United States District Court for the Middle District of Georgia, Athens Division

September 14, 2023, Decided; September 14, 2023, Filed

No. 3:22-CV-06 (CAR)

BROOKLYN SPECIALTY INSURANCE COMPANY RISK RETENTION GROUP INC., Plaintiff, v. BISON ADVISORS, LLC, Defendant.

Core Terms

Endorsement, summary judgment, consent judgment, carriers, insured, summary judgment motion, settlement agreement, declaratory, demanding, parties, material fact, declaration, coverage, genuine, declaratory judgment action, financial responsibility, nonmoving party, matter of law, settlement, indemnity, terms

Counsel:  [*1] For BROOKLYN SPECIALTY INSURANCE COMPANY RISK RETENTION GROUP INC, Plaintiff: GRANT E FORTSON, PRO HAC VICE, LITTLE ROCK, AR; SETH MICHAEL FRIEDMAN, ATLANTA, GA.

For BISON ADVISORS LLC, formerly known as, ARMIS ADVISERS LLC, Defendant: MICHAEL E PEREZ, ATLANTA, GA; TIMOTHY RYAN SCOTT, PRO HAC VICE, ROGERS, AR.

Judges: C. ASHLEY ROYAL, SENIOR UNITED STATES DISTRICT JUDGE.

Opinion by: C. ASHLEY ROYAL

Opinion

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

Plaintiff Brooklyn Specialty Insurance Company Risk Retention Group, Inc., (“BSIC”) filed this declaratory judgment action to determine its payment obligations related to a consent judgment entered into by its policyholder, Paper Impex USA, Inc. (“Paper Impex”). Currently before the Court are BSIC’s and Bison Advisors, LLC’s (“Bison” or the “Special Administrator”) Motions for Summary Judgment. Having considered the parties’ arguments, the record, and the relevant law, BSIC’s Motion [Doc. 23] is GRANTED, and Bison’s Motion [Doc. 29] is DENIED.

BACKGROUND

On March 22, 2019, Peggy Lynn Evans and Jackie Lynn Evans (“the Evans”) died in a motor vehicle accident (the “Accident”) involving a tractor trailer owned by Paper Impex and leased to Raptor Auto Shipping Inc. (“Raptor”).¹ Bunyod [*2]  Kushnazarov (“Kushnazarov”)—a Raptor employee—was operating the tractor trailer that collided with the Evans.²

BSIC issued the subject automotive liability insurance policy to this action, Policy No. JP-1-112018 (the “Policy”), to Paper Impex effective November 12, 2018, to May 3, 2019.³ Coverage under the Policy is limited to vehicles included on the Policy’s list of scheduled vehicles.⁴ Neither the truck nor the trailer involved in the Accident were listed on the schedule.⁵ Likewise, coverage under the Policy is limited to drivers included on the Policy’s list of scheduled drivers. Kushnazarov was not listed on the Policy’s schedule of drivers.⁶

The Policy contains a Form MCS-90 Endorsement. When applicable, coverage under the MCS-90 Endorsement is limited to $750,000.00.⁷ Under the MCS-90 Endorsement, Paper Impex “agrees to reimburse [BSIC] for . . . any payment that [BSIC] would not have been obligated to make under the provisions of the policy except for the agreement contained in this endorsement.”⁸

Bison, formerly known as Armis Advisers, is the Special Administrator and Personal Representative of the Evans’ estate.⁹ The Special Administrator filed a wrongful death suit [*3]  against Kushnazarov, Paper Impex, Raptor and RPM Freight Systems, LLC (“RPM”) (collectively, “the Underlying Lawsuit Defendants”) in the United States District Court for the Eastern District of Arkansas, Case No. 2:19-CV-143-JM (the “Underlying Lawsuit”).¹⁰ In the Underlying Lawsuit, the Special Administrator brought claims against Paper Impex and Raptor for wrongful death, ordinary negligence, negligent hiring, negligent training, negligent supervision, and negligent retention.¹¹ Paper Impex was not insured under the Policy for the claims asserted against it in the Underlying Lawsuit.¹²

On or about December 3, 2021, the Special Administrator entered into a Compromise, Settlement and Release Agreement with the Underlying Lawsuit Defendants (the “Settlement Agreement”).¹³ The Settlement Agreement contains all terms of the Special Administrator’s agreement to settle the Underlying Lawsuit against Kushnazarov, Paper Impex, Raptor, and RPM.¹⁴ In the Settlement Agreement, the Special Administrator released and discharged Paper Impex from “all claims, demands, causes of action, known or unknown, liabilities and damages, of any kind, at common law, statutory, or otherwise, which presently [*4]  exist or which may arise in the future, directly or indirectly, attributable to the Incident of March 22, 2019 made the basis of the Lawsuit.”¹⁵ The Special Administrator agreed to indemnify Paper Impex “for any loss or damage (including but not limited to contribution and/or indemnity) of any nature which anyone else may claim arising out of the above referenced accident.”¹⁶ Thereafter, a Consent Judgment and Order of Dismissal with Prejudice was entered in the Underlying Lawsuit (the “Consent Judgment”).¹⁷

At the time of the Accident, Raptor was insured under an insurance policy issued by ATG Insurance Risk Retention Group, Inc. (“ATG”) which provided $1,000,000.00 in liability limits (the “ATG Policy”).¹⁸ Paper Impex was an additional insured under the ATG Policy, and ATG provided a defense and indemnity to Paper Impex in the Underlying Lawsuit.¹⁹ ATG paid a sum in excess of $900,000.00 to the Special Administrator or the Special Administrator’s attorneys on the Special Administrator’s behalf.²⁰ In total, the Special Administrator received payments in excess of $2,000,000.00 from insurers in settlement of the Underlying Lawsuit.²¹

BSIC did not provide Paper Impex a defense [*5]  or indemnity in connection with the Underlying Lawsuit, was not involved in the settlement negotiations in the Underlying Lawsuit, and did not consent to the release of Paper Impex in the Settlement Agreement.²² Nevertheless, the Special Administrator originally demanded that BSIC pay the $750,000.00 consent judgment against Paper Impex.²³ But on November 11, 2022, counsel for the Special Administrator informed counsel for BSIC that it is “not demanding that [BSIC] pay the $750,000 Consent Judgment against Paper Impex under [BISC’s] Policy’s Form MCS-90 Endorsement issued to Paper Impex.”²⁴

BISC moves for summary judgment seeking a declaration that it has no obligation to pay any portion of the Consent Judgment entered against Paper Impex under the terms of the Policy’s MCS-90 endorsement. Bison cross moves for summary judgment contending no case or controversy exists to allow the Court to exercise jurisdiction under the Declaratory Judgment Act.

