HARTFORD INSURANCE COMPANY OF THE MIDWEST et al v. DANA TRANSPORT INC. et al
OPINION. Signed by Judge Kevin McNulty on 8/23/17. (sr, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
HARTFORD INSURANCE COMPANY
OF THE MIDWEST, and HARTFORD
CASUALTY INSURANCE COMPANY,
Civ. No. 16-909 1 (1CM) (JBC)
DANA TRANSPORT INC., GREAT
WEST CASUALTY COMPANY, AXIS
SURPLUS INSURANCE COMPANY,
and AMERICAN GUARANTY AND
LIABILITY INSURANCE COMPANY,
KEVIN MCNULTY, U.S.D.J.:
The plaintiffs, Hartford Insurance Company of the Midwest, and Hartford
Casualty Insurance Company (“Hartford”), brought this action against Dana
Transport Inc. (“Dana Transport”) and three insurance companies,’ seeking a
declaratory judgment and reformation of an insurance contract between
Hartford and Dana Transport. Essentially, Hartford seeks a declaration of noncoverage. If Hartford is not liable, the other insurance companies would
potentially have a correspondingly greater obligation to indemnify. Now before
the Court are two dispositive motions: (1) Axis Surplus Insurance Company’s
motion to dismiss the complaint for failure to state a claim, pursuant to Fed. R.
Civ. P. 12(bfl6), and for lack of subject matter jurisdiction, pursuant to Fed. R.
The defendant insurers are Great West Casualty Company (“Great West”), Axis
Surplus Insurance Company (“Axis”), and American Guaranty and Liability Insurance
Civ. P. 12(b)(1);2 and (2) Hartford’s motion for judgment on the pleadings,
pursuant to Fed. R. Civ. P. 12(c).
For the reasons stated below, Axis’s motion to dismiss will be GRANTED
IN PART and ADMINISTRATIVELY TERMINATED IN PART, and Hartford’s
motion for judgment on the pleadings will be DENIED.
A. Dana Transport’s Indemnity Coverage
The allegations of the Complaint are taken as true for purposes of this
motion. According to the Complaint, Hartford has issued annual commercial
auto liability insurance policies to Dana Transport, a New Jersey corporation,
providing coverage each year from 2008 through 2014. (Compl.
8, 16) The
policies issued for 2008, 2009, and 2011 contain an endorsement
(Endorsement Form HA 99 03 01 87) that expressly excludes from coverage
claims for loss arising out of autos with a gross vehicle weight greater than
Both Great West and AGLIC have moved to join Axis’s motion to dismiss. (ECF
nos. 23, 29) AGLIC has also moved to join kts’s opposition brief. (ECF no. 43) These
motions to join will be granted.
Record items cited repeatedly will be abbreviated as follows:
Declaratory Judgment Complaint (ECF no. 1)
Plaintiffs Hartford Insurance Company of the Midwest’s and
Hartford Casualty Insurance Company’s Brief in Opposition
to Motions to Dismiss and in Support of Motion for
Judgment on the Pleadings (ECF no. 33-1)
Defendant Axis Surplus Insurance Company’s
Memorandum of Law in Support of Its Motion to Dismiss
Defendant Axis Surplus Insurance Company’s Reply
Memorandum of Law in Further Support of Its Motion to
Dismiss and in Opposition to Plaintiffs Motion for
Judgment on the Pleadings (ECF no. 39)
Plaintiffs Hartford Insurance Company of the Midwest’s and
Hartford Casualty Insurance Company’s Reply Brief in in
Support of Motion for Judgment on the Pleadings (ECF no.
20,000 pounds (the “heavy-vehicle exclusion”). (Id.
16). The policies issued for
2010, 2012, 2013, and 2014 do not contain that heavy-vehicle exclusion. (Id.)
This allegedly was a mistake; it was the intent of Dana Transport and
Hartford that the 2010, 2012, 2013, and 2014 policies, like the others, would
contain a heavy-vehicle exclusion. (Id.
21) Dana Transport did not pay
Hartford a premium commensurate with coverage for heavy vehicles. (Id.
For the 2012 policy year, Dana Transport obtained indemnity coverage up to
$20 million for vehicles weighing more than 20,000 pounds from three other
insurance companies. (Id.
23) In its Answer, Dana Transport agrees that “the
Hartford 2012 Policy was not intended to provide insurance coverage to Dana
for ‘autos’ weighing above 20,000 pounds.” (ECF no. 16,
30, 32, 41)
B. Louisiana Civil Actions against Dana Transport
In two consolidated cases in the United States District Court for the
Middle District of Louisiana4 (the “Underlying Actions”), Dana Transport has
been named as a defendant. (Compl.
12) The plaintiffs in the Underlying
Actions allege that, on October 17, 2012, they were injured on a Louisiana
highway when they were struck by an 18-wheeler tractor-trailer owned by
Dana Transport. (Id.
13) The tractor-trailer weighed over 20,000 pounds. (Id.
The plaintiffs sued Dana Transport, Hartford, and several other insurers,
as well as others. (Id.
13) In the Underlying Actions, Great West, as primary
insurer, is defending Dana Transport. (Id.
33) Dana Transport’s policies with
Axis and AGLIC provide excess liability coverage. (Id.
On November 8, 2016, “in an oral ruling on summary judgment motions,” the
court in the Underlying Actions “found that the Hartford 2012 Policy
I take judicial notice that on March 24, 2017, after the motions currently before
this Court were fully briefed, final judgment was entered in the consolidated cases.
Final Judgment, Bennett ii. Great West Casualty Company, 3: 13-cv-007 10-JWD-RLB
(M.D. La. Mar. 24, 2017), ECF no. 191. On April 20, 2017, Hartford appealed that
judgment to the Fifth Circuit. Notice of Appeal, Bennett, 3:13-cv-00710-JWD-RLB
(M.D. La. Apr. 20, 2017), ECFno. 194.
clear[lyj and unambiguous1y provided coverage], and declined to consider any
extrinsic evidence.” (Id.
C. This Action
A month later, on December 8, 2016, Hartford filed the two-count
Complaint in this action.
