2021 IL App (3d) 190103-U
UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appellate Court of Illinois, Third District.
Shawn J. O’BRIEN, Plaintiff-Appellee,
v.
Terry L. JENSEN, David H. Peters and Reiter Farm, Inc., Defendants
(David H. Peters and Reiter Farm, Inc., Defendants-Appellants).
Appeal No. 3-19-0103
|
Order filed July 1, 2021
Appeal from the Circuit Court of the 21st Judicial Circuit, Kankakee County, Illinois. Circuit No. 16-L-113, Honorable Adrienne W. Albrecht, Judge, presiding.

ORDER
JUSTICE DAUGHERITY delivered the judgment of the court.
*1 ¶ 1 HELD: The trial court erred in denying Reiter Farm’s motions for directed verdict and judgment notwithstanding the verdict because defendant Reiter Farm could not be vicariously liable for the negligent driving of codefendant Terry L. Jensen, as a matter of law, where plaintiff failed to present some evidence of an agency relationship between Jensen and Reiter Farm. The trial court did not err in denying defendant David H. Peters’s motions for directed verdict and judgment notwithstanding the verdict where the evidence, viewed in its aspect most favorable to plaintiff, indicated that Jensen was Peters’s employee and was acting within his scope of employment at the time of the collision.

¶ 2 Plaintiff, Shawn J. O’Brien, filed a personal injury action against defendants, Terry L. Jensen, David H. Peters, and Reiter Farm, Inc. During the jury trial, plaintiff and defendants Peters and Reiter Farm all moved for a directed verdict in their favor on the issue of agency, which the trial court denied. Following deliberations, the jury found in favor of plaintiff and against all three defendants. The trial court entered a judgment of $142,390.12 against all defendants in accordance with the jury’s assessment of damages. Peters and Reiter Farm filed a posttrial motion for judgment notwithstanding the verdict (judgment n.o.v.), or in the alternative, motion for a new trial, which the trial court denied. Peters and Reiter Farms appealed, arguing that trial court erred as a matter of law by denying their motions for directed verdict and for judgment n.o.v., arguing the evidence showed that: (1) Jensen had never been an employee or agent of either Peters or Reiter Farm; and (2) Jensen was not acting within the scope of his alleged employment at the time of the collision. Peters and Reiter Farm also argued on appeal that the trial court erred in denying their motion for new trial because the jury’s finding of their vicarious liability based upon a theory of respondeat superior was against the manifest weight of the evidence presented at trial. We affirm the trial court’s judgment entered against Peters and reverse the trial court’s judgment entered against Reiter Farm.

¶ 3 I. BACKGROUND
¶ 4 Following an incident where a tractor-trailer driven by Jensen collided with a vehicle driven by plaintiff, plaintiff filed a civil lawsuit against defendants. In his three-count complaint, plaintiff alleged that on October 19, 2014, in Manteno, Illinois, he was driving northbound on East Road near the intersection of North Road. Jensen was driving southbound on East Road and made a left turn at the intersection, colliding with plaintiff’s vehicle. In Count I, plaintiff alleged that defendant Jensen was negligent in the manner in which he operated the truck, and Jensen’s negligence proximately caused injuries to plaintiff. In Count II, plaintiff alleged that defendant Peters owned the truck driven by Jensen, Jensen was an agent and/or employee of Peters at the time of the collision, and Jensen was acting within the scope of that agency and/or employment at the time of the collision. Plaintiff alleged that Peters, “by and through his agents and/or employees,” was negligent in the manner the truck was operated, which proximately caused injuries to plaintiff. In Count III, plaintiff alleged that Jensen was an agent and/or employee of Reiter Farm at the time of the collision, and Jensen was acting within the scope of that agency and/or employment at the time of the collision. Plaintiff further alleged that Reiter Farm, “by and through its agents and/or employees,” was negligent in the manner the truck was operated, which proximately caused injuries to plaintiff.

*2 ¶ 5 In his answer to the complaint, Jensen denied that he was negligent and that any of his alleged negligent acts proximately caused injury to plaintiff. In Peters and Reiter Farm’s amended answer to the complaint, Peters admitted that he owned the Mack truck driven by Jensen at the time of the occurrence but denied that Jensen was his agent and/or employee and denied that Jensen was acting within the scope of any alleged agency and/or employment. Reiter Farm denied that Jensen operated the Mack truck with permission or within the scope of his employment and further denied that Jensen was an employee of Reiter Farm or that Reiter Farm owned the Mack truck. Both Peters and Reiter Farm denied that any agent or employee of either of them was involved in the said occurrence.

¶ 6 Following discovery by the parties, Peters and Reiter Farm filed a motion for summary judgment, arguing, among other things, that Jensen’s job did not include driving the Mack truck on public roads so that Jensen was not acting within the scope of his employment at the time of the occurrence. In response, plaintiff argued there were several questions of fact for the jury to resolve to preclude summary judgment as to whether Jensen was acting within the scope of his employment. The trial court denied the motion for summary judgment.

¶ 7 A. Jury Trial
¶ 8 A jury trial took place on October 15 through 18, 2018.

¶ 9 i. Testimony of Jensen
¶ 10 Jensen testified that on October 19, 2014, on the day of the collision, he was an employee of Reiter Farm and he worked for two men, Ron Reiter and Dave Peters. In October 2014, Jensen helped Reiter and Peters with their farming operations. Both Reiter and Peters paid Jensen at an hourly rate. Jensen typically helped Reiter and Peters during the planting season in the spring and the harvest season during the fall. During the fall harvest season and the spring planting season, Jensen reported to Reiter and Peters, who were Jensen’s bosses. Jensen testified he “mainly did the maintenance.”

¶ 11 Jensen testified that on October 19, 2014, Reiter picked up Jensen for work. Jensen did not have a valid driver’s license. Jensen’s workday started when he was picked up by Reiter and driven to Reiter Farm. Reiter Farm was the “essential hub” of the farming operation run by Reiter and Peters. Peters’s home was located on Reiter Farm. All the trucks were kept at Reiter Farm, including the Mack truck at issue in this case. The Mack truck was used to transport harvested grain from the field to the grain elevator in town. Either Reiter or Peters owned the Mack truck.

¶ 12 When Peters worked in the field, his role was to run the combine. Jensen’s role was to run the auger cart (a tractor that pulls a bin) alongside the combine to help collect the harvest. When the auger cart became full, Jensen would load the full auger bin onto one of the trucks, which included the Mack truck. The loaded truck would then be taken to the grain elevator.

¶ 13 According to Jensen, the plan for the workday on October 19, 2014, was that Jensen was going to report to the farm, gather items that would be needed in the field, and go to the field to help with the harvesting. On a typical day, Reiter would drive Jensen out to the field in the Mack truck because the Mack truck was needed in the field. But on October 19, 2014, Reiter left after he arrived at Reiter Farm with Jensen, leaving Jensen as the only person at the farm. The keys to the Mack truck were usually kept inside the Mack truck.

¶ 14 Prior to October 19, 2014, Jensen had driven the Mack truck to “[j]ust to move it around in the yard or out in the field if it was in a bad spot to load.” Jensen had never driven it on the road. He had only driven it at Reiter Farm and out in the field. Jensen testified that he did not have “express permission to drive that truck on the road.” He only had permission to drive the Mack truck on the farm and in the field, if necessary, “but that didn’t happen very often.” Prior to October 19, 2014, Jensen had driven the Mack truck “three, four” times.

*3 ¶ 15 Jensen testified that on the morning of October 19, 2014, after Reiter left, Jensen and the Mack truck had to get out to the field, which was a little over three miles from Reiter Farm. Without Reiter at the farm to drive Jensen in the Mack truck and Jensen having no vehicle of his own, the only way for Jensen to get from the farm to the field was to take the Mack truck to report for work. When Jensen was on his way to the field in the Mack truck, he collided with a GMC Yukon (plaintiff’s vehicle). Jensen admitted that he was at fault for the collision.

¶ 16 After the collision, Jensen was taken to the emergency room. Upon leaving the emergency room, police arrested Jensen, and he was required to post bail of approximately $1500. Reiter’s mother paid Jensen’s bail. Jensen was not sure whether Reiter’s mother was “a part of” the Reiter Farm.

¶ 17 As for his past employment, after retiring from doing fabrication, welding, maintenance, and mechanical work, Jensen started working for Reiter Farm “off and on.” Jensen had not had a driver’s license for about 20 years, and he had not had a personal car since he lost his driver’s license. On the mornings that Jensen worked, Reiter picked up Jensen and then dropped Jensen off, either at Reiter Farm or in the field.

¶ 18 Jensen was at Reiter Farm on the day of the accident because “of the harvest.” He only worked when he was needed, and he was paid for working. Jensen was never told to drive one of Reiter Farm’s vehicles on a public roadway because there “never had [been] the occasion” to do so. Prior to the day of the collision, Jensen had never driven a Reiter Farm vehicle on a public roadway. On the day of the accident, no one from Reiter Farm told Jensen to drive the Mack truck on a public roadway to get to the field.

¶ 19 Although Jensen referred in his testimony to the place where the trucks were kept and where the barns were located as being “Reiter Farm,” there was no signage indicating that property was, in fact, Reiter Farm. Peters lived on the property, and it was typically referred to as either “Dave’s place or the shop.” Jensen indicated that he was not testifying that the property was owned by and run by Reiter Farm. Jensen did not have a written contract to work for Reiter and Peters. No one had ever indicated that Jensen was a seasonal employee of Reiter Farm. Jensen worked for Reiter and Peters, and they paid Jensen, gave him directions, and worked with him. Jensen was originally hired as a mechanic to help work on farming equipment. Over time, Jensen’s duties expanded, and he became a part-time fieldworker as well.

