United States District Court for the Eastern District of Virginia, Richmond Division

September 11, 2023, Decided; September 11, 2023, Filed

Civil Action No. 3:23-cv-142-HEH

FALLS LAKE NATIONAL INSURANCE CO., Plaintiff, v. WILBOURNE LAND AND TIMBER, INC., et al., Defendants.

Core Terms

Coverage, declaratory, federal court, truck, state court, proceedings, courts

Counsel:  [*1] For Falls Lake National Insurance Company, Plaintiff: John Stanfield Buford, LEAD ATTORNEY, John Becker Mumford, Jr., Hancock Daniel & Johnson (Glen Allen), Glen Allen, VA.

For Wilbourne Land and Timber, Inc., Wilbourne Farms Trucking, LLC, Javier Salas-Zarate Francisco, also known as Francisco Salas, Defendants: Samuel Keith Barker, LEAD ATTORNEY, Law Offices of S Keith Barker PC, Glen Allen, VA.

For Lindsey Satterwhite, as Administrator of the Estate of Jerry Dean Robbins, Deceased, Defendant: Justin Matthew Sheldon, Breit Biniazan, PC, Richmond, VA.

Judges: Henry E. Hudson, Senior United States District Judge.

Opinion by: Henry E. Hudson

Opinion

MEMORANDUM OPINION

(Granting Defendants’ Motions to Dismiss)

This case arises from a dispute over insurance coverage for the death of Jerry Dean Robbins (“Robbins”) on November 17, 2020, at Wilbourne Land and Timber, Inc.’s (“WLT”) logging site. Defendant Lindsey Satterwhite (“Satterwhite”), the Administrator of Robbins’ estate, sued WLT and Javier Salas-Zarate Francisco (“Francisco”) in Mecklenburg County Circuit Court, No. LC21-1331-00 (“State Proceeding”), for causing the accident that killed her father, Robbins. Plaintiff Falls Lake National Insurance Co. (“Falls Lake” [*2]  or “Plaintiff”) filed this Complaint for Declaratory Judgment urging the Court to find that it owes no coverage for the accident under the Commercial General Liability Coverage Part (“CGL Coverage Part”) or the Commercial Automobile Coverage Part (“Business Auto Coverage Part”) of WLT’s commercial lines insurance policy (the “Policy”). Plaintiff also urges the Court to find that it owes no duty to indemnify WLT or Francisco, a WLT employee involved in the accident, for any damages resulting from the State Proceeding. (Compl. ¶¶ 49-51, ECF No. 1.) Plaintiff insured WLT, and the Policy’s named insureds included WLT, Wilbourne Farms Trucking, LLC (“WFT”), and Wilbourne Farms, LLC.

This matter is before the Court on Defendants WLT’s, WFT’s, Satterwhite’s, and Francisco’s (collectively, “Defendants”) Motions to Dismiss, or in the alternative, Motions to Stay Proceedings (the “Motions,” ECF Nos. 16, 25, 27).¹ Defendants seek to dismiss this case pursuant to Federal Rule of Civil Procedure 12(b)(1). (Satterwhite Mem. in Supp. at 1; Francisco Mem. in Supp. at 1.) In the alternative, Defendants seek to stay the proceedings pending the outcome of the state court action. (Satterwhite Mem. in Supp. at 1; Francisco Mem. in Supp. at 1.) [*3]  Plaintiff opposes Defendants’ Motions. The parties filed memoranda supporting their respective positions. The Court will dispense with oral argument because the facts and legal contentions have been adequately presented to the Court, and oral argument would not aid in the decisional process. See E.D. Va. Loc. Civ. Rule 7(J). For the reasons stated herein, the Court will grant Defendants’ Motions to Dismiss.

