United States District Court for the Eastern District of Pennsylvania
January 13, 2022, Decided; January 13, 2022, Filed
CIVIL ACTION No. 21-5104

Reporter
2022 U.S. Dist. LEXIS 6589 *
EMILY M. BURNS, in her own right and as Administratrix of the Estate of Matthew T. Burns, Deceased, Plaintiff, v. SHAMA EXPRESS, L.L.C., et al., Defendants.
Core Terms

venue, witnesses, give rise, convenience, factors, weigh, public interest, tractor-trailer, westbound
Counsel: [*1] For EMILY M BURNS, IN HER OWN RIGHT AND AS ADMINISTRATRIX OF THE ESTATE OF MATTHEW T. BURNS, DECEASED, Plaintiff: JAMES JOSEPH WALDENBERGER, LEAD ATTORNEY, KLINE & SPECTER, PC, PHILADELPHIA, PA; THOMAS R. KLINE, LEAD ATTORNEY, KLINE & SPECTER, PHILADELPHIA, PA.
For SHAMA EXPRESS, L.L.C., BSE TRAILER LEASING, L.L.C., MOHAMMED AKBARI, Defendants, Cross Claimants: MICHAEL F. NERONE, LEAD ATTORNEY, PION, NERONE, GIRMAN, WINSLOW & SMITH, P.C., PITTSBURGH, PA.
For FROST BROOK TRUCKING, INC., ROBERT LEE, JR, MARK W EDDY, Defendants: DAMIAN M. TARANTO, FOWLER HIRTZEL MCNULTY & SPAULDING LLP, PHILADELPHIA, PA; JOSEPH R. FOWLER, FOWLER HIRTZEL MCNULTY & SPAULDING, LLP, PHILADELPHIA, PA; Matthew T Bonner, Fowler Hirtzel McNulty & Spaulding LLP, Philadelphia, PA.
For MARK W EDDY, FROST BROOK TRUCKING, INC., ROBERT LEE, JR, Cross Defendants: DAMIAN M. TARANTO, FOWLER HIRTZEL MCNULTY & SPAULDING LLP, PHILADELPHIA, PA; JOSEPH R. FOWLER, FOWLER HIRTZEL MCNULTY & SPAULDING, LLP, PHILADELPHIA, PA.
Judges: ANITA B. BRODY, UNITED STATES DISTRICT JUDGE.
Opinion by: ANITA B. BRODY
Opinion

MEMORANDUM
Plaintiff Emily M. Burns brings negligence, negligent infliction of emotional distress, and Pennsylvania Wrongful Death Act and Survivor Act [*2] claims against Defendants Shama Express, LLC, Mohammed Akbari, and Dilawar Ali Shah (collectively, “Shama Defendants”), Frost Brook Trucking, Inc., Robert Lee, Jr., and Mark W. Eddy (collectively, “Frost Brook Defendants”), and BSE Trailer Leasing, LLC.1 On November 19, 2021, the Shama Defendants removed the instant action to this Court from the Philadelphia County Court of Common Pleas.2 ECF No. 1. I exercise diversity jurisdiction over Burns’ claims pursuant to 28 U.S.C. § 1332.3
The Frost Brook Defendants and Shama Defendants move to transfer this action to the United States District Court for the Western District of Pennsylvania based on the convenience of the parties and witnesses.4 ECF Nos. 5-6. I will grant the Defendants’ Motions to Transfer to the Western District of Pennsylvania.

I. BACKGROUND5
In the early hours of December 20, 2020, the Burns family was traveling westbound on Interstate 80 (“I-80”) in Pine Township, Clearfield County, Pennsylvania. Decedent Matthew Burns was driving the family’s Honda Odyssey minivan, Plaintiff Emily Burns was in the passenger seat, and the couple’s three children were in child car seats secured in the back rows. The road surface [*3] was wet and covered with snow. Defendant Akbari or Defendant Shah was also driving westbound on I-80, operating a tractor-trailer.6 At or near mile marker 110.4, Akbari or Shah lost control of the tractor-trailer, which jack-knifed and came to a stop across the left-hand westbound lane. Decedent Burns, also travelling in the left-hand westbound lane, was unable to avoid colliding with the jack-knifed tractor-trailer because a second tractor-trailer, driven by Defendant Eddy, was travelling in the right-hand westbound lane, thus preventing Decedent Burns from swerving to the right.7 In the ensuing collision, Decedent Burns was ejected from the vehicle and sustained fatal injuries.