¶ 20 In the field and off the roads, Jensen ran a tractor and an auger cart. No one, including Reiter and Peters, ever gave Jensen permission to operate any of the trucks on the highways. On the day of the accident, no one had given Jensen permission to drive the Mack truck, and no one had directed him to take the Mack truck to the field. Jensen would have gotten paid whether he was waiting for Reiter to come back or whether he went to the field because Jensen would have been paid from the time he left his apartment. Jensen knew that without a driver’s license, he had no right to drive a vehicle on the highways of the State of Illinois.

¶ 21 On the morning of October 19, 2014, Reiter had dropped Jensen off, instructed Jensen to gather items that would be needed in the fields, and told Jensen that he would be back. Jensen testified that his decision to take the truck was just a “whim” that should never have happened. Jensen had arrived at the farm that morning to work. The Mack truck was a work truck. Jensen testified that the reason he took the Mack truck to the field was to do work for Reiter Farm and for Peters. Jensen was asked whether it was true that on October 19, 2014, he worked for Reiter Farm, and he responded, “[r]ight.”

¶ 22 ii. Testimony of Ronald Reiter
*4 ¶ 23 Reiter testified that around October 2014, he was made the president of Reiter Farm, and he was currently still the president of Reiter Farm. In October 2014, Reiter’s mother and two sisters were shareholders of Reiter Farm.

¶ 24 Reiter further testified that in October 2014, he and Peters had a crop sharing agreement, but their agreement was not reduced to writing. Under their agreement, Reiter and Peters had an understanding that there would be some division of crops and profits that resulted from the area they farmed. At some point in the history of them farming in the area, Reiter and Peters hired Jensen (originally as a mechanic). Eventually, Reiter learned that Jensen could drive bigger tractors, so Jensen began help drive tractors as well.

¶ 25 Upon being questioned during his testimony, Reiter agreed that Jensen worked for Reiter Farm seasonally, during the planting season and the harvest season, but explained, “[i]t’s a little tricky when you say Reiter Farm versus Ron [Reiter] and Dave [Peters] because Reiter Farm is separate in its own self as opposed to how we farm.” According to Reiter, the crop sharing agreement was between him and Peters, individually, and they crop shared with Reiter Farm on one tract of ground, and “and the rest [they] cash rent[ed] from Reiter Farm, Inc., which [was] an entity that [they paid] to rent the ground from.” Reiter Farm did not retain a benefit from the work they were doing and the crops they were harvesting on the field they were working in October 2014.

¶ 26 On October 19, 2014, Reiter Farm had a profit-sharing agreement with Peters to share in the profits in crops that were harvested, but not all the ground that Reiter and Peters farmed was that of Reiter Farm. Reiter testified that he and Peters “individually farm together; and [they] rent[ed] ground from Reiter Farm,” but a majority of what they farmed was other people’s properties. They rented from not only Reiter Farm, but they also rented from other people.

¶ 27 According to Reiter, on October 19, 2014, Jensen was working for “Ron [Reiter] and Dave [Peters].” None of the work that Jensen was doing on October 19, 2014, was for the benefit of Reiter Farm. Reiter testified that Reiter Farm did not retain any benefit from the crops that Reiter and Peters were harvesting on October 19, 2014. On October 19, 2014, Jensen was working for Reiter and Peters, and they were his bosses. Jensen’s job was to help in any way that was asked of him. Both Reiter and Peters paid Jensen to do work.

¶ 28 Reiter testified that on October 19, 2014, Reiter picked up Jensen in the morning and brought him to “the farm.” Jensen’s workday began when Reiter picked him up. Peters was not there because he was already in the field. The Mack truck belonged to Peters and was used regularly during harvesting to take grain from the field to the grain elevator. Peters and his family lived at the “farm” location, which was where Reiter and Peters kept farm equipment for their farming operation, including Peters’s Mack truck. It was also where the “shop” where Jensen did mechanic work and an office were located.

¶ 29 As of the morning of October 19, 2014, Reiter did not know that Jensen did not have a driver’s license. Reiter knew that Jensen did not have a car, which was why Reiter had always arranged to pick Jensen up for work. After arriving at the farm on October 19, 2014, Reiter started the Mack truck but, soon after, remembered that he had to go to the store. Reiter left Jensen at the farm and left the Mack truck running because it was a diesel truck that had to be warmed up. The original plan had been that Reiter would drive the Mack truck, with Jensen riding in it, to meet Peters in the field. In the field, usually Reiter drove the Mack truck from the field to the grain elevator, Peters drove the combine, and Jensen drove the auger bin.

*5 ¶ 30 On the morning of October 19, 2014, Peters was at the field where he, Reiter, and Jensen would be working that day, but the Mack truck was at the farm and needed to get to the field. Jensen also needed to get to the field to report for work. Without Reiter at the farm to drive him, Jensen did not have any other way to get to the field but by taking the Mack truck. Sometime after Reiter left the farm on the morning of October 19, 2014, and prior to returning to the farm, Reiter learned that Jensen had driven the Mack truck and had been in motor vehicle crash.

¶ 31 Prior to October 19, 2014, Reiter had seen Jensen drive the Mack truck on the farm and in the field, but he had never seen Jessen drive the Mack truck on the roads. Jensen was permitted to drive the Mack truck, so long as it was not on the roads.

¶ 32 On the morning of October 19, 2014, before Reiter left the farm, he had instructed Jensen to gather anything he could think of to accomplish what needed to be done for the day in the field. Reiter never told Jensen to take the Mack truck and drive it to the field. The combine that was being operated by Peters in the field did not need an auger cart in operation every moment. The combine could hold about 320 bushels and work for 20 to 30 minutes without “discharging,” so that it was not necessary that an auger cart be operating every moment that the combine was in operation. Reiter had never given Jensen the authority to operate any vehicle, including the Mack truck at issue, on the highways or roads of the State of Illinois. Operating motor vehicles on the highways was never part of Jensen’s job. On October 19, 2014, Reiter did not expect Jensen to take the Mack truck and drive it to the field. Reiter intended for Jensen to wait for him to return from his 20-to-25-minute trip to the store. Reiter had not given Jensen permission to drive the truck. He also did not instruct Jensen to refrain from taking the truck to the field.

¶ 33 iii. Testimony of Dave Peters
¶ 34 Peters testified that although he participated in a crop share with Reiter Farm, he was a separate “entity” from Reiter Farm. He operated under his own name and was not incorporated. Peters owned the Mack truck at issue. According to Peters, Reiter Farm was not located at the property where his residence was located, although the mailing address of Reiter Farm was the same location as his personal residential address. The office located on that property was Peters’s personal office, and not that of Reiter Farm. Peters’s Mack truck (the truck driven by Jensen) was used by both Reiter Farm and by Peters in their farming operations to haul grain from the field to the grain elevator. Peters typically left the trucking operations to Reiter, and Reiter maintained the keys for the Mack truck.

¶ 35 Peters testified that in October 2014, Jensen was working for him as a seasonal farmer. Because of the crop share arrangement between Reiter and Peters, Jensen’s work would benefit both Reiter and Peters. Sometimes Jensen’s work benefited Reiter Farm, if they were working the tract of land owned by Reiter Farm. When Jensen worked for Peters, he was paid by Peters in cash.

¶ 36 On the morning of October 19, 2014, Peters went out to the field and started harvesting with the combine. Peters expected Jensen to arrive in the field at some point. He did not know that Jensen did not have a valid driver’s license. Jensen was not allowed to operate Peters’s Mack truck in any way—not on the farm nor in the field. Peters was not aware that Jensen had previously operated the Mack truck. Peters could not think of any reason why Reiter or Jensen would say that Jensen was allowed to drive the Mack truck on the farm or in the field. Reiter never previously saw Jensen operate the Mack truck. Peters would not have seen Jensen operate the Mack truck because Peters operated the combine.

*6 ¶ 37 Reiter Farm owned a 40-acre tract of land that Reiter and Peters had a crop share agreement on. The land that Peters was harvesting on October 19, 2014, was not owned by Reiter Farm. Reiter Farm did not benefit in any way from the work that was being done on October 19, 2014. The land that Peters was working on October 19, 2014, in part, benefitted him.

¶ 38 On October 19, 2014, Peters was not an owner, officer, or an employee of Reiter Farm. Peters had never given Jensen permission to operate a truck or other licensed motor vehicle on the highways of the State of Illinois. Operating a truck or automobile on the highways of the State of Illinois was not part of Jensen’s employment. Peters did not have any personal knowledge of how Jensen had come to be operating his Mack truck on the day of the occurrence. There was nothing that Peters was doing in the field at the time of the accident that required the presence of the Mack truck.

¶ 39 iv. Motions for Directed Verdict
¶ 40 At the close of the evidence, Peters and Reiter Farm made an oral motion for a directed verdict on the issue of agency. Plaintiff also argued for a directed verdict in his favor on the issue of agency and presented a written motion to the court (which he subsequently filed). Plaintiff contended that agency had been “unequivocally established.” Plaintiff requested that the trial court, therefore, remove the issue of agency from the jury’s consideration.

