CASES (2022)

JOHNSON v. VALENZULEA ACOSTA

United States District Court for the Western District of Kentucky, Louisville Division

May 18, 2022, Decided; May 19, 2022, Filed

Civil Action No. 3:22-cv-82-DJH-CHL

Reporter

2022 U.S. Dist. LEXIS 90240 *; 2022 WL 1598344

JAMES F. JOHNSON, III et al., Plaintiffs, v. OMAR N. VALENZUELA ACOSTA and MACER TRANSPORTATION, INC., Defendants.

Core Terms

removal, settlement demand, plaintiffs’, notice, amount in controversy, thirty-day, unambiguous, triggered, surgery, solid, thirty days, injections, diversity, exceeded, parties, crash

Counsel: [*1] For James F. Johnson, III, J.J., a minor by and through his father, guardian, and next friend, James F. Johnson, III, D.J., a minor by and through his father, guardian, and next friend, James F. Johnson, III, S.J., a minor by and through his father, guardian, and next friend, James F. Johnson, III, Plaintiffs: A. Nicholas Naiser, LEAD ATTORNEY, Naiser Law Office, Louisville, KY.

For Omar N. Valenzuela Acosta, Macer Transportation, Inc., Defendants: Daniel E. Murner, Elizabeth J. Winchell, Estee Rose, Jennifer L. Fiorella, LEAD ATTORNEYS, Landrum & Shouse, LLP – Lexington, Lexington, KY.

Judges: David J. Hale, United States District Judge.

Opinion by: David J. Hale

Opinion

Defendant Omar N. Valenzuela Acosta, a truck driver for Defendant Macer Transportation, Inc., rear-ended Plaintiff James F. Johnson, III’s car in May 2019 and allegedly injured Johnson and his three minor children, who were riding as passengers. (Docket No. 1-1, PageID # 8-9; D.N. 6, PageID # 46-47) The Johnsons brought this action in Jefferson Circuit Court in March 2021, alleging that Acosta “was negligent in the operation of [his] motor vehicle” and that Macer was vicariously liable for the “negligent and careless conduct” [*2] of its employee.¹ (D.N. 1-1, PageID # 8-9) The defendants removed the case nearly eleven months later, invoking the Court’s diversity jurisdiction. (D.N. 1) The plaintiffs now move for remand, arguing that the defendants’ removal was untimely. (D.N. 6) For the reasons explained below, the plaintiffs’ motion to remand will be granted.

On May 29, 2019, Acosta, who was driving a tractor trailer for Macer, rear-ended Johnson’s car on an interstate in Jefferson County, Kentucky.² (D.N. 1-1, PageID # 8; D.N. 6, PageID # 46; D.N. 7, PageID # 66) Johnson and his three minor children, who were passengers in the car, were allegedly injured in the collision and “immediately sought treatment at a local hospital.”³ (D.N. 6, PageID # 46) The three minors recovered relatively quickly, but Johnson claims that he “suffer[ed] a permanent hand injury that will require periodic injections for the foreseeable future and eventually a surgery.” (Id., PageID # 47)

The Johnsons sued Acosta and Macer in Jefferson Circuit Court in March 2021, asserting negligence and vicarious-liability claims. (D.N. 1-1, PageID # 6-9) On June 28, 2021, the plaintiffs sent a “detailed” settlement demand letter to the defendants’ [*3] counsel, which included among other things “a description of [Johnson’s] lengthy course of treatment” following the May 2019 collision; “an itemization” of the $16,623.88 in medical bills that he had accrued up to that point; and “copies of those bills and the related medical records.” (D.N. 6, PageID # 47; see D.N. 6-2) As is relevant here, the demand letter stated that in August 2020, Johnson’s doctor had “offered the option of surgical intervention” to treat Johnson’s injured hand. (D.N. 6-2, PageID # 58) The doctor had also “explained that [Johnson] will ultimately need a surgery [in] 20-30 years due to further deterioration [of his hand] caused by the crash . . . regardless of whether [Johnson] has surgery now.” (Id.) Johnson decided against surgery and elected instead to treat “the pain in his . . . hand” with periodic injections, which he plans to receive “indefinitely into the future.” (Id., PageID # 58-59) Given this past and future treatment, the plaintiffs’ letter “extend[ed] a demand of $445,000.00 to resolve [Johnson’s] claim (and his claim alone)” (id., PageID # 60), an amount the defendants deemed “exorbitant and not supported by the information available to [them] at [*4] the time.” (D.N. 7, PageID # 69)

The parties scheduled a mediation for February 2022. (D.N. 1, PageID # 3; D.N. 6, PageID # 47) “[I]n preparation for [that] mediation,” Johnson sent Acosta and Macer “an affidavit from his treating physician” on January 21, 2022, which, according to the defendants, “indicated that the arthritic condition in [Johnson’s] hand was related to the [May 2019] accident, and that [Johnson] would need periodic injections to treat his condition, until such time as he had surgery, which would also reportedly be necessary as a result of the accident.” (D.N. 1, PageID # 3) The defendants considered that affidavit to be the “first ‘paper’ which suggested the amount in controversy” in this matter “would exceed $75,000,” and they removed the plaintiffs’ case on February 11, 2022, invoking the Court’s diversity jurisdiction.⁴ (D.N. 1, PageID # 3; see D.N. 7, PageID # 70-71) Four days later, the plaintiffs filed their motion to remand, in which they argue that their case “was not removed in a timely fashion.” (D.N. 6, PageID # 46) In response, the defendants contend that remand is not warranted because they “removed the case within 30 days of first obtaining documentation [*5] which provided competent proof that the amount in controversy would more likely than not exceed $75,000.” (D.N. 7, PageID # 71) The plaintiffs replied (D.N. 8), and their motion is now ripe for adjudication.

