2021 WL 4902326

United States District Court, E.D. Missouri, Eastern Division.
GREENWICH INSURANCE COMPANY, Plaintiff,
v.
MATT MURRAY TRUCKING, JAMES KRAMER, EVALIA NAVARRO, BETTY COUNTS, C.C. 1, and C.C. 2, Defendants.
No. 4:21 CV 202 DDN
|
10/21/2021

David D. Noce, UNITED STATES MAGISTRATE JUDGE

MEMORANDUM AND ORDER
*1 This action is before the Court on the motions: (a) of defendant Betty Counts and her minor children, defendants C.C.1 and C.C.2 (“Counts defendants”) (1) to dismiss this action for failure to state a claim (Doc. 22) or, in the alternative, (2) to join Menard, Inc., as a party (Doc. 35); and (b) of defendant Evalia Navarro (1) also to dismiss for failure to state a claim (Doc. 26) or, in the alternative, (2) also to join Menard, Inc. as a party (Doc. 37).

BACKGROUND
Underlying this action is a 3-vehicle collision that occurred on April 17, 2020, involving a tractor-trailer driven by defendant James Kramer, who was then employed by MM Trucking while hauling cargo for Menard, Inc. (“Menard”); a vehicle driven by Sergio Navarro (who died in the collision and is survived by defendant Evalia Navarro); and the Counts defendants’ vehicle.

On March 3, 2021, Counts and her children filed suit for damages related to the collision in the Circuit Court of Crawford County, Missouri, alleging an agency relationship between MM Trucking and Menard.1 (Id.) Mr. Navarro was killed by the impact with the tractor-trailer; his death is the basis of a judicial action commenced on May 26, 2020, by Navarro’s estate also in the Circuit Court of Crawford County.2 (Doc. 26, Ex. 1.)

Plaintiff Greenwich Insurance Company (“Greenwich”), who is not a party to the state court actions, insured Menard, Inc., under a Commercial Automobile Policy (“Menard Policy”), at the time of the collision. There is a dispute as to whether the Menard Policy’s coverage extends to MM Trucking. (Doc. 1 at 2; Doc. 28 at 5.) MM Trucking and its driver Kramer, claiming to be insureds under the Menard Policy, tendered a settlement demand to Greenwich to resolve claims asserted by Navarro and the Counts defendants, although the state court actions do not yet involve any issues of insurance coverage for the collision. (Id.) On February 1, 2021, Greenwich declined coverage and on February 18, 2021, it commenced this declaratory judgment action seeking a declaration that it has no duty to indemnify MM Trucking or its driver in the Crawford County actions because they are not “insureds” under the Menard Policy and the collision did not arise out of the use of a “covered auto.” (Doc. 1 at 9.)

DISCUSSION Motions to Dismiss
Defendants Counts and Navarro move to dismiss plaintiff Greenwich’s complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim under which relief can be granted. They argue there is no actual dispute that is ripe for adjudication under the complaint. (Docs. 22 at 2; 26 at 2.) Specifically, they argue that without a demand for defense, and in the absence of an unsatisfied judgment, there is no dispute for this Court to resolve. (Id.) Defendants further argue that, in the interest of judicial economy this Court should not consider plaintiff’s action while the related “parallel” state court actions are pending and are capable of addressing all disputes. (Id. at 4.) Conversely, plaintiff Greenwich argues that the controversy is ripe for adjudication, further arguing that the state and federal proceedings are not parallel.

*2 Under Rule 12(b)(6) a party may move to dismiss all or part of a complaint for its failure to state a claim upon which relief can be granted. Fed. R. Civ. Pro. 12(b)(6). To overcome a Rule 12(b)(6) motion a complaint “must include enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). To meet this plausibility standard, the complaint must contain “more than labels and conclusions.” Id. at 555. Such a complaint will allow the court to reasonably infer that the claimant is entitled to the relief sought against the defendant, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and will state a claim for relief that rises above mere speculation. Twombly, 550 U.S. at 555.

In reviewing the pleadings under this standard, the Court must accept all of Greenwich’s factual allegations as true and draw all inferences in its favor, but the Court is not required to accept the legal conclusions plaintiff draws from the facts alleged. Retro Television Network, Inc. v. Luken Commc’ns, LLC, 696 F.3d 766, 768-69 (8th Cir. 2012). The Court additionally “is not required to divine the litigant’s intent and create claims that are not clearly raised [and] it need not conjure up unpled allegations to save a complaint.” Gregory v. Dillard’s, Inc., 565 F.3d 464, 473 (8th Cir. 2009) (en banc).