In Count 1, Hartford seeks a declaratory judgment from this Court that
“that there is no coverage afforded Dana Transport under the Hartford 2012
Policy” for the Underlying Actions. (Compl.
38) According to Hartford, such a
declaration is necessary because, “[t]he rights and status and other legal
relations and obligations of Hartford and Dana Transport, Great West, Axis and
AUNt are uncertain and insecure, and the entry of a declaratory judgment by
this court will terminate the uncertainty and controversy which has given rise
to this proceeding.” (Id.)
In Count 2, Hartford seeks “a declaration reforming the Hartford 2010,
2012, 2013, and 2014 Policies to include the exclusion for autos or trucks with
a gross vehicle weight greater than 20,000 pounds (Endorsement Form HA 99
03 01 87) and declaring that there is no coverage under the Hartford 2012
Policy” for the Underlying Actions. (Compl.
On January 17, 2017, Dana Transport answered the Complaint. (ECF
no. 16) On January 20, 2017, Axis filed its motion to dismiss the Complaint.
(ECF no. 21) Soon thereafter, Great West and AGLIC moved to join Axis’s
motion. (ECF nos. 23, 29) On February 21, 2017, Hartford filed a motion for
judgment on the pleadings together with its opposition to Axis’s motion to
dismiss. (ECF no, 33)
The motion to dismiss and the motion for judgment on the pleadings are
now before the Court.
DISCUSSION AND ANALYSIS
A. 12(b)(6) Motion to Dismiss AU Claims Involving the
Hartford 2012 Policy
Axis first moves to dismiss Count 1 and the portion of Count 2 that
relates to the Hartford 2012 Policy on several grounds, including res
judicata/claim preclusion and collateral estoppel/issue preclusion. Both of
these affirmative defenses may, in a proper case, serve as the basis for a
motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P.
12(b)(6). Great W. Mm. & Mineral Co. v. ADR Options, Inc., 882 F. Supp. 2d 749,
760 (D.N.J. 2012), affd, 533 F. App’x 132 (3d Cir. 2013).
Rule 12(b)(6) Standard
Fed. R. Civ. P. 12(bfl6) provides for the dismissal of a complaint, in whole
or in part, if it fails to state a claim upon which relief can be granted. The
moving party bears the burden of showing that no claim has been stated.
Hedges z.’. United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a motion
to dismiss under Rule 12(b)(6), a court must take all allegations in the
complaint as true and view them in the light most favorable to the plaintiff. See
Wadh v. Seldin, 422 U.S. 490, 501, 95 5. Ct. 2197 (1975); Trump Hotels &
Casino Resorts, Inc.
Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998);
see also Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008).
Fed. R. Civ. P. 8(a) does not require that a complaint contain detailed
factual allegations. Nevertheless, “a plaintiff’s obligation to provide the
‘grounds’ of his ‘entitlement to relief requires more than labels and
conclusions, and formulaic recitation of the elements of a cause of action will
not do.” Bell Ati. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955 (2007).
Thus, the factual allegations must be sufficient to raise a plaintiff’s right to
relief above a speculative level, such that it is “plausible on its face.” See id. at
570; see also Umland u. PL4NCO Fin. Sen,c, Inc., 542 F.3d 59, 64 (3d Cir. 2008).
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.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 5. Ct.
1937 (2009) (citing Thnombly, 550 U.S. at 556). While “jt]he plausibility
standard is not akin to a ‘probability requirement’
it asks for more than a
sheer possibility.” Iqbal, 556 U.S. at 678.
The United States Court of Appeals for the Third Circuit has explicated
the Twombly/Iqbal standard on several occasions. See, e.g., Argueta v. U.S.
Immigration & Customs Enforcement, 643 F.3d 60, 70—73 (3d Cir. 2011);
Santiago v. Wanninster flop., 629 F.3d 121, 129—30 (3d Cir. 2010). In doing so,
it has provided a three-step process for analyzing a Rule 12(b)(6) motion:
To determine whether a complaint meets the pleading standard,
our analysis unfolds in three steps. First, we outline the elements
a plaintiff must plead to a state a claim for relief. See [Iqbal, 556
U.S.] at 675; Argueta, 643 F.3d at 73. Next, we peel away those
allegations that are no more than conclusions and thus not
entitled to the assumption of truth. See Iqbal, 556 U.S. at 679;
Argueta, 643 F.3d at 73. Finally, we look for well-pled factual
allegations, assume their veracity, and then “determine whether
they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S.
at 679; Argueta, 643 F.3d at 73. This last step is “a context-specific
task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679.
Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).
“In deciding a Rule 12(b)(6) motion, a court must consider only the
complaint, exhibits attached to the complaint, matters of the public record, as
well as undisputedly authentic documents if the complainant’s claims are
based upon these documents.” Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir.
2010); see also In re Asbestos Products Liability Litigation (No. VI), 822 F.3d
125, 134 & n.7 (3d Cir. 2016); Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256,
260 (3d Cir. 2006) (“In evaluating a motion to dismiss, we may consider
documents that are attached to or submitted with the complaint, and any
matters incorporated by reference or integral to the claim, items subject to
judicial notice, matters of public record, orders, and items appearing in the
record of the case.”).
Declaratory Judgment as to Coverage under
Hartford 2012 Policy for the Underlying Actions
Axis argues that Hartford’s claim for declaratory relief must be dismissed
on grounds of collateral estoppel, or issue preclusion. Hartford does not
explicitly concede that its request for declaratory judgment related to the
Underlying Actions is subject to issue preclusion, but neither does it offer any
argument in opposition. I agree with Axis that issue preclusion bars the relief
Hartford seeks in Count 1.
The Underlying Actions were diversity-jurisdiction cases, removed from
Louisiana state court and governed by state law. This federal court must give the
judgment in the Underlying Actions the same res judicata effect that a Louisiana state
court would give it. See Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 121 S.