II.

A defendant seeking to remove a case to federal court ordinarily must file a notice of removal “within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.” 28 U.S.C. § 1446(b)(1). But “if the case stated by the initial pleading is not removable,” the defendant must instead file a notice of removal “within 30 days after receipt . . . of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” Id.§ 1446(b)(3); see Berera v. Mesa Med. Grp., PLLC, 779 F.3d 352, 364 (6th

Cir. 2015). In short, as the Sixth Circuit has put it, “the thirty-day period for removal begins to run when the initial pleading or a subsequent paper first provides ‘solid and unambiguous information that the case is removable.'” Forest Creek Townhomes, LLC v. Carroll Prop. Mgmt., LLC, 695 F. App’x 908, 912 (6th Cir. 2017) (quoting Berera, 779 F.3d at 364); see Berera, 779 F.3d at 364 (“Section 1446(b)‘s requirement of solid and unambiguous information is akin to actual notice.”).

Here, it is undisputed that the “case stated by [*6] the [plaintiffs’] initial pleading [wa]s not removable.” 28 U.S.C. § 1446(b)(3). The plaintiffs only assert state-law negligence claims. (See D.N. 1-1, PageID # 6-9) And although the parties are completely diverse, the plaintiffs’ state-court complaint makes no mention of a damages amount or an amount in controversy.⁵ (See id.) In their motion to remand, however, the plaintiffs argue that their June 28, 2021 settlement demand letter, in which they “extend[ed] a demand of $445,000” to resolve Johnson’s claims (D.N. 6-2, PageID # 60), “unquestionably” established that the amount in controversy in this matter exceeded the $75,000 threshold for federal jurisdiction, see 28 U.S.C. § 1332(a), and therefore rendered this case “removable.” (D.N. 6, PageID # 50) The dispositive issue here is thus whether that demand letter constituted an “other paper,” 28 U.S.C. § 1446(b)(3), that provided the defendants with “solid and unambiguous information . . . that the amount in controversy exceeded $75,000.” Forest Creek, 695 F. App’x at 912. If it did, as the plaintiffs maintain (see D.N. 6, PageID # 49-50), then the thirty-day removal window triggered by that “other paper” expired long before the defendants removed this case in February 2022. See Forest Creek, 695 F. App’x at 912 (noting that the “thirtyday [removal] period” [*7] in that case “began when Defendants first had solid and unambiguous information” that the requirements for diversity jurisdiction had been met). But if it did not, then removal here was likely timely: The defendants claim that the January 21, 2022 affidavit from Johnson’s doctor (see D.N. 6-3) was the first “competent proof that the amount in controversy was likely to exceed $75,000,” and they filed their notice of removal less than thirty days after receiving that document. (D.N. 7, PageID # 71; see D.N. 1) The Sixth Circuit “ha[s] yet to fully expound the meaning of ‘other paper’ under § 1446(b)(3).” Berera, 779 F.3d at 365. But “[v]irtually every court that has considered the issue has held that settlement demand letters and other correspondence between parties may constitute ‘other paper.'” Mathes v. Burns, No. 3:19-cv-751, 2019 U.S. Dist. LEXIS 182602, 2019 WL 5394310, at *5 (M.D. Tenn. Oct. 22, 2019) (collecting cases); see Hiser v. Seay, No. 5:14-cv-170, 2014 U.S. Dist. LEXIS 168429, 2014 WL 6885433, at *3 (W.D. Ky. Dec. 5, 2014) (“Courts have found that settlement offers and other correspondence between parties can constitute ‘other paper’ under [§ 1446(b)(3)].”); Nagarajan v. Ostruskza, No. 5:12-cv-91, 2012 U.S. Dist. LEXIS 149998, 2012 WL 5077691, at *2 (W.D. Ky. Oct. 18, 2012) (observing that district courts in the Sixth Circuit and other federal courts “have accepted the notion that” settlement demand letters “are ‘other paper’ under [§ 1446(b)(3)]”); see also 14C Charles Allen Wright et al., Federal Practice and Procedure [*8] § 3731 (Rev. 4th ed. 2018) (noting that “correspondence between the parties and their attorneys or between the attorneys usually are accepted” by federal courts “as ‘other papers,’ receipt of which can initiate a 30-day period of removability”). Accordingly, a settlement demand letter can trigger § 1446(b)(3)‘s thirty-day removal period if it “solid[ly] and unambiguous[ly]” establishes that “a federal district court would have jurisdiction over the case.” Forest Creek, 695 F. App’x at 912; see Nagarajan, 2012 U.S. Dist. LEXIS 149998, 2012 WL 5077691, at *3 (concluding that a post-complaint settlement demand of $300,000 “clearly and unequivocally provided notice” that the amount in controversy exceeded the federal jurisdictional threshold and therefore triggered the thirty-day removal period under § 1446(b)(3)); see also Addo v. Globe Life & Accident Ins. Co., 230 F.3d 759, 760, 762 (5th Cir. 2000) (holding that a post-complaint letter “indicating that [the] plaintiff would seek damages exceeding the federal jurisdictional minimum” triggered the thirty-day removal period); Nelson v. Diversified Logistics Servs., No. 4:20-cv-44, 2020 U.S. Dist. LEXIS 121301, 2020 WL 3888177, at *3 (N.D. Ind. July 10, 2020) (concluding the same about a plaintiff’s post-complaint settlement demand for more than $7 million). And removal is untimely if a defendant who receives such a settlement demand letter does not file a notice of removal within that thirty-day window. [*9] See Nagarajan, 2012 U.S. Dist. LEXIS 149998, 2012 WL 5077691, at *3-*4 (remanding a case because the defendant failed to file a notice of removal within “thirty days after the latest date that [she] undisputedly had knowledge of” the plaintiff’s $300,000 settlement demand); see also Addo, 230 F.3d at 762 (holding that “removal was improper” because the defendant failed to remove the case within thirty days of receiving a settlement demand letter for an amount greater than $75,000).