¶ 41 Additionally, plaintiff, upon being granted leave, filed a written response to Reiter Farm’s oral motion for directed verdict. Plaintiff argued, among other things, that evidence showed that Jensen was an employee of Reiter Farm because Jensen had testified that he was working for Reiter Farm on the day of the collision, the Mack truck driven by Jensen in the collision was used by Reiter Farm in its farming operations, the Mack truck was stored at the location of the mailing address for Reiter Farm, and Reiter, the president of Reiter Farm, had testified that Jensen was a seasonal employee of Reiter Farm. Plaintiff acknowledged that Reiter clarified his testimony regarding Reiter Farm in that Reiter Farm was a separate entity from Reiter and Peters as individuals and that Reiter had testified that Reiter and Peters, individually, had a crop share agreement with one another. Plaintiff also argued there was circumstantial evidence that a jury could consider in determining whether Jensen was an agent of Reiter Farm. Plaintiff further noted that Jensen had testified that Reiter’s mother, who was a shareholder of Reiter Farm, paid Jensen’s bail after the collision, which plaintiff contended were facts that should be submitted to the jury to consider in relation to the alleged agency relationship between Jensen and Reiter Farm. Plaintiff additionally argued that Peters’s oral motion for directed verdict on the issue of agency was “entirely disposed of” by plaintiff’s arguments set forth in his written motion for directed verdict.

¶ 42 In denying the motions for directed verdict, the trial court found that Jensen’s testimony was sufficient evidence of an agency relationship between Jensen and Reiter Farm to withstand defendants’ motion for directed verdict where Jensen testified that he was working for Reiter Farm on the day of the incident. The trial court also found that in regard to the issue of agency between Jensen and Peters, an inference could have been drawn from the evidence to present a question of fact for the jury.

*7 ¶ 43 After deliberating, the jury returned a verdict finding in favor of plaintiff and against all defendants in the amount of $142,390.12. The trial court subsequently entered a judgment for plaintiff and against all defendants in that amount.

¶ 44 v. Posttrial Motions
¶ 45 On November 16, 2018, defendants Peters and Reiter Farm filed a posttrial motion for judgment notwithstanding the verdict (judgment n.o.v.) or, in the alternative, a motion for new trial. In their motion, Peters and Reiter Farm argued that the trial court erred in denying their motion for directed verdict, requested that the trial court reconsider its denial of that motion, and requested the trial court grant their motion for judgment n.o.v. Peters and Reiter Farm argued that no evidence was presented indicating that Jensen was in the course and scope of his employment at the time of the collision. Reiter Farm additionally argued that judgment n.o.v. should be granted as to it because the evidence showed that Reiter Farm was one of Reiter and Peters’s landlords and the land they were harvesting on the day of the collision was not owned by Reiter Farm.

¶ 46 In their motion for new trial, Peters and Reiter Farm argued that the verdict was contrary to the manifest weight of the evidence. Peters and Reiter Farm argued that even if Jensen subjectively believed that driving to the field would assist in the farming operation, such a subjective belief was not sufficient to create an agency relationship because he was not within the course and scope of his employment where he did not have a driver’s license or permission to drive on the public roads.

¶ 47 The trial court denied Peters and Reiter Farm’s posttrial motion. Peters and Reiter Farm appealed.

¶ 48 II. ANALYSIS
¶ 49 On appeal, Peters and Reiter Farm argue that the trial court erred by denying their motions for directed verdict and for judgment n.o.v. because evidence at trial established that: (1) Jensen was not an agent or employee of Peters or Reiter Farm for the purpose of imposing vicarious liability; and (2) Jensen was not acting within the scope of his employment at the time of the incident. Alternatively, Peters and Reiter Farm contend on appeal that the trial court erred by denying their motion for new trial because the verdict was against the manifest weight of the evidence.

¶ 50 Directed verdicts and judgments n.o.v. should be entered only in cases where “all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors [the] movant that no contrary verdict based on the evidence could ever stand.” Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967). We review an adverse ruling on either a motion for a directed verdict or a judgment n.o.v. under a de novo standard of review. Harris v. Thompson, 2012 IL 112525, ¶ 15. Although these motions are made at different times, “they raise the same questions and are governed by the same rules of law.” Lawlor v. North American Corp. of Illinois, 2012 IL 112530, ¶ 37.

¶ 51 A directed verdict is appropriate when the plaintiff has failed to establish a prima facie case. Sullivan v. Edward Hosp., 209 Ill. 2d 100, 123 (2004). Where a plaintiff fails to present at least some evidence on every essential element of the cause of action, the defendant is entitled to have a judgment entered in his or her favor as a matter of law. Id. Failing to produce a required element of proof to support the cause of action results in no cause having been presented for the jury to consider so that a directed verdict for the defendant is proper. Id.

*8 ¶ 52 A motion for judgment n.o.v. presents a question of law in which a court must determine whether, after considering all the evidence, together with all reasonable inferences from the evidence in an aspect most favorable to the plaintiff, there is a total failure to prove any necessary element of plaintiff’s case. Lawlor, 2012 IL 112530, ¶37. The standard for entering a judgment n.o.v. is high, and the entry of a judgment n.o.v. is not appropriate if reasonable minds may differ as to inferences or conclusions to be drawn from the facts that have been presented. Id. If the trial court erred in denying a motion for a judgment n.o.v., a court of review will reverse the verdict without remand. Id.

¶ 53 Generally, a person injured by another’s negligence must seek his or her remedy from the individual who caused the injury. Adames v. Sheahan, 233 Ill. 2d 276, 298 (2009). However, the relationship of employer and employee creates an exception to that general rule pursuant to the theory of respondeat superior, under which “an employer can be liable for the torts of his employee when those torts are committed within the scope of the employment.” Id. Under respondeat superior, an employer’s vicarious liability for the negligent acts of an employee extends to negligent, willful, malicious, or criminal acts of the employee if those acts are committed within the scope of employment. Id.

¶ 54 “The test for determining whether an agency relationship exists is whether the alleged principal has the right to control the manner and method in which work is carried out by the alleged agent and whether the alleged agent can affect the legal relationships of the principal.” Bowyer as Next Friend of Eskra v. Adono, 2020 IL App (3d) 180685, ¶ 37. “The burden of proving the existence and scope of an agency relationship is on the party seeking to impose liability on the principal.” Lawlor, 2012 IL 112530, ¶ 44.

¶ 55 Therefore, to prove Peters and Reiter Farm were vicariously liable for Jensen’s acts or omission in this case, plaintiff was required to prove that an agency relationship existed between them. See id. Whether a person is an agent (or independent contractor) depends on the facts and circumstances of each case, with the hallmark indication of agency being the principal’s right to control the manner in which the agent performs his or her work. Id. The following factors are also to be considered when determining whether the alleged agent is an agent or independent contractor: “(1) the question of hiring; (2) the right to discharge; (3) the manner of direction of the servant; (4) the right to terminate the relationship; and (5) the character of the supervision of the work done.” Id.

¶ 56 In this case, in addition to seeking damages from Jensen for injuries that plaintiff incurred as the result of Jensen’s negligence, plaintiff also sued Peters and Reiter Farm for Jensen’s negligence under a theory respondeat superior. A jury found against Jensen, as well as against both Peters and Reiter Farm. On appeal, Peters and Reiter Farm argue the trial court erred in denying their motions for directed verdict and for judgment n.o.v. because the evidence showed that Jensen was not their employee.

¶ 57 A. Reiter Farm
¶ 58 Here, although Jensen testified that he was working for Reiter Farm on the day of the collision, there was no evidence presented that an agency relationship existed between Jensen and Reiter Farm on the day of the collision. The evidence showed that on the day of the collision, Jensen was working for Peters and Reiter as individuals and they, as individuals, controlled the manner in which he performed his work. There was no indication that Reiter Farm controlled the manner in which Jensen performed his work. Additionally, Jensen was paid in cash by Reiter and Peters. There was no evidence that Jensen was paid by Reiter Farm. Arguably, Reiter, in his capacity as president of Reiter Farm, could, among other things, direct, control, or authorize the method in which Jensen performed work for Reiter Farm when Jensen was working for Reiter Farm. However, there was no evidence presented that on the day of the collision Reiter was acting in his capacity as the president of Reiter Farm in relation to Jensen’s work. Rather, the evidence showed that on the day of the incident, Jensen was working for Reiter and Peters in their individual capacities, Reiter and Peters were working for themselves, and they were harvesting land that was not owned by Reiter Farm and from which Reiter Farm would retain no benefit.

*9 ¶ 59 Therefore, plaintiff failed present some evidence of an agency relationship between Jensen and Reiter Farm in relation to work being done by Jensen, Peters, and Reiter on October 19, 2014. See Sullivan, 209 Ill. 2d at 123; (a directed verdict is appropriate when the plaintiff has failed to establish a prima facie case). Even after considering all the evidence, together with all reasonable inferences from the evidence in an aspect most favorable to the plaintiff, there was a failure to prove that an employer-employee relationship existed between Jensen and Reiter Farm on the day of the collision. See Lawlor, 2012 IL 112530, ¶37. Because all of the evidence, together with all reasonable inferences, viewed in its aspect most favorable to plaintiff, so overwhelmingly favored Reiter Farm that no contrary verdict based on the evidence could stand, the trial court erred in denying Reiter Farm’s motions for directed verdict and judgment n.o.v. See Pedrick, 37 Ill. 2d 494, 510 (1967); Parks v. Brinkman, 2014 IL App (2d) 130633, ¶ 73 (directed verdict or judgment n.o.v. may be granted where the plaintiff fails to present some evidence on every necessary element of the cause of action). Consequently, we reverse the judgment entered against Reiter Farm. Given this conclusion, we need not address the issue of whether the trial court erred by denying Reiter Farm’s posttrial motion for new trial.