Ct. 1021(2001) (excepting cases in which the state rule would contravene a strong
Both sides here cite and rely on federal res judicata law. Louisiana resjudicata
doctrines, at least since 1991, have been closely parallel to federal resjudicata law,
with irrelevant exceptions. See, e.g., Gabriel ii. Lafourche Par. Water 1)1st, 20 12-0797
(La. App. 1 Cir. 2/25/ 13), 112 So. 3d 281, 285, writ denied, 2013-0653 (La. 4/26/13),
112 So. 3d 848; Williams u. City ofMarksville, 2002-1130 (La. App. 3 Cfr. 3/5/03), 839
So. 2d 1129, 1131 (“Before it was amended in 1991, Louisiana law on resjudicatawas
substantially narrower than federal law, however, the amendments expanded the law
to include issue preclusion,” with the exception that Louisiana requires mutuality of
In short, there seems to be nothing idiosyncratic about res judicata in
Res judicata is an issue and claim preclusion device found both in
federal law and state law....
Under LSA-R.S. 13:4231, res judicata bars relitigation of a subject
matter arising from the same transaction or occurrence as a previous
suit. Thus, the chief inquiry is whether the second action asserts a cause
of action that arises out of the transaction or occurrence that was the
subject matter of the first action. Ten-ebonne Fuel, 95-0654 at p. 12, 666
So.2d at 632. Furthermore, the doctrine of res judicata is not
discretionary and mandates the effect to be given to final judgments.
Leon u. Moore, 98-1792, pp. 4-5 (La. App. 1st Cir.4/1/99), 731 So.2d
502, 505, writ denied, 99-1294 (La.7/2/99), 747 So.2d 20; cf. LSA-R.S.
Louisiana Revised Statute 13:423 1 embraces the broad usage of
the phrase “res judicata” to include both claim preclusion (res judicata)
Under Louisiana law, “a judgment in favor of either the plaintiff or the
defendant is conclusive, in any subsequent action between them, with respect
to any issue actually litigated and determined if its determination was essential
to the judgment. La. R.S. 13:4231.” Paradise Viii. Children’s Home, Inc. a
Liggins, 38,926 (La. App. 2 Cir. 10/13/04), 886 So. 2d 562, 569, writ denied,
2005-0118 (La. 2/4/05), 893 So. 2d 884. “[U]nderLa.R.S. 13:4231(3) the three
requirements for issue preclusion are: ‘(1) a valid and final judgment; (2)
identity of the parties; and (3) an issue that has been actually litigated and
determined if its determination was essential to the prior judgment.”’ Liberty
Mut. Fire Ins. Co. a Weaver, 2016-1008 (La. App. 3 Cir. 5/10/17), 219 So. 3d
442, 445—46 (quoting Hon-eli a Horrell, 99-1093, p. 1 (La. App. 1 Cir. 10/6/00),
808 So. 2d 363, 373, writ denied, 01-2546 (La. 12/7/01), 803 So. 2d 971.
Paradise observed that federal and state “requirements for res judicata are
much the same.” 886 So. 2d at 569. And indeed, federal case law provides
similarly that relitigation of a legal or factual issue is precluded when “(1) the
is the same as that involved in the prior action; (2) the issue was
actually litigated; (3) it was determined by a final and valid judgment; and (4)
and issue preclusion (collateral estoppel). Under claim preclusion, the res
judicata effect of a judgment on the merits precludes the parties from
relitigating matters that were or could have been raised in that action.
Under issue preclusion or collateral estoppel, however, once a court
decides an issue of fact or law necessary to its judgment, that decision
precludes relitigation of the same issue in a different cause of action
between the same parties. Thus, res judicata used in the broad sense
has two different aspects: 1) foreclosure of relitigating matters that have
never been litigated but should have been advanced in the earlier suit;
and 2) foreclosure of relitigating matters that have been previously
litigated and decided. Hudson v. City of Bossier, 33,620, p. 7 (La. App. 2d
Cir. 8/25/00), 766 So.2d 738, 743, writ denied, 2000-2687 (La.
11/27/00), 775 So.2d 450.
Mandalay Oil & Gas, L.L.C. v. Energy Dev. Corp., 2001-0993 (La. App. 1 Cir. 7/3/02),
867 So. 2d 709, 713.
I therefore cite federal law as highly persuasive on the point, parallel citing to
Louisiana law as appropriate. See Stevens u. Bank ofAnt, N.A., 587 F. App’x 130, 132
n.2 (5th Cir. 2014) (citing Semek but holding that “we reach the same conclusion
regardless of whether Texas or federal preclusion law applies”).
the determination was essential to the prior judgment.” Peloro rc United States,
488 F.3d 163, 174—75 (3d Cir. 2007) (citations omitted).
The issue on which Hartford here seeks a declaratory judgment—whether
the Hartford 2012 Policy afforded coverage to Dana Transport for vehicles
weighing more than 20,000 pounds—is the same issue actually litigated by
Hartford in the Underlying Actions. That issue was determined by, and was
essential to, the Louisiana district court’s final and valid judgment granting
Axis’s motion for summary judgment in the Underlying Actions.
On November 8, 2016, Hon. John W. deGravelles, the district judge
presiding over the Underlying Actions, held a hearing on two summary
judgment motions.6 (Def. Mot. Ex. H) As described by Judge deGravelles, the
first was a motion in which Axis7 sought “judgement regarding, one, that the
Axis insurance policy is excess to the Great West and Hartford insurance
[ajnd, two, that Axis is not required to provide coverage for the
plaintiffs claims unless or until the $3 million in combined limits of the Great
West and Hartford policies are exhausted.” (Id. at 4:16—23) The second was
Hartford’s motion seeking summary judgment “dismissing the claims of certain
parties and essentially recognizing that its policy does not provide coverage in
this case.” (Id. at 4:24
Hartford actually litigated the issue of coverage of vehicles exceeding
20,000 pounds. Hartford filed a motion for summary judgment and a
supplemental memorandum. Hartford argued that the 2012 Policy
unambiguously excluded coverage on its face. In the alternative, Hartford
argued that if the court found the 2012 Policy to be ambiguous, “the court
In deciding Axis’ motion to dismiss, I may consider the transcript of Judge
deGravelles’s November 8, 2016 ruling in the Underlying Actions, as it is referred to
and relied on in the Complaint (Compl. ¶ 28); it is central to Hartford’s claim for
declaratory judgment; and it is a matter of public record. See Section hAl, supra.
