Atl. Specialty Ins. Co. v. Bindea

• Court: U.S. District Court — Western District of Virginia
• Writing for the Court: Joel C. Hoppe, United States Magistrate Judge
• Citation: Atl. Specialty Ins. Co. v. Bindea, 656 F.Supp.3d 624 (W.D. Va. 2023)
• Docket Number: Civil Action No. 3:21-cv-00002
• Decision Date: 16 February 2023
• Parties: ATLANTIC SPECIALTY INSURANCE COMPANY, Plaintiff & Counter Defendant, v. Bogdan Andrei BINDEA, Defendant & Counter Claimant. Bogdan Andrei Bindea, Third-Party Plaintiff, v. USG Insurance Services, et al., Third-Party Defendants.

656 F.Supp.3d 624

ATLANTIC SPECIALTY INSURANCE COMPANY, Plaintiff & Counter Defendant, v. Bogdan Andrei BINDEA, Defendant & Counter Claimant.

Bogdan Andrei Bindea, Third-Party Plaintiff, v. USG Insurance Services, et al., Third-Party Defendants.

Civil Action No. 3:21-cv-00002

United States District Court, W.D. Virginia, Charlottesville Division

Signed February 16, 2023

David N. Ventker, Marissa M. Henderson, Ventker Henderson Stancliff, PLLC, Norfolk, VA, for Plaintiff & Counter Defendant.

Michael L. Vincenzo, William Spencer King, King & Jurgens, LLC, New Orleans, LA, Douglas Aaron Winegardner, Sands Anderson, PC, Richmond, VA, for Third-Party Plaintiff.

Henry Arthur King, Michael L. Vincenzo, William Spencer King, King & Jurgens, LLC, New Orleans, LA, Douglas Aaron Winegardner, Sands Anderson, PC, Richmond, VA, for Defendant & Counter Claimant.

Jeffrey Robert DeCaro, DeCaro, Doran, Siciliano, Gallagher & DeBlasis, LLP, Bowie, MD, for Third-Party Defendants ASAP Insurance Agency, LLC, John Uhr.

John Uhr, Fair Lawn, NJ, Pro Se.

MEMORANDUM OPINION

Joel C. Hoppe, United States Magistrate Judge

This case initially involved a dispute over whether a marine insurance policy issued by Plaintiff Atlantic Specialty Insurance Company ("Atlantic Specialty" or "ASIC") to Defendant Bogdan Bindea, as owner of the supply vessel "M/V Bob Rouse," covered Bindea's claimed Loss sustained when the Vessel capsized in Haitian waters. See Atl. Specialty Ins. Co. v. Bindea, No. 3:21cv2, 632 F.Supp.3d 681, 686-87 (W.D. Va. Sept. 30, 2022) (published opinion). ASIC filed this civil action in admiralty seeking declaratory judgment that the Policy was not an enforceable contract, or, alternatively, that the Policy did not cover Bindea's claimed Loss because the contract's terms expressly suspended all coverage while the Vessel was not "within the east coast of Florida." See ASIC Compl. (citing 28 U.S.C. § 1333; Fed. R. Civ. P. 9(h)), ECF No. 1.¹ Bindea filed a counterclaim against ASIC seeking declaratory judgment that the Policy fully covered his claimed Loss, even though he never agreed to the Policy's navigational limits, and he admitted that the Vessel was roughly 500 nautical miles from Florida's "east coast" when it capsized. See generally Answer & Countercl. 1-9, 12-18 (Count I), ECF No. 5; Bindea, 632 F.Supp.3d at 689 n.6, 699-700.

ASIC moved for judgment on the pleadings, ECF No. 35, asking only that the Court enter judgment in ASIC's favor on its own claim that "no coverage is owed" to Bindea for the Loss. See ASIC Br. in Supp. Mot. J. on Pleadings 1 (emphasis added), ECF No. 36. The Court granted ASIC's motion in September 2022. ECF No. 72; see Bindea, 632 F.Supp.3d at 700-01 ("The Court finds there are no disputed material facts bearing on the parties' coverage dispute and that ASIC is entitled to judgment as a matter of law that it is not obligated to cover Bindea's claim for the Loss at issue."). Neither party filed a dispositive motion as to Bindea's counterclaim that coverage is owed to him for the same Loss. The Court has original jurisdiction over that claim under 28 U.S.C. § 1333. See Flame S.A., 762 F.3d at 362; J.J. Ryan & Sons, 369 F. Supp. at 693.

Bindea also filed a third-party complaint asserting four tort claims against Third-Party Defendants John Uhr, ASAP Insurance Agency ("ASAP"), and USG Insurance Services ("USG"). See generally Countercl. & Third-Party Compl. ¶¶ 3-5, 7, 9, 12-22; id. ¶¶ 50-54 (Count II, negligence); id. ¶¶ 55-59 (Count III, breach of fiduciary duty); id. ¶¶ 60-66 (Count IV, negligent misrepresentation); id. ¶¶ 67-73 (Count V, negligent failure to warn), ECF No. 5. The matter is now before the Court on USG's motion to dismiss Bindea's third-party complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. ECF No. 28.