II. DISCUSSION
Notwithstanding proper venue following removal to federal court, a court may transfer a civil action to another district under the doctrine of forum non conveniens. Section 1404(a) provides: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought . . . .” 28 U.S.C. § 1404(a). The movant bears the burden of establishing the propriety of transfer. Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970). A movant is “not required to show ‘truly compelling [*4] circumstances for . . . change . . . [of venue, but rather that] all relevant things considered, the case would be better off transferred to another district.'” Connors v. R & S Parts & Servs., Inc., 248 F. Supp. 2d 394, 396 (E.D. Pa. 2003) (Shapiro, J.) (quoting In re United States, 273 F.3d 380, 388 (3d Cir. 2001)) (alterations in original).

a. Venue is Proper in the Western District of Pennsylvania
The Frost Brook Defendants and Shama Defendants move to transfer this action to the Western District of Pennsylvania for the convenience of the parties and witnesses. The Court’s first task must be to determine whether the instant suit “might have been brought” in the Western District.
Under 28 U.S.C. § 1391(b)(2), “[a] civil action may be brought in a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred.” When a plaintiff’s claims arise solely from an accident, a “substantial part of the events . . . giving rise” to those claims occurs in the district where the accident takes place. See, e.g., Miller v. SAWA Transportation Inc., No. CV 21-2308, 2021 U.S. Dist. LEXIS 183984, 2021 WL 4399665, at *3 (E.D. Pa. Sept. 27, 2021) (Brody, J.) (finding venue proper in the judicial district where the auto accident giving rise to plaintiff’s claims occurred, and not in the judicial district where plaintiff sought medical treatment); Medina v. Haas, No. CV 20-5019, 2021 U.S. Dist. LEXIS 52820, 2021 WL 1088343, at *2 (E.D. Pa. Mar. 22, 2021) (Pappert, J.) (finding venue proper in judicial district where tractor-trailer accident giving [*5] rise to plaintiff’s claims occurred).
The accident on I-80 that gives rise to Burns’ claims against Defendants occurred in Clearfield County, Pennsylvania, which is encompassed by the Western District. ECF No. 5-1 at 6; 28 U.S.C. § 118(c). Venue is thus proper in the Western District. The Western District would also have personal jurisdiction over Defendants. See O’Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 316-17 (3d Cir. 2007) (finding that the conduct of business in a state creates “certain minimum contacts with . . . [Pennsylvania] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice”). Burns could have properly brought her suit in the Western District.

b. Public and Private Factors Weigh in Favor of Transfer
When venue is proper in the proposed transferee court, the transferor court must conduct a balancing test, considering “the private and public interests protected by the language of § 1404(a).” Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995). Although there is no definitive list of factors to consider, private interests often weighed include (i) the plaintiff’s forum preference; (ii) the defendant’s preference; (iii) where the claim arose; (iv) the convenience of the parties; (v) the convenience of the nonparty witnesses to the extent that the witnesses may [*6] be unavailable for trial in one of the fora; and (vi) the location of records to the extent that they could not be produced in the alternative forum. Id.

i. Private Interest Factors
In considering private interest factors, “[the plaintiff’s] choice of forum is [generally] entitled to great weight and is not to be disturbed unless the balance of convenience strongly favors the defendant[‘s] forum.” Blanning v. Tisch, 378 F. Supp. 1058, 1060 (E.D. Pa. 1974) (Luongo, J.) (citing Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970)). But “plaintiff’s choice of forum merits less deference when none of the conduct complained of occurred in plaintiff’s selected forum” or “when the plaintiff’s choice of forum is not the plaintiff’s residence.” Rowles v. Hammermill Paper Co., 689 F. Supp. 494, 496 (E.D. Pa. 1988) (Cahn, J.). The defendant’s forum preference, meanwhile, is usually “entitled to considerably less weight than Plaintiff’s, as the purpose of a venue transfer is not to shift inconvenience from one party to another.” Family Fin. Ctrs. LLC v. Cox, No. 14-5330, 2015 U.S. Dist. LEXIS 22406, 2015 WL 790038, at *4 (E.D. Pa. Feb. 25, 2015) (Buckwalter, J.) (quoting EVCO Tech. Dev. Co. v. Precision Shooting Equip., Inc., 379 F. Supp. 2d 728, 730 (E.D. Pa. 2003) (Rufe, J.)).
Although Burns did not choose to be in federal court in the Eastern District, she to some degree chose this forum by filing in the Philadelphia County Court of Common Pleas. See Battle v. Wal-Mart Stores, Inc., No. 19-cv-0945, 2019 U.S. Dist. LEXIS 180224, 2019 WL 5290540, at *2 (E.D. Pa. Oct. 17, 2019) (Jones, J.) (considering the Eastern District of Pennsylvania the plaintiff’s chosen forum in action removed from Philadelphia County [7] Court of Common Pleas). But Burns’ selection of forum should be given little weight, as the events giving rise to her claims against Defendants occurred in the Western District. Furthermore, Burns lives in Huntingdon County, which is located in the Middle District and much closer to the seat of the Western District than to Philadelphia. ECF No. 6 at 18; 28 U.S.C. § 118(b). Most importantly, Burns did not oppose the Motions for Transfer currently before the Court.8 As such, the Frost Brook Defendants’ and Shama Defendants’ Motions to transfer this case do not shift the inconvenience of litigation from Defendants to Burns, because no named party resides in the Eastern District, let alone in Pennsylvania. Because Burns’ choice is given less weight than is typical of transfer analyses and because she did not oppose the Defendants’ Motions for Transfer, the private interests reflecting the named parties’ wishes favor transfer to the Western District. The private interests considering where the claim arose, the convenience and accessibility of witnesses, and the accessibility of records also favor transfer. “When the vast majority of the acts giving rise to plaintiff’s claims take place in another forum, that [8] weighs heavily in favor of transfer.” Leatherman v. Cabot Oil & Gas Corp., No. 12-cv-3783, 2013 U.S. Dist. LEXIS 45297, 2013 WL 1285491, at *3 (E.D. Pa. Mar. 29, 2013) (DuBois, J.) (quoting Hamilton v. Nochimson, No. 09-CV-2196, 2009 U.S. Dist. LEXIS 62644, 2009 WL 2195138, at *3 (E.D. Pa. July 21, 2009) (O’Neill, J.)). The events and witnesses in this case have no connection to the Eastern District. The accident occurred in the Western District. Responding state troopers, EMS personnel, and other witnesses are in western Pennsylvania, as are all relevant police and medical records. ECF No. 5-1 at 9-10; ECF No. 6 at 14-16.
Given the above analysis, private interests in this matter weigh in favor of transfer to the Western District of Pennsylvania.

