Altadis Usa, Inc. v. Npr, Inc.

344 F.Supp.2d 1349

ALTADIS USA, INC., individually and for the use and benefit of Gulf Life Insurance Co., Plaintiffs, v. NPR, INC., doing business as Navieras de Puerto Rico; B-Right Intermodal Transport, Inc.; B-Right Trucking, Inc.; Key Bank, N.A.; National Union Insurance Company of Pittsburgh, Defendants.

No. 3:02-CV-660-J-16MCR.

United States District Court, M.D. Florida, Jacksonville Division.

October 26, 2004.

Order Denying Reconsideration November 10, 2004.

Gustavo Adolfo Martinez, Sullivan & Company, Jacksonville, FL, for Plaintiffs.

Julie K. Rannik, Vincent O'Brien, DeOrchis, Hillenbrand & Weiner, LLP, Miami, FL, for Defendants.

Mattox S. Hair, Law Office of Mattox S. Hair, Jacksonville, FL, pro se.

Lindsey C. Brock, III, Rumrell, Costabel, Warrington & Brock, LLP, Richard G. Rumrell, Rumrell, Costabel, Warrington & Brock, LLP, St. Augustine, FL, for Defendants and Counter Claimants.

Allan E. Wulbern, Stephen D. Busey, Smith, Hulsey & Busey, Jacksonville, FL, for Defendants and Cross Defendants.

Hyman Hillenbrand, DeOrchis, Hillenbrand & Weiner, LLP, Miami, FL, for Defendants, Cross Defendants, Counter Claimant and Cross Claimant.

G.J. Rod Sullivan, Jr., Sullivan & Company, Thomas Albert Boyd, Jr., Boyd & Sutter, P.A., Jacksonville, FL, for Plaintiffs and Counter Defendants.

ORDER

JOHN H. MOORE, II, District Judge.

Before the Court is Altadis USA, Inc.'s ("Altadis") Motion for Entry of Judgment Against National Union Insurance Company in Accordance with Ohio Statute 3929.06 or Florida Statute 627.4136 (Dkt. 191), to which National Union Insurance Company ("National") filed a Memorandum in Opposition (Dkt. 200). The parties have submitted documentary evidence to the Court, and the Court heard oral argument from the parties on October 12, 2004.

As there are only two remaining parties in this case¹, and the Court finds that there are no pending issues for a factfinder to decide during jury trial, the Court will also sua sponte revisit and reconsider its previous Order (Dkt. 165) denying National's Motion for Summary Judgment (Dkt. 105). The Court will therefore now rule on the remaining legal issues in this case and enter judgment accordingly.

I. Background

The Plaintiffs filed their fifteen-count Second Amended Complaint (Dkt. 84) on February 13, 2004, stating claims against the various Defendants for breach of contract, third party beneficiary of contract, negligence, breach of fiduciary duty, conversion, theft, and intentional interference with business relations. The claims arise out of a scheduled July 3, 2001 shipment of 2,505 cartons of cigars from Puerto Rico, where they were delivered to common carrier NPR (Navieras), to Tampa, Florida, where they were to be received by Altadis, which was the holder of the bill of lading and owner of the shipment.

According to the Plaintiffs, NPR agreed to ship the cigars to Tampa, but it failed to deliver the cargo in like condition, as the entire shipment was instead lost by the Defendants. Altadis alleges that it also contracted with B-Right Intermodal Transport, Inc. and B-Right Trucking, Inc. (collectively referred to as "B-Right") on July 6, 2001 to transport the 40-foot container of cigars from the NPR terminal at Blount Island, Jacksonville, Florida, to the Altadis warehouse in Tampa, Florida. The cargo was allegedly stolen somewhere between Jacksonville and Tampa when it was negligently left by B-Right in an unattended parking lot over the weekend.

The Plaintiffs further allege that B-Right received settlement funds for the lost cargo from its insurance company, National. These funds were allegedly to be paid to Altadis, but B-Right failed to pay the settlement to Altadis as the owner of the lost shipment. In Count XV of the Second Amended Complaint, the only count remaining in this case, the Plaintiffs assert a right to receive these funds as a third party beneficiary of the insurance contract between B-Right and National. The Plaintiffs allege that B-Right nonetheless kept possession of the funds and refused to pay Altadis or hold the funds in trust for its benefit, instead ultimately depositing the funds in B-Right's regular checking accounts at Key Bank.

