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Bits & Pieces

Monk v. Luna

Supreme Court of New York, New York County

March 29, 2022, Decided

INDEX NO. 450721/2021

Reporter

2022 N.Y. Misc. LEXIS 1604 *; 2022 NY Slip Op 31024(U) **


 [**1]  DAMON MONK, SHAAKIRYAH RAMKISSOON, Plaintiff, – v – ALBERTO LUNA, LEASE PLAN USA LT, Defendant.

Notice: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

Core Terms

Lease, plaintiffs’, summary judgment motion, defendants’, summary judgment, issue of fact, cross-motion

Judges:  [*1] PRESENT: HON. LISA S. HEADLEY, J.S.C.

Opinion by: LISA S. HEADLEY

Opinion


DECISION + ORDER ON MOTION

The following e-filed documents, listed by NYSCEF document number (Motion 003) 52, 53, 54, 57, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 78, 80, 81 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER.

Upon the foregoing documents, it is hereby ORDERED that the movant-plaintiffs motion for an Order, pursuant to 22 NYCRR 130-1.1(a) and CPLR §3212, granting plaintiffs summary judgment against defendants on the issue of liability only, and dismissing the counterclaim brought against defendant Monk, is denied. The defendant Lease Plan USA, LT, cross-moved for an Order to dismiss the complaint against them, arguing that it is not vicariously liable for the alleged motor vehicle accident pursuant to the Graves Amendment, 49 U.S.C. § 30106, which is granted.

In support of the motion, movants adopts the procedural history set forth in the affirmation to support motion Seq. No. 001. Plaintiffs argue that defendant Luna was negligent, as a matter of law, because defendant Luna reversed his vehicle into plaintiffs’ non-moving vehicle. In addition, plaintiffs argue that defendant Lease Plan USA LT, as the owner of the vehicle, is also liable [*2]  for the subject accident. Plaintiffs also argue that the defendants’ emergency doctrine argument, as raised in the opposition to plaintiffs’ motion for summary judgment in Seq. No. 001, does not apply here because it was defendant Luna who decided to reverse his vehicle to alert the police of a fallen man. In addition, plaintiffs argue that defendants’ argument that the plaintiff-driver Monk caused or contributed to the accident and that defendant Luna did not observe any vehicle, because plaintiffs’ vehicle was between two lanes when it when it was struck, is frivolous. Lastly, the movants are requesting a hearing to determine costs and legal fees associated with defending the defendants’ alleged frivolous argument.

Defendants filed opposition to plaintiffs’ motion for summary judgment, as well as a cross-motion for an Order, pursuant to CPLR § 3212, granting summary judgment and dismissing all claims against defendant Lease Plan USA, LT due to the Graves Amendment. In opposition, defendants argue that plaintiffs’ motion must be dismissed, inter alia, because plaintiffs’ counsel failed to attach any relevant pleadings as exhibits to the motion; plaintiffs’ counsel did not attach a supporting [*3]  affidavit to the motion; the motion is premature; and defendants’ argue that there are issues of fact to be decided by the jury as to whether plaintiff Monk was a proximate cause of the accident by having his vehicle within two lanes of traffic. Defendants also argue that defendant-driver was faced with an emergency situation at the time of the accident, when an older man fell  [**2]  on his face directly in front of his vehicle. Further, defendants argue that plaintiffs’ request for costs and sanctions is highly inappropriate.

In support of their cross-motion, defendants argue that the Graves Amendment prohibits a claim of vicarious liability against co-defendant, Lease Plan USA, LT, and thus, Lease Plan USA LT should be dismissed from the lawsuit. Defendants contend that there is no specific evidence of mechanical failure of the subject vehicle operated by defendant Luna. Defendants submit the Master Lease Agreement, as Exhibit F, between Lease Plan USA Inc., as lessor, and Philips North America LLC, as lessee, dated August 1, 2019. (See, NYSCEF Doc. No. 77). Defendants also submit, as Exhibit G, the affidavit of Matthew Patterson, who is the Executive Vice President, General Counsel and [*4]  Secretary at Lease Plan U.S.A. Inc. In his affidavit, Mr. Patterson states that under the terms of the Master Lease Agreement, Philips North America LLC is required to maintain an automobile liability insurance policy that provides coverage to defendant Albert Luna, and that on March 16, 2020 (the date of the accident), Philips North America, LLC’s insurer was Safety National Casualty Corp. Mr. Patterson attests that Lease Plan U.S.A Inc. nor Lease Plan U.S.A., LT were involved in any way with the hiring and supervision of drivers and employees of Philips North America LLC. Further, Mr. Patterson states that the subject vehicle operated by defendant Luna was a 2020 Chevrolet Equinox that was owned by Lease Plan USA, LT and leased to Philips North America, LLC by Lease Plan USA, LT. Mr. Patterson also attests that at the time of the accident, defendant Luna was an employee of Philips North America, LLC.