I. BACKGROUND

Robbins was employed by WFT as a commercial truck driver who primarily hauled felled trees. (Compl. ¶ 10.) WLT is a logging business and cuts trees at various tracts where it is hired to do so. (Id. ¶ 11.) On November 17, 2020, Robbins was operating a tractortrailer—a 2005 International 92001 (the “International”)—with a full load of timber when it became stuck in the mud on a dirt road. (Id. ¶ 12.) Robbins contacted another truck driver over the radio, who relayed to WLT that Robbins was stuck and needed assistance. (Id. ¶ 13.) WLT instructed Francisco to drive a John Deere Skidder² to the site to push the truck free from the mud. (Id. ¶ 14.) Robbins got out of the International, and Francisco then pushed the International with the Skidder. (Id. ¶¶ 15-16.) As Francisco pushed the truck, Robbins [*4]  was knocked to the ground and run over by the International, causing his death. (Id. ¶ 17.)

Satterwhite filed suit in Mecklenburg County Circuit Court seeking to recover $3,500,000 against Francisco and WLT for the accident that killed her father, Robbins. (Id. ¶ 6.) In that action, Satterwhite asserts two claims: (1) negligent design, construction, or maintenance of the dirt road by WLT; and (2) negligence and vicarious liability against WLT and Francisco as a result of Francisco’s operation of the Skidder and his failure to warn Robbins before pushing the International with the Skidder. (Id. ¶ 18.)

At issue is the scope of coverage under the Policy issued to WLT, WFT, and Wilbourne Farms, LLC as named insureds. (Id. ¶ 21.) The Policy contains a Business Auto Coverage Part, a CGL Coverage Part, and a Commercial Inland Marine Coverage Part. (Id. ¶ 20.) The Parties disagree as to whether the Policy provides coverage to WLT or Francisco under either the Business Auto Coverage Part or the CGL Coverage Part. (Id. ¶ 48.)

II. DISCUSSION

Plaintiff brings this action under the Declaratory Judgment Act (the “Act”), which grants a district court discretion to issue a declaratory judgment. 28 U.S.C. § 2201. The Fourth Circuit has held that [*5]  where an action seeking declaratory relief is filed in federal court while a parallel state action is pending, “courts have broad discretion to abstain from deciding declaratory judgment actions,” and in exercising their discretion they “weigh ‘considerations of federalism, efficiency, and comity’ to choose whether to retain jurisdiction over the case.” Med. Mut. Ins. Co. of N.C. v. Littaua, 35 F.4th 205, 208 (4th Cir. 2022) (quoting VonRosenberg v. Lawrence, 781 F.3d 290, 297 (4th Cir. 2015)). “[H]earing declaratory judgment actions in such circumstances is ordinarily ‘uneconomical,’ ‘vexatious,’ and risks ‘gratuitous interference’ with state court litigation.” Id. The Fourth Circuit has also counseled federal courts to exercise their discretionary jurisdiction with caution. See Trustgard Ins. Co. v. Collins, 942 F.3d 195, 201 (4th Cir. 2019).

The Fourth Circuit articulated the following four factors for district courts to consider when exercising jurisdiction in declaratory judgment actions involving ongoing state court proceedings:

(1) whether the state has a strong interest in having the issues decided in its courts;

(2) whether the state courts could resolve the issues more efficiently than the federal courts;

(3) whether the presence of “overlapping issues of fact or law” might create unnecessary “entanglement” between the state and federal courts; and

(4) whether the federal [*6]  action is mere “procedural fencing,” in the sense that the action is merely the product of forum-shopping.

Nautilus Ins. Co. v. Winchester Homes, Inc., 15 F.3d 371, 377 (4th Cir. 1994) (the “Nautilus factors”). “A district court has ‘wide discretion’ in applying these factors, but ‘[i]n the declaratory judgment context, the normal principle that federal courts should adjudicate claims within their jurisdiction yields to considerations of practicality and wise judicial administration.'” Allstate Prop. & Cas. Ins. Co. v. Cogar, 945 F. Supp. 2d 681, 687 (N.D. W. Va. 2013) (quoting Centennial Life Ins. Co. v. Poston, 88 F.3d 255, 257 (4th Cir. 1996)).

