Forkwar v. Progressive N. Ins. Co.
Decision Date | 14 December 2012 |
Docket Number | Civil Action No. 11–cv–03482–AW. |
Citation | 910 F.Supp.2d 815 |
Parties | Augustine F. FORKWAR, Plaintiff, v. PROGRESSIVE NORTHERN INSURANCE COMPANY, INC. et al., Defendants. |
Court | U.S. District Court — District of Maryland |
OPINION TEXT STARTS HERE
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.
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.
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 ( ).
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:
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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?
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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.
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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.
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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