A. Ripeness
First, defendants argue the dispute is not ripe for adjudication and will become ripe only if Menard is found vicariously liable in the state court action. If one or more of the plaintiffs in the Crawford County circuit court cases obtains a judgment against Menard for the damages suffered in the collision, the successful plaintiffs will have an opportunity to bring an equitable garnishment action against Greenwich for proceeds under the Menard Policy. See Mo. Rev. Stat. § 379.200. In such a proceeding, Greenwich will have an opportunity to defend itself against indemnification under the Menard Policy.

In Capitol Indemnity Corp. v. Miles, 978 F.2d 437 (8th Cir. 1992), the Eighth Circuit addressed a similar issue and determined that the case was ripe for adjudication. In it, Capitol Indemnity’s liability policy insured, Miles, sprayed insulation on a building and in the process damaged cars parked nearby. The car owners settled their claims with the building owner for $50,000. The building owner then sued Miles for contribution. Miles then demanded indemnification from Capitol Indemnity. Capitol Indemnity sued Miles in federal district court for a declaratory judgment that it was not liable on its policy issued to him. Miles argued that Capitol Indemnity’s claim was not ripe because the building owner’s suit against Miles was not yet decided. The federal district court agreed with Miles and dismissed the case. On appeal the Eighth Circuit disagreed and reversed, stating in part:
Miles has made a demand on appellant and appellant has contended that there are no circumstances under which it can owe Miles any money. The lines are drawn, the parties are at odds, the dispute is real. Appellant is in no different position, in any relevant respect, from that occupied by insurers who deny that coverage exists under their policy for liabilities of their insureds that are contingent or unadjudicated. In those kinds of situations, it is most common for the insurer to bring an action for a declaratory judgment that it will have no duty to indemnify. See 10A C. Wright, A. Miller, and M. Kane, Federal Practice and Procedure: Civil 2d § 2757 at 585-86 (1983); see also id. § 2758 at 624-26 and id. § 2760 at 662, 665.
*3 978 F.2d at 438; see also Aetna Cas. and Sur. Co. v. Gen. Dynamics Corp., 968 F.2d 707, 711 (8th Cir. 1992) (finding that a coverage dispute between an insurer and insured was a live justiciable controversy sufficient to invoke the jurisdiction of the district court); and see Aetna Life Ins. Co. of Hartford, Conn. v. Hawthorn, 300 U.S. 227, 242-43 (1937).

In its declaratory judgment complaint, Greenwich alleges the following facts:
3. On December 17, 2020, MM Trucking and Kramer’s counsel issued correspondence to Greenwich claiming that they “believe” the Menard Policy covers them for the Navarro Lawsuit and tendering a settlement demand from Navarro.
4. On January 26, 2020, MM Trucking and Kramer’s counsel clarified that the settlement demand also covered the bodily injury claims by the Counts.
5. On or about February 1, 2021, Greenwich issued correspondence to MM Trucking and Kramer explaining that the accident was not covered under the Menard Policy because it did not involve a “covered auto” within the meaning of the Menard Policy and because MM Trucking and Kramer do not qualify as “insureds” under the Menard Policy. Greenwich also reserved the right to deny or limit coverage on additional grounds, including for any amounts that are not insurable under applicable law, including but not limited to any amounts attributable to intentional misconduct, punitive damages and/or amounts that would be restitutionary in nature.
6. Upon information and belief, MM Trucking and [Driver] Kramer have threatened to enter into an agreement pursuant to Mo. Rev. Stat. § 537.065 and assign alleged rights of MM Trucking and Kramer to Navarro and/or Counts under the Menard Policy as well as alleged causes of action for extra-contractual and tort damages against Greenwich.
7. An actual controversy exists between Greenwich and Defendants regarding Greenwich’s obligations, if any, to indemnify Defendants under the Menard Policy with regard to any claims arising out of the April 17, 2020 accident, including the Navarro Lawsuit and the Counts’s bodily injury claims.
(Doc. 1 at 2-3.)

