United States District Court, D. Maryland, Southern Division
W. GRIMM, UNITED STATES DISTRICT JUDGE
insurance-contract dispute arises out of the tragic June 2012
death of Fort Meyer Construction Corp. (“Fort
Meyer”) employee Leroy Cook in a vehicular accident at
one of the company's asphalt plants. Cook died when a
dump truck driven by Santos Sifredo Romero Garcia struck him.
Garcia owns and operates trucking companies called A and S
Trucking and Romero Santos Trucking. Marvin Gaitan owns and
operates Gaitan Enterprises, Inc. and shares a truck parking
lot with Garcia and other dump-truck contractors in Landover,
Maryland.Gaitan referred the Fort Meyer job to
Garcia when he lacked a sufficient number of trucks to
perform the work himself. Following the accident, Cook's
estate and family members filed a tort suit in the Circuit
Court for Prince George's County against Garcia, Gaitan,
and their companies. Cir. Ct. Prince George's Cnty, Md.
Second Am. Compl., J.A. 1-11, ECF No. 62. Titan Indemnity
Co. (“Titan”), which insures Gaitan, filed suit
in this Court seeking a declaratory judgment that it is not
liable for any of the allegations in the state-court lawsuit
and owes no duty to defend Gaitan in that case. Compl., ECF
now before the Court is Titan's Motion for Summary
Judgment. ECF No. 60. The Motion has been fully briefed,
see Pl.'s Mem., ECF No. 61; Defs.'
Opp'n, ECF No. 63; Pl.'s Reply, ECF No. 66, and no
hearing is necessary, see Loc. R. 105.6 (D. Md.).
Because I find that Garcia is not covered by the Titan
Policy's temporary-substitution clause, I will grant
Titan's Motion as to its liability and duty to defend
under the Policy. I also conditionally find that Titan has no
duties or obligations under the MCS-90 endorsement attached
to the policy because it only applies to entities insured by
the underlying policy. But because Titan did not raise this
issue in its briefing, I will give the Defendants an
opportunity to show cause within twenty-one days why summary
judgment should not be granted in Titan's favor regarding
the MCS-90 endorsement before rendering a final decision.
reviewing a motion for summary judgment, the Court considers
the facts in the light most favorable to the non-movant,
drawing all justifiable inferences in that party's favor.
Ricci v. DeStefano, 557 U.S. 557, 585-86 (2009);
George & Co., LLC v. Imagination Entm't
Ltd., 575 F.3d 383, 391-92 (4th Cir. 2009); Dean v.
Martinez, 336 F.Supp.2d 477, 480 (D. Md. 2004). Unless
otherwise stated, this background is composed of undisputed
facts. See Ricci, 557 U.S. at 585-86; George
& Co., 575 F.3d at 391-92; Dean, 336
F.Supp.2d at 480.
several years, Gaitan worked as a truck driver on site at
Fort Meyer. Gaitan Statement 13:2-10, J.A. 151. In 2005, he
opened his own business, id., and Fort Meyer began
using him as a point person for its hauling needs.
See Coppula Dep. 11:16-22, J.A. 63; Gaitan Statement
14:16-22, J.A. 152. Whether Fort Meyer and Gaitan formalized
this relationship in a written contract is a subject of
dispute. Coppula Dep. 26:1-10, J.A. 78; Gaitan
Statement 13:15-21, J.A. 151; Gaitan Dep. Vol. I 14:11-14,
J.A. 183. Under this arrangement, Fort Meyer would tell
Gaitan how many trucks it needed for each job, and Gaitan
would either fill the request using his own fleet or refer
work he could not perform to other contractors with whom he
shared his parking lot. Coppula Dep. 11:16-22, 29:18-30:8,
J.A. 81-82; Garcia Dep. 18:12- 19:8, J.A. 117; Gaitan
Statement 14:16-22, 16:2-6, J.A. 152, 154. When Gaitan made
referrals, drivers would submit to Fort Meyer a Gaitan
work-order ticket, and Fort Meyer would pay Gaitan at an
hourly rate for each submitted ticket; Gaitan, in turn, would
pay the other contractors in full for their drivers'
work, reserving only two to five dollars per job for
processing costs. Gaitan Statement 18:3-8, 21:3-13, J.A. 156,
159; Garcia Dep. 53:1-6, J.A. 125; Gaitan Dep. Vol. I
25:15-26:5, J.A. 185-86. Gaitan shared neither the proceeds
nor the expenses from referred trucking jobs with the other
contractors, but benefitted by getting referrals from other
contractors when they had excess work. Gaitan Statement
21:14-22:6. J.A. 159-60; Gaitan Dep. Vol. II 20:2-6, J.A.
208. Whatever the contractual relationship between Gaitan and
Fort Meyer, it is undisputed that he exercised a degree of
supervisory authority over the contractors to whom he
referred work: verifying that they complied with Department
of Transportation regulations; confirming that they met Fort
Meyer's insurance requirements; examining drivers'
driving records; and issuing IRS Forms 1099 to contractors.
