McIntire v. Ventura

KENNETH MCINTIRE, Individually, and as Surviving Spouse and Executor of theESTATE OF MARTHA MCINTIRE, Deceased, Plaintiff, v. RIVEN E. VENTURA, et al., Defendants.

CIVIL ACTION NO.: 4:20-cv-319

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION

May 14, 2021

ORDER

This matter is before the Court on Plaintiff Kenneth McIntire's Motion to Remand, (doc. 51), and a Joint Motion to Dismiss Defendant County Hall Insurance Co. filed by several of the Defendants, (doc. 7). Also before the Court are Plaintiff's Motion to Amend the Complaint to Add Cottrell, Inc. as a Party Defendant, (doc. 46), Defendant Romulus Insurance Risk Retention Group, Inc.'s Motion for Judgment on the Pleadings, (doc. 5), and Defendant Westchester Fire Insurance Company's Motion to Dismiss, (doc. 10). McIntire initially filed this action in the State Court of Bryan County against Defendants Riven E. Ventura, Riven Benavi, Inc., M&M Carrier Trucking, Inc., County Hall Insurance Co., Sentry Insurance Co., Donnie W. Desue, URS Midwest, Inc. d/b/a United Road and United Road Services, Inc., Romulus Insurance Risk Retention Group, Inc., Westchester Fire Insurance Company, Publix Super Markets, Inc., Bestway Refrigerated Services, Inc., PACCAR, Inc., and John Doe Corporations A-Z, after he was injured and his wife was killed in a multi-vehicle collision. (See doc. 1-1.) Defendant Sentry Insurance Co. removed the case to this Court, (doc. 1), and then several of the corporate Defendants filed a Joint Motion to Dismiss Defendant County Hall Insurance Co. ("County Hall"), arguing that Plaintiff had fraudulently joined County Hall, (doc. 7). Plaintiff then filed his Motion to Remand. (Doc. 51.) For the reasons explained more fully below, the Court DENIES Plaintiff's Motion to Remand, (id.), and GRANTS Defendants' Joint Motion to Dismiss County Hall, (doc. 7). The Court also GRANTS McIntire's Motion to Amend. (Doc. 46.) Finally, the Court DENIES Defendant Romulus Insurance Risk Retention Group, Inc.'s Motion for Judgment on the Pleadings, (doc. 5), and DENIES Defendant Westchester Fire Insurance Company's Motion to Dismiss, (doc. 10).

BACKGROUND

Plaintiff is a resident of North Carolina. (Doc. 1-1, p. 8.) According to the Complaint, on or about July 26, 2018, Plaintiff was traveling on I-95. (Id. at pp. 12, 15.) Ventura allegedly was also on I-95, driving southbound in a 2012 Freightliner Tractor Trailer ("Freightliner"). (Id. at p. 12.) Ventura was allegedly an "agent and/or employee" of M&M Carrier Trucking, Inc. ("M&M"), and M&M allegedly owned the Freightliner.¹ (Id. at p. 13.) According to the Complaint, Ventura negligently tried to change lanes while operating the Freightliner on I-95. (Id. at pp. 14-17.) As he changed lanes, Ventura allegedly collided with a 2017 Peterbilt Tractor Trailer ("Peterbilt") operated by Desue. (Id. at p. 14.) Desue was allegedly "an agent and/or employee" of URS Midwest, Inc. d/b/a United Road and United Road Services, Inc. ("United Road"), and United Road allegedly owned the Peterbilt. (Id.)

After the collision, the Peterbilt (while still being operated by Desue) allegedly hit the vehicle that Plaintiff was driving, and in which his wife was a passenger, causing it "to spin andbecome pinned between the guardrail and the Peterbilt." (Id. at p. 15.) The Complaint further states that the Peterbilt caught on fire and spilled fuel onto Plaintiff's vehicle, causing it to also catch on fire. (Id.) Plaintiff allegedly suffered severe injuries and his wife died as a result of the crash. (Id.)

Plaintiff filed his Complaint on November 16, 2020 in the State Court of Bryan County. (See id. at p. 6.) The Complaint asserts several claims against Defendants including a "direct action" claim against County Hall "[p]ursuant to O.C.G.A. § 40-1-112 and O.C.G.A. § 40-2-140." (Id. at p. 24.) According to the Complaint, County Hall is a North Carolina corporation² and "is the insurance carrier" for M&M. (Id. at p. 9.) Plaintiff alleges that he "is entitled to receive payments from County Hall for the tort liability of Defendants M&M and Ventura upon a judgment in this matter." (Id. at p. 24.) According to the insurance policy issued by County Hall to M&M ("the Policy"), County Hall "has been organized and incorporated as a captive insurance, risk retention group company."³ (Doc. 66-1, p. 55.) County Hall's articles of incorporation state that the company's full name is County Hall Insurance Company, Inc., A Risk Retention Group. (Doc. 7-1, p. 2.) The Policy also provides notice that "[t]he policy for which you are applying is issued by a risk retention group. The risk retention group may not be subject to all insurance laws and regulations of your state of domicile." (Doc. 66-1, p. 6.) In addition, it states that, "[a]s required under the Federal Risk Retention Act all insureds of the Company must also be members of County Hall Holdings, LLC (Holdings), accordingly each insured will purchase one Class B membership unit in Holdings." (Id. at p. 55.) In turn, the County Hall Holdings, LLC's articles of incorporationprovide that any member of County Hall Holdings, LLC must be "insured under a policy of insurance issued by County Hall Insurance Company, Inc., A Risk Retention Group ('RRG')." (Id. at p. 61.) In addition, according to the articles of incorporation, County Hall Holdings, LLC was formed "to be the sole shareholder" of County Hall. (Id. at p. 62.)

