United States District Court, E.D. North Carolina, Western Division
C. FOX Senior United States District Judge
the court is Zurich American Insurance Company's
("Zurich") motion for misjoinder pursuant to Rule
21 of the Federal Rules of Civil Procedure. [DE 48].
Plaintiff did not respond.
brings suit against its insurer, Continental Casualty Company
("CNA"), pursuant to 28 U.S.C. § 2201 seeking
an adjudication of its rights and obligations under the
Architects/Engineers Professional and Pollution Incident
Liability Insurance ("the Policy") issued by CNA.
In particular, Plaintiff seeks a declaration that CNA is
obligated to defend and indemnify Plaintiff in connection
with claims asserted by Zurich and co-defendants Clark
Nexsen, Inc. and Skanska USA Building, Inc.
("Skanska") against Plaintiff relating to the
separate collapses of two pedestrian bridges located on the
Wake Technical Community College ("WTCC") Northern
Campus in Raleigh, North Carolina ("the project").
to the amended complaint, WTCC contracted with Skanska to
provide construction management services for the project. Am.
Compl. ¶ 19. Skanska in turn sought a builder's risk
policy for the project from Zurich, its insurer. Id.
¶ 52. On November 13, 2014, the first bridge collapsed.
The second bridge collapsed on November 14, 2014.
Id. ¶¶ 27-28. Subsequently, Skanska
asserted claims for damages exceeding $4, 800, 000 against
Plaintiff. Id. ¶ 56. On March 2, 2015,
Plaintiff received a letter from Zurich regarding its
subrogation interest in Skanska's claims. Id.
¶ 54. Skanska's claims associated with the first
bridge collapse have been resolved - those associated with
the second bridge collapse have not. Id. ¶ 58.
April 2015, Plaintiff contacted CNA regarding coverage for
claims made against the Policy associated with the collapsed
bridges. Id. ¶ 71. CNA informed Plaintiff that
the Policy's per claim $3, 000, 000 limit of liability
applied to all claims arising out of the collapse of both
bridges. Id. Plaintiff disputes CNA's
interpretation of the Policy and argues CNA has an obligation
to indemnify Plaintiff up to the aggregate policy limit of
$5, 000, 000. Id. ¶ 2.
governs the misjoinder of parties and allows the court to,
inter alia, drop a party. Fed.R.Civ.P. 21.
"Dismissal of a misjoined party under Rule 21 is without
prejudice; a claim by or against such a party may be refiled
as a separate suit." John S. Clark Co. v. Travelers
Indem. Co., 359 F.Supp.2d 429, 437 (M.D. N.C. 2004).
Misjoinder occurs when a single party or multiple parties
fail to satisfy the requirements for permissive joinder under
Rule 20. See Id. Under Rule 20, multiple defendants
may be joined in one action where: (1) "any right to
relief is asserted against them jointly, severally, or in the
alternative with respect to or arising out of the same
transaction, occurrence, or series of transactions or
occurrences;" and (2) "any question of law or fact
common to all defendants will arise in the action."
Fed.R.Civ.P. 20(a)(2). It is well-settled that a district
court has broad discretion under Rule 21. Matthew Bender,
Moore's Federal Practice § 21.05 (3d ed. 2011)
("Rule 21 gives the court tools to jettison those
parties and claims that are not within its jurisdiction or
that are not conveniently prosecuted together, preserving
parties and claims that are properly before it.").
brings two causes of action: (1) declaratory judgment and (2)
breach of contract. Both claims are against CNA only.
Plaintiff asserts no claims against Zurich. Rather, in its
amended complaint, Plaintiff states only that Zurich is
"named in this action in order to adjudicate any rights
[it has], or allegedly ha[s], under [the Policy]."
Compl. ¶ 3. Moreover, there is no question of law or
fact common to all defendants. Plaintiff brought this action
seeking a declaration that CNA is obligated to defend and
indemnify Plaintiff up to the aggregate limit ($5, 000,
000.00) of the Policy and that in failing to defend and
indemnify Plaintiff, CNA breached its obligation under the
Policy. Accordingly, the court finds the dismissal of Zurich
pursuant to Rule 21 is appropriate.
foregoing reasons, Zurich's Motion for Misjoinder [DE 48]
is ALLOWED. Zurich is DISMISSED WITHOUT PREDJUDICE from this
action pursuant to Rule 21 of the Federal Rules of Civil