Garcia Dep. 6:19-7:10, J.A. 114; Gaitan Dep. Vol I.
16:19-18:9, J.A. 183-84. On any given day, Gaitan might refer
multiple Fort Meyer jobs to other contractors. See
Gaitan Tickets, J.A. 248-72.
19, 2012, Fort Meyer called Gaitan with a job, but the
parties dispute the number of trucks that Fort Meyer
requested that day. In his initial answers to interrogatories
Gaitan indicated that Fort Meyer requested one truck, Gaitan
Answers to Interrogs. No. 6, J.A. 133, but he later
supplemented his answer and indicated the number was five,
Gaitan Supp. Anwers to Interrogs. No. 6., J.A. 274-75, and he
recalled the number as two in his deposition, Gaitan Depo.
Vol. I 22:4, J.A. 185. Whatever the number, Gaitan could not
fill the request because one of his five trucks was in
disrepair and-if Fort Meyer requested fewer than five
trucks-because the others were on assignment
elsewhere. Gaitan Depo. Vol. I. 22:4-11, J.A. 185;
Gaitan Supp. Answers to Interrogs. No. 6, J.A. 274. Instead,
Gaitan referred the job to Garcia, one of the other
contractors with whom he shared a parking lot in Landover,
Maryland. Garcia Dep. 20:15-21, 22:11-19, J.A. 117-18; Gaitan
Dep. Vol. I 22:12-14. Garcia took the job and used his own
dump truck, Garcia Dep. 11:2-6, J.A. 115; Gaitan Statement
21:5-6; Gaitan Dep. Vol. II 13:12- 17, which was minimally
insured by a policy that he purchased from Progressive
Casualty Insurance Company, Progressive Policy, J.A. 137.
While Garcia prepared the truck for loading at Fort Meyer,
the truck in front of him pulled forward. Garcia Dep.
29:13-30:1, 33:8-12, J.A. 119-20. Without seeing Cook walking
in front of the vehicle, Garcia also pulled forward, struck
Cook, and killed him. Id. 38:1-39:21.
the accident, Cook's estate and family members filed suit
in the Circuit Court for Prince George's County against
Garcia, Gaitan, and their companies, bringing wrongful-death
and survival claims (Counts I and II) as well as negligence
claims for Garcia's failure to obtain adequate insurance
coverage and Gaitan's failure to ensure that he did so
(Counts III and IV). Cir. Ct. Prince George's Cnty, Md.
Second Am. Compl.
judgment is proper when the moving party demonstrates,
through “particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . .,
admissions, interrogatory answers, or other materials,
” that “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a), (c)(1)(A); see
also Baldwin v. City of Greensboro, 714 F.3d 828, 833
(4th Cir. 2013). If the party seeking summary judgment
demonstrates that there is no evidence to support the
nonmoving party's case, the burden shifts to the
nonmoving party to identify evidence that shows that a
genuine dispute exists as to material facts. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 585-87 & n.10 (1986). The existence of only a
“scintilla of evidence” is not enough to defeat a
summary judgment motion. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251 (1986). Instead, the evidentiary
materials submitted must show facts from which the finder of
fact reasonably could find for the party opposing summary
judgment. Id. A “genuine” dispute of
material fact is one where the conflicting evidence creates
“fair doubt”; wholly speculative assertions do
not create “fair doubt.” Cox v. Cnty. of
Prince William, 249 F.3d 295, 299 (4th Cir. 2001);
see also Miskin v. Baxter Healthcare Corp., 107
F.Supp.2d 669, 671 (D. Md. 1999). The substantive law
governing the case determines what is material. See
Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir.
2001). A fact that is not of consequence to the case, or is
not relevant in light of the governing law, is not material.
Id.; see also Fed. R. Evid. 401 (defining
Maryland law, an insurance company has a duty to defend
“if there is a potentiality that the claim could be
covered by the policy.” Md. Cas. Co. v. Blackstone
Int'l Ltd., 114 A.3d 676, 682 (Md.
2015). Determining whether a potentiality of
coverage exists requires courts to examine two questions:
“(1) what is the coverage and what are the defenses
under the terms and requirements of the insurance policy? (2)
do the allegations in the [underlying] tort action . . .
potentially bring the tort claim within the policy's
coverage?” Id. (quoting Walk v. Hartford
Cas. Ins. Co., 852 A.2d 98, 106 (Md. 2004)).
Titan Policy does not list Garcia as an insured individual or
his truck as a covered vehicle. See Business Auto
Coverage Form Declarations 3-4, J.A. 18-19. Defendants
maintain, however, that Garcia's truck falls within the
Policy's “temporary substitute” clause.
Defs.' Mem. 13-14. If Garcia's truck is not covered
as a temporary substitute, then Defendants argue that the
Policy's MCS-90 endorsement requires Titan to pay for any
judgement against Garcia, subject to indemnification.
Id. at 15, 20.