S.E.2d 527 (Va. 2008)).

A “party seeking coverage bears the ultimate burden of proving by a preponderance of the evidence that it is entitled to coverage.” Bohreer v. Erie Ins. Grp., 475 F. Supp. 2d 578, 585 (E.D. Va. 2007). In contrast, “the insurer bears the burden of proving that an exclusion applies.” [*15]  Id. Exclusion clauses “will be construed most strongly against the insurer.” Mount Vernon Fire Ins., 2013 U.S. Dist. LEXIS 11171, 2013 WL 314827 at *4-5 (quoting Johnson v. Ins., Co. of N. Am., 232 Va. 340, 350 S.E.2d 616, 619, 3 Va. Law Rep. 1311 (Va. 1986)). The exclusion clause “must clearly and unambiguously bring the particular act or omission within its scope” in order to be effective. Id. (quoting Floyd v. N. Neck Ins. Co., 245 Va. 153, 427 S.E.2d 193, 196, 9 Va. Law Rep. 917 (Va. 1993)).

Although the insured bears the burden of proof, the burden is not especially onerous as an insurer’s duty to defend “arises whenever the Complaint against the insured alleges facts and circumstances, some of which, if proved, would fall within the risk covered by the policy.” Brenner v. Lawyers Title Ins. Corp., 240 Va. 185, 397 S.E.2d 100, 102 (1990); see also Parker v. Hartford Fire Ins. Co., 222 Va. 33, 278 S.E.2d 803, 804 (1981). In contrast, “there is no duty to defend ‘if it appears clearly that the insurer would not be liable under its contract for any judgment based upon the allegations.'” Sentry Select Ins. Co. v. Acuna, 2011 U.S. Dist. LEXIS 131940, 2011 WL 5593159, at *4 (E.D. Va. Nov. 15, 2011) (quoting Brenner, 240 Va. at 189)); see also Allstate Ins. Co. v. J.A.D. Coal Co., 2006 U.S. Dist. LEXIS 57871, 2006 WL 2381880, at *3 (W.D. Va. Aug. 16, 2006), aff’d, 237 F. App’x 797 (4th Cir. 2007). In order to make such a determination, a court must “follow the ‘Eight Corners’ Rule and look at the four corners of the underlying complaint and the four corners of the underlying insurance polic[y].” Travelers Indem. Co. of Am. V. Portal Healthcare Sols., LLC, 35 F. Supp. 3d 765, 769 (E.D. Va. 2014); see also Fuisz v. Selective Ins. Co., 61 F.3d 238, 242 (4th Cir. 1995) (“Determination of whether an insurer has a duty to defend requires examination of (1) the policy language to ascertain the terms of the coverage and (2) the underlying complaint to determine whether any claims alleged therein are covered by the policy.”). If “the underlying [*16]  complaint alleges liability that ‘potentially or arguably’ is covered by the policy,” then the insurer has a duty to defend. Sentry Select, 2011 U.S. Dist. LEXIS 131940, 2011 WL 5593159 at *4 (quoting Donnelly v. Transp. Ins. Co., 589 F.2d 761, 767 (4th Cir. 1978)). However, “where it appears that the insurer would not be liable under the policy for any judgment based on the allegations in the underlying complaint, it has no duty even to defend.” Bohreer, 475 F. Supp. 2d at 584 (internal quotations omitted) (quoting Morrow Corp. v. Harleysville Mut. Ins. Co., 101 F. Supp. 2d 422, 426-27 (E.D. Va. 2000)).

Finally, under Virginia law, the “insurer’s duty to defend ‘is broader than its obligation to pay’ or indemnify an insured.” Travelers Indem. Co. of Am., 35 F. Supp. 3d 765, 769 (E.D. Va. 2014) (quoting Brenner v. Lawyers Title Ins. Corp., 240 Va. 185, 397 S.E.2d 100, 102 (1990)). As a result, “if there is no duty to defend . . . there can be no duty to indemnify.” Morrow Corp., 101 F. Supp. 2d at 426-27.

The relevant provisions of the Policy are clear and unambiguous and the Court gives the language its clear and ordinary meaning. Pursuant to “Section II – Liability Coverage” of the Motor Carrier Coverage Form, OOIDA:

 

[W]ill 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.”

