Rodriguez v. Hanover Insurance Co

Filing 72

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 2/19/2016. (kns, Deputy Clerk)

FILED
U.S. DISTRICT COURT
IN THE UNITED STATES DISTRICT COURlJlS1RICT OF ~1ARYLANO
FOR THE DISTRICT OF MARYLAND

10lb FEB I q P ~ 03

Soutltem Divisiou

CHRISTOPHER

*

RODRIGUEZ,

CLERI,'S OFFICE
AT GREOiBELT

*
Plaintiff,

8Y.

*

v.

riF?III'i

Case No,: G,JH-I4-0I478

*

HANOVER INSURANCE

CO., et aI.,

*
*

Defendants.

*
*

*

*

*

*

*

*

MEMORANDUM

*

*

*

*

*

*

*

OI'INION

Plaintiff Christopher Rodriguez brings this suit against Hanovcr Insurancc Co.
('"Hanover") and Allmerica Financial Bcncfit Insurance Company ("Allmcrica"). alleging that
the insurance companies are liablc for damagcs Rodrigucz suffercd in an automobilc accident
with an employee of the Embassy of Chad. ECF No. 37. This Mcmorandum Opinion and
accompanying Order address Plaintiffs Motion for Partial Summary Judgment. ECF No. 56. and
Defcndant Hanover's Cross-Motion lor Summary Judgment. ECF No. 57. A hcaring is
unnecessary. Loc. R. 105.6 (D. Md. 2014). For the reasons stated below. Plaintiffs Motion for
Partial Summary Judgment is GRANTED and Dcfendantllanovcr's

Cross-Motion lor Summary

Judgment is GRANTED.

I.

BACKGROUND
On November 12. 2012. Christopher Rodrigucz was a passcnger in a vchiclc stopped at a

stoplight in Montgomery County. Maryland. ECF No. 37 at ~ 8. Tchou1i Gombo. who was
opcrating a vehicle owned by the Embassy of Chad ("Embassy"). collided with thc rear of thc

vehicle that Rodrigucz occupied.

I

Id. at

'i'i 9-10.

At the time of the accident. Gombo held the

position of Press Secretary at the Embassy. where he was responsiblc for "counselor
administrative protocol" ECF No. 56-1 at 12.21n the same month this litigation was initiated.
Gombo became a counselor and political coordinator for the Embassy to the United Nations
Security Council. Id. at II.
Rodriguez tilcd a negligence action against Hanover on May 2. 2014. ECF No. I. Alier
taking some discovery. Rodriguez amcnded his Complaint to add Allmerica as a defendant on
November 12,2014. ECF No. 37. Defendant Allmerica is a wholly-owned subsidiary of
Defendant Hanover. ECF No. 56-1 at 96.
II.

DISCUSSION
A. Standard of Rcview
Summary judgmcnt is proper "if the movant shows that therc is no genuine disputc as to

any material fact and the movant is entitled to judgment as a matter of law," Fed. R. Civ. P.
56(a). Courts view the record as a whole and in the light most favorable to the non-moving party.
Celotex Corp.

1'.

Catrel/, 477 U.S. 317. 322-24 (1986). Whilc the movant bears the burdcn of

demonstrating the absence ofa genuine issue of material fact. it is the non-moving party's
burden to establish the existence of a genuine issue of material fact. Matsushita Elec. Indus. Co,
v. Zenith Radio COl]}.,475 U.S. 574. 585-87 (1986): Pulliam Inl'. Co. \', Cameo Props .. 810 F.2d
1282, 1286 (4th Cir. 1987). A material fact is one that "might affect the outcome of the suit
under the governing law." Spriggs \'. Diamond A uto Glass. 242 F.3d 179. 183 (4th Cir. 200 I)
(quoting Anderson

1'.

Liberty Lobby. Inc.. 477 U.S. 242. 248.106 S. Ct. 2505. 91 L. Ed. 2d 202

1 The descriptions
of the seriousness of the accident and the injury suffered by Rodriguez vary widely between the
parties. Resolution oflhat dispute is not necessary to decide this motion.

For the citations in this Memorandum Opinion. the Court uses the page numbers assigned to the document from
CMIECF or PACER.