AGLIC adopted Axis’s responses to Hartford’s motion for summary judgement in
the Underlying Actions. (Def. Mot. Ex. H at 5:23—6:1, 6:10—12).
should conclude that the Hartford policy does not provide coverage based in
part on the affidavit of Mr. Ronald Dana,” attached to the supplemental
memorandum. (Id. at 5:4—14) In the affidavit, Mr. Dana states that “[i]t was the
intent of Dana Transport that the Hartford policy would not provide coverage
for autos [exceeding] 20,000 pounds, as such coverage was being provided by a
different insurer.”8 Hartford’s Supplemental Memorandum, Bennett v. Great
West Casualty Company, 3:13-cv-00710-JWD-RLB (M.D. La. Nov. 2, 2016),
ECF no. 142-3.
Following a hearing, Judge deoravelles issued a “final and valid
judgment” in the form of an oral ruling, followed by a written order. In ruling
on the Axis and Hartford motions for summary judgment in the Underlying
Actions, Judge deGravelles interpreted the Hartford 2012 Policy “as a whole.”
He ruled that “the vehicle in the present case is covered under Hartford’s
 liability coverage.” (Def. Mot. Ex. H at 57:23
58:1) Judge deGravelles
issued an order granting Axis’s motion for summary judgment and denying
Hartford’s motion. (Id. Ex. 1)1 also take judicial notice that on March 24, 2017,
Judge deGravelles issue a final judgment ordering “that payment of damages to
the plaintiffs [in the Underlying Actions] be paid according to the ranking of the
insurance policies as decided in [Judge deGravelles’s] November 8 and 15,
2016 rulings” subject to Hartford’s reservation of the right to appeal those
rulings. Final Judgment, Bennett v. Great West Casualty Company, 3: 13-cv007 10-JWD-RLB (M.D. La. Mar. 24, 2017), ECF no. 191.
In sum, the issue of the extent of coverage afforded Dana Transport
under the Hartford 2012 Policy presented in Count 1(1) is identical to one that
was involved in the Underlying Actions; (2) was actually litigated in the
Underlying Actions; (3) was determined by a final and valid judgment by Judge
deGravelles; and (4) was essential to Judge deGravelles’s judgment. Thus, all
Finding the policy unambiguous, Judge deGravelles granted Axis’s motion to
strike the extrinsic Dana affidavit. (Def. Mot. Ex. H at 26:18 28:15)
four requirements for the application of issue preclusion are satisfied.
Accordingly, Count 1 must be DISMISSED.
Reformation of the 2012 Hartford Policy (Count 2)
Count 2 of the Complaint concerns Hartford’s request that this Court
issue a declaration reforming the Hartford 2010, 2012, 2013, and 2014
policies.9 Essentially, Hartford argues that these Policies should be deemed to
include the same heavy-vehicle exclusion that was contained in the 2008,
2009, and 2011 Policies.
1 first consider separately Count 2 as it relates to the Hartford 2012
Policy. Axis argues that the portion of Count 2 that relates to Hartford 2012
Policy must be dismissed because it is barred by claim preclusion. I agree.
Under Lousiana law, claim preclusion has five essential elements:
[T]he supreme court has established the following five
elements that must be satisfied for a finding that a second action
is precluded by res judicata:
(1) the judgment is valid;
(2) the judgment is final;
(3) the parties are the same;
(4) the cause or causes of action asserted in the second suit
existed at the time of final judgment in the first litigation; and
(5) the cause or causes of action asserted in the second suit
arose out of the transaction or occurrence that was the subject
matter of the first litigation.
The parties, without identifying any particular difference between the laws of
New Jersey and Louisiana, dispute whether New Jersey’s law governs the substance of
Hartford’s contractual reformation claim. For claim-preclusion purposes, the
substantive choice-of-law issue does not matter. As background, however, I note the
following principles of New Jersey law: To effectuate the contracting parties’ intent, a
court may “reform the terms of a written instrument on a claim of mutual mistake,
without regard to whether the writing is in fact ambiguous.” Cent. State Bank v.
Hudik—Ross Co., Inc., 164 N.J. Super. 317, 396 A.2d 347, 350 (1978). “That contracts
where there is a mutual mistake common to both parties may be reformed in equity is
well settled in [New Jersey] jurisprudence.” Say. Mu. & Trust Co. u. Conn. Mut. Life
Ins. Co., 17 N.J. Super. 50, 85 A.2d 311, 314 (1951).
Chevron U.S.A., Inc. v. State, 07—2469, p. 10 (La. 9/8/08), 993 So.
2d 187, 194. The “chief inquiry” is whether the second action
asserts a cause of action which arises out of the transaction or
occurrence that was the subject matter of the first action. Id.
Henkelmann v. Whiskey Island Pres., LLC, 20 13-0180 (La. App. 1 Cir.
5/15/14), 145 So. 3d 465, 469 (line breaks added for clarity). Federal claim
preclusion is similar, although it has compressed the elements to three: “(1) a
final judgment on the merits in a prior suit involving (2) the same parties or
their privies and (3) a subsequent suit based on the same causes of action.”
United States v. Athlone Indus., Inc., 746 F.2d 977, 983 (3d Cir. 1984); see also
Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 277 (3d Cir. 2014) (citing
True, federal law refers to the “same” cause of action, while Louisiana
law requires only that the claims arise from the same transaction or
occurrence. On further scrutiny, however, it is apparent that both state and
federal preclusion law rest on a transactional approach. They encompass not
just causes of action that were asserted, but claims that could have been
brought based on the same transaction or occurrence:
Under claim preclusion, a final judgment on the merits
precludes the parties from relitigating matters that were or
could have been raised in that action. Under issue preclusion
or collateral estoppel, once a court decides an issue of fact or
law necessary to its judgment, that decision precludes
relitigation of the same issue in a different cause of action
between the same parties. (Emphasis added.)
Thus, unlike issue preclusion, claim preclusion is much
broader, encompassing a prohibition against relitigation of those
matters which, not only, were litigated but, also, of those which
could have been litigated.