[W]ill have the right and duty to defend any “insured” against a “suit” asking for such damages or a “covered pollution cost or expense”. However, [OOIDA] ha[s] no duty to defend [*17]  any “insured” against a “suit” seeking damages for “bodily injury” or “property damage” or a “covered pollution cost or expense” to which this insurance does not apply. [OOIDA] may investigate and settle any claim or “suit” as [it] consider[s] appropriate. [OOIDA’s] duty to defend or settle ends when the Liability Coverage Limit of Insurance has been exhausted by payment of judgments or settlements.

 

 

Pl.’s Exhibit A, ECF No. 1-1, at 36. While a number of factors must be met to trigger OOIDA’s duties to defend and indemnify under the Policy, it is clear from the Policy that the damage must be from the result of ownership, maintenance or use of a covered auto. Id. As detailed previously in this Order, and as undisputed by the parties, the Policy identifies the following vehicles as covered autos: (1) a 1998 Freightline/Conv Tractor — Serial No. W1827025; and (2) a 2006 Vangard/Van Trailer — Serial No. 6M602646. Id. at 34, 75. In addition, the Policy provides coverage for “any ‘trailers’ you do not own while attached to any power unit described in Item Three.” Id. at 6, 34. As previously described herein, Item Three refers to the vehicles listed in Form # RPL 11 01 12 95, which only includes the aforementioned 1998 Freightline/Conv [*18]  Tractor and 2006 Vangard/Van Trailer. Id. at 6, 75.

As a result, the Court must determine if the underlying complaint filed by Griffin in the Circuit Court for Isle of Wight County, Virginia alleges facts or claims that are arguably covered by the Policy. In particular, the parties dispute whether a “covered ‘auto'” was involved in the accident. Therefore, the Court must determine if the underlying complaint alleges that the accident or damages therefrom resulted from the ownership, maintenance or use of either of the vehicles identified as “covered ‘autos'” in the Policy.

Throughout the underlying complaint Griffin alleges that at the time of the accident, Love was driving a truck/tractor-trailer and hauling a trailer. See generally Compl. Ex. B, ECF No. 1-2. The complaint further alleges that the truck/tractor-trailer had the USDOT Carrier ID number 02200789, which was registered to J Starks Enterprises. Id. In addition, the complaint alleges that Love owned or operated the truck/tractor-trailer as an employee or agent, and with the authority and permission, of J Starks Enterprises. Id. These alleged facts constitute the extent to which the underlying complaint identifies the truck/tractor-trailer and trailer involved [*19]  in the accident. In their entirety, these alleged facts, even if proven, fail to allege facts that either the 1998 Freightline/Conv Tractor or the 2006 Vangard/Van Trailer, as covered by the Policy, were involved in the accident. In particular, the underlying complaint does not allege any facts regarding the make, type, or identifying features of the truck/tractor-trailer and trailer involved in the accident. In addition, there are no facts alleged regarding whether the vehicles involved in the accident were insured by OOIDA or another insurer. As such, if every fact alleged in the underlying complaint was ultimately proved true, the underlying complaint would still lack a factual basis for finding that at least one of the vehicles involved in the accident was a vehicle identified as a covered auto under the Policy. Therefore, the underlying complaint does not allege facts or claims that, if proven, would fall within the risk covered by the Policy since there is no allegation that either the tractor or trailer covered under the Policy was involved in the accident.

Therefore, insofar as the Policy itself is concerned, without regard to the MCS-90 endorsement, there is no duty on OOIDA [*20]  Risk Retention Group, Inc. to defend the underlying suit filed by Jeremy Griffin as a result of the accident. “Although an insurer’s duty to indemnify will depend on resolution of facts alleged in the complaint, no such factfinding is necessary if there is no duty to defend because the allegations, even when taken as proved, would fall outside the policy’s coverage.” Sentry Select Ins. Co. v. Acuna, et al., 2011 U.S. Dist. LEXIS 131940, 2011 WL 5593159 (E.D. Va. Nov. 15, 2011) (emphasis in original). Because the duty to defend is broader than a duty to indemnify under Virginia law, there can be no duty to indemnify where there is no duty to defend. See Morrow Corp., 101 F. Supp. 2d at 426-27. Accordingly, in relation to any duty to defend or to indemnify under the Policy, but without regard to the MCS-90 endorsement, summary judgment is GRANTED to OOIDA Risk Retention Group, Inc.