LEGAL STANDARD

Summary judgment is proper if the movant “shows that there is no genuine issue as to any material fact and the movant is entitled to a judgment as a matter of law.”²⁵ Not all factual disputes render summary judgment inappropriate; only a genuine issue of material [*6]  fact will defeat a properly supported motion for summary judgment.²⁶ This means that summary judgment may be granted if there is insufficient evidence for a reasonable jury to return a verdict for the nonmoving party or, in other words, if reasonable minds could not differ as to the verdict.²⁷

On summary judgment, the Court must view the evidence and all justifiable inferences in the light most favorable to the nonmoving party; the Court may not make credibility determinations or weigh the evidence.²⁸ The moving party “always bears the initial responsibility of informing the court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact” and that entitle it to a judgment as a matter of law.²⁹ If the moving party discharges this burden, the burden then shifts to the nonmoving party to respond by setting forth specific evidence in the record and articulating the precise manner in which that evidence creates a genuine issue of material fact or that the moving party is not entitled [*7]  to a judgment as a matter of law.³⁰ This evidence must consist of more than mere conclusory allegations or legal conclusions.³¹

The standard of review for cross-motions for summary judgment does not differ from the standard applied when only one party files a motion, but simply requires a determination of whether either of the parties deserves judgment as a matter of law on the facts that are not disputed.³² The Court must consider each motion on its own merits, resolving all reasonable inferences against the party whose motion is under consideration.³³ The Eleventh Circuit has explained that “[c]ross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed.”³⁴ Cross-motions may, however, be probative of the absence of a factual dispute where they reflect general agreement by the parties as to the controlling legal theories and material facts.³⁵

“A fact is material for the purposes of summary judgment only if it might affect the outcome of the suit under the governing law.”³⁶ Furthermore, “[a]n issue [of material fact] is not [*8]  ‘genuine’ if it is unsupported by the evidence or is created by evidence that is ‘merely colorable’ or ‘not significantly probative.'”³⁷ “A mere scintilla of evidence in support of the nonmoving party’s position is insufficient to defeat a motion for summary judgment; there must be evidence from which a jury could reasonably find for the non-moving party.”³⁸ Accordingly, if the moving party shows “that, on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the nonmoving party” then “it is entitled to summary judgment unless the nonmoving party, in response, comes forward with significant, probative evidence demonstrating the existence of a triable issue of fact.”³⁹

DISCUSSION

I. Bison’s Motion for Summary Judgment

Bison moves for summary judgment challenging the Court’s jurisdiction under the Declaratory Judgment Act.⁴⁰ Specifically, Bison contends that because it informed BSIC that it is “not demanding that [BSIC] pay the $750,000 Consent Judgment against Paper Impex under [BISC’s] Policy’s Form MCS-90 Endorsement,”⁴¹ no case or controversy exists. The Court disagrees.

The Declaratory Judgment Act provides that “[i]n a case of actual controversy within its jurisdiction [*9]  . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.ʺ⁴² The “case or controversy must exist at the time the declaratory judgment action is filed.”⁴³ To establish a justiciable case or controversy, the party seeking a declaratory judgment must show a substantial controversy between parties having adverse legal interests of sufficient immediacy and reality to warrant a declaratory judgment.⁴⁴ There is no bright line rule distinguishing declaratory judgment actions that satisfy the Article III case-or-controversy requirement from those that do not.⁴⁵ “Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”⁴⁶

The “controversy” may not be “‘conjectural, hypothetical, or contingent; it must be real and immediate, and create a definite, rather than speculative threat of injury.'”⁴⁷ “The concept of adverse legal [*10]  interests requires that there be a dispute as to a legal right, such as an underlying legal cause of action that the declaratory defendant could have brought or threatened to bring, if not for the fact that the declaratory plaintiff had preempted it.”⁴⁸

Here, a justiciable case or controversy existed at the time BSIC filed this declaratory judgment action. This action arose because Bison originally demanded that BSIC pay the $750,000.00 Consent Judgment against Paper Impex.⁴⁹ Bison’s decision to later inform BSIC—nearly ten months after it filed this action—that it is “not demanding that [BSIC] pay the $750,000 Consent Judgment against Paper Impex under [BISC’s] Policy’s Form MCS-90 Endorsement issued to Paper Impex”⁵⁰ does not extinguish the justiciable case or controversy. In Household Bank v. JFS Grp., the Eleventh Circuit reversed the district court’s dismissal of a declaratory action for lack of subject matter jurisdiction and noted:

“Defendants have not entered into a settlement agreement or filed a release of their federal claims in this matter, nor did they request the district court to enter judgment against them. Regardless of their present renunciation, without a binding, judicially [*11]  enforceable agreement, the [Defendant] could still put [Plaintiff] to the task of defending against the non-frivolous federal law claims alleged in this declaratory judgment action. We agree with the Second Circuit that ‘[a] judicial declaration that [the Defendants are] barred from asserting the [federal] claims would both settle the matter between these parties once and for all and dispel all uncertainty regarding the liability of [the Plaintiffs] for these claims.'”⁵¹

Additionally, “even if the declaratory relief sought by plaintiff hinges on liability that may never actually arise, the Court still has discretion to entertain the present action.”⁵²

As in Household Bank, Bison’s non-binding representation that it was not demanding payment is insufficient to extinguish the justiciable case or controversy that existed when this action was filed. Thus, Bison’s Motion for Summary Judgment must be denied.

II. BSIC’s Motion for Summary Judgment

BSIC seeks a declaration that it has no obligation to pay any portion of the Consent Judgment entered against Paper Impex under the terms of the Policy’s MCS-90 Endorsement. Bison did not respond to BSIC’s arguments concerning the application of the Policy’s MCS-90 [*12]  Endorsement.