In opposition to defendants’ cross-motion, plaintiffs argue that defendant Lease Plan failed to attached any evidence on the operating condition of the vehicle, and both defendant Luna’s affidavit and Mr. Patterson’s affidavit were silent as to the operating condition of the defendants’ [*5]  vehicle. Thus, defendants failed to eliminate all triable issues of fact on their summary judgment motion. Furthermore, in reply to defendants’ opposition to plaintiffs’ motion for summary judgment and sanctions, plaintiffs highlight their arguments that the emergency doctrine does not apply in this case.

It should be noted that this court rendered a Decision and Order on Motion Seq. 001, seeking a similar relief from the movants seeking an Order granting plaintiffs’ summary judgment on the issue of liability against the defendants. The Court’s decision to deny the plaintiffs motion for summary judgment because there are issues of fact as to the happening of the accident, also applies to the instant motion. (See, Decision and Order on Motion Seq. 001, dated March 28, 2022). For the reasons in this court’s March 28, 2022 decision, plaintiffs’ motion for summary judgment is denied.

Furthermore, plaintiffs argue in the instant motion that defendant Lease Plan USA, LT is liable as the owner of the subject vehicle operated by defendant Luna. To the contrary, defendants contend, in the cross-motion, that defendant Lease Plan USA should be dismissed from this action, under the Graves’ Amendment [*6]  since it leased the subject vehicle involved in the motor vehicle accident.

It is well settled that the Graves Amendment bars state statutory and common law vicarious liability actions against owners of motor vehicles who are in the business of renting or leasing motor vehicles for the negligence of the drivers. To grant summary judgment, it must be clear that no material or triable issues of fact are presented. See, Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 144 N.E.2d 387, 165 N.Y.S.2d 498 (1957). “The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.” Winegrad v. New York University Medical  [**3]  Center, 64 N.Y.2d 851, 853, 476 N.E.2d 642, 487 N.Y.S.2d 316 (1985). Once such entitlement has been demonstrated by the moving party, the burden shifts to the party opposing the motion to “demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure…to do [so]”. Zuckerman v. City of New York, 49 N.Y.2d 557, 560, 404 N.E.2d 718, 427 N.Y.S.2d 595 (1980). However, the Court of Appeals has made clear that bare allegations or conclusory assertions are insufficient to create genuine, bona fide issues of fact necessary to defeat such a motion. See, Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 231, 385 N.E.2d 1068, 413 N.Y.S.2d 141 (1978).

Here, the plaintiffs have failed to explain how the defendant Lease Plan USA, LT was negligent [*7]  in the maintenance, repair and inspection of the subject truck, and plaintiffs failed to proffer arguments to demonstrate the defendant Lease Plan USA, LT did not lease the truck to the non-party and employer of defendant Luna, Philips North America, LLC. In support of the motion, the defendant Lease Plan USA, LT submitted, inter alia, the Master Lease Agreement between Lease Plan USA Inc., as lessor, and Philips North America LLC, as lessee, dated August 1, 2019. (See, NYSCEF Doc. No. 77). Defendants also submitted the affidavit of Matthew Patterson, who is the Executive Vice President, General Counsel and Secretary at Lease Plan U.S.A. Inc. Mr. Patterson stated, in his affidavit, that the subject vehicle operated by defendant Luna was a 2020 Chevrolet Equinox that was owned by Lease Plan USA, LT and leased to Philips North America, LLC by Lease Plan USA, LT. Mr. Patterson also attests that at the time of the accident, defendant Luna was an employee of Philips North America, LLC. Here, the plaintiffs have failed to raise any genuine issues of triable fact or establish an exception to the Graves Amendment with competent evidence.

For the reasons stated herein, the motion for summary [*8]  judgment on this issue of liability filed by plaintiff Monk is denied, and the cross motion by defendant Lease Plan USA, L.T. is granted.