In light of these principles, the Court concludes that the plaintiffs’ June 28, 2021 settlement demand letter was an “other paper” that provided the defendants with “solid and unambiguous information” that the amount in controversy here exceeded $75,000, Forest Creek, 695 F. App’x at 912, which in turn means that the defendants’ February 11, 2022 removal was untimely. See 28 U.S.C. § 1446(b)(3). The June 28, 2021 letter “clearly and unequivocally provided notice” to the defendants that the plaintiffs estimated their case to be worth at least $445,000 (see D.N. 6-2, PageID # 60), a figure well in excess of the amount-in-controversy threshold for federal diversity jurisdiction. Nagarajan, 2012 U.S. Dist. LEXIS 149998, 2012 WL 5077691, at *3; see LaPree v. Prudential Fin., 385 F. Supp. 2d 839, 850 (S.D. Iowa 2005) (concluding that settlement demands for more than $75,000 “provided the necessary affirmative proof that the [federal] jurisdictional amount was satisfied in accordance [*10] with 28 U.S.C. § 1446(b)“). The defendants were therefore required to file their notice of removal within thirty days of receiving the letter. 28 U.S.C. § 1446(b)(3); see Forest Creek, 695 F. App’x at 912. And their failure to do so necessitates remand. See Nagarajan, 2012 U.S. Dist. LEXIS 149998, 2012 WL 5077691, at *3-*4; see also Addo, 230 F.3d at 762; Nelson, 2020 U.S. Dist. LEXIS 121301, 2020 WL 3888177, at *3; LaPree, 385 F. Supp. 2d at 850.

The defendants argue in their response that the June 28, 2021 settlement demand letter did not trigger § 1446(b)(3)‘s thirty-day removal period because the plaintiffs’ proposed settlement amount “was exorbitant and not supported by the information available to [the] [d]efendants at the time [the settlement offer] was made.” (D.N. 7, PageID # 69) But Acosta and Macer offer no authority in support of their suggestion that § 1446(b)(3)‘s removal window is triggered only when a defendant deems a plaintiff’s settlement demand reasonable and adequately supported. See Santos-Tiller v. Krispy Kreme Doughnut Corp., No. 16-cv-10342, 2016 U.S. Dist. LEXIS 112786, 2016 WL 4445429, at *3 (E.D. Mich. Aug. 24, 2016) (observing that “several circuits have held that a [plaintiff’s] settlement demand ‘is relevant evidence of the amount in controversy if it appears to reflect a reasonable estimate of the plaintiff’s claim'” (quoting McPhail v. Deere & Co., 529 F.3d 947, 956 (10th Cir. 2008))); see also Addo, 230 F.3d at 762 (suggesting that a settlement demand letter fails to trigger the removal window only if the demand is “plainly a sham”). And far from being arbitrary or ungrounded as the defendants suggest, the plaintiffs’ $445,000 settlement [*11] demand was accompanied by a detailed, multi-page summary of the medical treatment and diagnoses Johnson received after the May 2019 crash and thus clearly reflected the plaintiffs’ estimation of the cost of his past and future treatment. (D.N. 6-2, PageID # 56-60)