ii. Public Interest Factors
Jumara also requires that the Court consider relevant public interests, including (i) the enforceability of the judgment; (ii) practical considerations that could make the trial easy, expeditious, or inexpensive; (iii) the relative administrative difficulty in the two fora resulting from court congestion; (iv) the local interest in deciding controversies at home, (v) the public policies of the fora; and (vi) the familiarity of the trial judge with applicable state law in diversity cases. Jumara, 55 F.3d at 879-80.
The first and sixth public factors are inapplicable here because a judgment in the Western District is equally enforceable as compared to one in the Eastern District, and because [*9] judges in both districts are familiar with the applicable Pennsylvania law. The third factor weighs somewhat against transfer, as the Western District has a slightly higher case load per judge than does the Eastern District. ECF No. 6 at 20. As the Shama Defendants note, however, the case loads of both districts are below the national average, suggesting the public interest in lessening court congestion should be afforded little weight in this analysis. Id. Furthermore, the remaining public interest factors weigh more clearly in favor of transfer; given the need for witness travel, access to records, and potential access to the accident scene, it is eminently more practical and cost-effective to adjudicate the case locally. The Western District surely has the greater interest in providing a forum for the resolution of a lawsuit resulting from a tragic local accident. Public interests thus also weigh in favor of transfer.

III. CONCLUSION
Because venue is proper in the Western District of Pennsylvania and both private and public interests counsel in favor of transfer, Defendants have met their burden of proving that this case is best adjudicated in the Western District. I will therefore [*10] grant the Frost Brook Defendants’ and Shama Defendants’ Motions to Transfer to the United States District Court for the Western District of Pennsylvania pursuant to 28 U.S.C. § 1404(a).
/s/ ANITA B. BRODY, J.
ANITA B. BRODY, J.

ORDER
AND NOW, this 13th day of January, 2022, Defendants Frost Brook Trucking, Inc., Robert Lee, Jr., and Mark W. Eddy’s Motion to Transfer for Inconvenient Forum (ECF No. 5) and Defendants Shama Express, L.L.C., Mohammed Akbari, and Dilawar Ali Shah’s Motion to Transfer Venue Pursuant to 28 U.S.C. §1404 (ECF No. 6) are GRANTED.
It is FURTHER ORDERED that the Clerk of Court is directed to transfer the above-captioned matter to the United States District Court for the Western District of Pennsylvania.
/s/ ANITA B. BRODY, J.
ANITA B. BRODY, J.