“The Motor Carrier Act of 1980 [MCA], in addition to deregulating the trucking industry and reducing barriers to entry, addressed safety issues and financial responsibility for trucking accidents.”⁵³ “In particular, Congress addressed the use by motor carriers of leased or borrowed vehicles to avoid financial responsibility for accidents that occurred while goods were being transported in interstate commerce.”⁵⁴ The MCA specifically “require[s] certain interstate motor carriers to obtain an insurance policy containing a special endorsement . . . providing that the insurer will pay within policy limits any judgment recovered against the insured motor carrier for liability resulting from the carrierʹs negligence.”⁵⁵ “Motor carriers transporting non-hazardous property [in interstate commerce] must demonstrate financial responsibility of at least $750,000,” commonly through an MCS-90 endorsement.⁵⁶ “The MCS-90 endorsement is essentially ‘suretyship by the insurance carrier to protect the public’ and ‘a safety net’ that provides recourse from negligent authorized interstate carriers ‘when other coverage is lacking.'”⁵⁷

“Federal law controls the interpretation and operation of the MCS-90.”⁵⁸ “While the Eleventh Circuit [*13]  has not extensively analyzed this endorsement, a majority of courts treat ‘the insurerʹs obligation under the MCS-90 endorsement as one of a surety.'”⁵⁹ “In that regard, this obligation is triggered only when: (1) the underlying insurance policy (to which the endorsement is attached) does not provide liability coverage for the accident, and (2) the carrierʹs other insurance coverage is either insufficient to meet the federally-mandated minimums or non-existent.”⁶⁰ “If a motor carrierʹs insurance pays a judgment satisfying the regulatory minimum, the goal of public financial responsibility has been accomplished and the endorsement does not apply.”⁶¹

Raptor’s insurance paid a judgment to the Special Administrator which satisfied the regulatory minimum, and thus, the MCS-90 Endorsement does not apply. At the time of the Accident, Raptor was insured under the ATG Policy which provided $1,000,000.00 in liability limits—well above the $750,000.00 regulatory minimum.⁶² Paper Impex was an additional insured under the ATG Policy, and ATG provided a defense and indemnity to Paper Impex in the Underlying Lawsuit.⁶³ On or about December 3, 2021, the parties reached a Settlement Agreement [*14]  to resolve the Underlying Lawsuit.⁶⁴ Thereafter, a Consent Judgment and Order of Dismissal with Prejudice was entered in the Underlying Lawsuit.⁶⁵

The Settlement Agreement contains all terms of the Special Administrator’s agreement to settle the Underlying Lawsuit against Kushnazarov, Paper Impex, Raptor, and RPM.⁶⁶ Furthermore, the Special Administrator released and discharged Paper Impex from “all claims, demands, causes of action, known or unknown, liabilities and damages, of any kind, at common law, statutory, or otherwise, which presently exist or which may arise in the future, directly or indirectly, attributable to the Incident of March 22, 2019 made the basis of the Lawsuit,”⁶⁷ and agreed to indemnify Paper Impex “for any loss or damage (including but not limited to contribution and/or indemnity) of any nature which anyone else may claim arising out of the above referenced accident.”⁶⁸ In return, ATG paid a sum in excess of $900,000.00 to the Special Administrator or the Special Administrator’s attorneys on the Special Administrator’s behalf.⁶⁹ In total, the Special Administrator received payments in excess of $2,000,000.00 from insurers in settlement of the Underlying Lawsuit. [*15] ⁷⁰

Because ATG’s $900,000.00 settlement payment satisfied the $750,000.00 regulatory minimum, “the goal of public financial responsibility has been accomplished,” and the MCS-90 Endorsement contained in the BSIC Policy does not apply.⁷¹ Therefore, BSIC is entitled to summary judgment and a declaration that it has no obligation to pay any portion of the Consent Judgment entered against Paper Impex under the terms of the Policy’s MCS-90 Endorsement.

CONCLUSION

For the reasons set forth above, Bison’s Motion for Summary Judgment [Doc. 29] is DENIED, and BSIC’s Motion for Summary Judgment [Doc. 23] is GRANTED.

SO ORDERED, this 14th day of September, 2023.

/s/ C. Ashley Royal

C. ASHLEY ROYAL, SENIOR JUDGE

UNITED STATES DISTRICT COURT

End of Document

---

¹ Bison’s Response to BISC’s Statement of Undisputed Material Facts, [Doc. 28-1] at ¶ 3, 4.

² Id. at ¶ 6.

³ BISC Policy No. JP-1-112018, [Doc. 23-3] at p. 8; Bison’s Response to BISC’s Statement of Undisputed Material Facts, [Doc. 28-1] at ¶ 12.

⁴ Bison’s Response to BISC’s Statement of Undisputed Material Facts, [Doc. 28-1] at ¶ 13.

⁵ Id. at ¶ 14.

⁶ Id. at ¶ 15.

⁷ Id. at ¶ 17.

⁸ Id. at ¶ 18.

⁹ Id. at ¶ 2.

¹⁰ Id. at ¶ 10.

¹¹ Id. at ¶ 11.

¹² Id. at ¶ 16.

¹³ Bison’s Response to BISC’s Statement of Undisputed Material Facts, [Doc. 28-1] at ¶ 22

¹⁴ Id. at ¶ 23.

¹⁵ Id. at ¶ 29.

¹⁶ Id. at ¶ 32.

¹⁷ Id. at ¶ 30.

¹⁸ Id. at ¶ 19.

¹⁹ Id. at ¶ 20, 21.

²⁰ Id. at ¶ 32.

²¹ Id. at ¶ 27.

²² Declaration of Rick Shaw, [Doc. 23-3] at ¶ 9.

²³ Complaint, [Doc. 1] at ¶ 24; Answer, [Doc. 9] at ¶ 24.

²⁴ See Declaration of T. Ryan Scott, [Doc. 28-4] at ¶ 2.

²⁵ Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

²⁶ See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

²⁷ See id. at 249-52.

²⁸ See id. at 254-55; Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir. 1992).

²⁹ Celotex, 477 U.S. at 323 (internal quotation marks omitted).

³⁰ See Fed. R. Civ. P. 56(e); see also Celotex, 477 U.S. at 324-26.

³¹ Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991).

³² Am. Bankers Ins. Group v. United States, 408 F.3d 1328, 1331 (11th Cir. 2005).

³³ Id.

³⁴ United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir. 1984) (quoting Bricklayers Intʹl Union, Local 15 v. Stuart Plastering Co., 512 F.2d 1017 (5th Cir. 1975)).

³⁵ Id. at 1555-56.

³⁶ Kerr v. McDonald’s Corp., 427 F.3d 947, 951 (11th Cir. 2005) (internal quotations omitted).

³⁷ Flamingo South Beach I Condo. Ass’n v. Selective Ins. Co., 492 Fed. Appx. 16, 26 (11th Cir. 2012) (quoting Anderson, 477 U.S. at 249-50).

³⁸ Id. (citing Anderson, 477 U.S. at 252).

³⁹ Rich v. Sec’y, Fla. Dep’t of Corr., 716 F.3d 525, 530 (11th Cir. 2013) (citation omitted).

⁴⁰ The Court notes Bison’s Motion was untimely filed. See Order to Show Cause, [Doc. 32]. The Court will nevertheless address Bison’s Motion on the merits.