The defendants also argue that the removal period began only after they received the January 21, 2022 affidavit from Johnson’s doctor because that document “confirm[ed]” for the first time that Johnson’s ongoing injections and expected surgery were “causally related to [the May 2019] accident” and thus provided the first “competent proof that the amount in controversy was likely to exceed $75,000.” (D.N. 7, PageID # 71) But the June 28, 2021 settlement demand letter had already indicated that Johnson’s medical treatment was necessitated by the May 2019 crash. Indeed, the letter expressly stated that the same doctor who provided the January 21, 2022 affidavit had previously confirmed that Johnson would need surgery in the future “due to [the] further deterioration” of his hand “caused by the crash,” and the letter also noted that the “periodic injections” that Johnson will receive “indefinitely” are likewise “due to the crash [*12] .” (D.N. 6-2, PageID # 58, 60 (emphasis added)) Accordingly, if, as the defendants contend, this case became removable when they learned that Johnson’s medical treatment was “being directly attributed to the [May 2019] accident” (D.N. 7, PageID # 71), then they were required to file their notice of removal within thirty days of receiving that particular information for the first time. See Forest Creek, 695 F. App’x at 912 (“We have stated that the thirty-day period for removal begins to run when . . . a subsequent paper first provides ‘solid and unambiguous information that the case is removable.'”). And according to the record here, that information was clearly conveyed to the defendants via the plaintiffs’ June 28, 2021 demand letter. (See D.N. 6-2, PageID # 58, 60)

In sum, the June 28, 2021 settlement demand letter was an “other paper from which it [could] first be ascertained” that this case was one which “ha[d] become removable.” 28 U.S.C. § 1446(b)(3). The defendants were thus required to file their notice of removal within thirty days of receiving it. See id.; see also Forest Creek, 695 F. App’x at 912. And because they did not do so, the plaintiffs’ motion to remand must be granted. See Nagarajan, 2012 U.S. Dist. LEXIS 149998, 2012 WL 5077691, at *4; see also Addo, 230 F.3d at 762.

III.

For the reasons set forth above, and the Court being otherwise [*13] sufficiently advised, it is hereby

ORDERED that the plaintiffs’ motion to remand (D.N. 6) is GRANTED. This case is REMANDED to Jefferson Circuit Court and STRICKEN from the Court’s active docket.

May 18, 2022

/s/ David J. Hale

David J. Hale, Judge

United States District Court

End of Document

¹Johnson is suing on his own behalf and as the “father, natural guardian, and next friend” of his three minor children, J.J., D.J., and S.J. (D.N. 1-1, PageID # 7). See Fed. R. Civ. P. 17(c)(2).

²Because the factual allegations in the plaintiffs’ state-court complaint are spare (see D.N. 1-1, PageID # 6-9), the details concerning the car crash at issue in this matter and the events leading up to this case’s removal largely come from the plaintiffs’ motion to remand and the defendants’ response. (See D.N. 6; D.N. 7)

³The defendants assert in their response, however, that according to the collision report, “there were no injuries reported at the scene” of the May 2019 crash. (D.N. 7, PageID # 66)

⁴The parties do not dispute that they are completely diverse. (See D.N. 1, PageID # 2; D.N. 1-1, PageID # 7)

⁵Kentucky’s Rules of Civil Procedure bar plaintiffs from demanding a specific sum as alleged damages in pleadings. See Ky. R. Civ. P. 8.01(2).

ARGONAUT INS. CO. V. ATL. SPECIALTY INS. CO.

United States District Court for the Eastern District of Louisiana
May 9, 2022, Decided; May 9, 2022, Filed
CIVIL ACTION No. 21-1602 SECTION I

Reporter

2022 U.S. Dist. LEXIS 83078 *; 2022 WL 1460112

ARGONAUT INSURANCE COMPANY VERSUS ATLANTIC SPECIALTY INSURANCE COMPANY

Core Terms

truck, Non-Trucking, summary judgment, driver, stopping, route, collision, coverage, detour, load, material fact, Deviation, ambiguous, genuine, underlying lawsuit, personal use, Terminal, Carrier, insurer, Garage, argues

Counsel: [*1] For Argonaut Insurance Company, Plaintiff: Max Jeffrey Cohen, LEAD ATTORNEY, Melanie Lockett, Lowe, Stein, Hoffman, Allweiss & Hauver, LLP, New Orleans, LA; Kent J Lisenby, The Lisenby Law Firm, P.C., Coppell, TX.

For Atlantic Specialty Insurance Company, Defendant: Alex P Tilling, LEAD ATTORNEY, Leake & Andersson, LLP (New Orleans), Energy Centre, New Orleans, LA; Karen E Futch, Leake & Andersson, New Orleans, LA; Megan Ashley Haynes, Leake & Andersson, LLP, New Orleans, LA.

Judges: LANCE M. AFRICK, UNITED STATES DISTRICT JUDGE.

Opinion by: LANCE M. AFRICK

Opinion

ORDER & REASONS

Before the Court is a motion¹ for summary judgment filed by defendant Atlantic Specialty Insurance Company (“ASIC”). Plaintiff Argonaut Insurance Company (“Argonaut”) opposes² the motion. ASIC filed a reply.³ For the reasons that follow, the Court will grant the motion and enter judgment in favor of ASIC.