I. Background² & Procedural History

Bindea owns the offshore supply vessel "M/V Bob Rouse." Countercl. & Third-Party Compl. ¶ 12. On January 23, 2020, Bindea contacted John Uhr and ASAP to help him procure "hull and machinery coverage" and protection and indemnity ("P&I") coverage for the Bob Rouse so the Vessel could be used for "humanitarian relief operations in and around Haiti." See id. "Bindea and Uhr subsequently exchanged numerous telephone calls and text messages" about this insurance. Id. ¶ 13. Those communications occurred while Bindea was aboard the Bob Rouse "transiting [first] from Louisiana to Florida" and then "from Florida to Haiti," or while Bindea was "on land in Haiti." Id. "During his multiple communications with Uhr and ASAP, Bindea advised that the Vessel would be primarily engaged in humanitarian relief operations in and around Haiti." Id. Having conveyed that information to Uhr, Bindea expected that "the coverages obtained by Uhr and ASAP would be consistent with the Vessel's area of operations and mission." Id. ¶ 14. Before November 2020, "and consistent with [Bindea's] earlier advices to Uhr and ASAP, the Vessel was primarily used by Bindea in support of humanitarian relief work performed by Bindea and companies he [was] affiliated with in Haiti." Id. ¶ 15.

Bindea believes that Uhr and ASAP engaged USG Insurance Services, a national wholesale insurance broker, to procure the "marine insurance coverages [Bindea] requested." Id. ¶ 16; see also id. ¶ 17 ("On information and belief, USG was fully aware that it had been utilized by Uhr and ASAP to procure marine insurance and coverages for the benefit of Bindea."). He alleges that "USG secured from Atlantic Specialty the marine insurance coverages that were requested by Bindea" and that on "March 20, 2020, Atlantic Specialty agreed to subscribe to a Commercial Marine Package policy (i.e., the 'Policy') which provided various types of marine insurance on the Vessel, including P&I and Hull & Machinery coverage to benefit Bindea." Id. ¶ 19; see also id. ¶ 24 (citing ASIC Compl. Ex. G, Commercial Marine Package Policy No. B5JH04214 (eff. Mar. 20, 2020-Mar. 20, 2021), ECF No. 1-7, at 1-49). "The 'Producer' listed on the Policy was USG." Id. ¶ 20 (citing ASIC Compl. Ex. G, at 2).

The Policy (No. B5JH04214) names Bindea as the "insured" and lists the "M/V 'Bob Rouse' " as the covered Vessel for a period from March 20, 2020, to March 20, 2021. ASIC Compl. Ex. G, at 2-5 (Declarations); see Countercl. & Third-Party Compl. ¶¶ 19-20 (citing ASIC Compl. Ex. G). It provides coverage for (i) commercial marine liability, including vessel protection and indemnity, and (ii) hull physical damage. ASIC Compl. Ex. G, at 8; see Countercl. & Third-Party Compl. ¶ 19 (citing ASIC Compl. Ex. G). Each part "is subject to its own terms, conditions, exclusions and endorsements." ASIC Compl. Ex. G, at 8. Two such provisions are most relevant to Bindea's claims against USG. See generally Countercl. & Third-Party Compl. ¶¶ 24-29, 34-38, 63, 71-72 (citing ASIC Compl. Ex. G, at 4-5, 27-28, 36).

First, with respect to both liability and hull physical damage coverage, the Policy states "that the Vessel shall be confined to the Navigational Area described in the Declarations," and if the "[V]essel exceeds the Navigation Area, then all coverage herein is suspended until the [V]essel safely returns to the Navigation Area." ASIC Compl. Ex. G, at 27, 36; see Countercl. & Third-Party Compl. ¶ 71. The Declarations define the Vessel's "Navigation Area" as "[w]ithin the east coast of Florida." ASIC Compl. Ex. G, at 5; see Countercl. & Third-Party Compl. ¶¶ 25, 29, 71. The Vessel itself was valued at and insured for $400,000. ASIC Compl. Ex. G, at 5; see Countercl. & Third-Party Compl. ¶¶ 53, 58 (alleging that the Third-Party Defendants breached duties owed to Bindea by, among other things, "failing to procure Hull and Machinery coverage in the amounts requested by Bindea and represented to him by Third-Party Defendants"); id. ¶ 63 (alleging that the Third-Party Defendants falsely represented to Bindea that the Policy "purported to provide $600,000 in Hull and Machinery coverage"); id. ¶ 69 (alleging that Uhr, ASAP, and USG "knew or should have known that the Vessel . . . had a requested insured value of $600,000"). Second, with respect to liability only, the Policy provides that

the number of crew members employed aboard the insured vessel(s) at any one time shall not exceed the number shown on the Declarations page. In the event additional crew members are to be employed, the insured shall give prior notice to [ASIC] and pay such additional premium as is required. If the insured shall fail to give such prior notice at the time of loss in respects to crew there are more crew employed, this insurance shall respond only in the proportion that the stated number of crew bears to the number on board at the time of the loss.

Compl. Ex. G, at 28 ("Crew Coverage"). The Declarations allow three crew members onboard the Vessel at one time. Id. at 4; see Countercl. & Third-Party Compl. ¶ 36 (citing ASIC Compl. Ex. G, at 4).

In its Complaint, ASIC alleged that the Policy's "Navigation Area" and "Crew Coverage" restrictions were based on statements in a marine insurance application, allegedly signed by Bindea on January 27, 2020, and submitted to ASIC by someone acting on Bindea's behalf, seeking $1 million in coverage for the Bob Rouse and its three-person crew with "navigational limits required" for the "area around Florida." ASIC Compl. ¶¶ 17-18 (citing ASIC Compl. Ex. D, at 1-5 (P&I application), ECF No. 1-4). It also alleged that ASIC "received an additional application form completed and signed by Bindea . . . dated January 29, 2020," id. ¶ 20 (citing ASIC Compl. Ex. F, at 1-13 (commercial marine package application), ECF No. 1-6), and it implied that this form supplemented the original application for coverage on the Bob Rouse, see id. ¶ 21; ASIC Compl. Ex. F, at 2. The only vessel listed on the second form's "Schedule of Covered Vessels," however, is the "Graig Michael" located at Ft. Lauderdale, Florida. ASIC Compl. Ex. F, at 6. The form describes the ...