Williams v. City of Marksville, 2002-1130 (La. App. 3 Cir. 3/5/03), 839 So. 2d
1129, 1131 (citing Hudson v. City of Bossier, 33,620, p. 7 (La. App. 2 Cir.
8/25/00); 766 So. 2d 738, 743, writ denied, 00-2687 (La. 11/27/00); 775 So.
2d 450). “Under LSA-R.S. 13:4231, resjudicata bars relitigation of a subject
matter arising from the same transaction or occurrence as a previous suit.
Thus, the chief inquiry is whether the second action asserts a cause of action
that arises out of the transaction or occurrence that was the subject matter of
the first action.” Mandalay Oil & Gas, 867 So. 2d at 713 (citing Terrebonne
Fuel, 95-0654 at p. 12, 666 So. 2d at 632).
Similarly, the Third Circuit has instructed that a court inquiring, for
claim-preclusive purposes, whether causes of action are the same, must “focus
upon ‘whether the acts complained of were the same, whether the material
facts alleged in each suit were the same, and whether the
documentation required to prove such allegations were the same.”’ Lubrizol
Corp. v. Exxon Corp., 929 F.2d 960, 963 (3d Cir. 1991) (citing Athlone, 746 F.2d
984). “A mere difference in the theory of recovery is not dispositive.” Id.
In Lubrizol, the Third Circuit held that an action to reform a settlement
agreement was barred by the claim-preclusive effects of a prior judgment that
the agreement included the release of a certain claim. In the later action,
Lubrizol sought reformation of the agreement on the grounds of mutual
mistake, saying that the agreement should have excluded the release of that
particular claim. Id. at 961—62. The Third Circuit held that the judgment in the
prior action precluded Lubrizol’s reformation claim, which arose from the same
facts and could have been asserted in the earlier action. Id. at 963.
Henkelmann v. Whiskey Island Pres., LLC, 2013-0180 (La. App. 1 Cir.
5/15/14), 145 So. 3d 465, while not on point factually, is to the same legal
effect. There, the plaintiffs contracted to buy a lot on which the defendant
would build them a boathouse, as part of a larger marina project. When the
project stalled, they sued for and got a declaratory judgment as to their rights
to common areas, but lost their claims for rescission and damages. They then
brought a second suit claiming abandonment of the project and seeking
specific performance. The court dismissed the second suit on grounds of claim
preclusion. The court acknowledged the plaintiffs’ argument that the
abandonment of the project had become clear in the intervening period.
Nevertheless, it held that the claim for specific performance could have been
raised in the earlier suit: “Because the claim for specific performance arose
from the same transaction or occurrence that was the subject matter of the prior
litigation, it was required to be advanced in the earlier suit. Failure to do so
results in the foreclosure of relitigation of those matters which have never been
litigated.” 145 So. 3d at 470 (emphasis added).
With respect to the 2012 Hartford Policy, the “acts complained of’ are the
same in both suits. In both Axis’s and Hartford’s summary judgment motions
in the Underlying Actions, Hartford sought to avoid the application of Dana
Transport’s Hartford 2012 Policy to vehicles weighing more than 20,000
pounds. In both the Underlying Actions and the present action, Hartford
considered its own and Dana Transport’s intent to be crucial. In the Underlying
Actions, Hartford introduced evidence of intent in its supplemental
memorandum to establish the meaning of the Hartford 2012 Policy in the event
that the court found the policy to be ambiguous. Here, the precise legal
theory—reformation—is different, and the intent evidence is introduced to
demonstrate that Dana Transport and Hartford were “mistaken” when they
entered into the Hartford 2012 Policy but omitted the heavy-vehicle exclusion.
That distinction in theories is inconsequential. “[M]ultiple claims do not arise
merely because ‘the several legal theories depend on different shadings of the
facts, or would emphasize different elements of the facts
F.2d at 964 (quoting Gregory u. Chehi, 843 F.2d 111, 117 (3d Cir. 1988)); see
also Henkelmann, supra.
The witnesses and documentation required to demonstrate intent in
either case are the same. In the Underlying Actions, for the purpose of
establishing the parties’ intent, in addition to relying on the policy documents
themselves, Hartford submitted affidavits including that of Dana Transport’s
president, Ronald Dana. It appears that Hartford would rely on the same or
substantially similar witnesses and documents in the present reformation
action to demonstrate mutual mistake.
Further, with respect to the Hartford 2012 Policy, “the effect of the
present action would be to resurrect the
dispute” in the Underlying Actions,
See fri. Indeed, that appears to be not just the effect, but the intent. Clearly, the
judgment of Judge deGravelles in the Underlying Actions and Hartford’s action
to reform the 2012 policy are based on the same transactions and occurrences.
Hartford had a reasonable opportunity to assert its reformation claim in the
Underlying Actions, but it did not.
Thus, no matter the merits of its reformation claim, this attempt by
Hartford to collaterally attack the judgment in the Underlying Actions is
precluded.’0 Accordingly, the portion of Count 2 that relates to the 2012
Hartford Policy must be DISMISSED.
Hartford offers several arguments in opposition. Each is meritless.
First, Hartford argues that, “[hjaving successfully opposed the introduction of
any extrinsic evidence related to the 2012 Policy, [Axis and Great Westj cannot now
claim that Hartford ‘could have’ litigated a reformation claim.” (P1. Reply 9) In Lubrizol,
too, Lubrizol had attempt to introduce external evidence in the prior action but was
frustrated by the parol evidence rule. That happenstance did not prevent the earlier
judgment from precluding a reformation action. Lubrizol, 929 F.2d at 963. Even
assuming that Judge deGravelles erred—which I do not—Hartford’s remedy is an
appeal, not a second, duplicative action.
Second, Hartford’s contention that “reformation was not part of the discovery
record,” was not raised as an affirmative defense, and “was not addressed or even
referenced in the Court’s decision,” (P1. Reply 9) is misguided. Under the case law cited
above, that Hartford did not specifically assert a cause of action for reformation is
beside the point. It could have, but it did not. Not surprisingly, Judge deGravelles did
not explicitly address that unralsed issue.
