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Progressive Northern Insurance Co. v. RA Transport, LLC

United States District Court, E.D. Virginia, Richmond Division

November 14, 2017

PROGRESSIVE NORTHERN INSURANCE, COMPANY, Plaintiff,
v.
RA TRANSPORT, LLC, et al. Defendants.

          MEMORANDUM OPINION

          Henry E. Hudson, United States District Judge

         THIS MATTER is before the Court on its own initiative. Plaintiff Progressive Northern Insurance, Company ("Plaintiff) filed a Complaint (ECF No. 1) on September 14, 2017, seeking a declaratory judgment that it has no obligation to provide insurance coverage to Defendant Milton Aleman and/ or Defendant RA Transport.

         After reviewing the Complaint, the Court had concerns that a facial reading of the Complaint may not support subject matter jurisdiction and ordered supplemental briefing from Plaintiff on that issue. (ECF No. 11.) On November 3, 2017, Plaintiff filed a Memorandum Regarding Subject Matter Jurisdiction ("Memorandum") that purports to address the concerns identified by the Court. (ECF No. 12.) The Memorandum requested that, in the event that subject matter jurisdiction is found to be lacking, the Court grant Plaintiff leave to file an amended complaint.

         On November 13, 2017, Plaintiff filed a Motion to Withdraw Request for Entry of Default as to GEICO Insurance Company (ECF No. 13) and a Motion to Amend/ Correct Named Defendant (ECF No. 14), both stemming from Plaintiff incorrectly naming GEICO Insurance Company rather than GEICO Indemnity Company in its Complaint.

         For the reasons stated herein, the Court finds that it lacks subject-matter jurisdiction and must dismiss Plaintiffs Complaint without prejudice.[1] The Court will grant Plaintiffs request for leave to file amended complaint. Additionally, the Court will grant Plaintiffs two pending motions.

         I. BACKGROUND

         Plaintiff issued a Commercial Auto Insurance Policy ("Policy"), effective February 15, 2016 to February 15, 2017, to Defendant RA Transport LLC, which provided both bodily injury and property damage liability coverage. (Compl. ¶ 16.) The Policy provides: "We will pay all sums an "insured" must legally pay as damages because of "bodily injury" or "property damage" to which this insurance applies, caused by an "accident" and resulting from the ownership, maintenance or use of a covered "auto." (Id. ¶ 18.) Further, the Policy states:

"We will have no duty to provide coverage under this policy unless there has been full compliance with the following duties ... you and any other involved "insured" must. .. [c]ooperate with us in the investigation, settlement or defense of the claim or "suit." The "insured" will be deemed not to have cooperated with us only if his or her failure or refusal to do so harms our defense of an action for damages

(Id.)

         On May 12, 2016, Defendant William Seifert ("Seifert") was injured when his motorcycle collided with a 2015 Volvo Tractor driven by Defendant Milton Aleman (the "Accident"). (Id. ¶ 12.) The Police Report for the Accident identifies the 2015 Volvo Tractor as being owned by Defendant GB & Sons Logistics, LLC, and suggests that Defendant Milton Aleman was without the right of way at the time of the Accident. (Id. ¶¶ 12, 14.) No lawsuit has been filed by Defendant Seifert in connection with the Accident. (Id. ¶ 15.)

         On May 15, 2016, Plaintiff received notice of the Accident. (Id. ¶ 19.) Subsequently, Plaintiff began an investigation to determine whether Defendant Milton Aleman, Defendant RA Transport LLC, Defendant Ramon Aleman, Defendant Grover Molina ("Molina"), and/ or Defendant GB & Sons LLC qualify as an "insured" within the definition provide by the Policy. (Id. ¶ 20.)

         As part of this investigation, Plaintiff sought to question Defendant Ramon Aleman, as the representative of Defendant RA Transport LLC, Defendant Milton Aleman, and Defendant Molina, as the representative of Defendant GB & Sons LLC, under oath. (Id. ¶ 21.) Despite utilizing a private investigator, Plaintiff has not been able to locate Defendant Ramon Aleman or Defendant Milton Aleman. (Id. ¶ 22.) While Defendant Molina did appear for questioning, he has not provided documents that Plaintiff requested, which Defendant Molina claimed existed during his questioning. (Id.)

         Plaintiff seeks a declaratory judgment that it has no duty to provide insurance coverage to Defendant RA Transport and/ or Defendant Milton Aleman because of the failure to cooperate with Plaintiffs investigation. (Id. ¶¶ 25-26.) The Complaint does not identify that an insurance claim or lawsuit has been filed, outside of the present action, in relation to the Accident.

         II. ...


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