The first Nautilus factor weighs against exercising jurisdiction. The Commonwealth has a strong interest in Plaintiff’s claim because the statutes and Policy at hand are purely state issues. See Am. Motorists Ins. Co. v. Commonwealth Med. Liab. Ins. Co., 306 F. Supp. 2d 576, 581 (E.D. Va. 2004) (finding that issues raised in the liability insurer’s declaratory judgment action were “purely state law contract and insurance issues, which Virginia has a strong interest in deciding.” (citations omitted)). While the parties disagree as to the complexity of this case, the Court believes the issues presented are potentially complex—Plaintiff maintains there is no insurance coverage under multiple theories and raises issues of joint employment, common enterprise, and statutory employment. Thus, because the Commonwealth has a strong interest in having the issues decided in its courts, and [*7]  dispositive issues could involve complex questions of state law, the first factor supports abstention.

The second factor, whether state courts could resolve the issues more efficiently than the federal courts, is relatively neutral but leans slightly in Defendants’ favor. The State Proceeding was filed long before the present federal suit and will address the same key issue in this case—whether Robbins was WLT’s employee which will determine the coverage under the Policy. The State Proceeding is further along than the present case, and Mecklenburg County Circuit Court already held an evidentiary hearing on this issue on April 3, 2023. On the other hand, the state action does not encompass the issue of whether the Absolute Auto Exclusion bars coverage. Nor is Plaintiff a party to the state litigation. Additionally, Plaintiff has the ability to bring this same declaratory action in Mecklenburg County, where the related litigation is pending. See Littaua, 35 F.4th at 211. Although Mecklenburg County may not resolve all the issues raised before this Court, it can resolve the core issues more efficiently because the State Proceeding is well underway.

The third factor weighs heavily in Defendants’ favor as there [*8]  are “overlapping issues of fact or law” which may create unnecessary “entanglement” between the state and federal courts. Nautilus, 15 F.3d at 377. As previously mentioned, both lawsuits contain the same core question, whether Robbins was WLT’s employee, which is pending in the parallel state court proceeding. Thus, resolving this question may facilitate the state court’s ability to address the central underlying claim. While there is no overlap on the Absolute Auto Exclusion issue, the requisite facts and law are largely the same in both proceedings which could result in unnecessary “entanglement” between the courts.

The fourth factor also weighs in favor of this Court staying its hand. Procedural fencing occurs when “a party has raced to federal court in an effort to get certain issues that are already pending before the state courts resolved first in a more favorable forum.” Great Am. Ins. Co. v. Gross, 468 F.3d 199, 212 (4th Cir. 2006). As noted, the issue of whether Robbins was WLT’s employee had not been decided when Plaintiff filed this suit. Yet Plaintiff chose to race to this Court, to seemingly circumvent its resolution by the Mecklenburg County Circuit Court in the parallel action.

Therefore, after assessing the Nautilus factors, this Court will decline to exercise [*9]  jurisdiction under the Declaratory Judgment Act. 28 U.S.C. § 2201(a). Accordingly, Defendants’ Motions will be granted, and this case will be dismissed without prejudice.

An appropriate Order will accompany this Memorandum Opinion.

/s/ Henry E. Hudson

Henry E. Hudson

Senior United States District Judge

Date: Sept. 11, 2023

Richmond, Virginia

ORDER

(Granting Defendants’ Motions to Dismiss)

THIS MATTER is before the Court on Defendants Wilbourne Land and Timber, Inc.’s, Wilbourne Farms Trucking, LLC’s, Lindsey Satterwhite’s, and Javier Salas-Zarate Francisco’s Motions to Dismiss, or in the alternative, Motions to Stay Proceedings (ECF Nos. 16, 25, 27). For the reasons set forth in the accompanying Memorandum Opinion, the Motions to Dismiss are GRANTED, and this case is DISMISSED WITHOUT PREJUDICE.

The Clerk is DIRECTED to send a copy of this Order and the accompanying Memorandum Opinion to all counsel of record.

This case is CLOSED.

It is so ORDERED.