Greenwich currently has a live dispute, not with its direct insured, but with third-parties that claim coverage under the Menard Policy. Considering the well-pleaded facts and related inferences, as in Capital Indem. Corp. v. Miles., here the lines are drawn, and the controversy is ripe.

B. Parallel Cases
Next, defendants argue that the Court should not hear plaintiff’s claim while a “parallel” state court matter is pending between the parties and capable of addressing all disputes. Plaintiff argues the state and federal actions are not parallel.

A district court may dismiss or stay a declaratory judgment action when it determines that the question in controversy would be better handled in state court. See Royal Indem. Co. v. Apex Oil Co., 511 F.3d 788, 793 (8th Cir. 2008). “The determination of whether suits are parallel, therefore, is a threshold determination for identifying the extent of a district court’s discretion to grant a stay.” Lexington Ins. Co. v. Integrity Land Title Co., Inc., 721 F.3d 958, 968 (8th Cir. 2013). “Suits are parallel if ‘substantially the same parties litigate substantially the same issues in different forums.’ ” Scottsdale Ins. Co. v. Detco Indus., Inc., 426 F.3d 994, 997 (8th Cir. 2005). The state court proceeding “must present the same issues, not governed by federal law, between the same parties, and the federal court must evaluate whether the claims of all parties in interest can satisfactorily be adjudicated in that proceeding [and] whether necessary parties have been joined.” Nissan North Am., Inc. v. Wayzata Nissan, LLC, 792 F.3d 921, 922 (8th Cir. 2015).

*4 For example, in Capital Indem. Corp. v. Haverfield, 218 F.3d 872 (8th Cir. 2000), the insurer filed a declaratory judgment action against its insureds and third-party plaintiffs in federal court and the third-party plaintiffs, after receiving a judgment in their favor against the insureds, filed a petition to collect insurance proceeds in state court against the insured and insurer. 218 F.3d at 873-74. That court determined that the state and federal actions, which involved the same parties, the same issue, the same insurance policies, and the same arguments were parallel proceedings. Id. at 875. Similarly, in Cincinnati Indem. Co. v. A & K Constr. Co., the Eighth Circuit determined that state and federal actions that involved identical parties and requested an interpretation of the same insurance policy were parallel proceedings, and as such, the state proceeding was “adequate to resolve the issues” of state law presented by the parties. 542 F.3d 623, 624-25 (8th Cir. 2008); see also Nissan N. Am., Inc.792 F.3d at 922-23 (dismissing federal action where parallel state court proceeding involved the same parties and requested interpretation of the same dealer agreement.) In Nissan North America, Inc. the parties’ dispute in the federal and state court actions addressed the same issue, namely whether the establishment of the Nissan dealership violated the Nissan Dealer Agreement and infringed on Wayzata’s relevant market area. 792 F.3d at 922-23. Because the issues and parties in both courts were identical, the Eighth Circuit determined the controversy was better decided in state court. Id.

The state court cases underlying this case do not yet include Greenwich as a party and they do not yet include the Menard Policy coverage issues Greenwich alleges here.3 However, if the Missouri circuit court determines in those cases that those defendants are liable to those plaintiffs, from the record before this Court now, it is a virtual certainty that Greenwich and the scope of the Menard Policy coverage will play important roles in subsequent proceedings in the state cases, because, as has been already demonstrated in this federal case, a successful claimant in those cases will likely seek to collect on the Menard Policy by garnishment under Mo. S. Ct. R. 90 or under Rev. Stat. Mo. § 379.200. See Allen v. Bryers, 512 S.W.3d 17, 30 (Mo. banc 2016). Further, an insurer, such as Greenwich, has a statutory right to intervene in a Missouri state court case following the entry into a § 537.065 agreement by the tort-feasor. See Rev. Stat. Mo. § 537.065.2 (eff. July 1, 2020); see also State ex rel. Country Mut. Ins. Co. v. May, 620 S.W.3d 96, 99-100 (Mo. banc 2021); Knight v. Knight, 609 S.W.3d 813, 820 (Mo. Ct. App. W. D. 2020).

The Court believes that this federal case is sufficiently, if potentially, parallel to the state court cases to qualify for consideration of whether it should exercise its jurisdiction and decide the ripe dispute it presents or abstain in favor of the state court proceedings.

