United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski United States District Judge.
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).
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
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).
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
En route, Mr. Ledbetter lost control of the tractor-trailer
and it overturned.
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 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.
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 ...