/s/ Henry E. Hudson

Henry E. Hudson

Senior United States District Judge

Date: Sept. 11, 2023

Richmond, Virginia

End of Document

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¹ Satterwhite filed her Motion (ECF No. 16) and Memorandum in Support (ECF No. 17) on March 29, 2023. Francisco, WLT, and WFT filed joint Motions (ECF Nos. 25, 27) and Memoranda in Support (ECF Nos. 26, 28) on April 13, 2023. Citations to the joint Motions herein reference Francisco’s filings. Because Defendants’ Motions are substantively similar, the Court addresses the Motions collectively.

² The Merriam-Webster Dictionary defines skidder as “a tractor used especially for hauling logs.” Skidder, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/skidder (last visited September 7, 2023).

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

September 12, 2023, Decided; September 12, 2023, Filed

CIVIL ACTION NO. 3:22-CV-713-KHJ-MTP

BLUE HILL SPECIALTY INSURANCE COMPANY, INC., PLAINTIFF v. MARION GRINSTON, et al., DEFENDANTS

Prior History: Blue Hill Specialty Ins. Co. v. Grinston, 2023 U.S. Dist. LEXIS 137635 (S.D. Miss., Aug. 8, 2023)

Core Terms

certificate, Trucking, coverage, genuine dispute, material fact, summary judgment, Declarations, reasons, reflecting, insurer

Counsel:  [*1] For Blue Hill Specialty Insurance Company, Inc., Plaintiff: H. Richmond Culp, III, LEAD ATTORNEY, MITCHELL, MCNUTT & SAMS, PA – Tupelo, Tupelo, MS.

For Marion Grinston, doing business asGrinston Trucking Company, Defendant: Dennis C. Sweet, III, SWEET & ASSOCIATES, PA, Jackson, MS.

For Delta Industries, Inc., doing business asJackson Ready-Mix, Defendant: Wilton V. Byars, III, LEAD ATTORNEY, Joseph Miles Forks, DANIEL, COKER, HORTON & BELL, PA – Oxford, Oxford, MS.

For Kathryn Harris, on behalf ofThe Wrongful Death Beneficiaries of John M. Harris, Deceased, Defendant: David Ronald Musgrove, MUSGROVE SMITH LAW, Ridgeland, MS; Joshua D. Becker – PHV, PRO HAC VICE, DOLLAR BURNS BECKER & HERSHEWE, L.C., Kansas City, MO.

For Antonio Young, Defendant: T. Murry Whalen, LEAD ATTORNEY, THE WHALEN LAW FIRM, Jackson, MS.

For Signature Insurance Agency, LLC, Defendant: Nathan L. Burrow, LEAD ATTORNEY, GALLOWAY, JOHNSON, TOMPKINS, BURR & SMITH – Mobile, Mobile, AL; Clayton S. Welch, GALLOWAY, JOHNSON, TOMPKINS, BURR & SMITH – Gulfport, Gulfport, MS.

For Mississippi Department of Public Safety, Defendant: Lee Pepper Cossar, LEAD ATTORNEY, MARKOW WALKER, P.A., Ridgeland, MS.

For Marion Grinston, Counter [*2]  Claimant: Dennis C. Sweet, III, SWEET & ASSOCIATES, PA, Jackson, MS.

For Blue Hill Specialty Insurance Company, Inc., Counter Defendant: H. Richmond Culp, III, LEAD ATTORNEY, MITCHELL, MCNUTT & SAMS, PA – Tupelo, Tupelo, MS.

For Delta Industries, Inc., Cross Claimant: Wilton V. Byars, III, LEAD ATTORNEY, Joseph Miles Forks, DANIEL, COKER, HORTON & BELL, PA – Oxford, Oxford, MS.

For Marion Grinston, Cross Defendant: Dennis C. Sweet, III, SWEET & ASSOCIATES, PA, Jackson, MS.

For Delta Industries, Inc., Counter Claimant: Wilton V. Byars, III, LEAD ATTORNEY, Joseph Miles Forks, DANIEL, COKER, HORTON & BELL, PA – Oxford, Oxford, MS.