The Declaratory Judgment Act gives this Court the discretion to decide whether to decide the presented dispute; it does not give the claimant the absolute right to have the dispute decided. See 28 U.S.C. § 2201(a) (“In a case of actual controversy within its jurisdiction,…any court of the United States…may declare the rights and other legal relations of any interested party seeking such declaration….”) (italics added); Wilton v. Seven Falls Co., 515 U.S. 277, 287 (1995). The Eighth Circuit has stated that the federal district court’s “key consideration” in the exercise of its discretion is to decide whether the presented dispute “can be better settled by the state court” in the light of the pending state court proceedings. Haverfield, 218 F.3d at 874. In Evanston Ins. Co. v. Johns, 530 F.3d 710 (8th Cir. 2008), the Court of Appeals instructed:
*5 If the pending state court proceeding would better settle the issues, “the district court must dismiss the federal action because ‘it would be uneconomical as well as vexatious for a federal court to proceed in a declaratory judgment suit where another suit is pending in a state court presenting the same issues, not governed by federal law, between the same parties’ ” Id. at 874–75 (quoting Brillhart, 316 U.S. at 495, 62 S.Ct. 1173). In Haverfield, our court determined the district court abused its discretion when it denied the defendant’s motion to dismiss or to stay the federal action because “the state court was in the better position to adjudicate the matter, and permitting this federal action to proceed was unnecessarily duplicative and uneconomical.” Id. at 875. In Haverfield, the state and federal court actions both “involved the same parties, the same issue, the same insurance policies, and the same arguments.” Id. In addition, a split existed in the Missouri intermediate appellate courts over whether the exclusion at issue applied, and our court noted this disagreement was an important factor weighing in favor of abstention because this split would put the federal district court “in the difficult position of predicting how the Missouri Supreme Court would resolve the conflict.” Id.
530 F.3d at 713. In Evanston, the Court of Appeals affirmed the district court’s not dismissing or abstaining from the case, because when the federal case was filed no state court case had been filed, there was no split in the state courts over the cardinal issue, all the relevant parties were before the district court judge, and there was no immediate challenge to the federal court jurisdiction. Id.

Regarding the case at bar, the state court proceedings are better situated to settle the complex state factual and legal issues. When deciding whether to issue the declaration sought by plaintiff in this declaratory judgment case, this Court will need to know whether the Menard Policy’s express, direct insured (Menard) is covered by the policy for the alleged negligence of the state court defendants, whether the state court defendants are liable to the state court plaintiffs, what the relationship is between Menard and the state court defendants, and the extent of the state court plaintiffs’ damages. “Permitting this federal action to proceed would be ‘unnecessarily duplicative and uneconomical.” Capitol Indemnity Corp. v. Schaefer Group, Inc., 2010 WL 2520607 at *5 (E.D.Mo. June 15, 2010).

The Court has considered the six-factor test of Scottsdale Ins. Co. v. Detco Inds., Inc., 426 F.3d 994 (8th Cir. 2005), which is to be applied when there is no parallel state court proceeding. The factors include:
(1) whether the declaratory judgment sought will serve a useful purpose in clarifying and settling the legal relations in issue; (2) whether the declaratory judgment will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the federal proceeding; (3) the strength of the state’s interest in having the issues raised in the federal declaratory judgment action decided in the state courts; (4) whether the issues raised in the federal action can more efficiently be resolved in the court in which the state action is pending; (5) whether permitting the federal action to go forward would result in unnecessary entanglement between the federal and state court systems, because of the presence of overlapping issues of fact or law; and (6) whether the declaratory judgment action is being used merely as a device for procedural fencing—that is, to provide another forum in a race for res judicata or to achieve a federal hearing in a case otherwise not removable.
Id. at 998 (internal quotation marks and brackets omitted) (cleaned up).

Factors One through Five weigh against maintaining this declaratory action. Regarding the first and second factors, the controversy underlying this federal proceeding is whether plaintiff must indemnify MM Trucking and its driver for claims made by defendants Navarro and Counts in the state court actions. This declaratory judgment action not will settle the legal relationship between plaintiff and defendants without the involvement of the insured Menard. In Scottsdale, the plaintiff insurer sued its insured for the declaratory judgment. Such is not the case here.