Other than the third party beneficiary of contract theory, there are no other causes of action that have been properly pled against National in this case. However the Plaintiffs moved at oral argument for leave to further amend their Complaint to properly state their current legal theories against the insurance company. The Plaintiffs claim that these legal theories only recently developed and ripened upon judgment being entered against B-Right (pursuant to a default, see Dkts. 90, 131). Accordingly, they claim that the parties have stipulated to the remaining outstanding legal issues — namely, whether Altadis can now proceed against the insurer (National) for payment of B-Right's judgment in a "supplemental" action or as part of this action pursuant to Florida or Ohio law. In effect, it appears that the Plaintiffs have abandoned their third party beneficiary of contract theory against National, instead now arguing that they have the right to recover the judgment entered against B-Right directly from National as its insurer.

The Plaintiffs argue that they are entitled to judgment as a matter of law against National under either Section 627.4136, Florida Statutes, or Section 3929.06 of the Ohio Code. They claim that in any event, they gained the right to have a judgment entered against National thirty days after the entry of the default judgment against the B-Right companies. They argue that they now have a procedural right to proceed directly against National to enforce the judgment against its insured. The Court will address these arguments further below.²

II. Discussion

A. Altadis' Motion for Entry of Judgment Against National

Altadis argues that thirty days after entry of the judgment against B-Right, it gained the substantive right to have judgment entered directly against National under the procedural method laid out in the Ohio statute. Section 3929.06 of the Ohio Code provides that if a final judgment is entered for the Plaintiff's loss of property, the Plaintiff "is entitled as judgment creditor to have an amount up to the remaining limit of liability coverage provided in the judgment debtor's policy of liability insurance applied to the satisfaction of the final judgment." The statute states that this right accrues if, within thirty days after entry of the final judgment, the insurer has not paid the remainder of the policy limits to the judgment creditor, and the Plaintiff points out that a "supplemental complaint" against the insurer is allowed to proceed "in the same manner as the original civil action" against the insured. Section 3929.06, Ohio Code. The insurer is allowed to assert any coverage defenses it would have against the insured in this supplemental action.

Altadis therefore argues that since thirty days have passed since judgment was entered against B-Right, and Altadis has not been paid for its loss, it is now entitled to pursue National for a judgment up to the limits of its policy with B-Right, or up to $500,000. Altadis argues that Florida law is similar to Ohio law, allowing an injured party to seek a judgment directly against the insurer as a third party beneficiary, and procedurally providing for the joinder of the insurer immediately upon entry of a final judgment against the insured. See, e.g., Everglades Marina, Inc. v. American Eastern Development Corp., 374 So.2d 517 (Fla.1979); Fla Stat. § 627.4136(4). In other words, while Ohio law provides for a "supplemental action" against the insurer, Altadis claims that Florida law simply allows for joinder of the insurer in the original action once a judgment is entered.

In either event, Altadis claims that it is now entitled to judgment against National, as judgment has been entered against B-Right for the loss and all issues as to its liability for the cargo loss are now res judicata. Therefore, Altadis claims that National is collaterally estopped from "re-litigating" issues as to its insured's liability, since it chose not to provide a defense for B-Right prior to a judgment being entered. See, e.g., Grange Mut. Cas. Co. v. Rosko, 146 Ohio App.3d 698, 767 N.E.2d 1225 (2001); Motorists Ins. Cos. v. BFI Waste Mgmnt., 133 Ohio App.3d 368, 728 N.E.2d 31 (1999); Patterson v. Tice, 91 Ohio App.3d 414, 632 N.E.2d 962 (1993).

Furthermore, Altadis claims that there are no coverage defenses that National could have raised against B-Right, or the defenses have now been waived because National paid B-Right Trucking $375,012.22. See, e.g., Leader Nat'l Ins. Co. v. Eaton, 119 Ohio App.3d 688, 696 N.E.2d 236 (1997); Sanderson v. Ohio Edison Co., 69 Ohio St.3d 582, 635 N.E.2d 19 (1994). Altadis argues that this payment to B-Right Trucking was made in error, as that company did not suffer any loss and was not the actual carrier of the shipment.³ Nonetheless, Altadis argues that the error does not create a coverage defense or prevent National from being liable for payment up to its $500,000 policy limit to the correct party, even though it has already paid the wrong party. Altadis accordingly urges the Court to enter judgment in its favor directly against the insurer, National, for payment of the judgment against B-Right up to the $500,000 policy limits.

National, of course, vehemently argues that entering judgment in favor of Altadis is entirely inappropriate in this case, as there is no legal basis for entry of such a judgment and the insurance company has completely met its obligations under its policy with the insured. Initially, National points out that the only claim against it is a third-party beneficiary claim in Count XV of the Second Amended Complaint, and therefore Altadis is now improperly attempting to pursue causes of action under Florida and Ohio law that were never pled in this action....