For Signature Insurance Agency, LLC, Cross Defendant: Nathan L. Burrow, LEAD ATTORNEY, GALLOWAY, JOHNSON, TOMPKINS, BURR & SMITH – Mobile, Mobile, AL; Clayton S. Welch, GALLOWAY, JOHNSON, TOMPKINS, BURR & SMITH – Gulfport, Gulfport, MS.

For Delta Industries, Inc., Cross Claimant: Joseph Miles Forks, DANIEL, COKER, HORTON & BELL, PA – Oxford.

Judges: Kristi H. Johnson, UNITED STATES DISTRICT JUDGE.

Opinion by: Kristi H. Johnson

Opinion

ORDER

Before the Court is Plaintiff’s [60] Motion for Summary Judgment. The Court denies the motion for the following reasons.

I. Background

This declaratory-judgment [*3]  action arises from an insurance dispute. See Compl. [1]. Plaintiff Blue Hill Specialty Insurance Company, Inc., is suing various Defendants with a direct or derivative interest in an insurance policy. See id. ¶¶ 1-10. As relevant here, those Defendants include (1) Marion Grinston, d/b/a Grinston Trucking Company, the policyholder; (2) Delta Industries, Inc., d/b/a Jackson Ready-Mix, which contracted with Grinston Trucking and contractually required Grinston Trucking to maintain at least $2 million in liability insurance; and (3) Signature Insurance Agency, LLC, which was Grinston Trucking’s appointed insurance agent. See, e.g., id. ¶ 18; Delta Answer & Countercl. [20] at 6; Indep. Contractor Agreement [20-1] at 2; Grinston Appointment [60-5].

On May 28, 2021, Grinston Trucking’s vehicle was involved in a “tragic . . . accident.” [1] ¶ 15. The parties agree that Blue Hill insured the vehicle. Id. But the parties disagree about the policy’s coverage limit. See, e.g., id. ¶¶ 19, 23-31.

In a state-court case arising from the accident, Delta produced a certificate of insurance that Signature issued. See id. ¶ 30; Cert. of Liab. Ins. [60-3]. The certificate, dated May 7, 2021, stated that [*4]  it was “issued as a matter of information only” in order “to certify that the policies of insurance listed below have been issued.” [60-3]. Below that, the certificate provided that Blue Hill’s corporate parent issued a policy with a “combined single limit” of “$2,000,000,” effective April 29, 2021. See id.; see also, e.g., Blue Hill Corp. Disclosure Statement [2] (identifying Progressive as corporate parent); Progressive Letter [20-3] (parenthetically referring to “Blue Hill” as “Progressive”). The certificate listed Signature’s Shirlene Richardson as the “contact name” and “authorized representative.” Id. For its part, Blue Hill produced a Renewal Declarations Page reflecting a “combined single limit” of “$750,000,” effective April 29, 2021. Renewal Decls. [60-2] at 1-2.

Grinston Trucking’s corporate representative, David Grinston, testified about the discrepancy. See Forks Decl. [70-1] ¶ 5. David Grinston said in his deposition:

Q. Did Grinston Trucking [C]ompany have two million in insurance at the time of this wreck?

A. Yes.

Q. Was Grinston Trucking paying premiums for a coverage limit of two million at the time of the wreck?

A. Yes. . . .

Q. Do you have any idea how there’s an indication [*5]  on this certificate of insurance of $2 million in coverage but the policy that’s been produced only indicates 750,000?

A. Well see, that’s what I couldn’t understand. That’s what I was telling you about, we can’t figure out. . . . That’s what we turned in and that’s what we had. But [Shirlene Richardson] was talking like we had lowered it and I said . . . I couldn’t do that or nobody couldn’t do that because of Delta and them checked that every so often, and if they found out they [are] going to stop us from hauling.