*6 The third factor also weighs against maintaining this action. While federal courts regularly adjudicate issues of state law, particularly state contract law, many issues of Missouri law are involved in this case, including policy coverage for the allegedly negligent action of an assertedly non-Greenwich-insured entity, i.e., the defendants in this federal case who are also the defendants in the state court cases. While the claims now before the state court presents no issues regarding the construction of the Menard policy, that will quickly change if the state court plaintiffs are successful on the issue of liability.

As to the fourth factor, the resolution of the coverage issue raised in this declaratory action will be more efficiently decided by the state court. While Greenwich is not now a party to the state court actions and those cases do not now involve Policy coverage issues, that will change if those plaintiffs prevail.

The fifth factor also weighs against maintaining this action. As this case progresses, especially if the Court were to grant defendants’ motions to add Menard as a defendant, the number of issues overlapping both courts will increase and so will the prospect of this federal action becoming entangled with the state court cases.

Finally, regarding the sixth factor, the Court finds no procedural fencing.

After weighing the Scottsdale factors, the Court concludes that dismissal of this case is warranted.

For these reasons,

IT IS HEREBY ORDERED that defendants’ motions to dismiss these proceedings are sustained. (Docs. 22 and 26.) This action is dismissed without prejudice. All other pending motions are denied as moot. An appropriate Judgment Order is issued herewith.

_____ /s/ David D. Noce __ __

UNITED STATES MAGISTRATE JUDGE
Signed on October 21, 2021.

All Citations
Slip Copy, 2021 WL 4902326

Footnotes

1
Counts v. MM Trucking, et al., Crawford County No. 21CF-CC00014. See https://www.courts.mo.gov/casenet/cases/searchDockets.do

2
Evelia Navarro v. Menard, Inc., Crawford County No. 20CF-CC00032). See
https://www.courts.mo.gov/casenet/cases/searchDockets.do

3
Greenwich argues that the Menard Policy does not provide coverage to MM Trucking or its driver solely, even if Menard is determined to be vicariously liable for alleged negligence in the state court actions. It states that the issues to be resolved by this federal court include: (1) whether the MM Trucking tractor trailer is a covered vehicle within the meaning of the Policy, (2) whether MM Trucking or its driver are “insureds” within the meaning of the Policy, (3) whether Menard “owned, hired, or borrowed” the tractor-trailer within the meaning of the Policy, (4) whether the Tractor Trailer was being used with Menard’s permission, and (5) whether MM Trucking or Driver are “employees” within the meaning of the Policy. (Doc. 28 at 10.)

2021 WL 4955450

United States District Court, W.D. Arkansas, Texarkana Division.
SHELLY CIGAINERO, Individually and as a Parent and Next Friend of Minors Lakin Kohen and Jax Kohen PLAINTIFF
v.
BOBBY VERLON MOORE, JR., Doing Business as Final Notice Recovery DEFENDANT
Case No. 4:20-cv-4034
|
Filed 10/25/2021

MEMORANDUM OPINION AND ORDER
Susan O. Hickey Chief United States District Judge
*1 Before the Court is Defendant’s Motion for Partial Summary Judgment. ECF No. 11. Plaintiff has responded. ECF No. 14. Defendant has replied. ECF No. 17. The Court finds the matter ripe for consideration.

I. BACKGROUND
On May 28, 2017, Plaintiff, Shelly Cigainero, was traveling along I-30 East in Hempstead County, AR, in a vehicle with her boyfriend Justin Chumley (“Chumley”) and her two children.1 At approximately 12:40 a.m., the vehicle they were traveling in broke down and became immobile in the left lane. The portion of I-30 they were on was under construction and there were barriers on each side of the road that blocked access to the shoulder. The vehicle’s battery died at some point while the vehicle was immobile. After the vehicle’s battery died, the only illumination coming from the vehicle was a handheld flashlight used by Chumley to warn other drivers on the interstate of the vehicle’s presence. The vehicle was immobile for approximately five (5) hours before Chumley and Plaintiff attempted to move it.