⁴¹ See Declaration of T. Ryan Scott, [Doc. 28-4] at ¶ 2.

⁴² 28 U.S.C. § 2201(a).

⁴³ Esteves v. SunTrust Banks, Inc., 615 F. Appʹx 632, 635 (11th Cir. 2015) (citing GTE Directories Publʹg. Corp. v. Trimen Am., Inc., 67 F.3d 1563, 1567 (11th Cir. 1995)).

⁴⁴ Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S. Ct. 510, 512, 85 L. Ed. 826 (1941). See also Cardinal Chem. Co. v. Morton Int’l, Inc., 508 U.S. 83, 95, 113 S. Ct. 1967, 1974, 124 L. Ed. 2d 1 (1993) (explaining party seeking declaratory judgment has burden of establishing justiciability).

⁴⁵ MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127, 127 S. Ct. 764, 166 L. Ed. 2d 604 (2007).

⁴⁶ Am. Ins. Co. v. Evercare Co., 430 F. Appʹx 795, 798 (11th Cir. 2011) (quoting GTE Directories Pub. Corp. v. Trimen Am., Inc., 67 F.3d 1563, 1567 (11th Cir. 1995)).

⁴⁷ Malowney v. Fed. Collection Deposit Grp., 193 F.3d 1342, 1347 (11th Cir. 1999)).

⁴⁸ Creative Compounds, LLC v. Starmark Labs., No. 2010-1445, 651 F.3d 1303 (Fed. Cir. June 24, 2011) (quoting Arris Grp., Inc. v. British Telecomm. PLC, 639 F.3d 1368, 1374-75 (Fed. Cir. 2011)).

⁴⁹ Complaint, [Doc. 1] at ¶ 24; Answer, [Doc. 9] at ¶ 24.

⁵⁰ See Declaration of T. Ryan Scott, [Doc. 28-4] at ¶ 2.

⁵¹ Household Bank v. JFS Grp., 320 F.3d 1249, 1260 (11th Cir. 2003).

⁵² Owners Ins. Co. v. Advanced Sleep Techs., Inc., No. CV 121-086, 2022 U.S. Dist. LEXIS 48688, at *7 (S.D. Ga. Mar. 17, 2022)

⁵³ Nat’l Specialty Ins. Co. v. Martin-Vegue, 644 Fed. Appx. 900, 906 (11th Cir. 2016) (citation omitted).

⁵⁴ Id. (citations and quotations omitted).

⁵⁵ Waters v. Miller, 560 F. Supp. 2d 1318, 1320 (M.D. Ga. 2008) (citation and quotations omitted).

⁵⁶ Martin-Vegue, 644 Fed. Appx. at 906 (citing 49 C.F.R. § 387.9).

⁵⁷ Cagle v. Wesco Ins. Co., Civil Action No. 2:21-CV-52-RWS, 2021 U.S. Dist. LEXIS 253756, at *9 (N.D. Ga. Dec. 6, 2021) (citing Waters, 560 F. Supp. 2d at 1321).

⁵⁸ Martin-Vegue, 644 Fed. Appx. at 906-07 (citing CANAL Ins. Co. v. DISTRIBUTION Servs., 320 F.3d 488, 492 (4th Cir. 2003)).

⁵⁹ Id. (citing Yeates, 584 F.3d at 878 (collecting cases)).

⁶⁰ Id. (citing Yeates, 584 F.3d at 879); see also T.H.E. Ins. Co. v. Larsen Intermodal Servs., Inc., 242 F.3d 667, 672 (5th Cir. 2001) (explaining that ʺthe insurerʹs obligations under the MCS-90 are triggered when the policy to which it is attached provides no coverage to the insuredʺ).

⁶¹ Id. (citing Larsen, 242 F.3d at 672).

⁶² Bison’s Response to BISC’s Statement of Undisputed Material Facts, [Doc. 28-1] at ¶ 19.

⁶³ Id. at ¶ 20, 21.

⁶⁴ Id. at ¶ 22.

⁶⁵ Id. at ¶ 30.

⁶⁶ Id. at ¶ 23.

⁶⁷ Id. at ¶ 29.

⁶⁸ Id. at ¶ 32.

⁶⁹ Id. at ¶ 32.

⁷⁰ Id. at ¶ 27.

⁷¹ See Martin-Vegue, 644 Fed. Appx. at 906-07 (citing Larsen, 242 F.3d at 672).

United States District Court for the Eastern District of Michigan, Southern Division

September 21, 2023, Decided; September 21, 2023, Filed

Case No. 21-11928

The Estate of ZELJKO DOJCINOVIC, by its Personal Representative DANES DOJCINOVIC et al., Plaintiffs, v. ACE PROPERTY AND CASUALTY INSURANCE COMPANY et al., Defendants.

Prior History: Estate of Zeljko Dojcinovic v. Citizens Ins. Co., 2021 U.S. Dist. LEXIS 64477, 2021 WL 1238131 ( E.D. Mich., Apr. 2, 2021)

Core Terms

freightliner, uninsured, leased, covered automobile, coverage, insurance policy, underinsured motorist benefits, underinsured motorist coverage, liability coverage, summary judgment, res judicata, insurer, Dictionary, provisions, borrowed, premiums, symbol, terms, named insured, benefits, parties, reasons, underinsured motorist, collateral estoppel, claim preclusion, legal title, underinsured, preclusion, litigated, no-fault

Counsel:  [*1] For The Estate of Zeljko Dojcinovic, By Its Personal Representative Danes Dojcinovic, The Estate of Asima Dojcinovic, By its Personal Representative, Danes Dojcinovic, Plaintiffs: Jordan Alan Widner Barkey, LEAD ATTORNEY, Romano Law PLLC, Pleasant Ridge, MI; Hunter C. Christopher, Michigan Auto Law, Farmington Hills, MI.

Judges: Honorable Laurie J. Michelson, United States District Judge.

Opinion by: Laurie J. Michelson

Opinion

OPINION AND ORDER GRANTING ACE’S MOTION FOR SUMMARY JUDGMENT [31]

Zeljko and Asima Dojcinovic were killed in an automobile accident after their freightliner tractor was hit by two vehicles that were street racing. At the time of the accident, the Dojcinovics were driving the freightliner for Elvis’ Services Inc., a motor carrier that had an automobile insurance policy with ACE Property and Casualty Insurance Company. The freightliner was owned by Zeljko but leased to Elvis via an independent contractor operating agreement. Plaintiffs, the Estates of the Dojcinovics, filed this suit for negligence against the drivers and owner of the vehicles that caused the accident. They also sought uninsured/underinsured motorist coverage from ACE and several other insurers.

