United States District Court, D. Maryland
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE.
Arch Insurance Company (“Arch”) of Jersey City,
New Jersey initially commenced this lawsuit alleging that
Defendant, U.S. Silica Company (“Silica”), of
Frederick, Maryland, had breached its contractual obligations
by failing to document the transfer of its rights against a
third party, Union Pacific Railroad Company (“Union
Pacific”), to Arch. (ECF No. 22.) Previously, Silica
moved to dismiss Arch's Amended Complaint, arguing,
inter alia, that it had in fact executed an
assignment of its rights to Arch, thereby satisfying its
obligations. As Arch's Amended Complaint failed to
explain why the executed assignment was inadequate, this
Court dismissed Arch's Amended Complaint without
prejudice and permitted Arch to file a Second Amended
Second Amended Complaint acknowledges that Silica has
executed an assignment of claim, but alleges that this
assignment is nevertheless “unacceptable” because
it contains language Arch finds objectionable and omits
language it desires. This second amended pleading brings five
Counts, styled as follows: breach of contract (Counts I and
II); specific performance (Count III); and declaratory relief
and judgment (Counts IV and V). Silica has once again moved
to dismiss pursuant to Fed.R.Civ.P. Rule 12(b)(6). (ECF No.
23). The parties' submissions have been reviewed and no
hearing is necessary. See Local Rule 105.6 (D. Md.
2018). Put simply, Arch has again failed to articulate why
Silica' executed Assignment of Claim fails to satisfy its
contractual obligations. For this reason, and as more fully
set forth herein, Silica's Motion to Dismiss (ECF No. 23)
is GRANTED and Arch's Complaint, as amended (ECF Nos. 1,
15, 22), is now DISMISSED WITH PREJUDICE in its entirety.
background of this case has been summarized in a prior
opinion of this Court. See Arch Ins. Co. v. U.S. Silica
Co., RDB-17-3652, 2018 WL 4562939, at *1-2 (D. Md. Sept.
24, 2018). Jurisdiction of this Court is predicated on
diversity of citizenship under 28 U.S.C. § 1332. The
facts and circumstances giving rise to this litigation are
further addressed below. In ruling on a motion to dismiss,
this Court “accept[s] as true all well-pleaded facts in
a complaint and construe[s] them in the light most favorable
to the plaintiff.” Wikimedia Found. v. Nat'l
Sec. Agency, 857 F.3d 193, 208 (4th Cir. 2017) (citing
SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d
412, 422 (4th Cir. 2015)). This Court may also consider
documents “explicitly incorporated into the complaint
by reference and those attached to the complaint as exhibits
. . . .” Parker v. United States Postal
Service, Civ. A. No. RDB-15-562, 2016 WL 7338412 (Dec.
19, 2016) (quoting Goines v. Valley Cmty. Servs.
Bd., 822 F.3d 159, 166 (4th Cir. 2016)); see
also Fed. R. Civ. P. 10(c). In recounting the background
of this case, this Court takes judicial notice of the
documents attached to Arch's original Complaint and
subsequent amendments thereto, including contracts executed
by the parties, assignments of claims proposed by Arch and
Silica, and a lengthy series of emails between counsel for
Plaintiff and Defendant.
The Industry Track Agreement.
around November 26, 2008, Defendant Silica and a third party,
Union Pacific, entered into an Industry Track Agreement
governing the use and operation of a railway track which runs
through a Silica facility located in Pacific, Missouri. (ECF
No. 22 at ¶ 14.) Under Article 9 of the Industry Track
Agreement, Union Pacific owes indemnity to Silica “from
and against any and all claims for loss arising from or
growing out of the negligent acts or omissions of the
Railroad.” (Id. at ¶ 16.) The Industry
Track Agreement contained an anti-assignment condition and a
provision which purports to limit Silica's rights of
recovery against Union Pacific. (Pl.'s Ex. B, ECF No.
1-2; Pl.'s Ex. G at 19-20, ECF No. 22-2.)
The Liability Insurance Policy.
Arch issues liability insurance policies. (Id. at
¶¶ 8, 10.) Arch and Silica entered into an
insurance contract whereby Arch issued a primary commercial
general liability policy to Silica as the named insured for a
one-year period beginning September 1, 2013 and ending
September 1, 2014 (the “Arch Policy”).
(Id. at ¶ 8.) The Arch Policy included a $250,
000 self-insured retention and up to $1, 750, 000 of
liability insurance per occurrence against covered
“bodily injury.” (Id. at ¶ 10.)
Additionally, the Arch Policy contained “Commercial
General Liability Conditions” which states in relevant
part as follows:
IV. COMMERCIAL GENERAL LIABILITY CONDITIONS
Duties In The Event Of Occurrence, Offense, Claim Or
and any other involved insured must:
(4) Assist us, upon our request, in the enforcement of any
right against any person or organization which may be liable
to the insured because of any injury or damage to which this
insurance may also apply.
Transfer Of Rights Of Recovery Against Others To Us.
If the insured has rights to recover all or part of any
payment we have made under this Coverage Part, those rights
are transferred to us. The insured must do nothing after loss
to impair them. At our request, the insured will bring
“suit” or transfer those right to us and help us
(Pl.'s Ex. A, ECF No. 15-2 at 45, 47.)
The Mediation Agreement.
about May 2, 2014, Kevin King, Jr. filed a complaint against
his employer, Union Pacific, under 45 U.S.C. §§
51-60, the Federal Employers' Liability Act, claiming
that he suffered injuries as a result of Union Pacific's
alleged negligence (the “King claim”).
(Id. at ¶ 20.) Mr. King later amended his
complaint, adding Silica as a defendant. (Id. at
¶ 22.) In the summer of 2015, Union Pacific, Silica,
Arch, and National Union Fire Insurance Company of
Pennsylvania (“National Union”) negotiated toward
a resolution of the King claim. (Id. at
¶ 24.) On or around August 24, 2015, the parties entered
into an agreement setting forth each of their assumed
obligations in connection with the settlement efforts and
respective positions regarding such obligations (the
“Mediation Agreement”). (Id. at ¶
25.) The Mediation Agreement provided that “$1, 750,
000 of any such settlement shall be paid by Arch on behalf of
U.S. Silica above U.S. Silica's self-insured
retention” and “U.S. Silica shall provide
cooperation to Arch . . . in any post settlement proceeding
pursued by Arch . . . against Union Pacific.”
(Id. at ¶ 25.) Ultimately, Arch paid $1, 750,
000 toward settling the King claim on behalf of U.S.
Silica above U.S. Silica's self-insured retention, and
Mr. King released all claims against Silica and Arch.
(Id. at ¶ 28).
Efforts to Execute an ...