David Grinston Dep. [70-3] at 3, 5-6. He explained that, “as far as clearing up that discrepancy,” Shirlene Richardson would be the person to talk to. Id. at 6.¹

Blue Hill filed this declaratory-judgment action in December 2022, seeking to resolve the coverage dispute. See [1]. Discovery opened on May 1, 2023, and it is set to close on December 15. See Case Mgmt. Order [46] at 3.

But on August 3, Blue Hill moved for summary judgment. [60].² It requested a declaration that “no additional insurance coverage exists in favor of any of the Defendants” beyond the $750,000 figure reflected in the Renewal Declarations Page. Id. at 5. In support of its motion, Blue Hill attached the [*6]  Renewal Declarations Page reflecting a $750,000 limit; the certificate reflecting a $2 million limit; and a declaration from a Blue Hill employee stating that Grinston Trucking never had more than $750,000 in coverage, and alleging that Blue Hill never authorized or knew about a certificate reflecting more than $750,000 in coverage. [60-2] at 1-2; [60-3]; Hale Decl. [60-4] ¶¶ 8, 10, 13-18. Delta opposed the motion, attaching David Grinston’s testimony. [70]; [70-3].

II. Standard

Summary judgment is proper if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” S. Ins. Co. v. Affiliated FM Ins. Co., 830 F.3d 337, 343 (5th Cir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)).

The Court must view the evidence in the light most favorable to the nonmoving party and construe all reasonable inferences in that party’s favor. Guzman v. Allstate Assurance Co., 18 F.4th 157, 160 (5th Cir. 2021). The Court may not evaluate witnesses’ credibility, weigh evidence, or resolve factual disputes. Id. (citing Anderson, 477 U.S. at 253-55).

III. Analysis

Summary judgment is improper for two separate reasons.

First, David Grinston’s testimony creates a genuine dispute of material fact. Grinston Trucking’s [*7]  corporate representative, David Grinston, testified:

Q. Did Grinston Trucking [C]ompany have two million in insurance at the time of this wreck?

A. Yes.

Q. Was Grinston Trucking paying premiums for a coverage limit of two million at the time of the wreck?

A. Yes.

[70-3] at 4; see also [70-1] ¶ 5. Testimony that Grinston Trucking “ha[d] two million in insurance” and was “paying premiums for a coverage limit of two million” creates a genuine dispute of material fact.

Blue Hill’s response is unavailing. Blue Hill first submits that David Grinston’s testimony was an “irrelevant” statement of “belief.” [73] at 4-5. To the contrary, David Grinston testified that Grinston Trucking “ha[d]” and was “paying premiums for” $2 million in coverage. [70-3] at 4. Blue Hill next asserts that “[n]ot one . . . document supports” the testimony. [73] at 5. That is incorrect. The certificate attached to Blue Hill’s motion provided “certif[ied]” “information” that Grinston Trucking had a $2 million policy. [60-3]. Finally, Blue Hill contends that the “self-serving” testimony “blatantly contradicts the record,” such that “‘no reasonable jury could believe it.'” [73] at 5 (quoting Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007)). But purportedly “‘self-serving’ [*8]  . . . depositions may create fact issues even if not supported by the rest of the record.” Guzman, 18 F.4th at 160; see also id. at 161 (“[E]vidence proffered . . . [to] defeat a motion for summary judgment will inevitably appear ‘self-serving.'”) (citation omitted). And Blue Hill’s reliance on Scott is misplaced. Scott was “an exceptional case with an extremely limited holding,” which has no application here. Aguirre v. City of San Antonio, 995 F.3d 395, 410 (5th Cir. 2021) (limiting Scott to “video evidence [that] provides so much clarity that a reasonable jury could not believe [the nonmoving party’s] account”) (citation omitted); see also, e.g., Fuentes v. Riggle, 611 F. App’x 183, 191 (5th Cir. 2015) (per curiam) (“There is no undisputed, contemporaneous recording of the disputed events here, as there was in Scott, or its equivalent.”). Based on David Grinston’s testimony alone, there is a genuine dispute of material fact.