As the Policy itself provides no coverage for the underlying lawsuit, the Court must now determine whether the attached MCS-90 endorsement applies. See T.H.E. Ins. Co. v. Larsen Intermodal Servs., Inc., 242 F.3d 667, 672 (5th Cir. 2001).

 

  1. THE MCS-90 ENDORSEMENT

Again, as a threshold matter, the Court must determine the law which governs the construction and application of the MCS-90 endorsement attached to the Policy. As at least one other court in this jurisdiction has noted, this “threshold question is particularly important here because [*21]  the Supreme Court of Virginia has adopted an interpretation of the MCS-90 endorsement that conflicts with the interpretation adopted by other federal district courts in this circuit and with the majority of federal circuits courts that have considered the issue.” American Alternative Ins. Co. v. Sentry Select Ins. Co., 176 F. Supp. 2d 550, 553 (E.D. Va. 2001). Here, OOIDA contends federal law governs construction of the MCS-90, while Griffin urges the Court to apply Virginia law as set forth by the Virginia Supreme Court in Heron v. Transportation Casualty Insurance Co., 274 Va. 534, 650 S.E.2d 699 (Va. 2007). Although a court sitting in diversity hearing insurance coverage disputes must typically apply state law, “federal law must govern where, as here, the dispute concerns the interpretation of a policy endorsement that is required by federal law and whose language is prescribed by federal regulation.” Id. at 554 (citing Harter v. Vernon, 101 F.3d 334, 342 (4th Cir. 1996) (“Our holdings on questions of state law do not bind state courts, nor do state court determinations on questions of federal law control us.”)). The Fourth Circuit has since directly addressed this issue, holding that “[t]he operation and effect of the MCS-90 endorsement is a matter of federal law.” Canal Ins. Co. v. Distribution Services, Inc., 320 F.3d 488, 492 (4th Cir. 2003). Accordingly, this Court applies federal law in determining the construction and applicability of the MCS-90 endorsement to the instant action.

Under federal law, [*22]  in order to determine the scope of the MCS-90’s coverage, the Court must first look to the plain meaning of the endorsement’s terms. The language of the MCS-90 is contained in a federal regulation adopted pursuant to statutory authority granted by Congress in the Motor Carrier Act of 1980 (“MCA”). The MCA imposes a liability insurance requirement upon motor carriers registered to engage in interstate commerce and the Secretary of Transportation is provided the authority to “prescribe the appropriate form of endorsement to be appended to policies of insurance and surety bonds which will subject the insurance policy or surety bond to the full security limits of the” required coverage. 49 U.S.C. § 13906(f); see also Distribution Services, Inc., 320 F.3d at 489. “Pursuant to this regulatory authority, the Secretary of Transportation issued a regulation mandating that every liability insurance policy covering a ‘motor vehicle’ contain an MCS-90 endorsement.” Distribution Services, Inc., 320 F.3d at 489 (citing 49 C.F.R. §§ 387.7(a); 387.9; and 387.15). The MCS-90 endorsement attached to the Policy and as set forth in the regulations provides, in relevant part:

 

In consideration of the premium stated in the policy to which this endorsement is attached, the insurer (the company) agrees to pay, within the limits of liability [*23]  described herein, any final judgment recovered against the insured for public liability resulting from negligence in the operation, maintenance or use of motor vehicles subject to the financial responsibility requirements of Sections 29 and 30 of the Motor Carrier Act of 1980 regardless of whether or not each motor vehicle is specifically described in the policy and whether or not such negligence occurs on any route or in any territory authorized to be served by the insured or elsewhere. Such insurance as is afforded, for public liability, does not apply to injury to or death of the insured’s employees while engaged in the course of their employment, or property transported by the insured, designated as cargo. It is understood and agreed that no condition, provision, stipulation, or limitation contained in the policy, this endorsement, or any other endorsement thereon, or violation thereof, shall relieve the company from liability or from the payment of any final judgment, within the limits of liability herein described, irrespective of the financial condition, insolvency or bankruptcy of the insured. However, all terms, conditions, and limitations in the policy to which the endorsement is attached [*24]  shall remain in full force and effect as binding between the insured and the company. The insured agrees to reimburse the company for any payment made by the company on account of any accident, claim, or suit involving a breach of the terms of the policy, and for any payment that the company would not have been obligated to make under the provisions of the policy except for the agreement contained in this endorsement.