Third, Hartford argues that “reformation is a separate claim, arising in equity
and confined in its scope to discovering and effectuating the contract that the parties
intended.” (P1. Mot. 12) That the issue of contract interpretation in the Underlying
Actions arises in law, whereas reformation arises in equity, does not matter. Law and
equity merged long ago in the federal courts, which allow a party to bring both types of
claims in the sane action, and “it is now clear that a single claim or cause of action
includes all remedies, legal and equitable.” 18 Charles Man Wright & Arthur R. Miller,
Federal Practice & Procedure § 4410 (3d ed. 2017); see also Lubrtol, 929 F.2d at 964
n.3 (rejecting Lubrizol’s reliance on a 1906 case that permitted a suit for contract
reformation despite an earlier judgment interpreting the contract, because that case
was decided before the merger of law and equity).
Finally, Hartford contends that the fact that the reformation claim could have
been brought in the Middle District of Louisiana “misses the point,” because, in the
B. 12(b)(1) Motion to Dismiss Count 2 Insofar as it Seeks to
Reform the 2010, 2013, and 2014 Hartford Policies
The Underlying Actions involved the 2012 Policy, but did not implicate
the 2010, 2013, and 2014 Hartford policies (the “Non-Implicated Policies”).”
Thus, the extent of coverage under those Non-Implicated Policies was not
actually litigated in the Underlying Actions. Nor did Hartford have a reasonable
opportunity to assert its reformation claim for the Non-Implicated Policies,
because the Underlying Actions were confined to claims arising from an
accident that occurred in 2012. Therefore, issue preclusion and claim
preclusion would not bar the present action to reform the Non-Implicated
Instead, Axis and the other defendants argue that this Court lacks
subject matter jurisdiction to issue a declaration reforming the Non-Implicated
Rule 12(b)(1) Standard
The Court’s subject matter jurisdiction is considered pursuant to Fed. R.
Civ. P. 12(b)(1). Rule 12(b)(1) challenges may be either facial or factual attacks.
See 2 Moore’s Federal Practice
§ 12.30 (3d ed. 2007); Mortensen v. First Fed.
Say. &LoanAss’n, 549 F.2d 884, 891 (3d Cir. 1977). A facial challenge asserts
that the complaint does not allege sufficient grounds to establish subject
matter jurisdiction. Iwanowa a Ford Motor Co., 67 F. Supp. 2d 424, 438
(D.N.J. 1999). A court considering a facial challenge assumes that the
allegations in the complaint are true, and may dismiss the complaint only if it
nevertheless appears that the plaintiff will not be able to assert a colorable
absence of prejudice to any party, “negligence does not bar a claim for reformation in
New Jersey.” (P1. Mot. 12) This argument is meritless, as the principle that negligence
does not bar a reformation claim refers to the “negligent failure of a party to know or
to discover the facts as to which both parties are under a mistake,” Restatement
Contracts, § 502 at 977 (1932). It does not refer to a litigant’s negligent failure to bring
a reformation claim in an earlier action.
The allegations of the Underlying Actions involve a 2012 accident, outside the
policy period covered by the Non-Implicated Policies.
claim of subject matter jurisdiction. Cardio—Med, Assoc., Ltd. v. Crozer—Chester
Med. Ctr., 721 F.2d 68, 75 (3d Cir. 1983); Iwanowa, 67 F. Supp. 2d at 438.
A factual challenge, however, attacks subject matter jurisdiction by
challenging the truth (or completeness) of the jurisdictional allegations set forth
in the complaint. Mortensen, 549 F.2d at 891. The factual nature of the attack
permits the Court to consider evidence extrinsic to the pleadings. Gould Elecs.
Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000), holding mod ffied on
other grounds by Simon v. United States, 341 F.3d 193 (3d Cir. 2003). Thus a
factual jurisdictional challenge may not go forward unless and until the
plaintiffs allegations have been controverted. Modensen, 549 F.2d at 891 n.17.
Here, Defendants challenge the ripeness of the reformation action for the
Non-Implicated Policies. “Courts have considered a challenge to the ripeness of
a claim to be a facial challenge to subject matter jurisdiction.” Evanston Ins.
Co. v. Layne Thomas Builders, Inc., 635 F. Supp. 2d 348, 352 (D. Del. 2009)
(citing Thompson v. Borough of Munhall, 44 F. App’x 582, 583 (3d Cir. 2002);
Corporate Aviation Concepts, Inc. v. Multi—Service Aviation Corp., No. 03—3020,
2005 WL 1693931, *2 n.6 (E.D. Pa. July 19, 2005)).
A plaintiff must establish his or her standing to sue under Article III of
the United States Constitution, which limits the jurisdiction of federal courts to
“Cases” and “Controversies.” This “constitutional standing”’ has three essential
elements, of which the first two are: (1) “the plaintiff must have suffered an
‘injury in fact’—an invasion of a legally protected interest which is (a) concrete
and particularized and (b) ‘actual or imminent’, not ‘conjectural’ or
‘hypotheticaltm; (2) “there must be a causal connection between the injury and
the conduct complained of—the injury has to be ‘fairly
challenged action of the defendant, and not
trace[able] to the
the result [ofi the independent
action of some third party not before the court.”’ Lujan v. Defenders of Wildlzfe,
504 U.S. 555, 560—561, 112 S. Ct. 2130 (1992) (internal citations omitted). At
the pleading stage, general factual allegations will suffice to discharge the
plaintiff’s burden, Id. at 561.