Second, and separately, the certificate of insurance creates a genuine dispute of material fact. The certificate—”issued as a matter of information”—stated that it “certif[ied] that the policies of insurance listed below have been issued.” [60-3]. The certificate indicated that Blue Hill insured Grinston Trucking, and that the policy had a combined single limit of $2 million. See id. That, too, creates a genuine dispute of material [*9]  fact.

Again, Blue Hill’s response is unpersuasive. As Blue Hill sees it, this action “ultimately comes down to one issue—whether or not the unauthorized Certificate . . . is binding on Blue Hill or alters any terms of its policy.” [73] at 2. But that assumes away the factual dispute: whether the certificate’s “information” accurately reflected the in-force policy’s coverage limit. [60-3]. If it did, there would be no need to decide the legal question: whether the certificate “alters” the policy. [73] at 2.

While Blue Hill relies on Kennedy, the absence of a genuine dispute there only highlights the presence of a genuine dispute here. See id. at 2-4 (citing Progressive Gulf Ins. Co. v. Kennedy, No. 2:13-CV-52, 2014 U.S. Dist. LEXIS 75935, 2014 WL 2515213 (S.D. Miss. June 4, 2014)). Kennedy had an insurance policy with a “Non-Trucking” endorsement; Kennedy got into a truck accident. Kennedy, 2014 U.S. Dist. LEXIS 75935, 2014 WL 2515213, at *1. The insurer produced a certificate of insurance showing that Kennedy had “Non-Trucking” coverage. 2014 U.S. Dist. LEXIS 75935, [WL] at *3. Kennedy produced a certificate of his own, which was identical “except for one detail”: a “conspicuously empty space immediately preceding the word ‘Trucking.'” Id. The Court determined that no reasonable jury could believe that Kennedy’s certificate accurately reflected the policy. 2014 U.S. Dist. LEXIS 75935, [WL] at *4. That was so for three reasons: (1) Kennedy’s [*10]  certificate had a “rather conspicuous blank spot,” (2) the insurer produced a certificate matching the policy documents on file, and (3) the insurer produced four “undisputed transcripts of telephone conversations” in which Kennedy “specifically requested ‘Non-Trucking’ liability coverage.” Id. (citation omitted). “For all of these reasons,” the Court found no genuine dispute of material fact. Id.

None of those reasons apply here. First, there is no indication that anyone “doctored” or “dummied” the certificate. See [70-3] at 8. Second, Blue Hill has not produced a certificate matching the lone declarations page it has submitted. See [60-3] (Blue Hill attaching only one certificate, which reflects a $2 million coverage limit). And third, Blue Hill presents no undisputed evidence that Grinston Trucking “specifically requested” only $750,000 in coverage. Kennedy, 2014 U.S. Dist. LEXIS 75935, 2014 WL 2515213, at *4.

In sum, David Grinston’s testimony and the certificate each create a genuine dispute of material fact. The Court thus denies the motion at this time.

IV. Conclusion

The Court has considered all arguments. Those not addressed would not have changed the outcome. For the stated reasons, the Court DENIES Plaintiff’s [60] Motion for Summary [*11]  Judgment.

SO ORDERED, this 12th day of September, 2023.

/s/ Kristi H. Johnson

UNITED STATES DISTRICT JUDGE

End of Document

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¹ Blue Hill acknowledges that “Rule 11 obligations [led] counsel for Blue Hill to request that a statement be secured from Shirlene Richardson” before Blue Hill filed this action. Reply [73] at 6.

² Blue Hill emphasizes that it moved for summary judgment “more than 90 days after the Case Management Conference.” [73] at 1. But one Defendant served Blue Hill with interrogatories and a request for production just 18 days after the Case Management Conference. [48]; [49]. Blue Hill did not respond until 52 days after that. [56]; [57]. The very next day, Delta’s counsel emailed counsel for Blue Hill, requesting “the recorded statement of Shirlene Richardson” that Blue Hill referenced in its interrogatory responses. [70-1] ¶ 7. Counsel for Blue Hill did not respond to that email for 23 days—and did so only after filing this motion. See id.; [76-4] at 3.