Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Progressive Casualty Insurance Co. v. Bowman Trailer Leasing, LLC

Superior Court of Delaware

August 13, 2018

PROGRESSIVE CASUALTY INSURANCE COMPANY, Plaintiff,
v.
BOWMAN TRAILER LEASING, LLC; GREAT AMERICAN INSURANCE COMPANY; U.S. TRAILER HOLDINGS, LLC, d/b/a CO QUEST CAPITAL GROUP, LLC; STAPLES, INC.; ACE AMERICAN INSURANCE COMPANY; CLINTON PEAVY; NAZIR PEAVY; a minor, by his guardian ad litem MYLESA WALTON; MYLESA WALTON; TEENA PEAVY; MICHAEL PEAVY; ESTATE OF CLINTON PEAVY; JAMES DONNELL LIGHTY; W.B. MASON CO., INC.; A DUIE PYLE, INC.; TRISTATE TRUCKING, LLC; AND CHARLES BOLTON, JR., Defendants.

          Submitted: June 7, 2018

         Upon Defendant Nazir Peavy's Motion to Dismiss or Stay: Stayed

          Thomas P. Leff, Esquire, of CASARINO, CHRISTMAN & SHALK, Wilmington, Delaware, and Robert D. Moseley, Jr., Esquire, of SMITH MOORE LEATHERWOOD, LLP, Greenville, South Carolina, Attorneys for Plaintiff.

          Jason D. Warren, Esquire of McCANN & WALL, LLC, Wilmington, Delaware, and Justin L. Klein, Esquire, of HOBBIE, CORRIGAN & BERTUCIO, P.C., Eatontown, New Jersey, Attorneys for Defendant Nazir Peavy.

          MEMORANDUM OPINION

          LEGROW, JUDGE

         Defendant Nazir Peavy ("Peavy") filed this motion to dismiss or stay Progressive Casualty Insurance Company's ("Progressive") declaratory judgment action. Progressive's claim seeks a declaration that it is not obligated to defend or indemnify Tristate Trucking ("Tristate") or Charles Bolton, two alleged tortfeasors in an underlying personal injury action pending in New Jersey. Peavy moved to dismiss or stay this action on forum non conveniens grounds, arguing New Jersey was the more appropriate forum for Progressive's claim under the Cryo-Maid factors. This case requires this Court to determine whether a first-filed personal injury action is a prior pending action for forum non conveniens purposes when an insurance coverage dispute later is filed and resolution of at least some of the claims in both actions will turn on the same disputed set of facts. In view of the overlapping factual issues between the two actions, the risk of inconsistent judgments, and the fact Delaware law is not implicated in this case, I conclude the New Jersey action is a prior pending action, and the Cryo-Maid factors weigh in favor of granting Peavy's motion. My reasoning follows.

         FACTUAL AND PROCEDURAL BACKGROUND

         The following facts are drawn from the complaint and the parties' briefs. On August 19, 2016, Charles Bolton was operating a Great Dane Trailer ("trailer") attached to a 2010 Freightliner Tractor ("tractor"). While driving in New Castle County, Delaware, Bolton was involved in a motor vehicle accident with a vehicle occupied by Clinton Peavy, Nazir Peavy, and Teena Peavy. Nazir Peavy, a six-year-old passenger in the Peavy vehicle, suffered severe burns as a result of the accident. At the time of the accident, Bolton was operating the tractor on behalf of Tristate, a company insured by Progressive and principally owned and operated by James Donnell Lighty.

         According to Progressive's complaint, several additional parties had an insurance or ownership/leasing interest in the trailer or its freight. U.S. Trailer owned the trailer, but had leased it to Bowman Trailer, which subleased the trailer to Staples. Great American Insurance Company ("Great American") allegedly insured both U.S. Trailer and Bowman Trailer, while ACE American Insurance Company ("ACE American") insured Staples. At the time of the accident, the trailer was carrying freight allegedly owned by W.B. Mason, Inc. How the tractor became linked to the trailer and came to be carrying the freight remain disputed factual issues. Additionally, it is unclear whether A Duie Pyle, as the transportation broker for Tristate, properly vetted Tristate's insurance coverage, as the Peavys allege it was required to do.