I. BACKGROUND
A. February 22, 2019 Collision

This action arises out of a 2019 vehicular collision in New Orleans, Louisiana, and an ensuing tort action (“the underlying lawsuit”) brought in Orleans Parish Civil District Court.⁴ The undisputed facts⁵ are as follows: On February 22, 2019, Darrell Esnault (“Esnault”), a commercial truck driver, was [*2] operating a 2005 Freightliner, unit number TG27 (the “truck”), which was leased by Double S Transportation, LLC (“Double S”) to Triple G Express, Inc. (“Triple G”).⁶ Esnault delivered his final load of the day to the Norfolk Southern Railroad Terminal, located at 2900 Florida Avenue, New Orleans, Louisiana.⁷ He departed the terminal at approximately 3:50 p.m., “bobtailing” the tractor of the truck—meaning that he was driving the tractor without a trailer attached to it.⁸

Esnault then traveled toward a Save-A-Lot grocery store located at the intersection of Paris Avenue and Mirabeau Avenue.⁹ On the way, Esnault saw a friend on Paris Avenue, stopped for approximately five minutes, exited his vehicle, and spoke with his friend.¹⁰ Thereafter, Esnault returned to his vehicle and continued traveling north on Paris Avenue towards the Save-A-Lot.¹¹As Esnault drew closer to Save-A-Lot, he realized that he did not have enough cash to make his contemplated purchases, so he turned around and headed south on Paris Avenue towards Gentilly Boulevard “to go to his residence,” where the truck is normally garaged.¹² Esnault reached the intersection of Paris Avenue and Gentilly Boulevard, which [*3] is approximately three to four blocks away from his residence.¹³“Then, Esnault turned right on Gentilly Boulevard to go to his residence, but before he got to his residence, he contemplated [purchasing cigarettes at] a Shell Station or a nearby convenience store located near the corner of Paris Avenue and Gentilly Boulevard, which would have required another U-turn in the opposite direction of his residence.”¹⁴

As Esnault started to turn left from the outer lane to the left lane at the intersection of Gentilly Boulevard and Republic Street, in order to make the U-turn, a Nissan Altima, driven by Christian Davis (“Davis”), collided with the left side of the truck.¹⁵ The accident occurred approximately 22 minutes after Esnault departed from the Norfolk Southern Railroad Terminal.¹⁶ “If the accident had not occurred, Esnault would have eventually returned to his residence located at 2346 Gentilly Boulevard, New Orleans, Louisiana, and garaged his truck.”¹⁷

B. Insurance Policies

At the time of the accident, Argonaut had issued Commercial Auto Policy Number AVT 100003600 to Triple G, which provided Motor Carrier Coverage in the amount of $1,000,000.¹⁸Additionally, ASIC had issued a [*4] policy to Triple G, which includes Non-Trucking Liability coverage (“the NTL policy”), the scope of which is specified in the policy’s Section One.¹⁹ The policy limit for Section One is $500,000.20

The NTL policy states that Section One “only applies to Losses that occur . . . when a Covered Truck is Non-Trucking.”²¹ The policy states that a truck is “Non-Trucking” when it “is subject to an active Permanent Lease with a government regulated Motor Carrier and is either Bobtail or Deadhead is operating solely for personal use unrelated to the business of the Motor Carrier.”²² The policy further provides that a truck is “not Non-Trucking” when it is “returning to the Truck’s Primary Garage Location subsequent to delivering a load[.]”²³ The “Primary Garage Location” is “the home parking base for a Truck or the terminal from which the Truck customarily obtains hauling assignments.”²⁴

C. Ensuing Litigation

In the underlying lawsuit, Davis named Argonaut, ASIC, Esnault, Double S, and Triple G as defendants.²⁵
Davis’s state court petition stated that “at all material times . . . [Esnault] was on a mission and/or errand for
[Triple G] and/or [Double S] on the date of this accident[.]”²⁶ Argonaut [*5] provided a defense to Esnault, Triple G, and Double S, and settled Davis’s claims as to those defendants for $750,000.²⁷ The order of dismissal, executed in January 2021 as a result of the settlement, stated that Davis “retains all claims and rights . . . against Atlantic Specialty Insurance Company.”²⁸ Davis assigned all of his remaining rights to Argonaut.²⁹An order of dismissal as to all remaining defendants was executed on February 22, 2022.³⁰

Argonaut filed the above-captioned action in this Court, seeking damages from ASIC.³¹ Argonaut argues that ASIC’s NTL policy covered the collision and, therefore, that ASIC should have been the primary insurer in settling Davis’s claims.³² Argonaut argues that ASIC had a duty to provide coverage and to defend Esnault and Triple G in the underlying lawsuit.³³ Argonaut argues that it has the right to recover $500,000 from ASIC—in other words, the maximum limit under ASIC’s policy.³⁴Additionally, Argonaut argues that it is entitled to recover special damages in the amount of $30,384.95 for the cost of defending the underlying lawsuit.³⁵

In the instant motion for summary judgment, ASIC argues that its NTL policy did not cover the collision at issue [*6] and that Argonaut is not entitled to recover any damages from ASIC in connection with the underlying settlement. ASIC also submits that, even if the NTL policy covered the collision, ASIC did not have a duty to defend in the underlying lawsuit, and that Argonaut has no basis to seek contribution from ASIC, whether directly or through subrogation of Davis’s claims.³⁶