2

2

(1986)). The non-moving party must present evidence that is "significantly probative" and more
than a "mere scintilla:' Celolex Corp .• 477 U.S. at 327. "The Court may only rely on facts
supported in the record, not simply assertions in the pleadings, in order to fultill its 'aftimlative
obligation to prevent "factually unsupported claims or defenses" from proceeding to trial. '"
Williams v. Silver Spring Vollinleer Fire Dep

'1,

No. GJH-13-02514, 2015 U.S. Dist. LEXIS

5529, at *7 (D. Md. Jan. 16.2015) (quoting Felly v. Gr{/\'e-HlIlI1phreys Co., 818 F.2d 1126, 1128
(4th Cir. 1987).
B, I'laintifrs Motion for Partial Summary .Judgment
Under 28 U.S.c.

S

1364. district courts have original and exclusive jurisdiction 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 ofa mission
(within the meaning of section 2(3) of the Diplomatic Relations Act (22 U.S.c. 254a(3))):' 28
U.S.c.

S

1364(a) (2012). Defendants argue that "there is a genuine issue of fact as to whether a

press secretary was a 'member of the mission:"

ECF No. 57 at 3. Defendants are incorrect. The

facl that Gombo was a press secretary is not in dispute. Whether that meets the statutory
definition of "member of a mission" is a question of law for the Court.
According to the Diplomatic Relations Act, a "mission" includes "missions within the
meaning of the Vienna Convention and any missions representing foreign governments,
individually or collectively. which are extended the same privileges and immunities, pursuant to
law, as are enjoyed by missions under the Vienna Convention:' 22 U.S.C.

S 254a(3)

(2012).

"Members ofa mission" includes (A) "the head ofa mission and those members ofa mission
who are members of the diplomatic staff or who, pursuant to law, are granted equivalent
privileges and immunities ..' (B) "members of the administrative and technical staffofa

mission'"

and (C) "members of the service staff of a mission," as such terms are defined in Article 1 of the
3

Vienna Convention.
"members

of the administrative

the administrative
Relations

22 U.S.C.

and technical

S 254a(l).

Article I of the Vienna Convention

and technical

staff' as ..thc mcmbers

service of the mission"

defines the term

of the mission employcd in

Vicnna Convention

on Diplomatic

art. I, Apr. 18. 1961. 23 U.S.T. 3227.

Gombo was a press secretary

in charge of "counsel

assigned an Embassy

vehicle. and posscsscd

was a Prcss Secretary

at the Embassy in Washington.

administrative

protocol.");

a diplomatic

administrative

was

license. See ECl' No. 56-1 at 12 ("I

DC. I was in charge of counselor

ECF No. 56-1 at 16 ("A. It's a diplomatic

long have you had that? A. Since 2005.");

protocol,"

driver's

liccnse. Q. How

ECF No. 56-1 at 27 ("Q. Okay. Who owns that

Q. Is it rcgistered to the Embassy? A. Yes. Q. Does anyone else drivc

vehicle? A. The Embassy.

it but you? A. I'm the only driver of the car. because each of us have an official car given by thc
Embassy

for the purpose of going to work and come back.''). The Court therefore

matter oflaw
technical

that at the time of the accident.

Gombo was employed

service of the mission and was therefore

a mcmber ofthc

May 2014, Gombo has been on staff' as a "counselor
to the United Nation at the Security council."
definition

of"mcmber

of the mission."

the Court has jurisdiction

and
since

for [the] Embassy

ECl' No. 56-1 at II. As this also meets the

Gombo both "is" and "was" a member ofthc mission and

notes that Gombo "was going to his home in Silver Spring. Maryland

U.S.C.

business."

mission. Additionally.

and political coordinator

at the time of the accident and was not on Embassy business."

"on Embassy

in the administrative

over this matter.

Finally, Defendant

plain language of28

tinds as a

S

I 364(a) (2012) does not contain a requircment

Accordingly.

issue of the Court'sjurisdiction

ECl' No. 57 at 4. howcver. thc

Plaintiffs

that a diplomat

Motion lor Partial Summary Judgment

is GRANTED.