¶ 60 B. Dave Peters
¶ 61 As to whether Jensen was an employee of Peters, the evidence showed that Jensen was hired by Peters and Reiter to help when needed and was paid by them in cash. Reiter and Peters gave Jensen directions. Jensen was originally hired by Reiter and Peters in 2010 as a mechanic. Jensen’s duties were expanded to include Jensen working for Reiter and Peters as a fieldworker. Both Reiter and Peters were Jensen’s “bosses.” Jensen’s job was to help in any way that was asked of him. Thus, there was at least some evidence presented to the jury that an agency relationship existed between Jensen and Peters. Additionally, considering the evidence presented, together with all reasonable inferences in an aspect most favorable to plaintiff, we cannot say that there was a total failure by the plaintiff to prove that Jensen was an employee of Peters.

¶ 62 Peters argues that that even if Jensen was his employee, the evidence at trial established that Jensen was not acting within the scope of his employment at the time of the collision. “The party seeking to impose liability on the principal has the burden of proving the existence and scope of the alleged agency relationship.” Bowyer, 2020 IL App (3d) 180685, ¶ 39. Our supreme court has adopted three general criteria, as set forth in the Second Restatement of Agency (Restatement), to determine whether an employee’s acts are within the scope of employment: (1) the conduct is “of the kind he is employed to perform”; (2) the conduct “occurs substantially within the authorized time and space limits”; and (3) the conduct “is actuated, at least in part, by a purpose to serve the master *** [.]” Adames, 233 Ill. 2d at 298 (quoting Restatement (Second) of Agency § 228 (1958)); see also Bagent v. Blessing Care Corp., 224 Ill. 2d 154, 164 (2007). An employee’s conduct is not within the scope of employment “if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.” Id. at 299 (quoting Restatement (Second) of Agency § 228 (1958)). All three of the criteria of section 228 of the Restatement must be met to conclude that an employee was acting within the scope of his or her employment. Id.; Bagent, 224 Ill. 2d at 165.

¶ 63 As for the first criterion—whether the conduct is of the kind the employee is employed to perform—a court is required to determine “whether the complained-of act of the employee, although not authorized by the employer, [was] nevertheless so similar or incidental to employer-authorized conduct as to be within the scope of employment.” Bagent, 224 Ill. 2d at 166. At trial in this case, the evidence showed that Jensen was originally employed as a mechanic to fix farming equipment and his duties expanded to include seasonal field work and included helping with the harvest in the fall. While harvesting, the Mack truck was used to transport grain and, on a few occasions, Jensen drove the Mack truck in the field or on the farm. Although Jensen was not necessarily employed to operate any vehicles on the roads, there was at least some evidence presented for the jury to determine that Jensen driving the Mack truck three miles (from Peters’s home/Jensen Farm to the nearby field) in order to assist with harvesting the grain, after gathering items that were needed in field, was similar or incidental to his employer-authorized duties. See id. Also, in considering the evidence presented and all reasonable inferences in an aspect most favorable to plaintiff, we cannot say there was a total failure by the plaintiff to prove that Jensen driving the Mack truck out to the field on the day of the collision was similar or incidental to authorized conduct.

*10 ¶ 64 As for the remaining two criteria—whether Jensen’s conduct occurred substantially within the authorized time and space limits and whether Jensen’s conduct actuated by a purpose to serve the employer—the evidence was sufficient for a jury to conclude those criteria were met. The evidence showed that Jensen was working for Reiter and Peters from the moment he was picked up by Reiter in the morning and, at the time of the collision, Jensen was transporting himself, the Mack truck, and items needed in the field, to the field in order to assist with harvesting.

¶ 65 Therefore, as to whether Jensen was acting within the scope of his employment at the time of the collision and, ultimately, whether Peters was vicariously liable, we cannot say that the evidence, when viewed in its aspect most favorable to plaintiff, so overwhelmingly favored Peters, that no contrary verdict based on the evidence could ever stand. See Pedrick, 37 Ill. 2d 494, 510 (1967). Consequently, the trial court did not err in denying Peters’s motion for directed verdict and judgment n.o.v.

¶ 66 We now turn to the trial court’s denial of Peters’s posttrial motion for a new trial. On a motion for new trial, the trial court, after considering the evidence, will set aside the jury’s verdict and order a new trial if the verdict is contrary to the manifest weight of the evidence. Steed v. Rezin Orthopedics and Sports Medicine, 2021 IL 125150, ¶ 44. A verdict will be deemed to be contrary to the manifest weight of the evidence if the opposite conclusion is clearly evident or where the jury’s findings are unreasonable, arbitrary, and not based upon any of the evidence. Id. “We will not reverse a court’s ruling on a motion for new trial unless it is affirmatively shown that the trial court clearly abused its discretion.” Id. (quoting Lazenby v. Mark’s Construction, Inc., 236 Ill. 2d 83, 101 (2010)). In this case, given the evidence presented at trial, as discussed above, we cannot say that the jury’s finding that Jensen was acting within the scope of his employment with Peters’s was unreasonable, arbitrary, or not based upon any of evidence, nor can we say that the opposite conclusion is clearly evident. See id. Consequently, the trial court did not its abuse its discretion in denying Peters’s motion for new trial.

¶ 67 III. CONCLUSION
¶ 68 For the foregoing reasons, we affirm the judgment of circuit court of Kankakee County in part as to defendant Peters and reverse in part as to defendant Reiter Farm.

¶ 69 Affirmed in part and reversed in part.

Presiding Justice McDade and Justice Schmidt concurred in the judgment.
All Citations
Not Reported in N.E. Rptr., 2021 IL App (3d) 190103-U, 2021 WL 2769800

Phila. Indem. Ins. Co. v. Transit U, Inc.
United States District Court for the District of Delaware
July 22, 2021, Decided; July 22, 2021, Filed
Civil Action No. 20-01216-RGA

Reporter
2021 U.S. Dist. LEXIS 136595 *
PHILADELPHIA INDEMNITY INSURANCE COMPANY, Plaintiff, v. TRANSIT U, INC.; JOLLY TROLLEY TRANSPORTATION SERVICE, LLC; JOLLY TROLLEY LIMOUSINE SERVICE, LLC; JOLLY TROLLEY SCHOOL BUS, LLC; DAVID 0. HASTINGS; CHRISTINE D. HASTINGS; WILLIAM HASTINGS; DAVID T. HASTINGS; THOMAS DOWD; AND NATIONAL INDEMNITY COMPANY, Defendants.

MEMORANDUM OPINION
ANDREWS, U.S. DISTRICT JUDGE:
Before the Court is Defendant National Indemnity Company’s Motion to Dismiss, or in the Alternative, to Stay Plaintiffs claims for failure to state a claim as well as Defendants Transit U., Inc., Jolly Trolley Transportation Service, LLC, Jolly Trolley Limousine Service, LLC, Jolly Trolley School Bus, LLC, David 0. Hastings, Christine D. Hastings, William Hastings, D. Turner Hastings, and Thomas Dowd’s Motion to Stay Proceedings. (D.I. 30, 34). The motions were fully briefed. (D.I. 31, 36, 37, 39, 40, 41).