II.STANDARD OF LAW

Summary judgment is proper when, after reviewing the pleadings, the discovery and disclosure materials on file, and any affidavits, the court determines that there is no genuine dispute of material fact and that the movant
is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56. “[A] party seeking summary judgment always
bears the initial responsibility of informing the district court of the basis for its motion, and identifying those
portions of [the record] which it believes demonstrate 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). The party seeking summary
judgment need not produce evidence negating the existence of a material fact, but need only point out the absence of evidence supporting the other party’s case. Id.; Fontenot v. Upjohn Co., 780 F.2d 1190, 1195 (5th Cir. 1986).

Once the party seeking summary judgment carries its burden, the nonmoving party must [*7] come forward with specific facts showing that there is a genuine dispute of material fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). The showing of a genuine issue is not satisfied by creating “‘some metaphysical doubt as to the material facts,’ by ‘conclusory allegations,’ by ‘unsubstantiated assertions,’ or by only a ‘scintilla’ of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). Instead, a genuine issue of material fact exists when the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). “Although the substance or content of the evidence submitted to support or dispute a fact on summary judgment must be admissible . . . .the material may be presented in a form that would not, in itself, be admissible at trial.” Lee v. Offshore Logistical & Transp., LLC, 859 F.3d 353, 355 (5th Cir. 2017) (quotation omitted).

The party responding to the motion for summary judgment may not rest upon the pleadings but must identify specific facts that establish a genuine issue. Anderson, 477 U.S. at 248. The nonmoving party’s evidence, however, “is to be believed, and all justifiable inferences are to be drawn in [the nonmoving party’s] favor.” Id. at 255; see also Hunt v. Cromartie, 526 U.S. 541, 552, 119 S. Ct. 1545, 143 L. Ed. 2d 731 (1999).

III. LAW AND ANALYSIS

“The interpretation of an insurance contract presents a question of law, rather than fact, and therefore is an appropriate matter [*8] for determination by summary judgment.” Martco Ltd. P’ship v. Wellons, Inc., 588 F.3d
864, 878 (5th Cir. 2009) (citations omitted). “Louisiana law provides that an insurance policy is a contract between the parties and should be construed using the general rules of contract interpretations set forth in the Louisiana Civil Code.” First Am. Bank v. First Am. Transp. Title Ins. Co., 585 F.3d 833, 837 (5th Cir. 2009). “The role of the judiciary in interpreting an insurance contract is to ascertain the common intent of the insured and insurer as reflected by the words of the policy.” Gorman v. City of Opelousas, 148 So. 3d 888, 892 (La. 2014) (quoting Peterson v. Schimek, 729 So. 2d 1024, 1028 (La. 1991)). “When the words of an insurance contract are clear, explicit and lead to no absurd consequences, courts must enforce the contract as written and make no further interpretation in search of the parties’ intent.” Id. (quoting Peterson, 729 So. 2d at 1028); see also La. Civ. Code. art 2046.

“Ambiguous policy provisions are generally construed against the insurer and in favor of coverage.” Cadwallader v. Allstate Ins. Co., 848 So. 2d 577, 580 (La. 2003). “Under this rule of strict construction, equivocal provisions seeking to narrow an insurer’s obligation are strictly construed against the insurer.” Id. However, this principle “applies only if the ambiguous policy provision is susceptible to two or more reasonable interpretations.” Id. (emphasis in original). “An insurance policy should not be interpreted in an unreasonable or strained manner so as to enlarge or [*9] to restrict its provision beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion.” Lodwick, LLC v. Chevron U.S.A., Inc., 126 So. 3d 544, 549-50 (La. App. 2 Cir. 2013). “Likewise, a court should not strain to find ambiguity in a policy where none exists.” Id.

ASIC contends that, because “Esnault was returning from dropping off a load at the time of this accident, and would not have even been operating the Truck at all had it not been for the delivery he had been obligated to make, it is clear that he was not operating the subject Truck solely for personal use at the time the accident occurred, such that the underlying claim is properly excluded from coverage under this general definition alone.”³⁷

Argonaut states that it is “is not taking the position that any ‘route deviation’ . . . would have triggered ASIC’s Non-Trucking coverage” and suggests, for instance, that stopping to purchase gas or to use the restroom would not be considered “non-trucking.”³⁸ However, Argonaut submits that stopping to “purchase groceries or cigarettes” is “purely . . . personal” in nature, such that the driver would be considered to be “non-trucking.”³⁹
Argonaut also emphasizes the fact that Esnault needed to make a U-turn and travel away from his residence [*10] in order to complete his contemplated stop at a nearby Shell station or convenience store.

First, the Court looks to the term “Non-Trucking,” which is defined, in relevant part, as when a truck is “operating solely for personal use unrelated to the business of the Motor Carrier.”⁴⁰ The inclusion of the term “solely” in
this definition is significant, because it indicates that the policy contemplates that a truck may simultaneously be
put to both business and personal use. Additionally, the relevant coverage exception, which applies when the truck is “returning to the Truck’s Primary Garage subsequent to delivering a load,”⁴¹ does not state that the return trip must be the most direct route possible, nor does it explicitly preclude drivers from making brief stops or detours along the way.