4

be

on the

C. Defendant Hanover's Motion for Summary Judgment
Although Plaintiffs motion for summary judgment only expressly seeks summary
judgment on the jurisdictional issue. ECF No. 56 at I. PlaintitTs memorandum also asks the
Court to decide as a malleI' of law that both Hanover Insurance Co. and Allmerica Financial
Benefit Insurance Company are proper defendants in this action. ECF No. 56-2 at 7. In response.
Defendant Hanover has filed a Motion for Summary Judgment "on the issue of insurance:'
arguing that there "is no factual basis for asserting that. Hanover Insurance Company" afforded
an insurance policy to the Plaintiff:" ECF No. 57 at 4. Plaintiff advances two primary arguments
for its view that both defendants are proper parties: first. that evidence in the record. at the very
least, raises a genuine issue of disputed fact as to each party's involvement in the issuance of the
policy and, second, that Hanover is a proper party because it is the parent of Allmerica. Both
arguments fail.
Plaintiff notes that Hanover "unequivocally stated. in response to no less than nine
interrogatories, that its insured was the Embassy of Chad:' ECF No. 56-2 at 7-8 (citing ECF No.
56-2, Ex. D), and that every page of the policy "clearly states' Hanover Insurance Group' on the
top right-hand corner," ECF No. 56-1 at 67. Additionally. Gombo named Hanover as the
insurance provider of the vehicle he was driving during the incident. ECF No. 56-1 at 28 C'Q. Do
you know about the insurance for the vehicle? A. Yes. Q. Who insures it? ... A. It is Hanover
Insurance,").
However. the policy itself states clearly that it was "ISSUED TO EMBASSY OF CHAD
BY ALLMERICA FINANCIAL BENEFIT." ECF No. 56-1 at 77.3 Additionally. Defendants in
their interrogatory responses state that Allmerica issued the policy. ECF No. 56-1 at 96-97.101There is an additional notation on each page that. \\ihile not entirely clear. also appears to indicate that Allmerica is
the insurance provider. See, e.g.. ECF No. 56-1 at 67 (listing Allmerica under heading "coverage is provided in the
[sic

3

n.

5

02, and explain the relationship between Allmerica and Hanover, which explains why Hanover's
name appears on the corner of each document despite the fact that Allmerica issued the policy,
ECF No. 56-1 at 96-97 ("Allmerica Financial Benefit Insurance Company, a Michigan
corporation, is a wholly owned subsidiary of the Hanover Insurance Company. a New
Hampshire corporation. The Hanover Insurance Company is a wholly owned subsidiary of Opus
Investment Management, Inc .. a Massachusetts corporation. which is a wholly owncd subsidiary
of The Hanover Insurance Group, Inc .. a Delaware corporation.").
Although the self-serving contentions of Hanover in depositions~ and interrogatory
answers are not conclusive. see Galli. 2010 U.S. Dis!. LEXIS 77242. at *9 (stating that the
aftidavit of a defendant's employee, along with its own unsupported contentions. are far Irom
dispositive proof that defendant did not insure the plaintiff), in conjunction with the language of
the Policy itself, the Court finds that no reasonable jury could determine that Hanover issued the
policy.
As to Plaintiffs second argument. there is no dispute that Allmerica is a wholly-owned
subsidiary of Hanover. ECF No. 56-2 at 8. However. given the Court's ruling that Hanover did
not issue the policy, Allmerica. the actual insurer of the Embassy. is the only proper party. See
St. Paul Fire & Marine Ins. CO. I'. Croker. Inc., 21 F. Supp. 2d 537. 541 (D. Md. 1998) (tinding
for purposes of determining jurisdiction. that subsidiary company that issued the policy was the
proper party and not the parent company). Defendant Hanover's Motion for Summary Judgment
on the issue of whether Hanover insured the Embassy is GRANTED and Hanover is
DISMISSED from this case.

4

Hanover employee. Ivan Grekov. also testified that Allmerica issued the policy. ECF No. 57-1 at 3.

6

III.

CONCLUSION
For the reasons discussed, Plaintiff's Motion for Partial Summary Judgment on the issue

of the Court's exclusive and original jurisdiction is GRANTED. Additionally, Defendant
Hanover's Motion for Summary Judgment on the issue of whether Hanover insured the Embassy
of Chad is GRANTED and Hanover is DISMISSED from this case. A separate Order follows.

Date: Februaryf~

~~--

2016

,

GEORGE J. HAZEL
United States District Judge

7