The Complaint also alleges claims against Romulus Insurance Risk Retention Group, Inc. ("Romulus") and Westchester Fire Insurance Company ("Westchester"). (Doc. 1-1, pp. 27-29.) According to the Complaint, Romulus, a South Carolina corporation, and Westchester, an Iowa corporation, are "the insurance carrier[s] for Defendant United Road." (Id. at pp. 10-11.) Plaintiff asserts direct action claims under O.C.G.A. § 40-1-112 and O.C.G.A. § 40-2-140 against Romulus and Westchester. (Id. at pp. 28-29.) According to the Complaint, both Romulus and Westchester were "insurer[s] of United Road at all times relevant to the allegations in this Complaint and provided liability insurance coverage for the motor carrier involved in the [at-issue] collision." (Id. at pp. 27-28.) Plaintiff claims that he "is entitled to receive payments" from Romulus and Westchester Fire "for the tort liability of Defendants United Road and Desue upon a judgment in this matter." (Id. at pp. 28-29.)

Sentry Insurance Co. removed the case to this Court on December 21, 2020. (Doc. 1.) Several Defendants filed a Joint Motion to Dismiss County Hall. (Doc. 7.) Plaintiff filed a Response to the Motion, (doc. 44), and County Hall filed a Reply, (doc. 66). Plaintiff also filed a Motion to Remand, (doc. 51), and Defendants jointly filed a Response, (doc. 67). In addition to the Motions connected to the remand issue, Plaintiff also filed a Motion to Amend the Complaint to Add Cottrell, Inc. as a Party Defendant. (Doc. 46.) Romulus filed a Motion for Judgment on the Pleadings. (Doc. 5.) Plaintiff filed a Response to this Motion, (doc. 39), and Romulus filed aReply, (doc. 57). Finally, Westchester filed a Motion to Dismiss, (doc. 10), and Plaintiff filed a Response, (doc. 45).

LEGAL STANDARD

Actions initially filed in a state court may be removed to federal court in two circumstances: (1) where the claim presents a federal question; or (2) where diversity jurisdiction exists. 28 U.S.C. § 1441(a-b). Federal courts, as courts of limited jurisdiction, must remand a case removed on diversity grounds where there is not complete diversity of citizenship between the parties or where one of the named defendants is a citizen of the state in which the suit is filed. 28 U.S.C. § 1441(b). In this circuit, "there is a presumption against the exercise of federal jurisdiction, such that all uncertainties as to removal jurisdiction are to be resolved in favor of remand." Russell Corp. v. Am. Home Assurance Co., 264 F.3d 1040, 1050 (11th Cir. 2001) (emphasis added), abrogated on other grounds by Overlook Gardens Props., LLC v. ORIX USA, L.P., 927 F.3d 1194, 1202 (11th Cir. 2019).

Even so, courts may retain jurisdiction and "ignore the presence of [a] non-diverse defendant" where the plaintiff fraudulently joined that defendant solely to defeat federal diversity jurisdiction. Stillwell v. Allstate Ins. Co., 663 F.3d 1329, 1332 (11th Cir. 2011).

To establish fraudulent joinder, 'the removing party has the burden of proving by clear and convincing evidence that either: (1) there is no possibility the plaintiff can establish a cause of action against the resident defendant; or (2) the plaintiff has fraudulently pled jurisdictional facts to bring the resident defendant into state court.'

Id. at 1332 (quoting Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997)) (alterations omitted).

When ruling on a motion to remand, "the district court must evaluate the factual allegations in the light most favorable to the plaintiff and must resolve any uncertainties about state substantive law in favor of the plaintiff." Crowe, 113 F.3d at 1538. In making this determination, "federalcourts are not to weigh the merits of a plaintiff's claim beyond determining whether it is an arguable one under state law." Id. Indeed, "[i]f there is even a possibility that a state court would find that the complaint states a cause of action against any one of the resident defendants, the federal court must find that joinder was proper and remand the case to state court." Coker v. Amoco Oil Co., 709 F.2d 1433, 1440-41 (11th Cir. 1983), superseded by statute on other grounds as stated in Georgetown Manor, Inc. v. Ethan Allen, Inc., 991 F.2d 1533 (11th Cir. 1993); see also Stillwell, 663 F.3d at 1333 (reversing a district court's denial of a motion to remand and holding that the district court erred in concluding the defendant was fraudulently joined because "at the very least, [it is] possible that a Georgia state court would conclude that" the plaintiff's...