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National Liability and Fire Insurance Co. v. Ledbetter Excavating Inc.

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

November 2, 2016

NATIONAL LIABILITY AND FIRE INSURANCE CO., et al., Plaintiffs,
v.
LEDBETTER EXCAVATING, INC., et al., Defendants.

          MEMORANDUM OPINION

          Michael F. Urbanski United States District Judge.

         This matter is before the court on plaintiff National Liability and Fire Insurance Co.'s ("National") motion to dismiss defendant Ledbetter Excavating, Inc.'s (collectively, with Morris Ledbetter, "Ledbetter") counterclaim and third-party defendant Maverick Express Carriers, LLC's ("Maverick") motion to dismiss defendant Ledbetter's counterclaim and to join National's pleadings. Because Ledbetter has plausibly stated a claim for relief, the court DENIES National's motion (ECF No. 24), and GRANTS in part and DENIES in part Maverick's motion (ECF No. 31).[1]

         I.

         Federal Rule of Civil Procedure 12(b)(6) allows a defense based on the "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). In ruling on a motion to dismiss under Rule 12(b)(6), a court "must accept as true all of the factual allegations contained in the complaint." Kensington Volunteer Fire Dep't, Inc. v. Montgomery Cty., 684 F.3d 462, 467 (4th Cir. 2012) (internal quotation marks omitted). The Supreme Court has held that

[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement, " but it asks for more than a sheer possibility that a defendant has acted unlawfully.

Ashcroft v. Iqbal. 556 U.S. 662, 678-79 (2009) (internal citations omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007)). The court will therefore accept all of the facts alleged in Ledbetter's counterclaim as true and "draw all reasonable inferences in [its] favor" for the purposes of evaluating this motion. Id. (internal quotation marks omitted). The following facts are taken from Ledbetter's counterclaim. (ECF No. 20).

         National provides insurance coverage to Maverick. On August 27, 2015, a tractor-trailer owned by Maverick and driven by its employee, Jorge Miranda, got stuck near Route 40 in Franklin County, Virginia. Miranda called a towing service, and Morris Ledbetter of Ledbetter Excavating arrived. Morris Ledbetter towed the tractor-trailer to Route 40 and then, with Miranda's permission, drove it down the mountain to get it to a portion of the road where Miranda could safely drive it.[2] En route, Mr. Ledbetter lost control of the tractor-trailer and it overturned.

         Miranda originally brought a separate action (Case No. 7:16-cv-052) against Ledbetter for injuries sustained in the accident. Miranda's case was later consolidated with the instant case, see ECF Nos. 13, 36, a subrogation action filed by National against Ledbetter[3] for property damages arising from the accident. In its answer, Ledbetter Excavating (joined by Morris Ledbetter) filed a counterclaim and third-party complaint for declaratory judgment against National, Maverick, and Miranda. ECF No. 20. Ledbetter seeks a declaration that Maverick's insurance policy with National requires National to defend and indemnify Ledbetter against Miranda's personal injury claims, because the insurance policy covers Ledbetter as a "permissive driver" of the tractor trailer. Id. ¶ 16. National and Maverick now move to dismiss the counterclaim/third-party complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that National's policy does not extend coverage to car towing businesses. ECF No. 25, at 11.

         II.

         Ledbetter asks the court to declare that National is required to provide liability insurance coverage to, and thus defend and indemnify, Ledbetter. Ledbetter argues that Mr. Ledbetter was a "permissive driver" of the tractor-trailer, pursuant to the following provision of the insurance policy between National and Maverick defining "insureds":

1. Who Is An Insured
a. You for any covered "auto".
b. Anyone else while using with your permission a covered "auto" you own, hire or borrow except:
(3) Someone using a covered "auto" while they are working in a business of selling, servicing, repairing or parking "autos" unless that ...

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