In time, ACE moved for summary [*2]  judgment, arguing, among other things, that Plaintiffs were not entitled to uninsured/underinsured motorist benefits under the ACE policy because the freightliner was not a “covered auto.” (ECF No. 31, PageID.479.) Given the adequate briefing and record, the Court considers the motion without further argument. See E.D. Mich. LR 7.1(f). For the reasons that follow, the Court will grant ACE’s motion.

I. Background

As this case primarily involves interpretation of an insurance contract, the record is sparse. However, there are a few factual details relevant to the issues before the Court.

Asima and Zeljko Dojcinovic were Michigan residents and both self-employed commercial truck drivers. Zeljko owned a company named Dark & Z Corporation as well as a freightliner tractor. (ECF No. 31-8, PageID.595; ECF No. 33-1, PageID.795.) On September 6, 2018, Dark & Z entered into an independent contractor operating agreement with Elvis’ Services Inc., a federally registered motor carrier based in Fort Wayne, Indiana. (ECF No. 31-3, Page ID.567; ECF No. 31-4, PageID.573.) As a motor carrier, Elvis’ Services transports goods via semi-trucks and freightliners—some semi-trucks and freightliners Elvis itself owns, and others [*3]  it leases, sometimes along with driving services, from independent contractors who own the vehicles.¹ Under the parties’ agreement, Dark & Z leased Zeljko’s freightliner to Elvis and also agreed to provide transportation services hauling Elvis’ cargo (using the freightliner). (ECF No. 31-3, Page.ID.552; ECF No. 33-1, PageID.795.)

On August 3, 2019, the Dojcinovics were transporting some of Elvis’ cargo when they were involved in a fatal automobile accident in Calumet City, Illinois. (ECF No. 31-7, PageID.582-584.) Two vehicles, driven by Aqueel Edwards and Armando Bahena, were street racing when the drivers lost control and hit the Dojcinovics’ freightliner, causing it to crash into a concrete pillar and catch fire with the Dojcinovics trapped inside—the Dojcinovics were both pronounced dead at the scene. (Id. at PageID.583.)

At the time of the accident, there were three relevant active insurance policies. The Dojcinovics insured their personal vehicles with Citizens Insurance Company. (ECF No. 32-2, PageID.634.) Dark & Z carried a “non-trucking” or bobtail insurance policy with Great American Assurance Company.² (ECF No. 11, PageID.86.) And Elvis carried an automobile insurance [*4]  policy with ACE. (ECF 31-1, PageID.485.)

Following the accident, Plaintiffs filed multiple suits. In June 2020, Plaintiffs sued ACE, Citizens, and Great American in Wayne County Circuit Court seeking Michigan No-Fault Personal Injury Protection benefits. See State Court Pleading, Est. of Dojcinovic v. Citizens Ins. Co., No. 20-12134 (E.D. Mich. 2020) (available on that docket at ECF No. 1-1). Defendants removed that case to federal court. Ultimately, District Judge Robert H. Cleland found that Citizens was the primary insurer responsible for paying PIP benefits and granted ACE and Great American’s motions for summary judgment. See Est. of Dojcinovic by Dojcinovic v. Citizens Ins. Co. of the Midwest, 583 F. Supp. 3d 972, 980 (E.D. Mich. 2022).

The following year, Plaintiffs filed this suit in Wayne County Circuit Court. (See ECF No. 1-1.) They brought claims for gross negligence against the drivers Bahena and Edwards and a negligent entrustment claim against Zakiyyah Wolfe, the owner of the vehicle driven by Edwards. (Id. at PageID.17-19.) Plaintiffs say that “Bahena, through his insurer State Farm Mutual Automobile Insurance, tendered their full [policy] limits of $300,000, by way of interpleader in the Cook County, Illinois Court.” (Id. at PageID.20.) But since Edwards apparently does not have liability coverage, and Bahena’s liability coverage was less than the underinsured policy limits [*5]  of the ACE, Citizens, and Great American policies, Plaintiffs brought claims for uninsured/underinsured motorist benefits. (Id. at PageID.19-22.). Plaintiffs also sought a declaratory judgment from the court that “uninsured and underinsured motorist coverages apply, and . . . to which of the Defendant insurer(s), Citizens, ACE, and/or Great American.” (Id. at PageID.22 (emphasis removed).) ACE removed the case to this Court based on diversity jurisdiction. (ECF No. 1.) Citizens and Great American were dismissed from this suit by stipulated order. (See ECF Nos. 23, 36.) Only ACE and the individual defendants remain.

II. Legal Standard

Federal Rule of Civil Procedure 56 provides that “[t]he court shall grant summary judgment if 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.” Or, stated less formally, ACE is entitled to summary judgment only if no reasonable jury could find in favor of Plaintiffs. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

III. Analysis

ACE argues that the plain terms of the ACE policy preclude Plaintiffs from recouping uninsured/underinsured motorist benefits here. First, ACE says that uninsured/underinsured motorist coverage under the policy is only available [*6]  to “covered autos,” defined as those automobiles which are “owned” by Elvis. (ECF No. 31, PageID.480.) Because Zeljko Dojcinovic, and not Elvis, legally owned the freightliner, it was not a covered auto, says ACE, so Plaintiffs cannot claim uninsured/underinsured motorist benefits under the ACE policy. (Id.) In the alternative, ACE argues that “the Policy excludes lessors as insureds who are required by agreement to hold Elvis harmless.” (Id.) So, says ACE, even if the freightliner was a covered auto, Plaintiffs would still be precluded from seeking uninsured/underinsured motorist benefits because of a hold harmless provision in the independent contractor agreement between Elvis and Dark & Z. (Id.)

Plaintiffs counter that ACE’s arguments fail for several reasons. First, they say res judicata or collateral estoppel bars ACE from arguing that the freightliner is not a covered auto since that issue was decided or could have been decided by Judge Cleland in the previous PIP litigation. (ECF No. 37, PageID.816.) Second, they say ACE waived any argument that the freightliner was not covered under the policy by not raising it in the previous litigation. (Id.) Third, they say the freightliner [*7]  is in fact a covered auto under the policy because Elvis was considered an “owner” of the freightliner under Michigan law. (Id. at PageID.817.)

For the reasons explained below, the Court finds that ACE is entitled to summary judgment because its arguments are not barred by collateral estoppel, res judicata, or waiver, and the “freightliner” was not a covered auto under the relevant portion of the ACE policy.