United States District Court for the Southern District of Texas, Houston Division
January 11, 2022, Decided; January 11, 2022, Filed, Entered
CIVIL ACTION NO. H-21-2683

Reporter
2022 U.S. Dist. LEXIS 4999 *; 2022 WL 103555
PROGRESSIVE COMMERCIAL CASUALTY INSURANCE COMPANY, Plaintiff, vs. XPRESS TRANSPORT LOGISTICS, LLC, d/b/a XT LOGISTICS, XPRESS TRANSPORT LOGISTICS, VERONICA CUELLAR, individually and as personal representative of the Estate of MIGUEL ANGEL PEREZ CUELLAR, deceased, ESTATE OF FABIAN ALANIZ-SANTIAGO, deceased, and ESMERALDA SANTIAGO, Defendants.
Core Terms

insured, endorsement, Transport, motor carrier, statutory employee, final judgment, fmcsa, independent contractor, counterclaim, discovery, coverage, drive, commercial motor vehicle, partial summary judgment, motion to dismiss, duty to settle, allegations, suretyship, indemnify, nonmovant, argues, truck, load
Counsel: [*1] For Progressive Commercial Casualty Company, Plaintiff: Raymond Matthew Kutch, Jr, LEAD ATTORNEY, Thompson Coe Cousins & Irons, L.L.P., One Riverway, Houston, TX; Jeannie Nguyen, Thompson, Coe, Cousins & Irons, One Riverway, Houston, TX; Richard M Mosher, Thompson Coe et al, Dallas, TX.
For Veronica Cuellar, agent of, Individually and as Personal Representative of the Estate of Miguel Angel Perez Cuellar, Deceased, Defendant: James B Ragan, Attorney at Law, Corpus Christi, TX.
For Esmeralda Santiago, Defendant: Analisa Figueroa, LEAD ATTORNEY, Law Office of Analisa Figueroa, P.L.L.C., Brownsville, TX.
For Veronica Cuellar, Counter Claimant, Counter Defendant: James B Ragan, Attorney at Law, Corpus Christi, TX.
For Progressive Commercial Casualty Company, Counter Defendant: Jeannie Nguyen, Thompson, Coe, Cousins & Irons, One Riverway, Houston, TX; Richard M Mosher, Thompson Coe et al, Dallas, TX.
Judges: Lee H. Rosenthal, Chief United States District Judge.
Opinion by: Lee H. Rosenthal
Opinion

MEMORANDUM AND OPINION
This declaratory judgment casualty insurance coverage case arises from sad facts. Miguel Cuellar, age 18, agreed to accompany his friend, Fabian Alaniz Santiago, age 19, who was to drive a truck load of steel [2] parts from Laredo, Texas, to Missouri. (Docket Entry No. 13 at ¶ 3; Docket Entry No. 14 at ¶ 7). Santiago was driving for ESD Transport, a company owned by Fabian Santiago’s mother, Esmeralda Santiago. (Docket Entry No. 13 at ¶ 3.1; Docket Entry No. 14 at ¶ 8). Xpress Transport Logistics, LLC, also known as XT Logistics, had agreed to haul the load but rebrokered it to ESD Transport. (Docket Entry No. 13 at ¶ 3.1; Docket Entry No. 14 at ¶ 8). At some point during the trip, Miguel Cuellar took the wheel. (Docket Entry No. 13 at ¶ 3; Docket Entry No. 14 at ¶ 7). The truck rolled, killing both him and Fabian Santiago. (Docket Entry No. 13 at ¶ 3; Docket Entry No. 14 at ¶ 7). Cuellar’s mother, Veronica Cuellar has sued Esmeralda Santiago, Xpress, and other defendants in Texas state court. (Docket Entry No. 13-1). At the time of the accident, Xpress was insured by a commercial auto policy with Progressive Commercial Casualty Insurance Company. (Docket Entry No. 13 at ¶ 3.3; Docket Entry No. 13-2). Under a full reservation of rights, Progressive provided Xpress a defense in the underlying state court action. (Docket Entry No. 13 at ¶ 3.4; Docket Entry No. 14 at ¶ 11). Settlement demands have [3] been made in the underlying litigation, but no final judgment or order of dismissal has been entered. (Id.).
Progressive has sued Xpress and Veronica Cuellar, as well as the estate of Fabian Santiago, and Esmeralda Santiago, in this court, seeking a declaratory judgment that Progressive has no duty to defend or indemnify Xpress and that the MCS-90 insurance endorsement does not apply to the claims in the underlying state action. (Docket Entry No. 13 at 9). Veronica Cuellar has counterclaimed for a declaratory judgment that Progressive has a duty under the MCS-90 endorsement to accept and pay a settlement offer that is reasonable and within the MCS-90 policy limits. (Docket Entry No. 14).
Veronica Cuellar moves for partial summary judgment that as a matter of law, Miguel Cuellar was not a statutory employee of Xpress when the accident occurred, and that therefore the MCS-90 endorsement applies. (Docket Entry No. 16). Progressive responds to Veronica Cuellar’s motion for partial summary judgment by asking for discovery to be able to frame a response. (Docket Entry No. 20). Veronica Cuellar has replied. (Docket Entry No. 21).
Progressive moves to dismiss Veronica Cuellar’s counterclaim on [*4] the ground that there is no cause of action for a “duty to settle” in relation to an MCS-90 endorsement. (Docket Entry No. 17). Veronica Cuellar has responded, and Progressive has replied. (Docket Entry Nos. 22, 23).
The motions are addressed below.

