Forkwar v. Progressive N. Ins. Co.

Citation910 F.Supp.2d 815
Decision Date14 December 2012
Docket NumberCivil Action No. 11–cv–03482–AW.
PartiesAugustine F. FORKWAR, Plaintiff, v. PROGRESSIVE NORTHERN INSURANCE COMPANY, INC. et al., Defendants.
CourtU.S. District Court — District of Maryland


Joseph M. Creed, Timothy Francis Maloney, Joseph Greenwald and Laake PA, Greenbelt, MD, for Plaintiff.

Angus R. Everton, Morgan Carlo Downs and Everton PA, Hunt Valley, MD, for Defendants.



Pending before the Court are Defendants' Motion for Summary Judgment, Doc. No. 9, and Plaintiff's Motion to Stay, Doc. No. 12. The Court has reviewed the motion papers and concludes that no hearing is necessary. See Loc. R. 105.6 (D. Md. 2011). For the reasons discussed below, the Court will DENY Plaintiff's Motion to Stay and GRANT Defendants' Motion for Summary Judgment.1


The following undisputed facts are taken from the Complaint, motion papers and attached exhibits. This case arises from an automobile accident on November 26, 2004, in which Plaintiff Augustine Forkwar was severely injured when his vehicle collided with a truck driven by Hameed Mahdi. Mahdi's vehicle was a 1987 Kenworth tractor which, at the time of the accident, Mahdi was driving without a trailer. Analysis of this case requires extensive discussion of the relevant policy provisions as well as prior state and federal court litigation that addressed issues relating to the November 26, 2004 accident.

A. The Progressive Northern Policy and MCS–90 Endorsement

At the time of the accident, J & J Logistics, Inc. was covered under a policy of commercial auto insurance (hereinafter, the Policy) by Defendant Progressive Northern Insurance Company (hereinafter Progressive Northern). J & J Logistics was the sole named insured under the Policy. Mahdi was not listed as a rated driver under the Policy, and Mahdi's 1987 Kenworth tractor was not included among the Policy's covered vehicles. Doc. No. 9 Ex. B, at PL60–62. Furthermore, the Policy's definitions of “insured” and “insured auto” provided that neither Mahdi nor his tractor were covered by the Policy. Id. at PL87–89. The Policy also contained a federally mandated MCS–90 endorsement. Id. at PL81. This case largely depends on interpretation of the MCS–90 endorsement, discussed infra Part III.B.2.

B. The Prior State Court Action

On August 27, 2007, Plaintiff filed suit against Mahdi, J & J Logistics, and Forkwar's uninsured and underinsured motorist coverage provider, New Hampshire Insurance Company (hereinafter New Hampshire Insurance), in the Circuit Court for Prince George's County, Maryland. The case was styled Augustine F. Forkwar v. J & J Logistics, et al., Case No. CAL06–23064 (referred to hereinafter as “the state court action”).

The state court action proceeded to trial against all defendants on December 3, 2008. J & J Logistics was sued under theories of vicarious liability as the putative employer of Mahdi. During trial, Forkwar's attorney called Marcus Johnson, owner of J & J Logistics, as a witness, and elicited the following testimony:

Q: [By Michael Blumenthal, attorney for Augustine Forkwar] Mr. Johnson, by whom are you employed, sir?

A: J & J Logistics.


Q: Was J & J Logistics in existence in November, 2004?

A: Yes, it was.

Q: Were you president of J & J Logistics in November 2004?

A: Yes, I was.

Q: Do you keep the records, is that your job, to make sure the records are kept in the ordinary course of business and are clear and true and all that stuff?

A: Yes.

Q: So you are the custodian of those records?

A: Yes.

Q: You do know Hameed Mahdi, is that correct?

A: Yes, I do.

Q: Can you tell the jury what relationship if any Hameed Mahdi had at any time with J & J Logistics, Incorporated?

A: Well, Hameed Mahdi, he's an independent contractor. He had his own truck and he worked for J & J occasionally in the past.


Q: Was Mr. Mahdi an independent contractor for J & J Logistics in November 2004?

A: No.

Q: Did he have any ongoing business relationship with J & J Logistics in November 2004?

A: Not as I can recollect.

Q: You are aware that in November 2004 Mr. Mahdi got into a collision with a vehicle being operated by Augustine Forkwar, the plaintiff in this matter, correct?

A: Yes.

Q: While Mr. Mahdi was operating the vehicle involved in this collision, was Mr. Mahdi at the time of the collision under dispatch by J & J Logistics, Inc.?

A: No.

Q: Was Mr. Mahdi in any way acting within the scope of and in furtherance of the interest of J & J Logistics, Inc. at the time of that collision with Mr. Forkwar on November 26, 2004?

A: No.