I. BACKGROUND
In October 2016, a truck towing a homemade trailer overturned and injured twenty-six of the passengers. (D.I. 1 at ¶ 46; D.I. 31 at 6). The vehicles and driver [*2] had been hired to transport passengers from Dewey Beach, Delaware to the Indian River Life Saving Station, also located in Delaware. (D.I. 1 at ¶ 45). Two actions by injured passengers were filed in the Superior Court of Delaware (Kent County) against Defendants Jolly Trolley Transportation Service, LLC (“Transport”), Transit U, Inc. (“Transit”), Jolly Trolley Limousine Service, LLC (“Limo”), Jolly Trolley School Bus, LLC (“Bus”), Thomas Dowd, an employee of Transit and the driver of the vehicles at issue, and the individuals that owned these companies: David 0., Christine, William, and David T. Hastings (the “Hastings”). (D.I. 1 at ¶¶ 2, 50). The claims were consolidated into one action (the “State Action”). (D.I. 31 at 6).
Transport owned the truck and homemade trailer and leased them to its parent company, Transit. (D.I. 1 at ¶¶ 44, 53). Transit and Transport insured the vehicles with a commercial auto policy (the “Transport Policy”) issued by Defendant National Indemnity Company (“National Indemnity”). (Id. at ¶ 30).
Limo, a separate subsidiary of Transit, did not own, lease, or operate the vehicles involved in the accident. (Id. at ¶ 4). Limo maintained a different insurance policy [*3] for its vehicles (the “PIIC Policy”) with Plaintiff Philadelphia Indemnity Insurance Company (“PIIC”). (Id. at ¶¶ 25, 29; D.I. 1, Ex. C). “Limo is listed as the ‘First Named Insured’ and “Transit is listed as a ‘Named Insured’ on that policy. (D.I. 1 at ¶ 25). The PIIC Policy contains an MCS-90B endorsement with a “limit of liability of $5 million,” which essentially states that “PIIC will pay a final judgment against Limo involving negligence in the operation of a vehicle, regardless of whether the vehicle qualifies as a covered ‘auto’ in the PIIC Policy, and subject to all other terms, conditions, and requirements of the MCS-90B Endorsement.” (Id. at ¶¶ 38-39). The MCS-90B Endorsement functions as a surety agreement and allows PIIC to recoup from Limo any amount it pays for a final judgment against Limo. (Id. at ¶ 43). The purpose of such an endorsement is to satisfy a motor carrier’s minimum levels of financial responsibility in order to cover public liability and property damage as required by Section 18 of the Bus Regulatory Reform Act of 1982. (Id. at ¶¶ 32, 36) (citing 49 U.S.C. § 31138(a)(1)).
PIIC denied coverage for the accident at issue “because it did not involve automobiles covered under the policy that [*4] PIIC issued to Limo.” (Id. at ¶ 3). Nevertheless, Plaintiff still provided a courtesy defense to Transit and Limo in the State Action subject to a full reservation of its rights, including the right to withdraw from the defense. (Id. at ¶¶ 3, 72). Plaintiff believed a judgment against Limo could potentially trigger its surety obligations under the MCS 90B Endorsement. (Id. at ¶ 3).
In August 2020, Limo’s counsel planned to move for “summary judgment” seeking Limo’s “dismissal” from the State Action, but Defendants’ personal counsel instructed Limo’s counsel not to do so. (Id. at ¶¶ 74, 78). Plaintiff believed that this evidenced an improper attempt to access the surety limits of Limo’s MCS-90B Endorsement even though Limo lacked involvement in the accident. (Id. at ¶ 79). In response, PIIC withdrew its defense of Transit on July 13, 2020. (Id. at ¶ 73). A few months later, the parties moved for entry of a final judgment against the defendants including Limo. (Id. at ¶¶ 96-99). Plaintiff filed a motion to intervene in the State Action on September 3, 2020. (D.I. 31 at 10). While that motion was under consideration, Plaintiff filed suit in this Court against Defendants Transit, Transport, [*5] Limo, Bus, the Hastings, Dowd, and National Indemnity on September 11, 2020. (D.I. 40 at 2).
Plaintiff alleges the same claims in this case as it did in the State Action except for two additional claims against National Indemnity—a party only to this case. (D.I. 1 at ¶¶ 101-156; D.I. 36, Ex. A at ¶¶ 145-187). The counts which overlap with those in the State Action are:
(1) Alter-ego liability against the Hastings Defendants [(Count I)]; (2) Declaratory Judgment that the MCS-90B Endorsement applies only to Limo [(Count II)]; (3) Declaratory Judgment that Plaintiff has no duty to defend in the underlying, lawsuits [(Count III)]; (4) Fraud against [all] defendants [except National Indemnity (Count VI)]; and (5) Tortious interference with contractual relations against the Hastings defendants [(Count VII)].
(D.I. 36 at 6). The counts unique to this case are (1) “declaratory judgment that the policies issued by National Indemnity to Transit, Transport and Bus cover the accident of up to $5 million under each policy (Count IV)” and (2) “contribution and indemnification” from National Indemnity for any judgment Plaintiff is required to pay (Count V). (D.I. 37 at 19).
National Indemnity filed a [*6] motion to dismiss Counts IV and V of Plaintiff’s Complaint and, to the extent they apply to National Indemnity, Counts II and III for failure to state a claim under Rule 12(b)(6). (D.I. 34; D.I. 36 at 6-7). National Indemnity alternatively requests that this Court stay the proceedings. (D.I. 34; D.I. 36 at 9). Defendants Transit, Transport, Bus, Dowd, and the Hastings (collectively “Jolly Trolley Defendants”) filed a motion to stay the proceedings pending the outcome of the State Action. (D.I. 30).

II. LEGAL STANDARD
Rule 8 requires a complainant to provide “a short and plain statement of the claim showing that the pleader is entitled to relief . . .” Fed. R. Civ. P. 8(a)(2). Rule 12(b)(6) allows the accused party to bring a motion to dismiss the claim for failing to meet this standard. A Rule 12(b)(6) motion may be granted only if, accepting the well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the counter-complainant, a court concludes that those allegations “could not raise a claim of entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).
“Though ‘detailed factual allegations’ are not required, a complaint must do more than simply provide ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action.'” [*7] Davis v. Abington Mem’l Hosp., 765 F.3d 236, 241 (3d Cir. 2014) (quoting Twombly, 550 U.S. at 555). I am “not required to credit bald assertions or legal conclusions improperly alleged in the complaint.” In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198, 216 (3d Cir. 2002). A complaint may not be dismissed, however, “for imperfect statement of the legal theory supporting the claim asserted.” See Johnson v. City of Shelby, 574 U.S. 10, 11, 135 S. Ct. 346, 190 L. Ed. 2d 309 (2014).
A complainant must plead facts sufficient to show that a claim has “substantive plausibility.” Id. at 12. That plausibility must be found on the face of the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). “A claim has facial plausibility when the [complainant] pleads factual content that allows the court to draw the reasonable inference that the [accused] is liable for the misconduct alleged.” Id. Deciding whether a claim is plausible will be a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.
In certain circumstances, a federal court may stay the proceedings. For legal claims, federal courts “have a virtually unflagging obligation . . . to exercise the jurisdiction given them” except in certain exceptional circumstances when a parallel state court action exists. Colorado River Water Conservation Dist. v. U.S., 424 U.S. 800, 817, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976); Ryan v. Johnson, 115 F.3d 193, 195-96 (3d Cir. 1993).
For declaratory judgment claims, the standard is different. The Declaratory Judgment Act states that “any court of the United States . . . may declare the rights [*8] of and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a). When only declaratory relief is sought, federal courts are granted more flexibility in exercising their discretion to hear the case. See Brillhart v. Excess Ins. Co. of America, 316 U.S. 491, 494-95, 62 S. Ct. 1173, 86 L. Ed. 1620 (1942); Wilton v. Seven Falls Co., 515 U.S. 277, 282, 115 S. Ct. 2137, 132 L. Ed. 2d 214 (1995). In the Third Circuit, courts weigh various factors in determining whether to decline to hear a declaratory judgment case including:
(1) the likelihood that a federal court declaration will resolve the uncertainty of obligation which gave rise to the controversy; (2) the convenience of the parties; (3) the public interest in settlement of the uncertainty of obligation; (4) the availability and relative convenience of other remedies; (5) a general policy of restraint when the same issues are pending in a state court; (6) avoidance of duplicative litigation; (7) prevention of the use of the declaratory action as a method of procedural fencing or as a means to provide another forum in a race for res judicata; and (8) (in the insurance context), an inherent conflict of interest between an insurer’s duty to defend in a state court and its attempt to characterize that suit in federal court as falling within the scope of [*9] a policy exclusion.
Reifer v. Westport Ins. Corp., 751 F.3d 129, 146 (3d Cir. 2014).
In a case involving both declaratory relief and legal claims, as is the case here, the Third Circuit applies the independent claim test to determine the level of discretion federal courts may exercise in declining jurisdiction. Rarick v. Federated Serv. Ins. Co., 852 F.3d 223, 229 (3d Cir. 2017). Under the independent claim test, “a district court must [first] determine whether the legal claims are independent of the declaratory claims.” Id. “Non-declaratory claims are ‘independent’ of a declaratory claim when they are alone sufficient to invoke the court’s subject matter jurisdiction and can be adjudicated without the requested declaratory relief.” Id. at 228 (quoting R.R. St. & Co. v. Vulcan Materials Co., 569 F.3d 711, 715 (7th Cir. 2009)).
If the legal claims are not independent of the claims for declaratory relief, then the Wilton/Brillhart doctrine applies, and courts can use their discretion to abstain from hearing the entire case consistent with the factors listed in Reiter. Rarick, 852 F.3d at 229. If the legal claims are independent, then the Colorado River doctrine applies, and courts can only stay the proceedings under exceptional circumstances. Id. Courts consider:
(1) [in an in rem case,] which court first assumed jurisdiction over property; (2) the inconvenience of the federal forum; (3) the desirability of avoiding piecemeal [*10] litigation; (4) the order in which jurisdiction was obtained; (5) whether federal or state law controls; and (6) whether the state court will adequately protect the interests of the parties.
Spring City Corp. v. American Bldgs. Co., 193 F.3d 165, 171, 173 (3d Cir. 1999). Applying these factors “does not rest on a mechanical checklist, but on a careful balancing of the important factors . . . as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 2, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983). “Only the clearest of justifications will warrant dismissal.” Colorado River, 424 U.S. at 819.

III. DISCUSSION

A. National Indemnity’s Motion to Dismiss or in the Alternative, to Stay
National Indemnity filed a motion to dismiss, or alternatively, to stay Plaintiff’s claims against National Indemnity. (D.I. 34). Counts IV and V are directed specifically at National Indemnity: (D.I. 1 at In 123-36). Count IV requests declaratory judgment that “National Indemnity is liable under the Transport Policy, as required under federal and Delaware law, for any judgment in the [State] Action because the Transport Policy covers the automobiles at issue in the [State] Action and the Transport Policy must, as required under federal and Delaware law, contain minimum limits of liability of $5 million.” (Id. at ¶ 128). [*11] Count V alleges, “National Indemnity is liable to PIIC for contributions and/or indemnification for any judgment against [Limo] in the [State] Action that [] PIIC pays, because the Transport Policy covers the automobiles at issue in the [State] Action.” (Id. at ¶ 136).