I. The Legal Standards

A. The Standard for a Motion to Dismiss
Rule 12(b)(6) allows dismissal if a plaintiff fails “to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Rule 12(b)(6) must be read in conjunction with Rule 8(a), which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). Rule 8 “does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed- me accusation.” Id. at 678 (quoting Twombly, 550 U.S. at 555). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” [*5] Id. (quoting Twombly, 550 U.S. at 556).
“A complaint ‘does not need detailed factual allegations,’ but the facts alleged ‘must be enough to raise a right to relief above the speculative level.'” Cicalese v. Univ. Tex. Med. Branch, 924 F.3d 762, 765 (5th Cir. 2019) (quoting Twombly, 550 U.S. at 555). “Conversely, when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, this basic deficiency should be exposed at the point of minimum expenditure of time and money by the parties and the court.” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (alterations omitted) (quoting Twombly, 550 U.S. at 558).
A court reviewing a motion to dismiss under Rule 12(b)(6) may consider “(1) the facts set forth in the complaint, (2) documents attached to the complaint, and (3) matters of which judicial notice may be taken under Federal Rule of Evidence 201.” Inclusive Cmtys. Project, Inc. v. Lincoln Prop. Co., 920 F.3d 890, 900 (5th Cir. 2019).

B. The Standard for a Motion for Summary Judgment
“Summary judgment is appropriate only when ‘the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'” Shepherd ex rel. Est. of Shepherd v. City of Shreveport, 920 F.3d 278, 282-83 (5th Cir. 2019) (quoting Fed. R. Civ. P. 56(a)). “A material fact is one that might affect the outcome of the suit under governing law,” and “a fact issue is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Renwick v. PNK Lake Charles, LLC, 901 F.3d 605, 611 (5th Cir. 2018) (citations and internal quotation marks omitted). The moving party “always bears the [*6] initial responsibility of informing the district court of the basis for its motion,” and identifying the record evidence “which it believes demonstrate[s] the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
“When the moving party has met its Rule 56(c) burden, the nonmoving party cannot survive a summary judgment motion by resting on the mere allegations of its pleadings.” Duffie v. United States, 600 F.3d 362, 371 (5th Cir. 2010). The nonmovant must identify specific evidence in the record and articulate how that evidence supports that party’s claim. Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014). “A party cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence.” Lamb v. Ashford Place Apartments LLC, 914 F.3d 940, 946 (5th Cir. 2019) (citation and internal quotation marks omitted). In deciding a summary judgment motion, “the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his or her favor.” Waste Mgmt. of La., LLC v. River Birch, Inc., 920 F.3d 958, 972 (5th Cir. 2019) (alterations omitted) (quoting Tolan v. Cotton, 572 U.S. 650, 656, 134 S. Ct. 1861, 188 L. Ed. 2d 895 (2014)).