Q: Mr. Mahdi has indicated to someone at J & J Logistics that at the time of the collision he was driving to a shop to get to or otherwise tend to some tires that he had to deal with, is that correct?

A: It's been a long time. I would imagine it could have been.


Q: You did answer the interrogatories, correct? I'm going to offer these to you to see if I could refresh your recollection. Could you read to yourself the answer to Interrogatory No. 11?


Q: Sir, having reviewed that document, does it refresh your recollection as to whether or not there was a point in time that Mr. Mahdi indicated to someone at J & J Logistics that at the time of the collision he was doing something to attend to his tires on his vehicle.

A: It could have been, you know, I have two other people in my office besides me that he could have, you know.

Q: And your answer was he told J & J Logistics he was driving to a shop to get tires or attend to tires at the time of the collision, correct?

A: It could be correct, yes.

Q: Who owned the truck that Mr. Mahdi was operating on November 2[6], 2004?

A: He owned the truck. He was an independent contractor.

Q: And the tru[c]k had J & J Logistics written on it, is that right?

A: No. The truck might would have had a sticker or something on it. We used stickers and stuff to put on the truck with our name and our MC number.

Q: But that doesn't change the understanding between you and Mr. Mahdi with regard to his relationship with you, correct?

A: Well, I don't understand what you're saying.

Q: I mean the fact that his truck said J & J Logistics, Inc. on it on a sticker doesn't change the contractual relationship with Mr. Mahdi that established that he was an independent contractor acting on his own behalf, he is not under a dispatch is not otherwise acting on your behalf, you being J & J Logistics?

A: That's true.

Q: [Mr. Blumenthal] I have no other questions, Your Honor.

Doc. No. 9 Ex. A, at 1–4. Following this testimony, J & J Logistics moved for judgment as to Forkwar's claims against it. In response, Mr. Blumenthal stated the following:

I can tell the Court that there would be nothing in addition from Mr. Forkwar with regard to that issue, and of course that—the other evidence with regard to negligence and with regard to Mr. Mahdi, but with regard to the question whether Mr. Mahdi was acting on his own behalf for his own purposes or for purposes of J & J Logistics, that's the extent of our evidence. And if Your Honor would let me close as to that part of the case, I would do so with the intention of offering additional evidence otherwise.

Id. at 5. After Circuit Court Judge Mittelstaedt dismissed the jury from the courtroom, the following exchange occurred with counsel:

MR. BLUMENTHAL: Your Honor, I would close. I have nothing further against J & J Logistics. I don't think it's fair to keep [counsel for J & J Logistics] Mr. Wampler and his client in here at this point, given the state of the evidence, particularly since Mr. Mahdi didn't show up and we hoped he would. I can close at this time. I would intend to reopen as to the negligence of Mr. Mahdi.


THE COURT: All right. Under Count 2, respondeat superior claim against J & J Logistics, Incorporated, the Court finds that the plaintiff has failed to establish a prima facie case of agency against J & J Logistics and that they failed to show that Mr. Mahdi was operating the vehicle on behalf of J & J Logistics or in the furtherance of J & J Logistics' business. So therefore judgment is granted in favor of J & J Logistics, Inc. as to Count 2.

Id. at 5–7. Blumenthal thereafter filed a Line of Dismissal without prejudice of his remaining counts against New Hampshire Insurance, leaving Mahdi as the only defendant in the case. Id. at 7. The jury thereafter returned a verdict in favor of Mahdi in the amount of $180,756.76. Id.

C. The Prior Federal Court Action

In an attempt to collect his state court judgment, Forkwar brought an action against Mahdi's insurer, Empire Fire & Marine Insurance Company (Empire), in the Circuit Court of Prince George's County on April 14, 2009. The case was removed to the District Court of Maryland on June 11, 2009, see Forkwar v. Empire Fire & Marine Insurance Company, Case No. 8:09–cv–01543–WGC, and will hereinafter be referred to as the prior federal court action or the Empire litigation.

In the course of the Empire litigation, it was revealed that Mahdi had executed an Independent Contractor Agreement with J & J Logistics which was in effect at the time of the accident. See Doc. No. 14 Ex. 3. Mahdi also provided a sworn statement that as of November 2004, he was working for J & J Logistics about three days a week. Id. Ex. 4, at 6. Mahdi stated that on November 25, 2004, he called the dispatcher for J & J Logistics and was told to pick up a load at a Giant food warehouse. Id. at 8–9. Mahdi further stated that the accident occurred when he was on his way to the warehouse to pick up the load for J & J Logistics. Id. at 15–17.

It was also revealed during the Empire litigation that Forkwar's attorney in the state court action had been advised prior to the state court trial as to Mahdi's employment situation and the circumstances surrounding the accident. Claims specialists with Empire sent Mr. Blumenthal two letters, dated January 18, 2005 and April 13,...

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