After being unable to get a battery jump from any passersby, Chumley pushed the vehicle into the right lane while Plaintiff steered in an attempt to move the vehicle off of the interstate. Meanwhile, Defendant was driving on I-30 East in a tractor-trailer hauling a repossessed tractor. Defendant was traveling in the right lane at approximately forty-five (45) miles per hour along this portion of the interstate. At this time, the conditions were still dark but with heavy rain having commenced. During the time Chumley and Plaintiff were moving their vehicle, or during a pause in their efforts and while the vehicle was immobile, Defendant’s vehicle came upon Plaintiff and Chumley’s vehicle on the interstate. Defendant initially only saw Chumley in the roadway waving his hands and flashlight to draw Defendant’s attention. Defendant then saw the unlit vehicle Chumley and Plaintiff were attempting to move directly in front of his vehicle. Defendant then swerved left to avoid the vehicle, but still collided with the rear left portion.

An Arkansas State Police official created a crash report for the incident. ECF No. 11-2. The crash report’s narrative of the accident stated that Plaintiff incurred non-incapacitating injuries as a result of the collision. Id. at p. 12. Defendant’s statement of the accident was recorded at 5:45 a.m by the Arkansas State Police. Id. at p. 13.

On March 20, 2020, Plaintiff filed her Complaint against Defendant in the Circuit Court of Hempstead County, Arkansas. ECF No. 3. Plaintiff brought one claim of negligence against Defendant for the collision that occurred on I-30 East on the morning of May 28, 2017. On April 17, 2020, Defendant removed this action to this Court pursuant to 28 U.S.C. §§ 1441 and 1446. ECF No. 1. Defendant contended that this Court has original jurisdiction over this matter pursuant to 28 U.S.C. § 1332 because Plaintiff and Defendant are of diverse citizenship and the amount in controversy exceeds $75,000. Id. On the same day Defendant removed this matter, he filed his Answer to Plaintiff’s complaint. ECF No. 4. Defendant’s answer denied the claim of negligence against him and asserted a counterclaim of negligence against Plaintiff. Id.

*2 On March 26, 2021, Defendant filed his Motion for Summary Judgment as to Plaintiff’s claim, arguing that Plaintiff has failed to allege facts sufficient to sustain her negligence claim as a matter of law. ECF No. 11. Plaintiff has responded in opposition, arguing that there are disputed material facts that necessitate a trial on the merits. ECF No. 14. Defendant has replied. ECF No. 17. Defendant does not use the instant motion to seek summary judgment for his counterclaim. Thus, the Court will not address the merits of his counterclaim in this order.

II. LEGAL STANDARD

A. Summary Judgment
“Summary judgment is appropriate if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Hess v. Union Pac. R.R. Co., 898 F.3d 852, 856 (8th Cir. 2018) (citation omitted). Summary judgment is a “threshold inquiry of … whether there is a need for trial—whether, in other words, there are genuine factual issues that properly can be resolved only by a finder of fact because they reasonably may be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is material only when its resolution affects the outcome of the case. Id. at 248. A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party. Id. at 252.

In deciding a motion for summary judgment, the Court must consider all the evidence and all reasonable inferences that arise from the evidence in a light most favorable to the nonmoving party. Nitsche v. CEO of Osage Valley Elec. Co-Op, 446 F.3d 841, 845 (8th Cir. 2006). The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Enter. Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir. 1996). The nonmoving party must then demonstrate the existence of specific facts in the record that create a genuine issue for trial. Krenik v. Cnty. of LeSueur, 47 F.3d 953, 957 (8th Cir. 1995). However, a party opposing a properly supported summary judgment motion “may not rest upon mere allegations or denials … but must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. “If the evidence the [Plaintiff] put[s] forward ‘is merely colorable,’ or ‘is not significantly probative,’ the [Defendant] [is] entitled to summary judgment as a matter of law.” Gregory v. City of Rogers, Ark., 974 F.2d 1006, 1010 (8th Cir. 1992) (quoting Anderson, 477 U.S. at 249-50).

B. Applicable Law
A federal court sitting in diversity over state-created rights will apply state substantive law and federal procedural law. See Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 426-27 (1996) (citation omitted). A federal court sitting in diversity applies the substantive law of the forum state. See Rose v. Midland National Life Insurance Company, 954 F.3d 1117, 1119 (8th Cir. 2020). The forum state for this matter is Arkansas. The incident giving rise to this matter occurred in Arkansas. The parties apply Arkansas law in their briefing on the instant motion. The Court will accordingly apply Arkansas substantive law to this matter.