 

 

49 C.F.R. § 387.15, at Illustration I (emphasis added); Pl.’s Exhibit A, ECF No. 1-1, at 32.

In short, the MCS-90 requires OOIDA to pay any final judgment for “public liability” resulting from the negligent use of “motor vehicles subject to the financial responsibility requirements of Sections 29 and 30 of the Motor Carrier Act” and the “insured agrees to reimburse the company on account of any accident, claim, or suit involving a breach of the terms of the policy, and for any payment that the company would not have been obligated to make under the provisions of the policy except for the agreement contained in this endorsement.” 49 C.F.R . § 387.15, at Illustration I. In determining which vehicles are subject to the financial requirements under the MCA, Section 30 of the MCA, codified as amended at 49 U.S.C. §31139(b), provides:

 

The Secretary of Transportation [*25]  shall prescribe regulations to require minimum levels of financial responsibility sufficient to satisfy liability amounts established by the Secretary covering public liability, property damage, and environmental restoration for the transportation of property by motor carrier or motor private carrier (as such terms are defined in section 13102 of this title) in the United States between a place in a State and–

 

(A) a place in another State;

(B) another place in the same State through a place outside of that State; or

(C) a place outside the United States.

 

 

 

 

(emphasis added). “Motor carrier” is defined as “a person providing motor vehicle transportation for compensation,” while a “motor private carrier” is defined as “a person, other than a motor carrier, transporting property by motor vehicle when–(A) the transportation is as provided in section 13501 of this title; (B) the person is the owner, lessee, or bailee of the property being transported; and (C) the property is being transported for sale, lease, rent, or bailment or to further a commercial enterprise.” 49 U.S.C. § 13102(14)-(15). The federal regulations promulgated pursuant to the MCA further define “motor carrier” as a “for-hire motor carrier or a private motor carrier.” 49 C.F.R. § 387.5. Relatedly, [*26]  “for-hire carriage” is defined as “the business of transporting, for compensation, the goods or property of another.” Id. Finally, these regulations “establish that the minimum financial responsibility requirements of the MCA apply to ‘for-hire motor carriers operating motor vehicles transporting property in interstate or foreign commerce’ and for-hire motor carriers transporting hazardous materials.” Herrod v. Wilshire Ins. Co., 499 F. App’x 753, 759-60 (10th Cir. 2012) (unpublished) (quoting 49 C.F.R. § 387.3(a), (b)).

Having briefly established the relevant statutory and regulatory background of the MCA and MCS-90 endorsement, it remains for the Court to determine whether the MCS-90 applies to the instant action. The Court’s research and the parties’ briefs failed to uncover any Fourth Circuit precedent that would clearly resolve the issues before this Court. However, an apparent minority of circuit courts have addressed relevant issues in determining when coverage is provided by MCS-90 endorsements. Notably, the United States Court of Appeals for the Fifth Circuit found that “after reading the plain text of the MCS-90 and § 30 [of the MCA], we conclude that the endorsement covers vehicles only when they are presently engaged in the transportation of property in interstate commerce.” [*27]  Canal Ins. Co. v. Coleman, 625 F.3d 244, 249 (5th Cir. 2010). In addition to the requirement of present transportation of property in interstate or foreign commerce, circuit courts have found that MCS-90 endorsements “apply only to for-hire motor carriers.” Herrod, 499 F. App’x at 759-60; see also Nat’l Specialty Ins. Co. v. Martin-Vegue, 2016 U.S. App. LEXIS 3317, 2016 WL 737780, at *6 (11th Cir. Feb. 25, 2016) (noting that “to decide if . . . [the] MCS-90 endorsement could possibly apply here, the relevant question is whether [the party] was the for-hire carrier . . . at the time of the accident.”). At least one district court in this circuit agrees, observing that the MCS-90 “applies to ‘for-hire motor carriers operating motor vehicles transporting property in interstate or foreign commerce.'” Brunson ex rel. Brunson v. Canal Ins. Co., 602 F. Supp. 2d 711, 718 (D.S.C. 2007) (quoting 49 C.F.R. § 387.3). The plain text of the MCS-90 and the relevant statutory and regulatory provisions compel this Court employ the standards set forth on the face of the relevant statutes and regulations and as further interpreted by these cases.

Within this contextual framework, OOIDA argues the MCS-90 endorsement attached to the Policy does not apply in the instant action because the undisputed facts show that Love, at the time of the accident, was: (1) not operating as a “for-hire” motor carrier; (2) not transporting property; and (3) not engaged in interstate or foreign commerce. In contrast, Griffin [*28]  contends the facts supporting OODIA’s assertions are in dispute because inferences may be drawn that Love was transporting property for compensation with the intent to cross state lines.

