United States District Court, D. Maryland
THEODORE D. CHUANG UNITED STATES DISTRICT JUDGE
Access Limousine Service, Inc. ("Access") has filed
a negligence claim against Defendants Service Insurance
Agency ("SIA") and Timothy O'Bryan
(collectively, "Defendants") arising from
Defendants' late notification to Access of its decision
not to renew Access's insurance policy. This matter is
before the Court on Defendants' Motion for Summary
Judgment, ECF No. 21, filed on May 5, 2016 (the "First
Motion for Summary Judgment"), and Defendants'
Motion for Summary Judgment Regarding Plaintiffs Lack of
Necessary Expert Witnesses, ECF No. 41, filed on August 12,
2016 (the "Second Motion for Summary Judgment").
The issues before the Court are (1) whether Access is
precluded by judicial estoppel from bringing its negligence
claim because it failed to schedule the claim in an earlier
bankruptcy proceeding; and (2) whether Defendants are
entitled to judgment as a matter of law because the Court has
stricken Access's proposed damages expert. Both motions
are briefed and ripe for disposition, and no hearing is
necessary to resolve them. See D. Md. Local R.
106.5. For the reasons set forth below, both motions are
is a Maryland corporation that provides transportation
services. In order to operate its business, Access is
required to maintain a commercial automobile insurance
policy. Between 1993 and 2013, Access fulfilled this
requirement by maintaining a commercial automobile insurance
policy administered by SIA, a Virginia-based insurance
company. O'Bryan, SIA's owner, served as Access's
broker and in that capacity was responsible for the renewal,
adjustment, and administration of Plaintiff s insurance
30, 2013, Defendants provided Access with an application to
renew its insurance policy, which was set to expire on August
12, 2013. Access returned the forms on May 31, 2013. Neither
Defendant contacted Access again until August 7, 2013, when
Defendants informed Access that they were unable to renew its
policy and that the policy would be expiring in five days.
Access had not expected that it would be unable to renew its
insurance policy and could not obtain new insurance before
the August 12, 2013 expiration date. Neither Defendant took
any action to help Access extend the policy or procure a new
one, and after the expiration date passed, Access was unable
to operate its business because it lacked the required
insurance coverage. Although Access secured alternative
insurance coverage from another carrier within 90 days, it
suffered "significant economic loss" in the
meantime. Compl. ¶ 14, ECF No. 2.
September 13, 2013, Access filed for Chapter 11 Bankruptcy in
the United States Bankruptcy Court for the District of
Maryland. See Voluntary Petition, First Mot. Summ.
J. Ex. A, ECF No. 21-3. Access's Schedule of Personal
Property, filed on October 8, 2013, stated that Access's
assets included automobiles, vans, and other vehicles, some
of which had. been repossessed; approximately $13, 300 in six
different bank accounts; and assorted office furnishings and
computers. Next to the line for "Other contingent and
unliquidated claims of every nature, including tax refunds,
counterclaims of the debtor, and rights to setoff claims,
" Access indicated that it had no such claims by placing
an "X" in the space labeled "NONE."
See Schedule B - Personal Property, First Mot. Summ.
J. Ex. B, ECF No. 21-4. Keyvan Shokraei, Access's
President, signed a "Declaration Concerning Debtor's
Schedules" in which he stated under penalty of perjury
that the schedules were true and correct to the best of his
knowledge, information, and belief. Access filed an amended
schedule on October 28, 2013, which again did not identify
any legal claims as assets.
was never granted a discharge in bankruptcy. On January 31,
2014, the United States Trustee filed a Motion to Convert
Case to Chapter 7 or, in the Alternative, to Dismiss the
Case. In its Motion, the Trustee asserted that Access had
failed to file required monthly operating reports, make
required fee payments to the Office of the United States
Trustee, provide information requested by the Trustee, and
file a reorganization plan and disclosure statement.
See Motion to Convert Case to Chapter 7 or, in the
Alternative, to Dismiss Case, In re Access Limousine
Service, Inc., No. 13-25615, at 2-5 (Bankr. D. Md. Jan.
31, 2014), Dkt. No. 93.The Trustee asserted that because Access
had not "taken any affirmative steps to move this case
toward confirmation, " "the best interests of the
estate and the creditors would be served ... by converting
this case to Chapter 7 or dismissing it." Id.
at 5. Access filed an Objection denying the Trustee's
assertions and submitted several of the missing monthly
operating reports. Nevertheless, the bankruptcy court ordered
the case dismissed and terminated the automatic stay on April
December 4, 2015, Access filed this suit for negligence
against Defendants in the Circuit Court of Maryland for
Prince George's County, asserting that Defendants caused
Access to lose its mandatory insurance coverage by (1)
failing timely to notify Access regarding the cancellation or
non-renewal of its policy and (2) failing to maintain
Access's policy or secure alternative coverage. Access
asserts that Defendants are liable for $500, 000 in damages
for losses suffered during the period it was unable to
operate because it was uninsured.
timely removed the matter to this Court and properly invoked
diversity jurisdiction pursuant to 28 U.S.C. § 1332
because Access is a citizen of Maryland and Defendants are
citizens of Virginia. In an Amended Answer filed on April 5,
2016, Defendants asserted the defense of judicial estoppel.
On May 5, 2016, Defendants filed the First Motion for Summary
Judgment. Access filed its Opposition to the Motion on May
23, 2016. Defendants filed a reply brief on May 25, 2016.
the First Motion for Summary Judgment pending, the Parties
proceeded to discovery. On June 7, 2016, Defendants filed a
Motion to Strike Plaintiffs Expert Designations. While that
motion was pending, on August 12, 2016, Defendants filed the
Second Motion for Summary Judgment. Access filed its
Opposition to the Second Motion on August 29, 2016. After a
hearing on September 14, 2016, United States Magistrate Judge
Charles B. Day denied the Motion to Strike as to Access's
standard of care expert, but granted the motion as to
Access's damages expert.
their First Motion for Summary Judgment, Defendants invoke
the doctrine of judicial estoppel and argue that Access is
barred from bringing this lawsuit because Access did not list
the negligence claim as an asset in its Chapter 11 bankruptcy
Schedule of Personal Property. Access contends that judicial
estoppel is unwarranted in this case because the omission was
unintentional. In their Second Motion for Summary Judgment,
Defendants assert that they are entitled to judgment as a
matter of law because Access cannot prove the existence and
amount of damages without its expert witness on damages,