III. DISCUSSION

A. Defendant’s Motion for Summary Judgment
Defendant argues that Plaintiff has failed to allege facts sufficient to support a negligence claim against Defendant for the collision from which this matter arises. ECF No. 12. Specifically, Defendant argues that the only factual allegation Plaintiff has presented to support her negligence claim is the mere fact that the collision occurred. Id. at p. 4-5. Defendant notes that Arkansas law holds that the occurrence of an accident is not itself evidence of negligence. Id. at p. 4. Defendant further argues that Plaintiff has put forth no specific facts to suggest that Defendant violated any duty of care while operating his vehicle under the circumstances and only offers vague conclusory statements. Id. at p. 5. Defendant also contends that the most likely proximate cause for the collision is Plaintiff’s own actions. Id. Defendant concludes that the complete lack of factual allegations supporting Plaintiff’s claim means no reasonable jury could find in Plaintiff’s favor and that her claims should fail as a matter of law. Id. at p. 6-7.

*3 Plaintiff’s response argues that she has brought sufficient factual allegations for her claim and that a trial on the merits is required.2 ECF No. 15. Plaintiff notes that Arkansas law requires that drivers have a duty of reasonable care to maintain awareness and look out for other drivers. Id. at p. 1. Plaintiff then argues that if Defendant had used reasonable care while operating his vehicle, he would have anticipated a vehicle in the roadway and been watchful enough to avoid the collision. Id. at p. 2. Plaintiff notes that other vehicles passed her immobile vehicle on the highway without striking it. Id. at p. 3. Plaintiff also states that Arkansas law requires headlights to be able to clearly render persons at or within a distance of five hundred (500) feet on the highway. Id. at p. 3 (citing to Ark. Code Ann. § 27-36-204). Thus, Plaintiff concludes that the only two possible reasons for the collision are “(1) Defendant’s vehicle headlights were defective, or (2) Defendant simply was not paying attention. There is no non-negligent explanation for this accident.”

Defendant’s reply argues that Plaintiff has not met her burden of refuting his properly supported motion for summary judgment. ECF No. 17. Defendant argues that his motion sufficiently shows that Plaintiff has not presented any factual allegations to support her negligence claim. Id. at p. 5. Defendant then argues that Plaintiff has provided nothing in her response other than conclusory statements and failed to present allegations that create doubt as to any material fact. Id. at p. 5-6. Defendant also states that Plaintiff severely misstates the meaning of Ark. Code Ann. § 27-36-204 and states that it sets requirements for when headlights are required, not how effective they need to be. Id. at p. 7-8. Defendant reiterates that the only factual allegation put forth by Plaintiff to support her claim is that the collision itself occurred and concludes that her claim must fail as a matter of law. Id. at p. 9-10.

“To prevail on a claim of negligence, [a] plaintiff must prove that the defendant owed a duty to the plaintiff, that the defendant breached the duty, and that the breach was the proximate cause of the plaintiff’s injuries.” Duran v. Southwest Arkansas Electric Cooperative Corporation, 2018 Ark. 33, at 6, 537 S.W.3d 722, 727. “The issue of whether a duty exists is always a question of law, not to be decided by a trier of fact.” Lacy v. Flake & Kelly Management, Inc., 366 Ark. 365, 367, 235 S.W.3d 894, 896 (2006). The common law rules of the road are stated in Arkansas Model Jury Instruction-Civil 901. See Smith v. Stevens, 313 Ark. 534, 536, 855 S.W.2d 323, 325 (1993). The common law duty of care for an individual operating a motor vehicle is detailed in AMI 901 as:
[First] It is the duty of the driver of a motor vehicle to keep a lookout for other vehicles or persons on the street or highway. The lookout required is that which a reasonably careful driver would keep under circumstances similar to those shown by the evidence in this case.
[Second] It is the duty of the driver of a motor vehicle to keep [his][her] vehicle under control. The control required is that which a reasonably careful driver would maintain under circumstances similar to those shown by the evidence in this case.
[Third] It is the duty of the driver of a motor vehicle to drive at a speed no greater than is reasonable and prudent under the circumstances, having due regard for any actual or potential hazards.
*4 A failure to meet the standard of conduct required by [this rule][either of these two rules][any of these three rules] is negligence.
Ark. Model Jury Instr., Civil 901. The mere fact that a collision occurred is “not itself evidence of negligence or fault on the part of anyone.” Mahan v. Hall, 320 Ark. 473, 477, 897 S.W.2d 571, 573 (1995) (quoting Ark. Model Jury Instr., Civil 603).

