Rodriguez v. Hanover Insurance Co

Filing 12

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 7/7/2014. (rss, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division

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CHRISTOPHER

RODRIGUEZ

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Plaintiff,

Case No.: GJH-14-01478

v.

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HANOVER INSURANCE CO.

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Defendant.

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MEMORANDUM
This Memorandum

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OPINION

and Order addresses Defendant's

Motion to Dismiss and/or for

Summary Judgment, ECF NO.7, and supporting memorandum, ECF No. 7-1, and Plaintiff's
Opposition to Defendant's

Motion to Dismiss, ECF No.8,

and supporting memorandum ECF

No. 8-1. I find that a hearing is unnecessary in this case. See Local Rule 105.6. For the reasons
stated below, Defendant's Motion to Dismiss and/or for Summary Judgment is denied.

I.

BACKGROUND
This action arises out of a motor vehicle accident that occurred in Montgomery County,

Maryland on November 12, 2012 that was allegedly caused by Tchouli Gombo ("Gombo"), a
citizen of the nation of Chad and an employee of the Embassy of Chad. ECF NO.1 at ~~ 2,7,8.
Christopher Rodriguez ("Plaintiff')

was a passenger in a vehicle that was stopped at a red light

when the vehicle he was in was rear-ended by Gombo. /d. at ~~ 2, 8. As a result of the collision,

Plaintiff suffered serious physical injuries.

Id. at ~ 12. The vehicle operated by Gombo was

insured by the defendant, Hanover Insurance Co. ("Hanover')

Id. at ~ 4.

Plaintiff has commenced this Negligence action against Hanover pursuant to 28 U.S.C.

9

1364(a), which grants the federal district court "original and exclusive jurisdiction" over direct
actions brought against any liability insurer "who by contract has insured an individual, who is ..
. a member of a [diplomatic] mission," as defined in 22 U.S.C.
Relations Act or in

9

9

254(a) of the Diplomatic

19 of the Convention on Privileges and Immunities of the United Nations

of February 13, 1946. See 28 U.S.C.

9

1364(a)l; see also ECF No.1 at ~ 5. Hanover moved to

dismiss on varipus grounds, including that this Court lacks jurisdiction under
ECF No. 7 at 2-4.

For the reasons stated herein, Hanover's

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1364(a).2 See

Motion to Dismiss and/or for

Summary Judgment is denied.

I

Section 1364 provides:

(a) The district courts shall have original and exclusive jurisdiction, without regard to the amount
in controversy, of any civil action commenced by any person against an insurer who by contract
has insured an individual, who is, or was at the time of the tortious act or omission, a member of
a mission (within the meaning of section 2(3) of the Diplomatic Relations Act (22 U.S.c.
254(a)(3))) or a member of the family of such a member ofa mission, or an individual described
in section 19 of the Convention on Privileges and Immunities of the United Nations of February
13, 1946, against liability for personal injury, death, or damage to property.
(b) Any direct action brought against an insurer under subsection (a) shall be tried without a jury,
but shall not be subject to the defense that the insured is immune from suit, that the insured is an
indispensable party, or in the absence of fraud or collusion, that the insured has violated a term
of the contract, unless the contract was cancelled before the claim arose.

2 Hanover lists four reasons why it believes dismissal of Plaintiffs complaint is warranted but
does not specify which subsections of Fed.R.Civ.P. 12(b) warrant such dismissal. In addition to
challenging this Court's jurisdiction under 9 I 364(a), the motion appears to address a failure to
state a claim under subsection(b)(6) as well as improper venue under subsection (b)(3).
Hanover's motion will therefore be evaluated against the standards governing these particular
subsections ofFed.R.Civ.P. 12(b).
2

II.

LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint if it

fails to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). The purpose
of Rule 12(b)( 6) "is to test the sufficiency of a complaint and not to resolve contests surrounding
the facts, the merits of a claim, or the applicability
Charlottesville,

464 F.3d 480, 483 (4th Cir. 2006).

of defenses."

Presley

v. City of

To that end, the Court bears in mind the

requirements of Fed. R. Civ. P. 8, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and
Ashcroft v. Iqbal, 556 U.S. 662 (2009), when considering a motion to dismiss pursuant to Rule
12(b)(6).

Specifically, a complaint must contain "a short and plain statement of the claim

showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), and must state "a plausible
claim for relief," as "[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice," Iqbal, 556 U.S. at 678-79.

See Bhari Info. Tech. Sys.

