United States District Court, N.D. West Virginia, Elkins
AGCS MARINE INSURANCE COMPANY and INTERCHANGE GROUP, INC., Plaintiffs,
BILL WARNER & SON TOWING & RECOVERY, LLC, Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS [ECF
S. KLEEH, UNITED STATES DISTRICT JUDGE
before the Court is a Motion to Dismiss filed by Defendant
Bill Warner & Son Towing & Recovery, LLC. The motion
is fully briefed and ripe for review. For the reasons listed
below, the Court GRANTS the motion.
November 21, 2018, the Plaintiffs, AGCS Marine Insurance
Company (“AGCS”) and Interchange Group, Inc.
“Plaintiffs”), filed suit against the Defendant,
Bill Warner & Son Towing & Recovery, LLC
(“Defendant”). In the Amended Complaint,
Plaintiffs aver the following set of facts, which are
regarded as true for purposes of the Motion to Dismiss.
issued an inland marine insurance policy to Interchange.
Am. Compl. at ¶ 8. The policy insured cargo
that Interchange was transporting via tractor/trailer.
¶¶ 8-9. On July 28, 2018, a driver for
Interchange lost control of the tractor/trailer near Seneca
Rocks, West Virginia, and rolled down an embankment.
¶¶ 10- 11. Defendant was then dispatched to recover
the tractor/trailer and provide clean-up services. ¶ 14.
Following the incident, Defendant submitted an invoice to
Interchange totaling $242, 432.40 for seven (7) days of
services. ¶ 15. The invoice broke down the expenses into
two categories: (1) recovery of the tractor/trailer at $65,
113.50 and (2) clean-up and debris removal at $177, 318.90.
dispute the necessity of the services Defendant provided, the
amount of labor it employed, and the reasonableness of the
clean-up and debris removal charges. ¶ 17. Plaintiffs
retained an expert to review the invoice, and the expert
found that the reasonable charges for clean-up would amount
to $76, 417.62. ¶¶ 22-23. Plaintiffs argue the
following actions were unreasonable: use of and amount
charged for a wrecker; payment of $50 per hour to flaggers;
payment of $50 per hour to laborers; payment of $80 per bag
for super sacs; and charging for a fork lift, leaf blower,
and chop saw. ¶¶ 24-32. Plaintiffs also argue that
photographs do not support the number of laborers for which
Defendant billed. ¶ 28. Defendant refuses to provide
Plaintiffs with any documentation such as time sheets or pay
stubs demonstrating payment to the laborers. ¶ 29.
assert one count of declaratory relief and ask the Court to
do the following: determine that Plaintiffs are not obligated
to make payment to Defendant in connection with the clean-up
and debris removal for the subject loss beyond the fair and
reasonable expenses; determine the amount of the fair and
reasonable expenses; award Plaintiffs their costs and
attorney's fees; and award Plaintiffs any other relief as
justice may require. Am. Compl. at 5.
the Federal Declaratory Judgment Act, district courts
“may declare the rights and other legal relations of
any interested party seeking such declaration whether or not
further relief is or could be sought.” 28 U.S.C. §
2201(a). District courts have “great latitude” in
their discretion to determine whether and when to entertain
an action under the Act. Aetna Cas & Sur. Co. v.
Ind-Com Elec. Co., 139 F.3d 419, 421-22 (4th Cir. 1998).
The Fourth Circuit has explained that a declaratory judgment
action is appropriate “when the judgment will serve a
useful purpose in clarifying and settling the legal relations
in issue, and . . . when it will terminate and afford relief
from the uncertainty, insecurity, and controversy giving rise
to the proceeding.” Aetna Cas. & Sur. Co. v.
Quarles, 92 F.2d 321, 325 (4th Cir. 1937). It should not
be used “to try a controversy by piecemeal, or to try
particular issues without settling the entire controversy, or
to interfere with an action which has already been
instituted.” Centennial Life Ins. Co. v.
Poston, 88 F.3d 255, 256- 57 (4th Cir. 1996). The
statute's aim “is to afford a new form of relief
where needed, not to furnish a new choice of tribunals or to
draw into the federal courts the adjudication of causes
properly cognizable by courts of the states.”
Quarles, 92 F.2d at 324.
Supreme Court of the United States has instructed that when a
related state proceeding is underway, a district court
considering a declaratory judgment action should specifically
consider whether the controversy “can better be settled
in the proceeding pending in the state court.”
Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491,
495 (1942). The Fourth Circuit has written that a district
court should consider certain factors, along with general
principles of federalism, efficiency, and comity, in deciding
whether to exercise jurisdiction over state-law claims in the
face of parallel litigation in the state courts:
(i) the strength of the state's interest in having the
issues raised in the federal declaratory action decided in
the state courts;
(ii) whether the issues raised in the federal action can more
efficiently be resolved in the court in which the state
action is pending;
(iii) whether permitting the federal action to go forward
would result in unnecessary “entanglement”
between the federal and state court systems, because of the
presence of ...