Accordingly, it is

ORDERED that plaintiffs summary judgment against defendants on the issue of liability only, and dismissing the counterclaim brought against defendant Monk, is DENIED; and it is further

ORDERED that the cross-motion of defendant Lease Plan USA, L.T. to dismiss the complaint herein is GRANTED, and the complaint is dismissed in its entirety as against defendant Lease Plan USA, L.T. only, with costs and disbursements to said defendant as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of said defendant; and it is further

ORDERED that any and all crossclaims against said defendant Lease Plan USA, L.T. are dismissed; and it is further

ORDERED that the action is continued against the remaining defendants; and it is further

ORDERED that any requested relief sought not expressly addressed herein has nonetheless been considered; and it is further;

ORDERED that within 30 days of entry, plaintiffs shall serve a copy of this decision/order upon defendants with notice of entry.

This constitutes the Decision/Order [*9]  of the Court.

 [**4]  3/29/2022

DATE

/s/ Lisa S. Headley

LISA S. HEADLEY, J.S.C.


End of Document

Wesco Ins. Co. v. Rich

Wesco Ins. Co. v. Rich

United States District Court for the Southern District of Mississippi, Southern Division

April 29, 2022, Decided; April 29, 2022, Filed

CAUSE NO. 1:20CV305-LG-RPM

Reporter

2022 U.S. Dist. LEXIS 78036 *; 2022 WL 1438609

WESCO INSURANCE COMPANY, PLAINTIFF v. EDWARD EUGENE RICH AND EDWARD SHAYNE RICH as Wrongful Death Beneficiaries of Ladonna C. Rich, Deceased; YASSER SARDINAS ARMESTO; DKY EXPRESS, LLC; SAM FREIGHT SOLUTIONS, LLC; DAIRON M. LOPEZ; DAIMI RAMOS; SAMUEL RAMOS GONZALEZ; and PRIME PROPERTY & CASUALTY INSURANCE, INC., DEFENDANTS

Subsequent History: As Amended May 3, 2022.

Appeal filed, 05/10/2022

Prior History: Wesco Ins. Co. v. Rich, 2021 U.S. Dist. LEXIS 230736, 2021 WL 5750932 (S.D. Miss., Dec. 2, 2021)

Core Terms

endorsement, insured, coverage, limitation of liability, final judgment, Reconsider

Counsel:  [*1] For Wesco Insurance Company, Plaintiff: David M. Ott, LEAD ATTORNEY, Victoria R. Jones, BRYAN NELSON, PA – Hattiesburg, Hattiesburg, MS.

For Edward Eugene Rich, as Wrongful Death Beneficiaries of Ladonna C. Rich, Deceased, Edward Shayne Rich, as Wrongful Death Beneficiaries of Ladonna C. Rich, Deceased, Defendant: S. Wayne Easterling, LEAD ATTORNEY, S. WAYNE EASTERLING, ATTORNEY, Hattiesburg, MS; Ransom P. Jones, III, RANSOM P. JONES, III, ATTORNEY, Leakesville, MS.

Judges: LOUIS GUIROLA, JR., UNITED STATES DISTRICT JUDGE.

Opinion by: LOUIS GUIROLA, JR.

Opinion


AMENDED ORDER DENYING THE MOTION TO RECONSIDER FILED BY THE BENEFICIARIES OF LADONNA RICH

BEFORE THE COURT is the [86] Motion to Reconsider or, in the Alternative, Motion for New Trial filed by Edward Eugene Rich and Edward Shayne Rich, as Wrongful Death Beneficiaries of LaDonna C. Rich, deceased (“the Beneficiaries”), in which they seek reconsideration of this Court’s [84] Memorandum Opinion and Order granting Wesco Insurance Company’s Motion for Summary Judgment and denying the Beneficiaries’ Motion for Summary Judgment. Wesco filed a response to the Motion, but the response was untimely. Therefore, the Court failed to consider it. The Beneficiaries also filed a Supplemental Memorandum and a Rebuttal. Out of an abundance of caution, the Court has reviewed the Beneficiaries’ additional pleadings and determined that these pleadings do not demonstrate that the Court has errors of fact or law in its [84] Memorandum Opinion and Order granting summary judgment in favor of Wesco. After reviewing the [*2]  Motion, the record in the matter, and the applicable law, the Court finds that the Motion to Reconsider or for New Trial should be denied.