Private Ltd. v. Sriram, 984 F. Supp. 2d 498,501 (D. Md. 2013) (discussing standard from Iqbal
and Twombly).

"A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged." Iqbal, 556 U.S. at 663.

Furthermore, "[t]he appropriate venue of an action is a procedural matter that is governed
by federal rule and statutes." Albemarle Corp. v. AstraZeneca UK Ltd., 628 F.3d 643, 650 (4th
Cir. 2010) (citing Fed.R.Civ.P.

12(b)(3), 28 U.S.c.

~ 1391, and 28 U.S.C. ~ 1406(a)). A

defendant may move to dismiss an action for improper venue pursuant to Fed.R.Civ.P. 12(b)(3).
In the Fourth Circuit, "when venue is challenged by a motion to dismiss, the plaintiff bears the
burden of establishing that venue is proper."

Jones v. Koons Auto., Inc., 752 F.Supp.2d 670,

679-80 (D. Md. 2010).
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III.

DISCUSSION
Section 1364 was enacted in 1978 as part of the Diplomatic Relations Act (the "Act"),

Pub.L. No. 95-393, 92 Stat. 808 (1978). The Act, which constituted a substantial revision of the
law of diplomatic immunity, contains three provisions which are of relevance to this lawsuit.
First, "Section 5 of the Ace continues the long-standing concept of diplomatic immunity by
providing for the dismissal of any action or proceedings brought against an individual entitled to
such protection."

Windsor v. Slale Farm Ins. Co., 509 F.Supp. 342, 344 (D.D.C. 1981). Second,

Section 6 of the Act, now codified at 22 U.S.C. ~ 254e, requires members of diplomatic missions
to acquire liability insurance for risks "arising from the operation in the United States of any
motor vehicle, vessel, or aircraft."

Finally, Section 7 of the Act, codified at 28 U.S.C. ~ 1364,

which forms the basis for this lawsuit, establishes a right of action on behalf of a person injured
by a member of a diplomatic mission to proceed directly against the wrongdoer's insurer. See
Galli v. Tokio Marine Mgml., Inc., No. 09-3248, 2010 WL 3037145, at *2 (D. Md. July 30,
2010) ("28 U.S.c. ~ 1364 allows the victim of a diplomat tortfeasor to bring a direet action
against the diplomat's

insurer.").

These provisions "were meant to correct the inequity which

would arise when a person was injured by a member of a diplomatic mission and subsequently
left without a remedy because the \vrongdoer was entitled to diplomatic immunity:'

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Urlic v. Am.

Section 5 of the Act has been codified at 22 U.S.c. s 254d (Supp. II 1978) and provides:
Any action or proceeding brought against an individual who is entitled to immunity with
respect to such action or proceeding

under the Vienna Convention

on Diplomatic

Relations. under section 3(b) or 4 of this Act, or under any other laws extending
diplomatic

privileges and immunities,

shall be dismissed.

Such immunity may be

established upon motion or suggestion by or on behalf of the individual, or as otherwise
permitted by law or applicable rules of procedure

4

Int'l C'p., No. 96-1177, 1997 WL 223076, at

* 1 (S.D.N.Y.

May 1, 1997) (citing Windsor, 509

F.Supp. at 344-45 ("The Diplomatic Relations Act (the Act) was designed, in part, to deal with
the inequities associated with the immunity of members of diplomatic missions in civil coul1
proceedings.")).

This inequity was remedied by (1) requiring diplomats to obtain insurance and

(2) allowing injured persons to sue the diplomats' insurers directly. See Windsor, 509 F.Supp. at
345. Thus, the inequity the statute was intended to remedy is precisely the inequity Hanover's
motion would seek to impose in this case.
Here, Plaintiff has brought a direct action of Negligence against Hanover.

In support of

the claim, Plaintiff has alleged that he was injured as a result of a collision negligently caused by
Gombo; that Havover insured Gombo at the time of the accident and that Gombo is a diplomat
from the African nation of Chad. See ECF NO.1 at ~ 2-4. As such, Plaintiff contends that he
has stated a direct cause of action against Hanover and that jurisdiction
proper. Id. at ~ 5. Hanover disagrees.

under

S

1364(a) is

Hanover contends that Maryland "does not allow a direct

suit by an alleged injured party against an insurance company for the alleged tort-feasor."
No. 7-1 at 2. Hanover further contends that jurisdiction under

S

ECF

1364(a) is improper because

Plaintiff has failed to adequately allege "that Mr. Gombo was a member of a mission that would
be protected by 22 U.S.c. 254(a)(3)." Id. at 3. The Court rejects both contentions.
In support of its position that Plaintiff cannot bring a direct suit against an ll1surer,
Hanover cites Freed v. State Farm Auto. Ins. Co., 491 F. 2d 972 (5th Cir. 1974). While Freed
does address the issue of a direct claim against an insurer, Freed is inapposite insofar as it did
not involve the application of 28 U.S.C.

