United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN, UNITED STATES DISTRICT JUDGE
matter came before the court for bench trial April 1, 2019.
As set forth below, the court enters findings of fact and
conclusions of law and orders that judgment be entered in
favor of plaintiff.
OF THE CASE
case arises out of an underlying personal injury action filed
by defendants Quateria McGirt, Shawntia McArthur, and
Shaletia McArthur (collectively “the McGirt
party”) on February 5, 2015, in the General Court of
Justice, Superior Court Division of Durham County, North
Carolina, No. 15-CVS-1981 (“underlying lawsuit”).
There, the McGirt party claimed damages resulting from a
traffic accident and allege that defendant Jonathan Wahome
(“J. Wahome”), a passenger in the car that caused
that accident, encouraged the driver's negligence.
November 16, 2015, plaintiff filed this action seeking a
declaration pursuant to Rule 57 of the Federal Rules of Civil
Procedure that it is not obligated to satisfy any judgment
entered against J. Wahome. In particular, plaintiff seeks a
declaratory judgment that Nationwide personal auto policy
6132 J 685880 (“the Policy”) issued to J.
Wahome's mother, defendant Theresa Wahome (“T.
Wahome”), provides no liability coverage for the claims
brought against J. Wahome in the underlying lawsuit.
February 9, 2016, the McGirt party filed motion to dismiss,
arguing the court should decline jurisdiction pursuant to the
Declaratory Judgment Act, 28 U.S.C. § 2201(a), which the
court denied on June 1, 2016, holding that “the
state's interest in the contract interpretation issue
before the court is not strong, nor are the federal and state
case so entangled, as to merit granting defendants'
motion.” (DE 25 at 4).
this time, plaintiff unsuccessfully was attempting to serve
summons and complaint on defendants J. Wahome and T. Wahome.
Ultimately, the court extended plaintiff's time to serve
T. Wahome to October 19, 2016, and to serve J. Wahome to
April 24, 2017. Although service was effected on these
defendants, to date, no appearance, answer, or other response
has been made by them, and these defendants did not
participate in the April 1, 2019, bench trial.
case appeared to stall and on July 3, 2017, the court
directed plaintiff to file status report, which plaintiff
filed July 17, 2017, informing the court that plaintiff and
the McGirt party anticipated no need for written discovery or
depositions and planned to file competing dispositive
motions. On November 22, 2017, plaintiff filed motion for
judgment on the pleadings. However, no response was filed as
to this motion, and it was not until May 2, 2018, the McGirt
party filed “First motion for leave to file cross
complaint for DJ & motion for summary judgment, ”
(DE 51), as well as “Cross-complaint for declaratory
judgment and motion for summary judgment, ” (DE 52).
Additionally, on May 30, 2018, the McGirt party filed amended
motion for leave to file counterclaim. (DE 58).
court sought to clarify intent of these defendants'
filings. Following Rule 16 telephonic status conference held
on May 30, 2018, in which the McGirt party agreed with the
court that the intention of the parties was to file
cross-dispositive motions, the court construed the McGirt
party's motions consistent with this representation,
allowing motion for leave to file summary judgment, denying
motion for leave to amend answer as untimely, construing
filing at ¶ 52 as motion for summary judgment, denying
motion for leave to file counterclaim as moot given the
court's previous rulings, and directing these defendants
to file memorandum in support of their motion for summary
judgment by June 11, 2018, which defendants did.
the court took up the parties' cross-motions for summary
judgment, denying both motions on September 28, 2018, holding
genuine issue of material fact existed 1) as to when notice
was provided to plaintiff regarding the underlying litigation
and 2) whether J. Wahome was an “insured” under
the Policy at issue, precluding grant of summary judgment as
to either party.
trial, at which plaintiff presented the testimony of Michael
Glenn (“Glenn”), plaintiff's litigation
adjuster, and Phillip Collins (“Collins”), an
attorney retained by Glenn to appear on behalf of plaintiff
in the underlying litigation, commenced and concluded April
1, 2019. At the close of plaintiff's case, the McGirt
party moved for directed verdict arguing plaintiff failed to
put forth sufficient evidence, particularly with regard to
whether plaintiff was materially prejudiced by any delay in
notification by the insured of the underlying litigation and
as to the issue of J. Wahome's place of residency.
Following argument as to the McGirt party's motion, the
McGirt party's evidence was limited to insertion of a
complete exhibit previously referenced by plaintiff.
(See Def. Ex. 4). Later that day, plaintiff filed
what amounts to a post-trial brief reciting facts in evidence
and offering additional argument, with vague reference to
directed verdict and judgment on partial findings.
February 5, 2015, the underlying lawsuit, captioned
Quateria McGirt, Shawntia McArthur, by and through her
Guardian ad Litem, Shaletia McArthur and Shaletia McArthur,
Individually v. Richard Thompson Little, Jr., Bernell Laverne
Phillis, Andrew Jamal Reid, Jonathan Harrison Wahome, John
Doe 1, John Doe 2, John Doe 3, and John Doe 4 (15 CVS
1981), was filed in the Superior Court of Durham County,
North Carolina by the McGirt defendants herein. It is alleged
that on July 31, 2014, there was a two-vehicle accident in
which a 2001 Mercedes Benz owned by Bernell Phillips and
operated by Richard Little struck a 2008 Ford operated by
Quateria McGirt. It is further alleged that Richard Little,
an affiliate of the “Dirty South Rider” club, was
traveling at an estimated speed of 93 miles per hour at the
point of impact, on a road with a posted speed limit of 35
miles per hour.
time of the accident, J. Wahome was a passenger in the
backseat of the vehicle operated by Richard Little. The
underlying lawsuit alleges that J. Wahome “encouraged,
” “promoted, ” “willfully
participated in, ” and ...