BACKGROUND

This declaratory judgment action arose out of a July 28, 2018, automobile accident in which a Nissan Sentra driven by Ladonna C. Rich was struck by a 2010 Freightliner on Interstate 10 in Jackson County, Mississippi. Rich was killed in the accident. At the time of the accident, the Freightliner was allegedly leased to Sam Freight Solutions, LLC, which was insured by a Commercial Motor Carrier insurance policy issued by Wesco. The Freightliner was not listed as a covered automobile on the Wesco policy. The policy contained a Form MCS-90 Endorsement, which provided that the insurer would pay

any final judgment recovered against the insured for public liability resulting from negligence in the operation, maintenance or use of motor vehicles subject to the financial responsibility requirements of Sections 29 and 30 of the Motor Carrier Act of 1980 regardless of whether or not each vehicle is specifically described in the policy . . . .

(Compl., Ex. A at 104, ECF No. 1-1).

LaDonna Rich’s husband and son, Edward Eugene Rich and Edward Shayne Rich, filed a lawsuit [*3]  against Sam Freight and others in the Circuit Court of Jackson County, Mississippi. (Compl. at 4, ECF No. 1). Sam Freight’s insurer, Wesco, filed a Complaint for Declaratory Judgment with this Court. In a [84] Memorandum Opinion and Order, this Court found that:

[T]he underlying Wesco policy did not provide coverage for the accident at issue because the 2010 Freightliner was not a “covered auto.” However, the MCS-90 endorsement to the policy extends coverage for any judgment entered against Wesco’s insured, Sam Freight, for operation of a motor carrier. The MCS-90 endorsement unambiguously provides that Wesco shall not be liable for amounts in excess of $750,000 for each accident.

(Mem. Op. & Order at 9, ECF No. 84). The Beneficiaries seek reconsideration of that decision, arguing that the Wesco policy should provide $1 million in coverage for the accident. The Beneficiaries take issue with the Court’s determination that the $750,000 limit of liability stated in the MCS-90 endorsement applies rather than the $1 million policy limits stated on the declarations page of the underlying policy.


DISCUSSION

A motion seeking reconsideration is evaluated either as a motion to “alter or amend a [*4]  judgment” under Rule 59(e) or as a motion for “relief from a final judgment, order, or proceeding” under Rule 60(b), depending on when the motion was filed. Demahy v. Schwarz Pharma, Inc., 702 F.3d 177, 182 n.2 (5th Cir. 2012). A motion to alter or amend judgment under Rule 59(e) must be filed “no later than [twenty-eight] days after the entry of the judgment.” Fed. R. Civ. P. 59(e). Since the Beneficiaries’ Motion was filed ten days after the Final Judgment was entered in this case, the Motion must be considered under Fed. R. Civ. P. 59(e).

A motion under Rule 59(e) “calls into question the correctness of a judgment.” In re Transtexas Gas Corp., 303 F.3d 571, 581 (5th Cir. 2002). A court may amend a judgment “(1) where there has been an intervening change in the controlling law; (2) where the movant presents newly discovered evidence that was previously unavailable; or (3) to correct a manifest error of law or fact.” Alexander v. Wells Fargo Bank, N.A., 867 F.3d 593, 597 (5th Cir. 2017) (quoting Demahy, 702 F.3d at 182). The Fifth Circuit has cautioned that “[r]econsideration of a judgment after its entry is an extraordinary remedy that should be used sparingly.” Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004). The Beneficiaries ask the Court to correct an alleged error of law in its prior Memorandum Opinion and Order.

As this Court previously explained, interstate motor carriers are required by federal statute to provide proof of financial responsibility of at least $750,000. 49 U.S.C. § 31139(b). Sam Freight chose an MCS-90 endorsement to its Wesco [*5]  policy to satisfy this federal requirement, and the MCS-90 endorsement in the Wesco policy mirrors the language of Form MCS-90, as required by 49 C.F.R. § 387.15.

The Wesco MCS-90 endorsement states, “This insurance is primary[,] and the company shall not be liable for amounts in excess of $750,000 for each accident.” (Wesco policy, Ex. A to Compl. at 104, ECF No. 1-1). The endorsement further provides:

In consideration of the premium stated in the policy to which this endorsement is attached, the insurer (the company) agrees to pay, within the limits of liability described herein, any final judgment recovered against the insured [Sam Freight] for public liability resulting from negligence in the operation, maintenance or use of motor vehicles subject to the financial responsibility requirements of Sections 29 and 30 of the Motor Carrier Act of 1980 regardless of whether or not each motor vehicle is specifically described in the policy . . . . It is understood and agreed that no condition, provision, stipulation, or limitation contained in the policy, this endorsement, or any other endorsement thereon, or violation thereof, shall relieve the company from liability or from the payment of any final judgment, within [*6]  the limits of liability herein, irrespective of the financial condition, insolvency or bankruptcy of the insured. However, all terms, conditions, and limitations shall remain in full force and effect as binding between the insured and the company.