S

1364(a) and, as explained above,

direct cause of action against the insurer of a diplomat. See 28 U.S.C.
unhelpful to Hanover and its argument fails.

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S

S

1364(a) provides a

1364(a). Thus, Freed is

Hanover's argument that Plaintiff has not adequately alleged that Gombo was a member
of a mission and therefore fails to establish jurisdiction under

S

1364(a) also fails. 22 U.S.C.

S

254a(3), the provision of the Diplomatic Relations Act referenced in 28 U.S.C.
explains

that "the term 'mission'

includes

missions

within the meaning

Convention and any missions representing foreign governments,

S

1364(a),

of the Vienna

individually or collectively,

which are extended the same privileges and immunities, pursuant to law, as are enjoyed by
missions under the Vienna Convention."
Vienna Convention

See 22 U.S.C.

S

254a(3).

In turn, Article 1 of the

defines "members of a mission" as "the head of the mission and the

members of the staff of the mission."

Vienna Convention on Diplomatic Relations and Optional

Protocol on Disputes art. 1, Apr. 18, 1961, 23 U.S.T. 3227, 1972 WL 122692.
Hanover's

Despite

contention that "[t]he only facts pled are that Mr. Gombo was operating a vehicle

owned by the Embassy of Chad" (ECF No. 7-1 at 3), Plaintiff quite clearly alleges that "at all
relevant times, [Gombo], was employed on the staff of His Excellency the Ambassador from
Chad, Bechir Mahamoud Adam." ECF NO.1 at ~ 2. Taking this allegation as true. as this Court
must at this stage of the proceeding. Plaintiff has adequately alleged that Gombo was a staff
member of the Embassy of Chad and thus a member of a mission protected by 22 U.S.C.
254(a)(3). Accordingly, Plaintiff has adequately alleged jurisdiction under

S

1364(a).4

Finally, Hanover contends that this case must be dismissed because venue is improper.
See ECF No. 7-1 at 3. In essence, Hanover argues that Plaintiff cannot properly establish venue
since it has not adequately pled facts to conclusively establish Hanover's residence.

See id; see

4 Having concluded that Plaintiff has adequately alleged jurisdiction under S 1364(a), this Court
need not address Hanover's argument that there is no diversity jurisdiction. See ECF No. 7-1 at
2-3. Once jurisdiction exists under S 1364(a), "[t]he district courts shall have original and
exclusive jurisdiction" under this provision. 28 U.S.C. S 1364(a) (emphasis added).
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also 28 U.S.c.

S

1391 (1) (venue proper in "a judicial district in which any defendant resides, if

all defendants are residents of the State in which the district is located").
however, Hanover's

residency is irrelevant to establishing venue.

Under

For present purposes,

S

1391(b)(2), a civil

action may be brought in "a judicial district in which a substantial part of the events or omissions
giving rise to the claim occurred ....

" 28 U.S.C.

S

1391(2). Here, there is no dispute that the

events giving rise to this action - the automobile collision purportedly caused by Gombo occurred in Montgomery County, Maryland, which is found in the District of Maryland.

See

ECF NO.1 at ~~ 3, 7-9. Plaintiff has therefore carried its burden of showing that venue is proper,
irrespective of Hanover's residency.

VI.

CONCLUSION
Accordingly, for the aforementioned reasons, Defendant's Motion to Dismiss andlor for

Summary Judgment is DENIED.s

lsi

Dated: July 7, 2014

George Jarrod Hazel
United States District Judge

Although Hanover fashions its current motion as one to dismiss andlor for summary judgment,
the Court has treated it only as a motion to dismiss. Where the parties present matters outside of
the pleadings and the court considers those matters, the motion is treated as one for summary
judgment. See Fed.R.Civ.P. 12(b). Here, the parties have not presented this Court with any
materials outside the pleadings, nor has the Court considered any. In its Reply Memorandum,
Plaintiff does raise seemingly hypothetical scenarios which, if later supported by evidence, may
or may not constitute an argument to be considered under a summary judgment standard. See
ECF No. II at ~~ 3-4. At this juncture, however, the Court will not convert this to a motion for a
summary judgment and has decided this matter on the pleadings.
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