         On October 22, 2016, Nazir Peavy, through his guardian ad litem Mylesa Walton, filed a negligence action in the New Jersey Superior Court of Monmouth County against multiple parties involved in the August 2016 accident. Peavy's law suit was consolidated with two other negligence actions in the New Jersey Superior Court, Monmouth County, arising from the August 2016 accident (the "New Jersey action").

         At the time of the accident, Progressive's policy for Tristate did not list the tractor or trailer on its auto schedule. On December 27, 2017, Progressive brought this Delaware action seeking declaratory judgment that (1) Progressive has no duty to defend or indemnify Tristate or Bolton, and (2) Progressive's insurance policy with Tristate does not apply to the New Jersey action. On April 20, 2018, Nazir Peavy moved to dismiss or stay the Delaware action on forum non conveniens grounds, arguing both the declaratory judgment action and the negligence action should be tried in New Jersey. In November 2017, an unrelated party filed a separate personal injury action against Bolton and several other defendants regarding the August accident.[1] That, however, has no bearing on the outcome of Peavy's motion.

         THE PARTIES' CONTENTIONS

         In support of his motion, Peavy argues the factors applied in Delaware to forum non conveniens motions weigh in favor of dismissing, or at a minimum staying, the Delaware action. Peavy first argues litigating this action in Delaware would impose a substantial hardship for him associated with the additional costs of hiring Delaware counsel and traveling approximately one hundred miles to Delaware for court proceedings. Second, Peavy argues the Delaware action largely involves issues of contract and therefore neither New Jersey nor Delaware presents access of proof issues. Third, Peavy contends that, although the accident occurred in Delaware, no question of Delaware law is presented because there is no indication any of the insurance policies were issued in Delaware. Finally, Peavy maintains that the New Jersey action constitutes a prior pending action with factual issues that overlap substantially with the Delaware action, and consolidating the actions in New Jersey would avoid duplicative discovery and streamline the litigation.

         Progressive, on the other hand, first argues the New Jersey action does not constitute a prior pending action, and Peavy therefore must demonstrate overwhelming hardship in order to dismiss the Delaware action on forum non conveniens grounds. Progressive asserts the New Jersey action does not constitute a prior pending action because it involves different claims, and therefore rulings by one court would not conflict with rulings by the other. Progressive also contends Delaware law may apply to the case because several of the parties are incorporated in Delaware.

         Third, Progressive argues the issues of access of proof and compulsory process for witnesses do not weigh in Peavy's favor because the declaratory judgment claim largely involves issues of law, not fact. Fourth, Progressive asserts practical considerations weigh in favor of adjudicating its claim in Delaware because the accident occurred in Delaware, and New Jersey may not have general jurisdiction over the parties essential to the declaratory judgment action. Finally, Progressive argues Peavy is not an indispensable party in this action and therefore lacks standing to move to dismiss or stay.

         ANALYSIS

         Until recently, Delaware courts applied different forum non conveniens tests depending on whether there was an action pending in another jurisdiction and, if so, whether the Delaware action was first-filed. Under the Delaware Supreme Court's decision in General Foods Corp. v. Cryo-Maid, Inc., [2] when the Delaware action was first-filed, the court would consider: (i) the relative ease of access to proof; (ii) the availability of compulsory process for witnesses; (iii) the possibility of viewing the premises, if appropriate; (iv) all other practical problems that would make the trial of the case easy, expeditious and inexpensive; and (v) "whether or not the controversy is dependent upon the application of Delaware law which the courts of this State more properly should decide than those of another jurisdiction."[3] On the other hand, in McWane Cast Iron Pipe Corp. v. McDowell-Wellman Engineering Co., [4] the Delaware Supreme Court held that when the first- filed action arose in another ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.