The Court finds that Plaintiff has failed to allege sufficient facts to support a claim of negligence against Defendant. The Court acknowledges that Defendant owed a duty of care to look out for vehicles and persons on the highway while operating his own vehicle. See Ark. Model Jury Instr., Civil 901. However, Plaintiff is nearly entirely reliant on the fact of the collision as itself evidence that Defendant breached this duty of care, which is erroneous. See Ark. Model Jury Instr., Civil 603. The only other facts Plaintiff alleges to support her claim is that other vehicles passed during the hours they were immobile without striking her vehicle and that Chumley waived a handheld flashlight at Defendant prior to the collision. The Court does not view these facts as significantly probative of whether Defendant violated his duty of care, and these facts cannot sustain her claim. See Gregory v. City of Rogers, Ark., 974 F.2d at 1010. The conditions were dark with heavy rain. The vehicle Plaintiff was in emitted no lighting of its own and sat practically immobile in the lane in which Defendant was driving. The only lighting source indicating the presence of anyone or anything was the handheld flashlight possessed by Chumley, who Defendant did see and apparently avoided in time. Plaintiff has not alleged that Defendant was driving at a speed above the posted legal limit, that the speed he was driving at was greater than reasonable, or that he violated any other traffic ordinance. Plaintiff also mischaracterizes the Arkansas statute she cites related to the use of head lamps on vehicles. That statute does not state that a vehicles’ head lamps should make vehicles visible at 500 feet. Instead, the statute states that when natural conditions do not allow vehicles to be seen at a distance of 500 feet, the use of head lamps is required. See Ark. Code Ann. § 27-36-204.

Defendant has shown that he suddenly encountered an unlit and practically immobile vehicle in the lane he was traveling on the interstate during dark conditions with heavy rain. Plaintiff has shown little more than the fact that a collision occurred. Viewing these facts in the light most favorable to Plaintiff as it must, Nitsche 446 F.3d at 845, the Court finds that Plaintiff has failed to put forth evidence that would allow a reasonable jury to conclude that Defendant violated his duty of care. See Anderson, 477 U.S. at 252. Accordingly, Plaintiff’s negligence claim must fail as a matter of law, and Defendant is entitled to summary judgment on this matter.

B. Defendant’s Counterclaim
Defendant did not move for summary judgment on his counterclaim. However, the Court finds that it must address its jurisdiction over his counterclaim in light of its finding regarding Plaintiff’s claim. “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). The issue of whether a federal court lacks subject matter jurisdiction can be raised by a court on its own initiative at any stage of litigation. See Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006). Defendant asserts in his negligence counterclaim that he seeks damages “in excess of $30,000.” ECF No. 4, p. 8. This alleged amount of damages is insufficient to meet the requirement of 28 U.S.C. § 1332(a) that the amount in controversy exceed $75,000 in order for the Court to have diversity jurisdiction over Defendant’s claim. Thus, the Court does not have subject matter jurisdiction over the remaining claim in this matter. Accordingly, the Court finds that it must dismiss Defendant’s remaining counterclaim.

IV. CONCLUSION
*5 For the reasons stated above, Plaintiff’s claim is DISMISSED WITH PREJUDICE. Defendant’s counterclaim is DISMISSED WITHOUT PREJUDICE.

IT IS SO ORDERED, this 25th day of October, 2021.

All Citations
Slip Copy, 2021 WL 4955450

Footnotes

1
This recitation of the facts was formed from Defendant’s Statement of Facts (ECF No. 13), Plaintiff’s Response to Defendant’s Statement of Facts (ECF No. 16), Defendant’s Reply to Plaintiff’s Response (ECF No. 18), and the Arkansas State Police accident report (ECF No. 11-2) for the incident from which the action arises.

2
Plaintiff’s response makes vague reference to requesting a continuance in this matter, contending that “Discovery has just begun on this case” and erroneously cites to Arkansas procedural law for the proposition that it is improper for the Court to consider the summary judgment motion at this time. ECF No. 14, p. 1. The Court will not consider this to be a formal request for a continuance. Also, Plaintiff has provided no affidavit or declaration as required to have the Court consider delaying its consideration of a timely summary judgment motion for lack of essential facts. See Fed. R. Civ. P. 56(d)(1).