Ripeness is a related justiciability doctrine. “At its core, ripeness works
‘to determine whether a party has brought an action prematurely.
counsels abstention until such a time as a dispute is sufficiently concrete to
satisfy the constitutional and prudential requirements of the doctrine.” Plains
AI1Am. Pipeline L.P. u. Cook, No. 16-363 1,— F.3d —‘ 2017 WL 3403129, at *3
(3d Cir. Aug. 9, 2017) (quoting Peachium v. City of York, 333 F.3d 429, 433 (3d
Cir. 2003)). The underlying concerns include “whether the parties are in a
‘sufficiently adversarial posture,’ whether the facts of the case are ‘sufficiently
developed,’ and whether a party is ‘genuinely aggrieved.” Id. (quoting
Peachlum, 333 F.3d at 433-34. The classic ripeness test considers: (1) “the
fitness of the issues for judicial decision” and (2) “the hardship to the parties of
withholding court consideration,” Abbott Laboratories v. Gardner, 387 U.S. 136,
149, 87 S. Ct. 1507 (1967), abrogated on other grounds by Califano v. Sanders,
430 U.S. 99, 97 5. Ct. 980 (1977).
In declaratory judgment cases, the Third Circuit has reformulated the
Abbot Labs fitness and hardship factors into a “somewhat refined test” for
ripeness. Plains All Am. Pipeline, 2017 WL 3403129, at *3 (internal quotation
marks omitted) (citing Step-Saver Data Systems, Inc. v. Wyse Technology, 912
F.2d 643 (3d Cir. 1990)). Under the Step-Saver test, a court must consider “(1)
the adversity of the parties’ interests, (2) the conclusiveness of the judgment,
and (3) the utility of the judgment.” Id. (quoting Khodara Envtl,, Inc. u. Blakey,
376 F.3d 187, 196 (3d Cir. 2004)).
Axis argues that Hartford’s action for the reformation of the Non
Implicated Policies is not a justiciable case or controversy because it is not ripe
for consideration. This is so, says Axis, because no insured has made any
claim for coverage under the Non-Implicated Policies. (Def. Mot. 26—27) Thus
“the controversy alleged in the Second Count of the DJ Complaint regarding
those policies is purely hypothetical” and unripe. (Id. at 27) Hartford counters
by arguing that New Jersey law allows contract reformation actions prior to any
accident or occurrence. Thus, says Hartford, the reformation cause of action is
already ripe and justiciable.’2 (P1. Mot. 5—6) Still, it is now 2017; it is not
implausible that any claims for 2014 or earlier would have surfaced by now;
and Dana Transport, at least, probably knows whether its trucks were in any
serious accidents in that period.
There is one late-emerging development, however, that may have
significantly altered the factual background of this ripeness inquiry—at least
with respect to reformation of the 2014 policy. In its reply brief, Hartford
informed the Court that it had been named a defendant in another action in
Louisiana state court, Hendrix v. Great West, et. aL, No. 20 15-12425 (22d
Judicial Dist. La.) (“Hendrix”).’3 (Hartford has attached several documents from
that action as Exhibit A to its reply brief.) In Hendrix, the plaintiff alleges that
on November 9, 2014, a Dana Transport tractor trailer (presumably weighing
more than 20,000 pounds) collided with his car while driving on a highway. (P1.
Reply Ex. A) Because the alleged collision occurred in 2014, the Hartford 2014
Policy is implicated in the Hendrix action.
In evaluating the ripeness of the reformation claim for the Non
Implicated Policies, the Court may consider events subsequent to the filing of
Axis notes that Hartford does not cite any legal authority in support of its
contention that contract reformation actions may be brought before an accident or
occurrence. (Def. Reply 4) Regardless, the question here is the justiciabiity of the
matter in federal court, not the substantive requirements of New Jersey law.
On June 11, 2015, Hendrbc, the plaintiff in the Louisiana state court action,
first sued Great West, Dana Transport, and the truck driver. (P1. Reply Ex. A) He later
amended his petition to add Axis as a defendant. (Id.) After the expiration of the
deadline for filing supplemental and amended pleadings in that case, counsel for Great
West and Dana Transport informed Hendrix that “recent Court decisions in other
jurisdictions have established coverage under a commercial automobile policy issued
by Hartford.” (Id.) Taking up the suggestion, Hendrix then amended his pleadings to
include Hartford. (Id.)
Hartford was served with the Complaint in that action on February, 21, 20 17—
the same day that it filed its motion for judgment on the pleadings and its brief in
opposition to Axis’s motion to dismiss. (P1. Reply 5)
the Complaint, such as the addition of Hartford in the Hendrix action. See
Geneva Coil. v. Sebelius, 929 F. Supp. 2d 402, 423 (W.D. Pa. 2013), on
reconsideration in part (May 8, 2013) (“Unlike standing which is determined as
of the time the case commenced, ripeness may consider events which have
occurred after the filing of the complaint.”) (citing Buckley v. Valeo, 424 U.S. 1,
114—17, 96 3. Ct. 612 (1976)); Newark Branch, N.A.A.C.P. v. Miliburn Thip., N.
J, No. CIV. A. 89-4219, io WL 238747, at *4 (D.N.J. Dec. 27, 1990) (“In
determining ripeness, a court may consider events that occurred after the filing
of the complaint.”) (citing American Motorists Ins. Co. v. United Furnace Co., 876
F.2d 293, 302 n.4 (2d Cir. 1989)); see also 13B Charles Alan Wright & Arthur
R. Miller, Federal Practice & Procedure
§ 3532.7 (3d ed. 2017) (“Ripeness
should be decided on the basis of all the information available to the court.”).
As a general matter, then, I am not barred from considering Hendrix in
my application of the three-part Step-Saver test to this case.
Still, neither the facts nor the law are developed. Hartford brought the
Hendrix action to the Court’s attention only in its reply brief. Hartford did not
explicitly apply the Step-Saver factors to demonstrate that the declaratory
judgment action for reformation of the Non-Implicated Policies is ripe for
adjudication. Nor did Hartford specify the precise harm that the Hendrix action
poses; ripeness may depend, for example, on whether the expected harm arises
from the duty to defend or the duty to indemnify.’4 Further, Axis, Great West,
and AGLIC did not have an opportunity to submit briefs in response to this
issue. In addition, months have passed since Hartford alerted the Court to
Compare Evanston Ins. Co. v. Layne Thomas Builders, Inc., 635 F. Supp. 2d 348,
353 (D. Del. 2009) (“As a general matter, courts refrain from adjudicating whether an
insurer has duty to indemnify the insured until after the insured is found liable for
damages in an underlying action.”) (emphasis added), with Navigators Specialty Ins.
