Occidental Fire & Casualty Company of North Carolina v. Soczynski et al

Filing 37

ORDER granting plaintiff's 32 Motion to Dismiss. Soczynski's bad faith claim is dismissed with prejudice.(Written Opinion). Signed by Judge John R. Tunheim on July 3, 2013. (DML)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
OCCIDENTAL FIRE & CASUALTY
COMPANY OF NORTH CAROLINA,

Civil No. 11-2412 (JRT/JSM)

Plaintiff,
ORDER
v.
ADAM SOCZYNSKI, THOMAS HIPP,
and HIPP’S TRUCKING, INC.
Defendants.

Brian A. Wood and Ryan P. Myers, LIND JENSEN SULLIVAN &
PETERSON, PA, 901 Marquette Avenue South, Suite 1300, Minneapolis,
MN 55402, for plaintiff.
Thomas J. Laughlin, LAUGHLIN LAW OFFICE, 600 Inwood Avenue
North, Suite 235, Oakdale, MN 55128; Nadezhda V. Wood, NADIA
WOOD, ATTORNEY AT LAW, 500 Laurel Avenue, St. Paul, MN
55102, for defendant Adam Sovzynski.

This is a declaratory judgment action brought by Plaintiff Occidental Fire &
Casualty Company of North Carolina (“Occidental”) against its insureds, Thomas Hipp
and Hipp’s Trucking, Inc. On March 10, 2009, Hipp was involved in a fatal trucking
accident that killed Amy Soczynski.

Adam Soczynski, Amy’s widower, brought a

personal injury action in Minnesota state court against Hipp and other defendants. The
state action settled, and Hipp assigned all of its causes of action against Occidental to
Soczynski.

27

The Court previously granted Soczynski’s motion for partial summary judgment,
finding that the Occidental policy provided coverage in the amount of $1 million for
damages arising out of the accident. (Mem. Op. & Order, Jan. 8, 2013, Docket No. 29.)
The matter is now before the Court on Occidental’s motion to dismiss or in the
alternative for summary judgment on Soczynski’s bad faith claim.

In response to

Occidental’s motion, Soczynski informed the Court that he was withdrawing his claim
for bad faith. (Letter, May 23, 2013, Docket No. 35.) Once a motion for summary
judgment has been filed, a claim may not be voluntarily dismissed without a court order,
and then only “upon such terms and conditions as the court deems proper.” Hamm v.
Rhone-Poulenc Rorer Pharms., Inc., 187 F.3d 941, 950 (8th Cir. 1999) (citing Fed. R.
Civ. P. 41(a)(1)(i)). The Court concludes that dismissal with prejudice is appropriate
here, and therefore will grant Occidental’s motion and dismiss Soczynski’s bad faith
claim.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Plaintiff’s Motion to Dismiss or in the Alternative Motion
for Summary Judgment [Docket No. 32] is GRANTED and Soczynski’s bad faith claim
is DISMISSED with prejudice.

LET JUDGMENT BE ENTERED ACCORDINGLY
DATED: July 3, 2013
at Minneapolis, Minnesota.

____s/
____
JOHN R. TUNHEIM
United States District Judge

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