The caselaw on this issue, although sparse, supports the interpretation that minor personal detours do not render a truck to be “non-trucking.” For instance, in Great West Casualty Insurance Co. v. Burns, 2020 U.S. Dist. LEXIS 92911, 2020 WL 2776495 (M.D. Ga. May 28, 2020), the court considered the same ASIC Non-Trucking policy in a context that bears some factual similarities to the instant case. The court concluded that if a truck driver made a “personal errand to grab food” while he was en route to pick up [*11] a load, this would “not change the essential nature of his trip.” 2020 U.S. Dist. LEXIS 92911, [WL] at *8. Such a stop would be a “minor personal detour,” which “would not have altered the reason he was operating his tractor that morning, which was to further [his carrier’s] commercial interests by picking up a load[.]” Id.⁴² See also, e.g., Forkwar v. Empire Fire & Marine Ins. Co., 487 F. App’x 775, 780 (4th Cir. 2012) (concluding that a “business use” exception applied, despite the fact that the truck driver stopped for a meal on his way to pick up a load that he had been tasked with retrieving). The parties have not
provided, nor is the Court aware of, any cases in which a court has concluded that a short personal detour effectively rendered the driver to be “non-trucking.”

Argonaut points to the fact that the General Policy Definitions section of the policy defines the term “Route Deviation” as meaning “a deviation from the customary business route to pursue personal interests,”⁴³ and
asserts that this term must be read in harmony with the relevant exception to the Non-Trucking coverage.⁴⁴
However, as ASIC notes, “none of the relevant policy provisions at issue in this case make use of the defined
term ‘Route Deviation’ or otherwise indicate that they are made subject to that term in any way.” [*12] ⁴⁵
Additionally, ASIC persuasively asserts that “[t]he fact that the return trip provision does not reference Route Deviations hurts rather than helps Argonaut’s argument” because “[t]he provision could have specifically excepted Route Deviations from its scope but plainly does not.”⁴⁶

“That ‘contractual language may, on occasion, pose difficult factual applications . . .’ and that the parties disagree as to coverage, does not create ambiguity.” Mahaffey v. Gen. Sec. Ins. Co., 543 F.3d 738, 741 (5th Cir. 2008) (quoting Empire Fire & Marine Ins. Co. v. Brantley Trucking, Inc., 220 F.3d 679, 681 (5th Cir. 2000)). The Court concludes that the language of the NTL policy is unambiguous, and that the NTL policy does not cover the collision at issue in this action. However, to the extent that the policy might be deemed ambiguous, the Court also concludes that Argonaut’s proffered interpretation is unreasonable.

Specifically, it would be unreasonable to interpret the policy as preventing drivers from making brief stops or detours to tend to basic personal needs. For instance, it would be difficult to believe that the NTL policy would
preclude a driver from stopping to use the restroom. Similarly, it would be difficult to believe that the policy would preclude a driver experiencing drowsiness from stopping for coffee or to stretch his legs. Argonaut, [*13] for its part, at least concedes that stopping for gas or to use the restroom would not render the driver “non-trucking,” but maintains that stopping for groceries or cigarettes is purely personal in nature, and would render the driver “non-trucking.”⁴⁷ However, the text of the policy provides no basis for drawing such distinctions. While stopping for gas is perhaps an example of a detour that could be described as solely for business purposes, any other kind of detour— including a stop to use the restroom, or to get coffee or food—could be characterized as at least partially personal in nature. The Court concludes that it would be unreasonable to read the NTL policy as precluding stops or detours of any kind whatsoever, and further concludes that it would be unreasonable to read Argonaut’s proposed distinctions into the policy.

Argonaut also cautions that, “[i]n essence, ASIC’s position is that until Esnault returned home, he was not Non-Trucking, no matter what he was doing or where he was going.”⁴⁸ The Court does not believe that such an extreme implication flows from its interpretation of the policy. Future cases may present factual scenarios that test the outer boundaries of the NTL [*14] policy, but the instant case does not. The collision occurred approximately 22 minutes from the time that Esnault left the Norfolk Southern Railroad Terminal.⁴⁹ While Esnault did not take the most direct route home after dropping off his last load of the day, he also did not stray far from the route. He briefly drove towards a grocery store, before realizing that he did not have sufficient cash and drove towards his residence.⁵⁰ He stopped for five minutes to talk with a friend whom he saw on the street.⁵¹ His subsequently-contemplated trip to a nearby gas station or convenience store, while requiring him to drive in the opposite direction of his residence, would have taken him approximately three to four blocks away from his residence, at most.⁵² The Court concludes, in light of the limited purpose, distance, and duration of Esnault’s attempted detour, that the truck was not being
operated solely for personal use at the time of the collision.