II. Analysis

A. The Statutory Employee Issue
Although fact disputes remain unresolved at this early stage of the litigation, Veronica Cuellar argues that this court can rule as a matter of law on her motion for partial summary judgment that Miguel Cuellar was not a statutory employee of Xpress. If Miguel Cuellar was an Xpress statutory [7] employee, there’s no recovery under the MCS-90 endorsement. Not being a statutory employee of the insured is a necessary condition for recovery under the endorsement. Veronica Cuellar argues that this issue can be decided based on undisputed facts in the present record. The facts she relies on, which are undisputed based on the parties’ complaints, answers, and briefs, appear to be the following: • (1) Progressive issued an insurance policy to Xpress Logistics, LLC, which included an MCS-90 endorsement; • (2) Xpress is a federal motor carrier; • (3) Xpress agreed to be the carrier for the load in question; • (4) Xpress asked Fabian Santiago’s mother, Esmeralda Santiago, doing business as ESD Transport, to haul the load instead; • (5) Fabian Santiago, an employee of ESD Transport, at some point asked his friend, Miguel Cuellar, to drive during the trip; and • (6) an accident occurred while Miguel Cuellar was driving, resulting in both his and Fabian Santiago’s death. (Docket Entry No. 16 at 3-4; Docket Entry No. 20 at 2, 7). Still-to-be-discovered facts include whether Miguel Cuellar was paid by Fabian Santiago, or ESD Transport; the relationships between Fabian Santiago, ESD Transport, and [8] Xpress; and the circumstances leading to the accident. Although Veronica Cuellar attaches exhibits to her motion for partial summary judgment—that she asserts resolves these disputed facts—those exhibits are from the underlying state litigation, which is still in the discovery stage. Progressive has submitted a declaration stating that it has not had an opportunity to discover facts that will be important in resolving disputed or uncertain, relevant facts to this action. (Docket Entry No. 20-1).
Progressive argues that whether Miguel Cuellar was paid or employed by Fabian Santiago, ESD Transport, or Xpress, or whether he was to be compensated in some other way for helping Fabian Santiago drive the truck from Texas to Missouri, Miguel Cuellar was operating a commercial motor vehicle in interstate commerce when he died, making him a statutory employee of Xpress under the Motor Carrier Act. Progressive argues in the alternative that factual disputes preclude granting Veronica Cuellar’s motion for partial summary judgment at this stage, and that a continuance for discovery under Rule 56(d) is appropriate.
The policy that Progressive issued to Xpress included an MCS-90 endorsement, required under the [9] federal Motor Carrier Act. That endorsement is mandated in policies issued to a registered motor carrier, such as Xpress. The endorsement is intended to protect the public by requiring registered interstate motor carriers to file with the Department of Transportation proof of insurance “sufficient to pay . . . for each final judgment against the registrant for bodily injury to, or death of, an individual resulting from the negligent operation, maintenance, or use of motor vehicles, or for loss or damage to property.” 49 U.S.C. § 13906(a)(1). To ensure that motor carriers have the minimum levels of financial responsibility required, the Motor Carrier Act and its accompanying regulations provide that obtaining an MCS-90 endorsement in a policy is one of the ways that a motor carrier can submit proof of the required financial responsibility. 49 C.F.R. § 387.7(d). This endorsement requires the insurer to pay “any final judgment recovered against the insured for public liability resulting from negligence in the operation … or use of motor vehicles . . . regardless of whether [it] is specifically described in the policy.” See 49 C.F.R. § 387.15 (directing to https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/2021-06/FMCSA%20Form%20MCS-90%2006032021_508.pdf). [10] The endorsement then allows the insurer to seek reimbursement from the insured. Id.
“The endorsement creates a suretyship, which obligates an insurer to pay certain judgments against the insured arising from interstate commerce activities, even though the insurance contract would have otherwise excluded coverage.” Canal Ins. Co. v. Coleman, 625 F.3d 244, 247 (5th Cir. 2010) (citing Minter v. Great Am. Ins. Co. of N.Y., 423 F.3d 460, 470 (5th Cir. 2005)). The endorsement does not protect the insured, but the public, by filling an insurance gap; it guarantees a source of recovery when a registered motor carrier negligently injures a member of the public and coverage does not otherwise apply.
The MCS-90 endorsement states in part:
In consideration of the premium stated in the policy to which this endorsement is attached, the insurer (the company) agrees to pay, within the limits of liability described herein, any final judgment recovered against the insured for public liability resulting from negligence in the operation, maintenance or use of motor vehicles subject to the financial responsibility requirements of Sections 29 and 30 of the Motor Carrier Act of 1980 regardless of whether or not each motor vehicle is specifically described in the policy and whether or not such negligence occurs on any route or in any territory authorized [11] to be served by the insured or elsewhere. Such insurance as is afforded, for public liability, does not apply to injury to or death of the insured’s employees while engaged in the course of their employment, or property transported by the insured, designated as cargo. It is understood and agreed that no condition, provision, stipulation, or