1. National Indemnity’s Argument that Plaintiffs Claims Fail for Lack of Ripeness
National Indemnity argues that Plaintiffs claims against it are not ripe and that Plaintiff is seeking an advisory opinion. (D.I. 36 at 18). National Indemnity argues that in Delaware, claims are not ripe until there is “a reasonable likelihood that coverage under the disputed polices will be triggered.” (Id.) (quoting XL Specialty Ins. Co. v. WAII Liquidating Tr., 93 A.3d 1208, 1218 (Del. 2014)). A dispute is not ripe when a claim is based on “uncertain and contingent events” or where ‘future events may obviate the need’ for judicial intervention.” (Id.). National Indemnity argues that Plaintiff’s claims against it are contingent on whether Plaintiff will have any liability to cover the accident in the first place pursuant to its other claims. (Id.). So far, “Plaintiff has paid no money under the policy provisions at issue, and Plaintiff is not under any judicial order that it must pay.” (Id.)
Plaintiff argues that [*12] National Indemnity incorrectly applies Delaware law to federal justiciability issues. (D.I. 39 at 20) (citing Fed. Kemper Ins. Co. v. Rauscher, 807 F.2d 345, 352 (3d Cir. 1986)). Even under this erroneous standard, Plaintiff maintains that its claims are non-hypothetical, and thus ripe, because the “State Plaintiffs (1) have a present right to sue PIIC under the MCS-90B Endorsement to satisfy judgments in the State Action and (2) have an assignment from the State Defendants of their rights, if any, under the PIIC Policy to pursue PIIC.” Id.
Plaintiff argues that under federal law, “the Third Circuit uses a three part test to determine whether claims are ripe for judicial review: ‘1) the parties must have adverse legal interests; (2) the facts must be sufficiently concrete to allow for a conclusive legal judgment, and (3) the judgment must be useful to the parties.'” (Id. at 20-21) (quoting Aaron Enterprises, Inc. v. Fed. Ins. Co., 415 F. Supp. 3d 595, 600 (E.D. Pa. 2019)). First, Plaintiff argues that the Parties’ interests are adverse because National Indemnity opposes their request to apply “federal and Delaware law concerning minimum financial responsibility requirements to the National Indemnity Policies . . .” (Id. at 21). Second, Plaintiff claims the facts are sufficiently concrete to allow for a conclusive judgment because [*13] they “involve a legal interpretation of federal law applied to the insurance policies at issue.” (Id.). Third, Plaintiff argues that a judgment would be useful “since it would help PIIC and National Indemnity determine their rights and obligations with respect to the State Action.” (Id).
I agree with Plaintiff that federal justiciability law applies. See Fed. Kemper Ins. Co., 807 F.2d at 352. Under the first prong of the three-part test, courts consider whether “the claim involves uncertain and contingent events, or presents a real and substantial threat of harm” to determine the adversity of the parties’ interests. NE Hub Partners v. CNG Transmission Corp., 239 F.3d 333, 342 n.9 (3d Cir. 2001). “It is not necessary for the party seeking review to have suffered a completed harm in order to establish adversity of interest so long as there is a substantial threat of real harm that remains throughout the course of the litigation.” Surrick v. Killion, 449 F.3d 520, 527 (3d Cir. 2006). Plaintiff faces a substantial threat of real harm because judgments have been entered in the State Action against Jolly Trolley Defendants, and the Jolly Trolley Defendants have assigned their rights to the State Action plaintiffs, which give the State Action plaintiffs a current right to sue Plaintiff under the MCS-90B endorsement to satisfy the judgment against Limo. (D.I. [*14] 39 at 20).
Under the second prong of the test, the facts are also sufficiently concrete to allow for a conclusive legal judgment. The dispute must be based on a “real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” Aaron Enterprises, 415 F. Supp. 3d at 602. Plaintiff seeks a determination of whether the Transport Policy must contain minimum limits of liability at $5 million under federal or state law. (D.I. 1 at ¶ 126). These are not hypothetical insurance contracts, and therefore, a declaratory judgment on this issue would not be an advisory opinion because it would help establish the actual coverage obligations of the insurers in this case.
Under the third prong of the test, the judgment must be useful to the parties. “A judgment should ‘affect the parties’ plans of actions by alleviating legal uncertainty.” Aaron Enterprises, 415 F. Supp. 3d at 601 (citing Surrick, 339 F.3d at 529). A declaratory judgment as to whether insurers of motor carriers must provide minimum levels of financial responsibility would serve a useful purpose by establishing the insurers’ coverage obligations and alleviating legal uncertainty. Plaintiff’s claim satisfies [*15] the three-part test, and therefore, Count IV is ripe for adjudication.

2. National Indemnity’s Motion to Dismiss Count IV
National Indemnity claims that Plaintiff lacks standing to bring Count IV because it seeks reformation disguised as declaratory relief. (D.I. 36 at 12). Plaintiff is essentially asking this Court to “revise the Transport Policy’s existing liability coverage from $1 million to $5 million.” (Id.). National Indemnity argues that reformation relief may only be sought by a party to the contract. (Id. at 13) (citing Starr v. Nationwide Mut. Ins. Co., 548 A.2d 22, 28 (Del. Ch. 1988); Lawson v. Kellogg Marine, Inc., 2013 Del. Super. LEXIS 142, 2013 WL 1718022, at *2 (Del. Super. Ct. Apr. 18, 2013)). Since Plaintiff is not a party to the insurance contract between National Indemnity and Transport, it lacks standing to assert a reformation claim. (Id.).
On the merits, National Indemnity argues that neither federal nor Delaware law require insurers to include minimum limits of liability of $5 million in their policies with motor carriers. (D.I. 36 at 11). National Indemnity claims that the text of the federal regulations unambiguously places the duty on motor carriers, not insurers, to maintain mandated minimum amounts of financial responsibility as required by the Bus Regulatory Reform Act of 1982. (D.I. 36 at 11-12; D.I. 41 at 5-6). The text states, [*16] “The purpose of these regulations is to create additional incentives to motor carriers to maintain and operate their vehicles in a safe manner . . .” and requires only motor carriers to “obtain[] and [have] in effect the minimum levels of financial responsibility . . .'” (D.I. 41 at 6) (emphasis in original) (citing 49 C.F.R. §§ 387.27, 387.31). Delaware law governing minimum amounts of financial liability for motor carriers is identical to 49 C.F.R. Part 387. (Id. at 6 n.3) (citing 21 Del. C. § 4702).
National Indemnity claims federal courts, in interpreting the motor carrier regulations, have consistently held that reformation of an insurance policy to include an MCS-90B endorsement is improper because the duty is on motor carriers, rather than insurers, to maintain minimum levels of financial responsibility. (Id. at 9) (citing Illinois Central R. Co. v. Dupont, 326 F.3d 665, 668-69 (5th Cir. 2003); Waters v. Miller, 560 F. Supp. 2d 1318, 1323 (M.D. Ga. 2008) (“the failure to include the endorsement in the policy cannot give rise to the remedy [of] reformation of the policy deeming the endorsement to be a part of the policy.”)). Courts have also held that “‘writing a MCS-90 endorsement into the policy . . . would create a perverse incentive’ for motor carriers to avoid negotiating for the MCS-90 endorsement at the outset.” (Id. at 10) (quoting Grange Mut. Cas. Co. v. Pinson Trucking Co., 2013 U.S. Dist. LEXIS 15215, 2013 WL 443619, at *5 (M.D. Ga. Feb. 5, 2013)).
Plaintiff argues that [*17] it has standing to “seek declaratory relief against National Indemnity as requested in the Complaint, even despite the fact that PIIC is not a party or third-party beneficiary to the National Indemnity Policies.” (D.I. 39 at 15). Plaintiff claims, “An insurer may bring declaratory judgment claims against a separate insurer seeking a declaration that the separate insurer’s policy conform to legally-mandated financial responsibility limits . . .” (Id. at 14). Plaintiff cites to First Trenton Indemnity Co. v. Chrysler Ins. Co., in which the court held that a driver’s insurer had standing to sue the vehicle owner’s insurer for a declaration that the vehicle owner’s insurer conform its policy to minimum coverage limits required by state law when the driver’s insurer was not a party or third-party beneficiary to the contract. (D.I. 39 at 14-15) (citing 2010 U.S. Dist. LEXIS 98859, 2010 WL 3740841, at *8 (D.N.J. Sept. 20, 2010)). Plaintiff also cites to Progressive Express Ins. Co. v. Overdrive Specialized, Inc., in which the court held that an insurer could seek a determination regarding the parties’ rights and obligations even when it was not a party to or a third-party beneficiary of the insurance policy because the parties’ interests were adverse and a declaration [*18] would help clarify the parties’ rights and obligations as to which insurer owed coverage. (Id. at 15-16) (citing 2014 U.S. Dist. LEXIS 195508, 2014 WL 11512202, at *1 (N.D. Fla. Dec. 24, 2014)). Plaintiff claims that it has standing to request declaratory relief in this case because National Indemnity and PIIC’s interests are similarly adverse. (Id. at 16). The amount PIIC is obligated to pay for judgments satisfied against Limo depends on how much National Indemnity is obligated to cover. (Id.). Therefore, a declaration “would help establish the rights and obligations of National Indemnity and [Plaintiff].” (Id.).
Plaintiff also disagrees with National Indemnity’s claim that neither federal nor Delaware law impose a duty on insurers to satisfy minimum financial responsibility requirements. (D.I. 39 at 11). Plaintiff claims that a motor carrier’s insurer “must attest that the motor carrier has satisfied federal minimum financial responsibility requirements.” (Id. at 12) (citing Carolina Cas. Ins. Co. v. Travelers Prop. Cas. Co., 90 F. Supp. 3d 304, 321 (D.N.J. 2014)). Plaintiff argues that because National Indemnity issued policies with only $1 million in coverage, it failed to certify that the minimum limits of financial responsibility were met and violated its duty to provide the $5 million minimum liability limit required by state and federal law. [*19] (D.I. 39 at 13). Therefore, Plaintiff claims National Indemnity should be held liable for any judgment against Limo in the State Action, and Count IV should not be dismissed. (D.I. 39 at 13).
The Third Circuit summarized the requirements for standing as follows:
Article III constitutional standing contains three elements: (1) the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party not before the court; and (3) it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 484-85 (3d Cir. 1998). The standing issue in this case is related to the first element—whether Plaintiff has a legally protected interested that would allow Plaintiff to reform the Transport Policy to include an MCS-90B endorsement.
Plaintiff cites to Progressive Express in order to show that an insurer has standing to request declaratory [*20] relief to compel coverage from another insurer. (D.I. 39 at 15). But in that case, the plaintiff wanted the court to interpret the language of the applicable insurance policies and find that it did not have to defend or cover its insured unless no other coverage applied. Progressive Express, 2014 U.S. Dist. LEXIS 195508, 2014 WL 11512202, at *3. Here, there is no dispute that National Indemnity’s policy covered the accident—National Indemnity has already exhausted its liability limits. (D.I. 41 at 12). Rather than ask this Court to interpret the existing terms of the policies, Plaintiff seeks to amend the Transport Policy to expand its liability limit from $1 million to $5 million. Therefore, Plaintiff essentially seeks reformation of the Transport Policy.
Reformation allows a court to rewrite a contract “to express the ‘real agreement’ of the parties involved” when a mutual or unilateral mistake occurs. See Cerberus Intl, Ltd. v. Apollo Mgmt, L.P., 794 A.2d 1141, 1151 (Del. 2002). Plaintiff does not have standing to seek reformation. Plaintiff is not a party to the contract and does not point to any regulation or statute that would grant standing to a third-party insurer to rewrite an MCS-90B endorsement into a separate insurer’s policy.1 First Trenton, which Plaintiff cites to supports its standing argument, does not support [*21] Plaintiff’s claim because the applicable statute in that case provided a legal basis for reformation of an insurance contract. (DI 39 at 14) (citing First Trenton, 2010 U.S. Dist. LEXIS 98859, 2010 WL 3740841, at *8). The statute states, “The provisions of this chapter, so far as may be requisite, shall be read into and deemed to form a part of any such policy.” N.J. Stat. Ann. §45:21-3. The regulations at issue here provide no such remedy to Plaintiff because federal and state law do not place a duty on insurers to satisfy a motor carrier’s minimum amount of financial responsibility.
The interpretation of regulations follows the same rules as statutory interpretation. See, e.g., Burns v. Barnhart, 312 F.3d 113, 125 (3d Cir. 2002). If the text of the regulation is unambiguous, “[T]he regulation then just means what it means—and the court must give it effect, as the court would any law.” Kisor v. Wilkie, 139 S.Ct. 2400, 2415, 204 L. Ed. 2d 841 (2019).
The text of the Bus Regulatory Reform Act of 1982 and corresponding regulations place the burden on motor carriers, not insurers, to provide the federally required minimum amounts of liability. The purpose of the regulation “is to create additional incentives to motor carriers to maintain and operate their vehicles in a safe manner . . .” 49 C.F.R. § 387.1. The regulation states, “No motor carrier shall operate a motor vehicle transporting passengers [*22] until the motor carrier has obtained and has in effect the minimum levels of financial responsibility as set forth in § 387.33 of this subpart.” 49 C.F.R. § 387.31. Delaware law adopts the same language as the federal regulations regarding securing financial responsibility for motor carriers. See 21 Del. C. § 4702 (“Except as modified by this chapter, the State hereby adopts, as the laws of Delaware governing motor carrier safety, the following parts of the Code of Federal Regulations, as published and as subsequently amended: Title 49, Chapter III, Subchapter B, . . . Part 387 . . .”).
It is clear from the text of the regulations that the federal and Delaware law place a duty on motor carriers, not insurers, to maintain minimum amounts of financial responsibility. See Illinois Central R. Co., 326 F.3d at 669 (“Since the regulations requiring the MCS-90 endorsement are directed at the motor carrier, we do not read them as imposing a duty on the insurer to make sure that non-exempt motor carriers secure the required insurance.”); Brewer v. Maynard, 2007 U.S. Dist. LEXIS 53512, 2007 WL 2119250 at *2 (S.D.W. Va. July 20, 2007) (“A plain reading of the motor carrier regulations indicates that they place the burden of compliance on the motor carrier not on the insurer.”).
Because insurers have no duty to include an MCS-90B endorsement in their motor carrier policies [*23] or otherwise satisfy minimum amounts of financial responsibility for motor carriers under federal or Delaware law, Plaintiff cannot seek to reform the Transport Policy by raising its liability limit to $5 million. Plaintiff does not argue any other legal basis for reforming the Transport Policy to provide coverage beyond the $1 million policy limit. Therefore, Plaintiff has failed to state a claim that “National Indemnity is liable under the Transport Policy, as required under federal and Delaware law, for any judgment in the [State] Action.” (D.I. 1 at ¶ 128). National Indemnity’s Motion to Dismiss Count IV is granted.