(Id. at 105) (emphasis added).

The Beneficiaries argue that the Court improperly considered the insurance policy and the endorsement “as two separate standalone documents” in its Memorandum Opinion and Order. However, it was necessary for the Court to first determine whether the underlying policy provided coverage because “an insurer’s responsibilities under the [MCS-90] endorsement is triggered when the policy to which it is attached does not provide coverage to the insured.” Minter v. Great Am. Ins. Co. of N.Y. 423 F.3d 460, 470 (5th Cir. 2005). Contrary to the Beneficiaries’ assertions, this Court did not find that the endorsement was not a part of the policy issued to Sam Freight. This Court determined that the underlying policy did not provide coverage before determining that the MCS-90 endorsement would extend coverage to include any judgment resulting from the accident at issue.

The Beneficiaries next claim that the $750,000 limit of liability included in the endorsement creates an ambiguity, because the [*7]  declarations page of the policy provides for $1 million in coverage. They argue that the Court should resolve this alleged ambiguity in favor of the insured, Sam Freight.

When interpreting an insurance policy under Mississippi law, courts “look at the policy as a whole, consider all relevant portions together and, whenever possible, give operative effect to every provision in order to reach a reasonable overall result.” J & W Foods Corp. v. State Farm Mut. Auto. Ins. Co., 723 So. 2d 550, 552 (Miss. 1998).

Generally, the purpose of a rider to an insurance policy, such as an attached endorsement, is to make additions to a policy which are actually for the purpose of modifying the general terms of the policy, and therefore, being specific, control the more general terms of the policy. An endorsement thereby controls the policy insofar as it enlarges, modifies or restricts the terms of the policy. An endorsement also can act as a predominating influence in determining the meaning and intent of the policy. Moreover, if there is any conflict between the rider and the policy, the rider controls in construing the contract expressly where the provisions of the rider are the more specific.

Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 400 (5th Cir. 2008) (emphasis added) (citing Camden Fire Ins. Ass’n v. New Buena Vista Hotel Co., 199 Miss. 585, 24 So. 2d 848, 851 (Miss. 1946); Turbo Trucking Co., Inc. v. Those Underwriters at Lloyd’s London, 776 F.2d 527, 529-30 (5th Cir. 1985) (construing Mississippi law)). Since the terms of an endorsement [*8]  control when there is a conflict between the endorsement and the remainder of the policy, the limit of liability stated in the MCS-90 endorsement does not create ambiguity. The $750,000 limit of liability must be enforced by the Court.

The Court has now considered and reconsidered all arguments. The Beneficiaries have not cited any authority that prohibits an insurer from providing a limit of liability in an MCS-90 endorsement that is different from the limit of liability for the underlying policy.1 The only requirement is for the insurer to provide a minimum of $750,000 in coverage, and Wesco did so. See 49 U.S.C. § 31139(b). The Beneficiaries’ Motion for Reconsideration or New Trial must be denied. The policy unambiguously provides that Wesco shall not be liable for amounts in excess of $750,000 for each accident covered by the MCS-90 endorsement.

IT IS THEREFORE ORDERED AND ADJUDGED the [86] Motion to Reconsider [*9]  or, in the Alternative, Motion for New Trial filed by Edward Eugene Rich and Edward Shayne Rich, as Wrongful Death Beneficiaries of LaDonna C. Rich, deceased, is DENIED.

SO ORDERED AND ADJUDGED this the 3rd day of May, 2022.

/s/ Louis Guirola, Jr.

LOUIS GUIROLA, JR.

UNITED STATES DISTRICT JUDGE


End of Document

In the cases cited by the Beneficiaries, the policy and endorsement both provided for policy limits of $1 million. See Hamm v. Canal Ins. Co., 10 F. Supp. 2d 539, 543 (M.D.N.C. 1998); Carolina Cas. Ins. Co. v. Est. of Karpov, 559 F.3d 621, 623 (7th Cir. 2009). Those cases addressed whether a per-accident limit or per-person limit applied under the Motor Carrier Act. See id. Therefore, the courts in those cases did not have the opportunity to consider the issue the Beneficiaries present here.

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