limitation contained in the policy, this endorsement, or any other endorsement thereon, or violation thereof, shall relieve the company from liability or from the payment of any final judgment, within the limits of liability herein described, irrespective of the financial condition, insolvency or bankruptcy of the insured. However, all terms, conditions, and limitations in the policy to which the endorsement is attached shall remain in full force and effect as binding between the insured and the company. The insured agrees to reimburse the company for any payment made by the company on account of any accident, claim, or suit involving a breach of the terms of the policy, and for any payment that the company would not have been obligated to make under the provisions of the policy except for the agreement contained in this endorsement. See 49 C.F.R. § 387.15 (directing [12] to https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/2021-06/FMCSA%20Form%20MCS-90%2006032021_508.pdf) (emphasis added).
The MCS-90 endorsement does not apply to injury or death of an “insured’s employee.” The question is whether Miguel Cuellar was an “employee” of Xpress under the Motor Carrier Act when he took the truck wheel from Fabian Santiago.
The Motor Carrier Act, 49 U.S.C. § 31132(2), defines an “employee” to mean:
[A]n operator of a commercial motor vehicle (including an independent contractor when operating a commercial motor vehicle), . . . or an individual not an employer, who . . . directly affects commercial motor vehicle safety in the course of employment . . . .
The regulation defines “employee” as:
. . . any individual, other than an employer, who is employed by an employer and who in the course of his or her employment directly affects commercial motor vehicle safety. Such term includes a driver of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial motor vehicle), . . .
49 C.F.R. § 390.5.
The MCS-90 endorsement excludes coverage of an “insured’s employees while engaged in the course of their employment.” An excluded employee under the MCS-90 endorsement [13] is an individual, other than the employer, who is an operator of a commercial motor vehicle (including an independent contractor), who is engaged in the course of his employment with the insured when the injury occurs. Progressive’s argument that the fact that Miguel Cuellar was driving a truck delivery load that Xpress rebrokered to ESD Transport makes him an employee of Xpress is unpersuasive. The language of the MCS-90 endorsement requires that Miguel Cuellar was engaged in some form of employment with the insured, even if as an independent contractor. But Veronica Cuellar is unpersuasive in arguing that assuming Cuellar was not hired as an employee by ESD Transport or Xpress, he cannot be a statutory employee for the purpose of the MCS-90 endorsement. Ooida Risk Retention Grp., Inc. v. Williams presents some similar facts and questions. 579 F.3d 469 (5th Cir. 2009). In Ooida, Tony Moses was the sole proprietor of Slim Shady Express, a commercial motor carrier. Id. at 471. Ooida had issued a standard motor carrier policy to Slim Shady Express. Id. Moses asked Derrick Shamoyne Williams for help on long-haul jobs and paid him for that help, but Slim Shady Express did not directly employ Williams. Id. at 474. Moses was in the rig’s [14] sleeper berth when Williams lost control of a rig on a job for Slim Shady Express, and Moses died. Id. at 471. The Fifth Circuit held that because Moses asked Williams to help him and paid for that help, Williams was an independent contractor, and therefore a statutory employee under the Motor Carrier Act and its regulations. Id. at 474.
As in Ooida, if Miguel Cuellar was provided with value in exchange for his service of helping drive with Fabian Santiago, then Cuellar may be considered an employee of ESD Transport, which took the job on a rebrokered contract from Xpress. See Consumers Cty. Mut. Ins. Co v. PW & Sons Trucking Inc., 307 F.3d 362, 365-67 (5th Cir. 2002) (an independent contractor could not seek coverage for injuries because he was a “statutory employee” under § 390.5, which eliminates the distinction between an independent contractor and an employee); Price v. Westmoreland, 727 F.2d 494, 497 (5th Cir. 1984) (the insurer was vicariously liable for damages caused by the negligence of the insured’s statutory employee that injured his passenger, despite the fact that the employee did not have the authority to take a passenger, because the passenger was not furthering the economic interest of the carrier).
Under Rule 56(d) of the Federal Rules of Civil Procedure, “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, [*15] the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” This case is at an early stage. Formal discovery has not begun. Progressive has submitted a declaration that it has had no opportunity to: subpoena text messages between Miguel Cuellar and Fabian Santiago or others; discover relevant facts about the circumstances of the trip; take depositions of ESD Transport and Xpress representatives; learn more about whether Miguel Cuellar was compensated in any way; or learn whether anyone but Fabian Santiago knew that Miguel Cuellar was along on the trip or whether Fabian Santiago’s knowledge is imputed to Esmeralda Santiago, ESD Transport, or Xpress. (Docket Entry No. 20-1).
Veronica Cuellar’s motion for partial summary judgment on the key issue in the coverage dispute is premature. The court denies the motion, without prejudice to having it reurged, if appropriate, after discovery. The court grants Progressive’s Rule 56(d) request to defer decision on the issue raised in the motion until that discovery has occurred.

