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Nationwide Mutual Insurance Co. v. Wahome

United States District Court, E.D. North Carolina, Western Division

September 13, 2019

THERESA WAHOME, also known as Theresa Tate; JONATHAN WAHOME; QUATERIA McGIRT; SHAWNTIA McARTHUR, Individually; and SHALETIA McARTHUR, Individually, Defendants.[1]



         This 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.


         This 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.

         On 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.

         On 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).

         During 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.

         The 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).

         The 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.

         Thereafter, 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.[2]

         Bench 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.


         On 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.

         At the 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 ...

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