A. Policy Coverage

First, the merits. ACE says that Michigan law applies to the dispute here. (ECF No. 31, PageID.476.) Plaintiffs do not address the conflict of law issue in their response brief, but they do appear to apply Michigan law in their arguments on the proper interpretation of the insurance policy. Accordingly, the Court will follow the parties’ lead and apply Michigan law here.

In Michigan, an insurance policy is generally interpreted like any other contract. Stryker Corp. v. XL Ins. Am., 735 F.3d 349, 354 (6th Cir. 2012); Rory v. Cont’l Ins. Co., 473 Mich. 457, 703 N.W.2d 23, 26 (Mich. 2005). The meaning of a contract is a question of law. Wilkie v. Auto-Owners Ins. Co., 469 Mich. 41, 664 N.W.2d 776, 780 (Mich. 2003). “[A]n insurance contract must be enforced in accordance with its terms.” Henderson v. State Farm Fire & Cas. Co., 460 Mich. 348, 596 N.W.2d 190, 193 (Mich. 1999). “Terms in an insurance policy must be given their plain meaning and the court cannot create an ambiguity where none exists.” Heniser v. Frankenmuth Mut. Ins. Co., 449 Mich. 155, 534 N.W.2d 502, 505 (Mich. 1995) (internal quotation marks omitted).

The ACE policy at issue here [*8]  includes general liability and underinsured/uninsured motorist coverage. (ECF No. 31-2, PageID.497.) The “SCHEDULE OF COVERAGES AND COVERED AUTOS” outlines the coverages included in the policy and notes that they will “apply only to those ‘autos’ shown as covered autos.” (Id.) “Autos are shown as covered autos for a particular coverage by the entry of one or more of the symbols from the COVERED AUTO section of the Motor Carrier Coverage Form next to the name of the coverage.” (Id.) The schedule includes a designated covered auto symbol of “62” for the uninsured/underinsured motorist coverages. (Id.) Designation symbol “62” describes “owned autos only,” which are defined as “only the ‘autos’ you own . . . . This includes those ‘autos’ you acquire ownership of after the policy begins.” (Id. at PageID.508.) The policy specifies that “the words ‘you’ and ‘your’ refer to the Named Insured shown in the Declarations,” which is Elvis. (Id. at PageID.489, 508.)

(Id. at PageID.497, 508.)

Accordingly, uninsured/underinsured motorist coverage under the policy is only available to autos that are owned by the named insured, Elvis.

The policy does not define the term “own,” but the plain and ordinary [*9]  meaning of undefined contract terms “may be determined by consulting dictionaries.” McGrath v. Allstate Ins. Co., 290 Mich. App. 434, 802 N.W.2d 619, 622 (Mich. Ct. App. 2010) (internal citation omitted). The Oxford English Dictionary, considered to be “one of the most authoritative [dictionaries] on the English language,” see Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 569, 132 S. Ct. 1997, 182 L. Ed. 2d 903 (2012), defines the word “ownership” as “[t]he fact or state of being an owner; legal right of possession; property, proprietorship, dominion” and the term “owner” as “[o]ne who owns or holds something as his own; a proprietor; one who has the rightful claim or title to a thing (though he may not be in possession),” Ownership and Owned, Oxford English Dictionary (2d ed. 1989). Black’s Law Dictionary defines the term “own” as “[t]o rightfully have or possess as property; to have legal title to.” Own, Black’s Law Dictionary (11th ed. 2019).

Here, as noted earlier, the freightliner that the Dojcinovics were driving at the time of the accident was leased to Elvis by Dark & Z. And while the Dojcinovics were transporting Elvis’ cargo at the time of the accident, it is undisputed that Zeljko Dojcinovic, not Elvis, held legal title to the freightliner. (See ECF No. 33-1, PageID.792.) Therefore, under the plain meaning of the contract terms, the named insured (Elvis) [*10]  did not “own” the autos. It follows that the freightliner was not a covered auto. And since policy coverage only applies to designated covered autos, Plaintiffs are not entitled to uninsured/underinsured motorist benefits here.

Resisting this conclusion, Plaintiffs argue that an auto can have more than one owner and that, because Elvis leased the freightliner for more than 30 days, it became an owner of the freightliner “by operation of Michigan law.” (ECF No. 37, PageID.818.) Plaintiffs rely on a provision of the Michigan No-Fault Act that defines the term “owner,” as used in the statute, to include “[a] person renting a motor vehicle or having the use of a motor vehicle, under a lease or otherwise, for a period that is greater than 30 days.” See Mich. Comp. Laws § 500.3101(3)(l).

But Plaintiffs’ reliance on the no-fault act’s definition of “owner” is misplaced. For one, the Michigan Supreme Court has made clear that because uninsured/underinsured motorist coverage “is not compulsory coverage mandated by the no-fault act . . . the rights and limitations of such coverage are purely contractual and are construed without reference to the no-fault act.” Rory, 703 N.W.2d at 29. And for another, the no-fault act’s definition of the word “owner” [*11]  pertains to the use of the word in the statute; it does not purport to provide a definition that universally attaches to the word “owner” in every automobile insurance contract.

The word “own,” as used in the ACE policy, is unambiguous—it refers only to those autos which the named insured has legal title or claim to and the legal right to possess. See RPM Freight Sys., LLC v. Wesco Ins. Co., No. 21-11882, 2023 U.S. Dist. LEXIS 25713, 2023 WL 2021687, at *5 (E.D. Mich. Feb. 15, 2023) (“A fundamental tenet of [Michigan] jurisprudence is that unambiguous contracts are not open to judicial construction and must be enforced as written.” (citing Rory, 703 N.W.2d at 30) (internal quotations omitted)). And the phrase “autos you own” plainly does not include leased autos because to own property—that is, to have legal title or claim to property—is distinct from leasing or contracting for the temporary use of property. See e.g., Lease, Oxford English Dictionary (2d ed. 1989) (“To grant the possession or use of (lands, etc.) by a lease; to let out”).

Importantly, this interpretation is also supported by the existence of the covered auto symbol “68,” which is defined in the ACE policy to include autos that Elvis might “lease, hire, rent, or borrow.” (ECF 31-2, PageID.508.) The ACE policy thus has a specific symbol that could have been added to provide [*12]  uninsured/underinsured motorist coverage to autos that Elvis leased. But that symbol was not included in the uninsured/underinsured motorist coverage provisions of the policy. And the Court cannot now write that symbol into the policy by interpreting the phrase “autos you own” to include leased autos—to do so would effectively rewrite a portion of the contract. See e.g., Citizens Ins. Co. of Am. v. Am. Mfrs. Mut. Ins. Co., No. 194307, 1998 Mich. App. LEXIS 1766, 1998 WL 1991200, at *3 (Mich. Ct. App. June 19, 1998) (finding that leased auto was not “owned auto” under terms of insurance policy and noting that the “policy explicitly provides a distinction between an owner and a lessee of an auto for purposes of determining coverage”); see also TMW Enterprises, Inc. v. Fed. Ins. Co., 619 F.3d 574, 578 (6th Cir. 2010) (“interpreting an insurance policy to give a reasonable meaning to all provisions is preferable to interpreting the policy in a way that creates surplusage or leaves a portion of the policy useless or inexplicable” (quoting Michigan Twp. Participating Plan v. Pavolich, 232 Mich. App. 378, 591 N.W.2d 325, 330 (1998))).