The first issued to be resolved is whether the undisputed facts show whether Love was or was not operating as a “for-hire” motor carrier at the time of the accident. As previously established, 49 C.F.R. § 387.3 indicates the MCA and its regulations apply to “for-hire motor carriers operating vehicles transporting property in interstate or foreign commerce” and to “motor carries operating motor vehicles transporting hazardous materials . . . in interstate, foreign, or intrastate commerce.” In the present action, there are no allegations made nor evidence presented that Love was transporting any hazardous materials or substances at the time of the accident. Therefore, to meet its initial burden of showing that no genuine dispute of material facts exists as to whether Love was a “for-hire” motor carrier, OOIDA presents the Declaration of Larry Love. Pl.’s Mem. in Supp. Mot. Summ. J., Ex. A, ECF No. 19. In his declaration, Love, pursuant to 28 U.S.C. § 1746, declared under penalty of perjury that “[a]t the time of the Accident, [he] was not [*29]  transporting any goods or property for compensation.” Id. at ¶ 5 (emphasis added). Griffin attempts to set forth facts showing a genuine issue for trial by: (1) arguing that Love is a biased witness and therefore should be cross-examined at trial; and (2) requesting the Court to infer that Love was acting as a “for-hire” motor carrier because an unauthenticated and unsworn police crash report identifies J Starks Enterprises as the Commercial Motor Carrier Name and includes Starks’ USDOT number.1 Based on these two facts alone, Griffin urges the Court to infer that Love was employed by Starks and was therefore “hauling ‘for-hire’ goods for Starks. Def.’s Mem. in Opp’n, ECF No. 21, at 5.

 

1   Under Virginia law, the police crash report may potentially be inadmissible as evidence. See Va. Code Ann. § 46.2-378. However, the Federal Rules of Evidence govern the admissibility of the crash report. Accordingly, OOIDA contends the police crash report may be “inadmissible for multiple reasons,” including lack of authentication as required by Rules 901 through 903 of the Federal Rules of Evidence. The Court does not reach an ultimate determination on the admissibility of the police crash report and instead, assumes arguendo, that the report is admissible.

The Court finds both of [*30]  Griffin’s arguments unavailing and insufficient to satisfy his burden of presenting specific facts or permissible inferences that show a genuine issue for trial in light of OOIDA’s properly supported motion for summary judgment.

First, Love’s declaration was properly executed pursuant to 28 U.S.C. § 1746 and claims that a witness may be biased or disbelieved at trial are generally insufficient to raise a genuine issue of fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Pelphrey v. United States, 674 F.2d 243, 247-48 (4th Cir. 1982) (finding that in light of factual and legal distinctions similar to the present case, precedent in Sartor v. Arkansas Natural Gas Corp, 321 U.S. 620, 64 S. Ct. 724, 88 L. Ed. 967 (1944), was not controlling and instead “the general principle that in order to overcome a motion for summary judgment supported by proper affidavits, the nonmoving party must submit affidavits or other material setting forth specific facts to show that there is a genuine issue for trial.”); Stallard v. Bank of Am., N.A., 2015 U.S. Dist. LEXIS 127182, 2015 WL 5579904, at *4 (E.D. Va. Sept. 22, 2015) (finding declarations submitted by defendants were “appropriate evidence on which to base a summary judgment decision” because: (1) the declarant did not offer opinion testimony; (2) the opposing party did not provide specific evidence undermining the declarant’s credibility; and (3) the opposing party did not show the declarant lacked personal knowledge.). Similar to the opposing party in [*31]  Stallard, Griffin has not provided a single fact or inference undermining Love’s credibility or his personal knowledge of the events of the accident.2 Instead, Griffin asserts a need to cross-examine Love at trial to determine the veracity of his declaration; however, Griffin did not endeavor to depose Love despite the adequate time afforded for discovery and depositions.

 

2   Although Griffin claims Love is a biased witness, Love’s declaration, made under penalty of perjury, may be adverse to at least some of his interests as a he is a named defendant in the underlying lawsuit and would normally desire coverage for his alleged negligence.