B. Progressive’s Motion to Dismiss the Counterclaim
Progressive argues [16] that Veronica Cuellar’s counterclaim that Progressive has a duty to settle claims arising from an MCS-90 endorsement obligation does not state a cause of action. Veronica Cuellar responds that because an MCS-90 endorsement permits judgment creditors to pursue an action directly against the insurer for amounts owed by the insured, and the insurer can then seek reimbursement from the insured, the insurer has a duty to settle within a reasonable policy amount. Under Texas law, an insurer has a Stowers duty, “to exercise ordinary care in the settlement of claims to protect its insureds against judgments in excess of policy limits.” Am. Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842, 843 n.2 (Tex. 1994). The “duty is not activated by a settlement demand unless: (1) the claim against the insured is within the scope of coverage, (2) there is a demand within policy limits, and (3) the terms of the demand are such that an ordinarily prudent insurer would accept it, considering the likelihood and degree of the insured’s potential exposure to an excess judgment.” Am. Guarantee & Liability Ins. Co. v. ACE Am. Ins. Co., 990 F.3d 842, 847 (5th Cir. 2021) (citing Tex. Farmers Ins. Co. v. Soriano, 881 S.W.2d 312, 314 (Tex. 1994)). “This well-recognized duty arises from the obligations to defend and indemnify pursuant to the insurance contract and the control the policy grants to the insurer over the insured’s defense.” [17] St. Paul Fire & Marine Ins. Co. v. Convalescent Servs., Inc., 193 F.3d 340, 342 (5th Cir. 1999) (citation omitted).
The Fifth Circuit treats the MCS-90 endorsement as a suretyship, rather than an indemnity relationship between an insurer and insured. See Travelers Indem. Co. of Ill. v. W. Am. Specialized Transp. Servs., Inc., 409 F.3d 256, 260 (5th Cir. 2005) (“The prevailing law . . . is that the MCS—90 endorsement imposed a suretyship obligation on [the insurer] to the [public].”). “A suretyship is a three-party relationship where the surety undertakes to perform to an obligee if the principal fails to do so. The surety stands in the shoes of the principal and must complete any obligation due the obligee at the time of default.” 74 AM. JUR. 2D SURETYSHIP § 1 (2021 Update).
The MCS-90 endorsement is a “safety net” for the public, and “not an ordinary insurance provision to protect the insured.” Travelers Indem., 409 F.3d at 260. The reasons behind a duty to settle in the indemnity-insurance context, in which the insurer has a duty to defend and indemnify the insured, do not apply to the MCS-90 endorsement context, in which the insurer owes only an obligation to pay the remaining debt of an insured after the insured’s debt has been established. See John Deere Ins. Co. v. Truckin’ U.S.A., 122 F.3d 270, 275 (5th Cir. 1997) (the MCS-90 endorsement did not create a duty to indemnify among the insurers); T.H.E. Ins. Co. v. Larsen Intermodal Servs., Inc., 242 F.3d 667, 677 (5th Cir. 2001) (recognizing that the MCS-90 endorsement does not itself create a duty to defend the insured).
Veronica Cuellar’s argument [18] that the insurer, Progressive, has a duty to settle under the MCS-90 endorsement is unpersuasive. The MCS-90 endorsement provides: The insured agrees to reimburse the [insurer] for any payment made by the [insurer] on account of any accident, claim, or suit involving a breach of the terms of the policy, and for any payment that the [insurer] would not have been obligated to make under the provisions of the policy except for the agreement contained in this endorsement. It is further understood and agreed that, upon failure of the [insurer] to pay any final judgment recovered against the insured as provided herein, the judgment creditor may maintain an action in any court of competent jurisdiction against the [insurer] to compel such payment. See 49 C.F.R. § 387.15 (directing to https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/2021-06/FMCSA%20Form%20MCS-90%2006032021_508.pdf). Under the MCS-90 endorsement, after a final judgment has issued against the insured, Xpress, a judgment creditor has the right to sue the insurer, Progressive, if Progressive has failed to pay the amount Xpress owes under the judgment. The obligation to satisfy the remaining debt is triggered only after a final judgment. See also [19] Auto-Owners Ins. Co. v. Munroe, 614 F.3d 322, 327 (7th Cir. 2010) (“Under this suretyship, the insurer is only obliged to pay what the insured actually owes, and then only if that debt arises from a final judgment.” (citing Carolina Cas. Ins. Co. v. Yeates, 584 F.3d 868, 881 (10th Cir. 2009)). Because Progressive has a duty to pay the debt of Xpress that remains after a final judgment against Xpress, Progressive does not owe a duty to settle under the MCS-90 endorsement.
The outcome might be different if the insurance contract, by terms other than those in the MCS-90 endorsement, imposed a duty to defend and indemnify on Progressive that encompassed claims brought under the MCS-90 endorsement. See T.H.E. Ins. Co., 242 F.3d at 677 (“[A]lthough the MCS—90 itself does not impose a duty to defend upon the insurer, neither does it negate such a duty that might fall upon the insurer under the Policy as interpreted according to state law.”). But that is not what Veronica Cuellar has pleaded in her counterclaim.
The motion to dismiss Veronica Cuellar’s counterclaim is granted.

III. Conclusion
Veronica Cuellar’s motion for partial summary judgment, (Docket Entry No. 16), is denied. Progressive’s motion to dismiss Veronica Cuellar’s counterclaim, (Docket Entry No. 17), is granted.
SIGNED on January 11, 2022, at Houston, Texas.
/s/ Lee H. Rosenthal
Lee H. Rosenthal [*20]
Chief United States District Judge