3. National Indemnity’s Motion to Dismiss Count V
National Indemnity also moves to dismiss Count V in which Plaintiff claims, “National Indemnity is liable to PIIC for contribution and/or indemnification for any judgment against [Limo] in the [State] Action that [] PIIC pays, because the Transport Policy covers the automobiles in the [State] Action.” (D.I. 34; D.I. 1 at ¶ 136). National Indemnity argues Plaintiff lacks standing to assert an indemnification or contribution claim against National Indemnity. (D.I. 36 at 14). Because Plaintiff does not point to any positive [*24] law that would give Plaintiff a right to contribution or indemnification as a third-party to the contract, Delaware contract law controls. (Id). Under Delaware contract law, a party needs to be a third-party beneficiary or party to the contract to have standing to seek contribution or indemnification. (D.I. 36 at 16) (citing Broadway v. Allstate Prop. & Cas. Ins. Co., 2015 Del. Super. LEXIS 396, 2015 WL 4749176, at *5 (Del. Super. Ct. Aug 11, 2015); Schmelz v. Martone, 2019 Del. Super. LEXIS 226, 2019 WL 1977079, at *5 (Del. Super. Ct. May 2, 2019). Since Plaintiff is neither, Plaintiff lacks standing for a contribution and/or indemnification claim. (Id.).
Plaintiff argues that it can “recover from another insurer that failed to satisfy minimum financial responsibility requirements, regardless of whether the obliged insurer is a party to, or third-party beneficiary of, the other insurer’s policy.” (D.I. 39 at 19). Plaintiff argues that National Indemnity failed to satisfy minimum financial responsibility requirements for motor carriers in its policy, and therefore, is responsible for any judgment against Limo that Plaintiff must pay. Plaintiff claims it has a right to “seek recovery from the insurer ultimately responsible for satisfying the judgment—-i.e., National Indemnity.” (D.I. 39 at 18-19). (citing Am. Alternative Ins. Co. v. Sentry Select Ins. Co., 176 F. Supp. 2d 550, 556 (E.D. Va. 2001)).
“In the insurance context, the right to contribution among insurers arises in two basic circumstances: [*25] 1) an insurer of a joint tortfeasor has paid all, or greater than its share, of a loss;” or “2) a single insured is covered by concurrent or ‘double’ insurance, and one insurer paid all, or greater than its share, of a loss.” 15 Couch on Insurance, § 217:4 (3d ed. 2021). “Where one of two or more potentially liable insurers pays a loss, whether in satisfaction of a judgment or in settlement of a claim, it may then seek payment from the other insurers of their fair share of the loss.” Id. “An insurer’s right to contribution from a second insurer can rise no higher than the right of the insured of the second insurer to compel coverage of the loss.” Id.
Indemnification, which is distinct from contribution, is an “equitable or contractual device[] for placing the burden for a loss on the party ultimately liable or responsible for it and by whom it should have been discharged. . . The person seeking indemnification does so in his or her own right . . .” Id. at § 217:5.
I agree with National Indemnity that Plaintiff lacks standing for contribution or indemnification. Plaintiff only has a right to recover from a second insurer up to the amount “the insured of the second insurer [can] compel [*26] coverage of the loss.” Id. at § 217:4. Here, the parties do not dispute whether National Indemnity’s coverage applies to the accident, but rather whether National Indemnity’s policy violated federal and state law. As previously discussed, National Indemnity, as an insurer, did not have a duty to provide minimum liability limits required by motor carriers. National Indemnity has already paid out its liability limit of $1 million under the Transport Policy, thus satisfying its obligations to the insured. (See D.I. 1 at ¶ 59). Plaintiff cannot seek contribution or indemnification from National Indemnity for more than National Indemnity was legally and contractually obligated to pay to its insured. Moreover, Plaintiff has not actually made any payments for a judgment against Limo for which it can seek contribution. Therefore, Plaintiff has failed to state a claim for contribution or indemnification, and I grant National Indemnity’s motion to dismiss Count V.

4. National Indemnity’s Motion to Dismiss Counts II and III
Plaintiff does not contest National Indemnity’s Motion to Dismiss Counts II and III to the extent they relate to National Indemnity. Count II requests declaratory relief that [*27] the MCS-90B Endorsement applies only to Limo, and Count III requests declaratory judgment that PIIC has no duty to defend. (D.I. 1 at IN 113-122). Neither claim directly implicates National Indemnity. Whether the MCS-90B Endorsement applies and whether PIIC has a duty to defend are disputes between Plaintiff and its insured. Besides Plaintiff’s claims for contribution and indemnification, which I have dismissed, Plaintiff does not explain how Counts II and III individually implicate National Indemnity. Therefore, Plaintiff has failed to state a claim upon which relief can be granted, and National Indemnity’s Motion to Dismiss is granted with regards to Counts II and III “to the extent they address any purported obligations of National Indemnity.” (D.I. 36 at 17).