Next, Plaintiffs say that because Elvis leased the freightliner for over six months, the freightliner contributed to the premiums paid by Elvis for uninsured/underinsured motorist coverage and so it ought to be consider a covered auto. Plaintiffs’ argument seemingly refers to a provision in the contract that states:

The estimated premium for this Coverage Form is based [*13]  on the exposure you told us you would have when this policy began. You shall maintain a record of the number of autos you own including autos you lease or borrow for a period of 6 months or longer. You shall send us copies of such reports at the end of the policy period and at such time during the policy period as we may direct.

(ECF No. 31-2, PageID.506.)

True, the ACE policy does not identify specific vehicles for coverage but calculates a final premium based on the “average number of autos.” (Id.) And, under the above referenced provision, Elvis was required to maintain a record of, and submit to ACE, the vehicles it owns, including the vehicles it leases or borrows for a period of six months or longer. This information could be relevant to ACE for several reasons, including, presumably, by impacting the risk assessment and premiums that ACE charges.

But this provision does not purport to define “covered autos” in the uninsured/underinsured provision as including vehicles leased or borrowed by Elvis for a period of more than six months nor does it prove that the freightliner was included in the calculation of Elvis’ uninsured/underinsured motorist premiums.

First, as the Court explained [*14]  above, the policy includes a specific and unambiguous definition for the relevant covered autos; a provision that says nothing about autos leased or borrowed by Elvis for more than six months being included as owned autos. See generally, TOMRA of N. Am., Inc. v. Dep’t of Treasury, 505 Mich. 333, 952 N.W.2d 384, 393 (Mich. 2020) (“[W]here a statute contains a general provision and a specific provision, the specific provision controls.” (internal citation and quotations omitted)). Moreover, it may be that information on the number of leased/borrowed autos would be relevant to ACE’s calculation of the policy premiums for the liability coverage portion of the policy, which covers “all-autos.” Importantly, Plaintiffs provide no evidence substantiating their speculative assertion that ACE considered leased autos, specifically the freightliner, when calculating the uninsured/underinsured motorist premium it charged Elvis. And the Court cannot make such an inference based solely on the fact that Elvis was required to report to ACE the number of autos it leased or borrowed for a period of more than six months.

In sum, the ACE policy limits uninsured/underinsured motorist coverage to covered autos, defined as autos owned by the named insured, Elvis. But Zeljko Dojcinovic, not Elvis, [*15]  had full legal title and claim to the freightliner at issue here. Accordingly, the Court finds that the freightliner was not a covered auto under the relevant provision of the policy and Plaintiffs are therefore not entitled to collect uninsured/underinsured motorist benefits from ACE.³

B. Preclusion and Waiver

Next, the Court will address whether ACE is precluded from arguing that the freightliner is not a covered auto.

As an initial matter, the Court notes that Plaintiffs’ arguments that res judicata, collateral estoppel, or waiver bar the argument are underdeveloped and difficult to follow. And “issues which are ‘adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.'” Kennedy v. Comm’r of Soc. Sec., 87 Fed. App’x 464, 466 (6th Cir. 2003) (quoting United States v. Elder, 90 F.3d 1110, 1118 (6th Cir. 1996)). “It is not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to . . . put flesh on its bones.” McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) (internal citations omitted).

But even putting aside waiver—Plaintiffs’ arguments fail on the merits.

Neither res judicata (claim preclusion) nor collateral estoppel (issue preclusion) preclude ACE from arguing that its insurance policy does not provide uninsured/underinsured motorist benefits because the freightliner [*16]  was not a covered auto.

“Collateral estoppel precludes relitigation of an issue in a subsequent, different cause of action between the same parties when the prior proceeding culminated in a valid final judgment and the issue was actually and necessarily determined in that prior proceeding.” Radwan v. Ameriprise Ins. Co., 327 Mich. App. 159, 933 N.W.2d 385, 388 (Mich. Ct. App. 2018). Under Michigan law three elements generally must be satisfied for issue preclusion to apply: “(1) ‘a question of fact essential to the judgment must have been actually litigated and determined by a valid and final judgment’; (2) ‘the same parties must have had a full [and fair] opportunity to litigate the issue’; and (3) ‘there must be mutuality of estoppel.”” Watermark Senior Living Ret. Communities, Inc. v. Morrison Mgmt. Specialists, Inc., 905 F.3d 421, 426 (6th Cir. 2018) (internal citations omitted).

The issue of whether the freightliner was a covered auto under the uninsured/underinsured motorist provision of the policy was not actually litigated in the prior proceeding. In the earlier litigation, Judge Cleland considered whether ACE was responsible to pay PIP benefits to Plaintiffs under the ACE policy. Est. of Dojcinovic, 583 F. Supp. 3d at 974 (“Plaintiffs brought this action against three different auto insurers seeking Personal Injury Protection (‘PIP’) benefits under Michigan’s No-Fault Act. All three insurers have moved separately for summary [*17]  judgment arguing, for various reasons, that they are not responsible for providing PIP benefits.”). Judge Cleland ultimately found that ACE’s “policy’s terms did not contemplate providing PIP coverage on the truck while it operated in states where such coverage was not required.” Id. In so holding, Judge Cleland noted that “ACE does not dispute that it provided liability coverage [for the freightliner] at the time of the crash.” Id. at 978. Additionally, he explained that the “schedule of fees in the policy clearly indicates there was an opportunity for Elvis to opt for the inclusion of ‘Personal Injury Protection’ benefits, yet this schedule shows that Elvis did not purchase such coverage and instead chose only to purchase liability coverage and underinsured/uninsured motorist coverage.” Id.

But the two relevant facts noted in Judge Cleland’s opinion—that the ACE policy provided liability coverage for the freightliner and included uninsured/underinsured motorist coverage—are entirely distinct from ACE’s argument that the freightliner was not a covered auto entitled to uninsured/underinsured motorist benefits under the ACE policy. This is because the ACE policy provides different definitions [*18]  for covered autos under the liability provision and under the uninsured/underinsured motorist benefits provisions. (See ECF No. 31-2, PageID.497, 508.) Liability coverage under the policy applies to “allautos,” while the uninsured/underinsured motorist coverage is limited to only “owned autos,” defined by the policy as those autos that are owned by the named insured, Elvis. (Id.)