In sum, the Court concludes that the NTL policy is unambiguous. However, to the extent that the NTL policy could be deemed ambiguous, Argonaut’s proposed interpretation is unreasonable. Cadwallader, 848 So. 2d at 580. The Court therefore concludes that the NTL policy did [*15] not apply at the time of the collision. Having so concluded, the Court declines to reach the parties’ arguments as to ASIC’s duty to defend and contribution. Accordingly,

IT IS ORDERED that the motion for summary judgment is GRANTED and that plaintiff’s claims are DISMISSED WITH PREJUDICE.

New Orleans, Louisiana, May 9, 2022.

/s/ Lance M. Africk

LANCE M. AFRICK

UNITED STATES DISTRICT JUDGE

JUDGMENT

On this date, the Court issued an order and reasons granting defendant’s motion for summary judgment.
Accordingly,

IT IS ORDERED that the motion for summary judgment is GRANTED. Plaintiff’s claims in the above-captioned action are DISMISSED WITH PREJUDICE.

New Orleans, Louisiana, May 9, 2022.

/s/ Lance M. Africk

LANCE M. AFRICK

UNITED STATES DISTRICT JUDGE

End of Document

¹ R. Doc. No. 17.

² Doc. No. 19.

³ R. Doc. No. 22.

⁴ R. Doc. No. 17-4.

⁵ R. Doc. No. 17-2 (joint stipulation).

⁶ Id. at 1 ¶ 1.

⁷ Id. at 2 ¶ 7.

⁸ Id.; see also R. Doc. No. 17-9, at 6 (defining “bobtailing”).

⁹ R. Doc. No. 17-2, at 2 ¶ 8.

¹⁰Id. at 2 ¶ 9.

¹¹ Id. at 2 ¶ 10.

¹² Id. at 2 ¶¶ 11-13; R. Doc. No. 17-3, at 4 ¶ 19; R. Doc. No. 19-1, at 2 ¶ 19.

¹³ R. Doc. No. 17-2, at 2 ¶ 12.

¹⁴ R. Doc. No. 17-2, at 2 ¶ 13. Both parties have stipulated to the fact that Esnault intended to purchase cigarettes at the Shell station or convenience store. R. Doc. No. 33.

¹⁵ Id. at 3 ¶ 14.

¹⁶ Id. at 3 ¶ 15.

¹⁷ Id. at 3 ¶ 16.

¹⁸ R. Doc. No. 19, at 2.

¹⁹ R. Doc. No. 17, at 6.

²⁰Id.

²¹ R. Doc. No. 17-9, at 9 (emphasis in original).

²² Id. at 6 (emphasis in original). The parties do not dispute that the truck was subject to an active permanent lease with a government regulated motor carrier.

²³ Id. at 6-7.

²⁴ Id. at 7.²⁵ R. Doc. No. 17-3, at 1.

²⁶ R. Doc. No. 17-4, at 3 ¶ VI.

²⁷R. Doc. No. 19-1, at 1.

²⁸ R. Doc. No. 17-8.

²⁹ R. Doc. No. 17-7, at 5.

³⁰ R. Doc. No. 19-3.

³¹R. Doc. No. 1, at 6 ¶ 17.

³² Id. at 4 ¶ 11, 6 ¶ 17.

³³ Id. at 6 ¶ 17.

³⁴ Id. at 5 ¶ 15.

³⁵ Id. at 6 ¶ 17.

³⁶ R. Doc. No. 17-1, at 10-12, 19-21.

³⁷ R. Doc. No. 17-1, at 13 (emphasis in original).

³⁸ R. Doc. No. 19, at 6.

³⁹ Id.

⁴⁰ R. Doc. No. 17-9, at 6.

⁴¹Id. at 7.

⁴² Ultimately, evidence in the record conflicted with the driver’s testimony that he intended to make a brief detour for a meal. Burns, 2020 U.S. Dist. LEXIS 92911, 2020 WL 2776495, at *8-9. Because there were genuine disputes of material facts at to the driver’s intended destination, among other things the court denied the motion for summary judgement. 2020 U.S. Dist. LEXIS 92911, [WL] at *9. No such factual disputes exist in this action because the parties have jointly stipulated that Esnault intended to get cigarettes at a nearby gas station or convenience store prior to the collision. See supra n.14.

⁴³R. Doc. No. 17-9, at 7.

⁴⁴ R. Doc. No. 19, at 6.

⁴⁵ R. Doc. No. 22, at 6.

⁴⁶ Id. at 6-7.

⁴⁷ R. Doc. No. 19, at 6.

⁴⁸ Id. at 4.

⁴⁹ R. Doc. No. 17-2, at 2 ¶ 12.

⁵⁰ Id. at 2 ¶¶ 8, 10, 11.

⁵¹ Id. at 2 ¶ 9.

⁵² Id. at 2 ¶ 12. The Court does not deem the fact that Esnault’s contemplated detour required him to drive in the opposite direction of his primary garage to be dispositive. Detours, by definition, require the driver to depart from the most direct route to some degree. Whether the detour entails a U-turn or, for instance, exiting a highway to drive to a nearby gas station, is of little import. The purpose, distance, and duration of the detour bear more relevance to the inquiry.