B. Jolly Trolley Defendants’ Motion to Stay
Jolly Trolley Defendants move to stay the proceedings. (D.I. 30). Applying the independent claim test, they argue that this Court should exercise its discretion to decline to hear the claims under the Brillhart doctrine because all of Plaintiff’s legal claims are dependent on its declaratory claims. (D.I. 31 at 16). They argue the legal claims are dependent because “all of PIIC’s legal [*28] claims would be moot if this Court (or Delaware Superior Court) declares that PIIC has no obligation to satisfy any judgment under the policy it issued to Jolly Trolley Limousine and Transit U.” (D.I. 31 at 19).
Plaintiff disagrees with Jolly Trolley Defendants’ definition of independent claims. Plaintiff argues that its legal claims are independent of the declaratory relief it seeks because the legal claims “would continue to exist if the request for a declaration simply dropped from the case,” and therefore the Colorado River doctrine should apply. (D.I. 37 at 16, 19) (citing Lukoil, 2017 U.S. Dist. LEXIS 207241, 2017 WL 6450482, at *8).
The Third Circuit has adopted the independent claim test in cases where a complaint contains claims for both legal and declaratory relief. Rarick, 852 F.3d at 229. The test determines whether the Brillhart doctrine or Colorado River abstention doctrine will govern how much discretion the court has to decline to exercise jurisdiction. Id. Under the test, “a district court must [first] determine whether the legal claims are independent of the declaratory claims.” Id.
I agree with Plaintiff’s definition of independent claims. A claim is independent when it “could stand alone in federal court—both jurisdictionally and substantively—irrespective [*29] of the declaratory claim.” Id. at 228 (citing R.R. St. & Co., 569 F.3d at 715). Legal claims are substantively independent of declaratory claims when they “can be adjudicated without the requested declaratory relief,’ or in other words, the claims would continue to exist if “the request for a declaration simply dropped from the case.” Cont’l Cas. Co. v. Westfield Ins. Co., 2017 U.S. Dist. LEXIS 61889, 2017 WL 1477136, at *5 (E.D. Pa. Apr. 24, 2017) (citations omitted). “When the legal claims are independent, courts generally will not decline the declaratory judgment action in order to avoid piecemeal litigation.” Rarick, 852 F.3d at 228 (citing R.R. St. & Co., 569 F.3d at 715-16).
Plaintiff has three surviving legal claims in this case: “(1) alter-ego liability against the Hastings (Count I); (2) fraud against all Moving Defendants (Count VI); [] (3) tortious interference with contractual relations against the Hastings (Count VII).” (D.I. 37 at 16). Plaintiff seeks declaratory relief for:
(1) a declaration that the MCS-90B Endorsement in the PIIC Policy does not apply to any person or entity aside from Limo, including without limitation Transit (Count II); (2) a declaration that PIIC has no duty to defend Limo and Transit in the State Action (Count III); and (3) a declaration that National Indemnity—not a party to the State Action—failed to satisfy federal and Delaware minimum financial responsibility [*30] requirements in the policies issued to Bus and Transport (including the policy that undisputedly covers the vehicles involved in the October 1, 2016 accident) (Count IV).
(Id.).
Plaintiff’s legal claims are independent of its declaratory relief claims because they could stand alone in federal court both jurisdictionally and substantively. The claims are jurisdictionally independent because there is diversity of citizenship between PIIC, a citizen of Pennsylvania, and Defendants, citizens of Delaware, and the amount in controversy exceeds $75,000. (Id. at ¶¶ 10-22).
Substantively, Plaintiff’s claims for alter-ego liability, fraud, and tortious interference can all stand alone in federal court. They can be resolved without having to decide the remaining declaratory relief claims: that the MCS-90B Endorsement does not apply to Limo and that PIIC has no duty to defend Limo and Transit. In other words, “the requested declaratory relief is not a prerequisite to the resolution of [the legal] claims.” R.R. St. & Co., 569 F.3d at 717. The fact that the declaratory relief and legal claims relate to the same underlying legal obligations is not dispositive for establishing substantive independence. Cont’l Cas. Co., 2017 U.S. Dist. LEXIS 61889, 2017 WL 1477136, at *5.
When the legal claims are independent, [*31] the Colorado River doctrine, rather than the Brillhart doctrine, applies and courts have a “virtually unflagging obligation” to hear the case except in exceptional circumstances. Rarick, 852 F.3d at 229. As a threshold issue, courts first consider whether the federal and state proceedings are parallel. Ryan, 115 F.3d at 196. Concurrent state and federal actions are parallel when they involve the same parties and claims. Id.
After granting National Indemnity’s Motion to Dismiss, the parties are the same, and the only remaining counts are virtually identical to the counts in the State Action. (D.I. 37 at 19). These cases are parallel. Courts can only stay parallel proceedings under certain exceptional circumstances and apply a six-factor test to determine whether to exercise jurisdiction. Supra, at 7.
Jolly Trolley Defendants argue that the factors weigh in favor of a stay because of the lack of proceedings in federal court in comparison to the “extensive litigation in the state court” and the absence of the State Action plaintiffs in federal court. (D.I. 31 at 24).
Plaintiff argues that the factors weigh in favor of exercising jurisdiction. (D.I. 37 at 19). Plaintiff’s arguments are generally presented as though National Indemnity [*32] remains in the case, and thus are less helpful than they might be. Plaintiff claims no res is at issue in this case, both the state and federal forum are convenient to the parties, there is no federal policy that supports trying the types of claims at issue here in state court, the claims involve the interpretation and application of federal law, and there is no allegation that the state forum is inadequate. (D.I. 37 at 20-21).
The application of the six-factor test weighs in favor of not staying the case. The first factor, which court first assumed jurisdiction over the property, does not apply because no res is at issue in this case. It is therefore neutral.
The second factor, the inconvenience of the federal forum, does not weigh in favor of abstention because the federal forum and state court are equally convenient since they are both located in Delaware. It is therefore neutral.
The third factor, the desirability of avoiding piecemeal litigation, applies when there is a “strongly articulated congressional policy against piecemeal litigation in the specific context of the case under review.” Ryan, 115 F.3d at 198 (emphasis in original). “The presence of garden-variety state law issues has not . . . been [*33] considered sufficient evidence of a congressional policy to consolidate multiple lawsuits for unified resolution in the state courts.” Id. Plaintiff’s claims for alter-ego liability, fraud, and tortious interference with contractual relations can be fairly characterized as garden-variety state law claims. See, e.g., Nihon Tsushin Kabushiki Kaisha v. Davidson, 595 F. Supp. 2d 363, 370 (D. Del. 2009) (state law breach of contract and fraud claims are garden-variety state law issues). Moreover, neither party has pointed to a congressional policy against piecemeal litigation which would apply to these types of claims. Therefore, the third factor weighs in favor of exercising jurisdiction.
The fourth factor, the order in which jurisdiction was obtained, weighs in favor of abstention because Plaintiff first filed a motion to intervene in the State Action eight days before filing its complaint in federal court. (D.I. 40 at 2). The State Action had also been ongoing since 2016 and the parties have already proceeded with discovery in the underlying tort suit. (D.I. 31 at ¶¶ 1, 6).
The fifth factor, whether federal or state law controls, weighs in favor of abstention. Absent Counts IV and V regarding the MCS-90B endorsement, which I have dismissed, the remaining claims for alter-ego [*34] liability, fraud, and tortious interference are state law claims. The state court is better versed in Delaware law than I am.
The sixth and final factor, whether the state court will adequately protect the interests of the parties, is neutral. “[T]he mere fact that the state forum is adequate does not counsel in favor of abstention, given the heavy presumption the Supreme Court has enunciated in favor of exercising federal jurisdiction. Instead, this factor is normally relevant only when the state forum is inadequate.” Ryan, 115 F.3d at 200. There is every reason to believe the state court will adequately protect the interests of the parties, and no party argues to the contrary, so this factor is neutral.
On the whole, the factors do not weigh strongly in favor of staying the proceedings and do not amount to exceptional circumstances which overcome this Court’s “virtually unflagging obligation” to exercise jurisdiction under the Colorado River doctrine. It is true that the State Action has been ongoing for years, and Plaintiff first moved to intervene in the State Action. The state court is also better suited to address matters of Delaware law, which is now the only law at issue. But the other factors are [*35] neutral or weigh in favor of exercising jurisdiction. Therefore, Jolly Trolley Defendants’ Motion to Stay is denied.

C. CONCLUSION
For these reasons, I grant National Indemnity’s Motion to Dismiss regarding Counts IV and V, and to the extent they apply to National Indemnity, Counts II and III also. (D.I. 34). I deny Jolly Trolley Defendants’ Motion to Stay for the remaining counts.2 (D.I. 30).

ORDER
For the reasons stated in the accompanying memorandum opinion, Defendant National Indemnity’s Motion to Dismiss (D.I. 34) is GRANTED, and Jolly Trolley Defendants’ Motion to Stay (D.I. 30) is DENIED.
IT IS SO ORDERED this 22 day of July 2021.
/s/ Richard G. Andrews
United States District Judge