Second, assuming arguendo the police crash report is admissible evidence, the inference requested by Griffin falls outside the range of reasonable possibility. Although the Court must draw any permissible inference from the underlying facts in a light most favorable to Griffin, the suggested inferences arising from the police report are tenuous and speculative. The inference must be considered in light of competing inferences to the contrary, namely Love’s declaration, and the police accident report provides no viable evidentiary support for concluding or [*32]  inferring that Love was being compensated at the time of the accident. Therefore, the Court finds Love’s declaration appropriate evidence on which to base a summary judgment decision and Griffin’s inferences as insufficient to present a genuine issue of material fact. Accordingly, after examining the facts before the Court and taking permissible inferences in the light most favorable to Griffin, the Court finds there is no dispute of material fact that Love was not acting as a “for-hire” motor carrier at the time of the accident.

The second issue to be resolved is whether Love was transporting property at the time of the accident. See Coleman, 625 F.3d at 249, 252 (“In sum, the weight of authority . . . supports our conclusion that the MCS-90 does not cover vehicles when they are not presently transporting property in interstate commerce.”). Section 30 of the MCA indicates its terms are to be read as “defined in section 13102 of this title.” 49 U.S.C. § 31139(b). In turn, 49 U.S.C. § 13102 defines “transportation” broadly and does not provide a specific definition of “property.” The parties limit their dispute on this issue to whether or not Love was transporting goods.

The only evidence proffered by the parties arguably relevant to this issue is Love’s declaration and the police crash [*33]  report. In his declaration, Love states that “[a]t the time of the Accident, I was not transporting any goods or property for compensation.” Pl.’s Mem. in Supp. Mot. Summ. J., Ex. A, ECF No. 19, at ¶ 5 (emphasis added). Again, Griffin argues the declaration is biased and requests the Court to infer that Love may have been transporting goods at the time of the accident because the crash report identifies J Starks Enterprises under the Commercial Motor Carrier Name, includes Starks’ USDOT number, and indicates Love was driving westbound on Route 460. In addition, Defendant Griffin states, without any supporting evidence, that inferring Love was transporting goods is reasonable because Love was driving away from various port distribution centers and container facilities. Finally, Griffin asserts, again without any evidentiary support, this inference can be made because it would be unlikely for a trucker to haul an empty container westbound on Route 460.

As previously described, Griffin’s contentions regarding the credibility of Love’s declaration are unavailing. The fact that J Starks Enterprises was identified under the Commercial Motor Carrier Name on the crash report, which also includes [*34]  Starks’ USDOT number, and that the report indicates Love was driving westbound on Route 460 does not provide a reasonable basis for inferring Love was transporting goods at the time of the accident. The crash report contains no information regarding whether any goods or property were being transported. Such an inference, based on the limited information contained in the crash report, is too tenuous and speculative to be within the range of reasonable possibility. The inference must be considered in light of competing inferences to the contrary, namely Love’s declaration, and the police accident report provides no viable evidentiary support in concluding or inferring that Love was transporting any goods at the time of the accident. Finally, there is no factual basis before the Court supporting Griffin’s arguments arising from the norms of truckers traveling westbound on Route 460 or the location of port distribution or container facilities. These arguments are based purely on speculation. As a result, the Court finds Griffin’s arguments are pure conjecture and insufficient to satisfy his burden of presenting specific facts or permissible inferences that show a genuine issue for trial. [*35]  Accordingly, after examining the facts before the Court and taking permissible inferences in the light most favorable to Griffin, the Court finds that the undisputed evidence demonstrates Love was not transporting goods or property at the time of the accident.