So while ACE conceded liability coverage applies to the freightliner in the previous litigation, it did not concede that uninsured/underinsured motorist coverage applied to the freightliner, and Judge Cleland never considered or decided that issue. Accordingly, issue preclusion does not bar ACE’s argument here.

Plaintiffs’ claim preclusion argument does not fare any better. “The doctrine of res judicata is employed to prevent multiple suits litigating the same cause of action.” Adair v. State, 470 Mich. 105, 680 N.W.2d 386 (Mich. 2004). Under Michigan law, “the doctrine bars a second, subsequent action when (1) the prior action was decided on the merits, (2) both actions involve the same parties or their privies, and (3) the matter in the second case was, or could have been, resolved in the first.” Id. Michigan thus “take[s] a broad approach to the doctrine of res [*19]  judicata, holding that it bars not only claims already litigated, but also every claim arising from the same transaction that the parties, exercising reasonable diligence, could have raised but did not.” Id.; see also Pierson Sand & Gravel, Inc. v. Keeler Brass Co., 460 Mich. 372, 596 N.W.2d 153, 157 (Mich. 1999) (“Both Michigan and the federal system have adopted a broad approach to the application of res judicata.”).

Plaintiffs say that claim preclusion applies to ACE’s argument because “the first action was decided on the merits and involved the same parties, [and] the issue of whether the insurance policy applies to the Freightliner at issue could certainly have been resolved in the first matter.” (ECF No. 37, PageID.817.) But the issue here is not whether the insurance policy generally applies to the freightliner. It is whether specific provisions of the insurance policy, the uninsured/underinsured motorist benefits provisions, apply—a question which turns on whether the freightliner is a covered auto as defined under those specific provisions. This is entirely distinct from the PIP issues raised by Plaintiffs and decided in the previous litigation—for which ACE was granted summary disposition. Indeed, ACE had no reason to bring forth such a defense in the previous litigation [*20]  because it would have been largely irrelevant to the issue of whether the policy provided PIP coverage to the freightliner. And while the claim in the previous litigation arose from the same accident and dealt with the same insurance policy, the operative facts are different in this case because a different provision of the contract is at issue.

In any event, Plaintiffs chose not to bring claims for uninsured/underinsured motorist benefits in the previous litigation. They cannot now argue that ACE is barred from asserting a defense that it had no reason to raise in the previous litigation. Cf., Larry v. Powerski, 148 F. Supp. 3d 584, 597 (E.D. Mich. 2015) (“Under the doctrine of claim preclusion as it has been applied by Michigan courts . . . ‘a second bite at the apple’ is precluded, because the present claims are ones ‘arising from the same transaction that the parties, exercising reasonable diligence, could have raised but did not’ in the previous lawsuit” (citing Young v. Twp. of Green Oak, 471 F.3d 674, 682 (6th Cir. 2006))); Lucky Brand Dungarees, Inc. v. Marcel Fashions Grp., Inc., 140 S. Ct. 1589, 1595, 206 L. Ed. 2d 893 (2020) (“[I]n suits involving successive claims against the same defendant, courts often ‘assum[e] that the defendant may raise defenses in the second action that were not raised in the first, even though they were equally available and relevant in both actions.'” (citing Wright & [*21]  Miller § 4414)). So the Court finds that res judicata does not bar ACE from arguing that Plaintiffs are not entitled to uninsured or underinsured motorist benefits under the policy because the freightliner was not a covered auto.⁴

Finally, for similar reasons, the Court finds that ACE did not waive its argument by virtue of not raising it in the previous litigation. United States v. Olano, 507 U.S. 725, 733, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993) (“[W]aiver is the ‘intentional relinquishment or abandonment of a known right.'” (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938))); see also Husel v. Trinity Health Corp., 832 F. App’x 996, 997 (6th Cir. 2021) (same).

In sum, neither issue preclusion, claim preclusion, nor waiver apply to bar ACE’s argument that the freightliner is not a covered auto under the uninsured/underinsured motorist provisions of the ACE policy.

IV. Conclusion

What happened to the Plaintiffs’ loved ones is tragic. Unfortunately, the ACE insurance policy does not provide them the uninsured/underinsured coverage being sought.

For the reasons stated, ACE’s motion for summary judgment is GRANTED.

SO ORDERED.

Dated: September 21, 2023

/s/ Laurie J. Michelson

Laurie J. Michelson

United States District Judge

End of Document

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¹ Such independent contractor arrangements appear to be common in the trucking industry. “Federal regulations governing motor carriers require carriers to either own their trucking equipment or to enter into written leases in which the ‘owner’ of the equipment ‘grants the use of equipment, with or without driver, for a specified period . . . for use in the regulated transportation of property, in exchange for compensation.'” Clarendon Nat’l Ins. Co. v. Medina, 645 F.3d 928, 931 (7th Cir. 2011) (internal citations omitted); see also 49 C.F.R. § 376.12 (lease requirements).

² “Generally, a ‘bobtail’ policy is a policy that insures the tractor and driver of a rig when it is operated without cargo or a trailer.” Besic v. Citizens Ins. Co. of the Midwest, 290 Mich. App. 19, 800 N.W.2d 93, 95 n.1 (Mich. Ct. App. 2010) (internal citation omitted).

³ ACE contends that coverage is also unavailable because its policy excludes lessors as insureds who are required to hold Elvis harmless. (ECF No. 31, PageID.480.) The relevant provision defines “who is an insured?” as follows: “The lessor of a covered ‘auto’ that is not a ‘trailer’ or any ’employee’, agent, or driver of the lessor while the ‘auto’ is leased to you under a written agreement if the written agreement between the lessor and you does not require the lessor to hold you harmless and then only when the leased ‘auto’ is used in your business as a ‘motor carrier‘ for hire.” (ECF No. 31-2, PageID.510.) But, says ACE, the Independent Contractor Agreement between Dark and Elvis contains a Hold Harmless Provision in which Dark agrees to hold Elvis harmless. (ECF No. 31, PageID.481.) Plaintiffs do not respond to this argument other than to conclusively assert they are insureds under the relevant provision and a separate provision defining insureds. So this would also support the grant of summary judgment.

⁴ The Court will not consider whether Plaintiffs’ claims are barred by claim preclusion because ACE has not raised that issue.