The final issue to be resolved is whether Love was engaged in interstate or foreign commerce at the time of the accident. In order for the MCS-90 to apply, a for-hire motor carrier must be transporting property “in interstate or foreign commerce” or transporting hazardous material. 49 C.F.R. § 387.3(a), (b); see also Century Indem. Co. v. Carlson, 133 F.3d 591, 595 (8th Cir. 1998) (“The first issued to be resolved in whether or not the tractor/trailer carried . . . corn on a trip in interstate or intrastate commerce.”); Brunson, 602 F. Supp. 2d at 717; Kolencik v. Progressive Preferred Ins. Co., 2006 U.S. Dist. LEXIS 24855, 2006 WL 738715, at *7 (N.D. Ga. Mar. 17, 2006) (“Based on the foregoing, the court concludes that endorsement MCS-90 plays no role in the instant accident because it involved only intrastate commerce.”); General Security Insurance Co. v. Barrentine, 829 So.2d 980, 983 (Fla. App. 2002) (holding MCS-90 endorsement coverage did not apply as there was no evidence the driver was using the truck in the interstate shipment of goods at the time of the collision). The statutes and regulations clearly indicate that interstate commerce, as used in the relevant portions of the MCA, refers to transportation between a place in a state [*36]  and: (1) a place in another state; (2) another place in the same state through a place outside of that state; or (3) a place outside of the United States. See 49 U.S.C. § 31139(b)(1); 49 U.S.C. 31132(4); 49 C.F.R. § 387.5. A determination of whether transportation between two points constitutes interstate or foreign commerce also depends on the essential character of the shipment and the shipper’s fixed and persistent intent at the time of shipping as ascertained from all the facts and circumstances surrounding the transportation. See Carlson, 133 F.3d at 595 (8th Cir. 1998); Brunson, 602 F. Supp. 2d at 717-18 (D.S.C. 2007).

The evidence before the Court on this issue is identical to evidence presented on the preceding issues and is therefore subject to a similar analysis and determination. In his declaration, Love indicates that “[a]t the time of the Accident, I was not traveling across state lines and had no intention of crossing any state lines. Instead, I was traveling, and intended to travel, wholly and completely within the State of Virginia.” Pl.’s Mem. in Supp. Mot. Summ. J., Ex. A, ECF No. 19, at ¶ 6. Griffin again raises inferences based on the police crash report and unsupported arguments in his Memorandum in Opposition. Because the crash report indicates Love was traveling westbound on Route 460, Griffin urges the Court [*37]  to infer that Love may have intended to travel across state lines. In addition, Griffin argues that it is likely Love was hauling an international shipping container, which he contends would satisfy the interstate or foreign commerce requirements set forth in the MCA.

Even more so than the previous inferences asserted by Griffin, these inferences are devoid of factual basis and rest purely on speculation and conjecture. Love’s declaration clearly states he had not crossed any state lines and did not intend on traveling outside of Virginia. In light of the facts and inferences to the contrary arising from Love’s declaration, Griffin must offer some reasonable inference or specific fact showing a genuine issue for trial. However, Griffin offers no fact or circumstance regarding Love’s actions, intent, or the existence of any shipment and its essential character that suggests Love crossed state lines or intended to cross state lines. As a result, the Court finds Griffin’s arguments insufficient to satisfy his burden of presenting specific facts or permissible inferences that show a genuine issue for trial. Upon consideration of all of the facts and circumstances before the Court surrounding [*38]  Love’s journey and intent at the time of the accident, the Court finds the undisputed facts indicate that Love’s transportation was solely intrastate in nature.

In conclusion, the record before the Court reflects that Love was not a for-hire motor carrier operating a motor vehicle transporting property in interstate commerce at the time of the accident. As a result, the MCS-90 endorsement does not apply or provide coverage. Although the lack of one of the preceding elements is sufficient to establish the MCS-90 does not apply, in this case all three elements are lacking. Therefore summary judgment in favor of OOIDA is GRANTED as to its surety obligation under the attached MCS-90 endorsement.

 

  1. DEFAULT JUDGMENT

Defendants Love and Starks have failed to make any appearance or pleading in this matter and have otherwise failed to defend. After considering the procedural, factual, and legal circumstances detailed in this Order, the Court finds entry of default judgment to be appropriate. Accordingly, the Court GRANTS entry of default judgment in favor of OOIDA against Defendants Love and Starks.

 

  1. CONCLUSION

The Insurance Policy and MCS-90 endorsement attached thereto do not apply or cover [*39]  the motor vehicle accident described in the underlying lawsuit. For the reasons set forth herein, OOIDA’s Motion for Summary Judgment, ECF No. 18, is GRANTED on all counts and judgment is hereby entered for OOIDA Risk Retention Group, Inc. against Jeremy Griffin. OOIDA’s Motion for Default Judgment as to Defendants Larry L. Love and James Starks d/b/a J Starks Enterprises, ECF No. 20, is also GRANTED and judgment is hereby entered for the Plaintiff.

The Clerk is DIRECTED to forward a copy of this Order to all Counsel of Record and to close this case as a result of this final judgment.

IT IS SO ORDERED.

/s/ ROBERT G. DOUMAR

UNITED STATES DISTRICT JUDGE

Norfolk, VA

April 29, 2016

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