Co. v. Scarinci & Hollenbeck, LLC, No. CIV.09-4317(WHW), 2010 WL 1931239, at
(D.N.J. May 12, 2010) (It is “well established that a disagreement on the insurers’
obligations to defend is a ‘case or controversy.”’) (emphasis added) (quoting ACandS,
Inc., v. Aetna Cas. & Sur. Co., 666 F.2d 819, 823 (3d Cir. 1981).
Hendrix on March 13, 2017, and events relevant to the ripeness question may
have occurred in the interim.
Accordingly, the motion to dismiss the portion of Count 2 that seeks a
declaration reforming the Non-Implicated Policies is ADMINISTRATIVELY
TERMINATED. The parties must, within 30 days submit (a) affidavits detailing
the current status of the Hendrix action and properly sponsoring any pertinent
exhibits (which should not merely be appended to briefs); and (b) supplemental
briefs (not to exceed 15 pages) addressing:
(1) The ripeness of the declaratory judgment action for the Non
Implicated Policies in light of the current state of the Hendrix action.
In particular, the parties are to explicitly address the Step-Saver
factors, as those factors are explained in recent Third Circuit
precedent, including Plains All Am. Pipeline L.P. v. Cook, No. 16-3631,
2017 WL 3403129, at *3 (3d Cir. Aug. 9, 2017), as they
apply to (a) the 2014 Hartford Policy and (b) the 2010 and 2013
Hartford Policies. The parties should also address whether the
potential harm, if any, to Hartford from the Hendrix action derives
exclusively from a duty to indemnify or whether the duty to defend is
also at play.
(2) Assuming the declaratonr judgment action is ripe, whether the Court
should exercise or decline jurisdiction under the Declaratory
Judgment Act, 28 U.S.C.
§ 2201(a). In particular, the parties are to
address: (a) whether the Hendrix action is a “parallel state
proceeding,” and (b) any other factors relevant to the Court’s decision
whether to abstain, as recently summarized by the Third Circuit in
Kelly v. Maxum Specialty Ins. Grp., No. 15-36 18,
3585182, at *2_4 (3d Cir. Aug. 21, 2017).’
The Declaratory Judgment Act provides that federal courts “may declare the
rights and other legal relations of any interested party seeking such declaration,
whether or not further relief is or could be sought.” 28 U.S.C. § 220 1(a) (emphasis
(3) Whether any other relevant claims under the non-Implicated Policies
are pending or anticipated.
added). “Granting a declaratory judgment is therefore discretionary and a court may
abstain from entertaining an action seeking only declaratory relief.” Kelly v. Maxum
2017 WL 3585182, at *2_4 (3d Cir. Aug.
Specialty Ins. Grp., No. 15-3618,
21, 2017) (citing Ref/eru. Westport Ins. Corp., 751 F.3d 129, 134 (3d Cir. 2014);
Brillhart u. Excess Ins. Co. ofAm., 316 U.S. 491, 494 (1942)).
The Third Circuit has “directed courts deciding whether to entertain a
declaratory action to weigh certain enumerated and other factors ‘bearing on the
usefulness of the declaratory judgment remedy, and the fitness of the case for [federal]
resolution.” Id. (quoting Reifer, 751 F.3d at 138).
Under the “uniform approach” laid out by the Third Circuit, “courts should first
determine whether there is a ‘parallel state proceeding.” Id. (quoting Ref/er, 751 F.3d
at 143, 146). Although not dispositive, “the existence of a parallel state proceeding is
a significant factor that is treated with ‘increased emphasis.tm Id. (quoting Ref/er,
751 F.3d at 144). Accordingly, “the absence of pending parallel state proceedings
militates significantly in favor of exercising jurisdiction, although it alone does not
require such an exercise,” whereas “the existence of a parallel state proceeding
‘militates significantly in favor of declining jurisdiction.”’ Id. (quoting Ref/er, 751 F.3d
Courts should then meaningfully consider other factors “to the extent they are
relevant,” including those in the following non-exhaustive list:
(1) the likelihood that a federal court declaration will resolve the
uncertainty of obligation which gave rise to the controversy;
(2) the convenience of the parties;
(3) the public interest in settlement of the uncertainty of obligation;
(4) the availability and relative convenience of other remedies;
(5) a general policy of restraint when the same issues are pending in a
(6) avoidance of duplicative litigation;
(7) prevention of the use of the declaratory action as a method of
procedural fencing or as a means to provide another forum in a race for
(8) (in the insurance context), an inherent conflict of interest between an
insurer’s duty to defend in a state court and its attempt to characterize
that suit in federal court as falling within the scope of a policy exclusion.
Id. at *4 (quoting Ref/er, 751 F.3d at 146). A court declining jurisdiction in the absence
of a state parallel proceeding, or conversely exercising jurisdiction despite the
existence of a parallel proceeding, should rigorously ensure itself that” that the
existence or “lack of a pending parallel state proceedings is outweighed by opposing
factors.” Id. (quoting Ref/er, 751 F.3d at 144—45).
C. Rule 12(c) Motion for Judgment on the Pleadings
Hartford has also filed a motion for judgment on the pleadings pursuant
to Fed. R. Civ. P. 12(c), as to its claims in Count 2 for reformation of the 2012
Hartford Policy and the Non-Implicated Policies.
To begin with, Hartford’s motion is premature. Under Fed. R. Civ. P.
12(c), “[ajfter the pleadings are closed—but early enough not to delay trial—a
party may move for judgment on the pleadings.” Here, although Dana
Transport has answered the Complaint, the pleadings are not yet “closed,”
because defendants Axis, Great West, and AGLIC have not yet filed answers.
Hartford responds that only Dana Transport’s and Hartford’s intentions are
relevant to the reformation of the policies; thus, “the pleadings are closed as to
the only two parties whose intentions matter.” (P1. Reply 4) Nevertheless, the
other insurers have a vital financial interest in whether Hartford, too, covers
this loss, and they maybe entitled to be heard on the issue of whether the
claim of mutual mistake is legally and factually viable.’6
Timing aside, there are substantive impediments to Hartford’s motion.
First, insofar as the motion relates to reformation of the 2012 Policy, the
motion is moot in light of the Court’s holding that the reformation of the 2012
Hartford Policy is barred by claim preclusion. As for the portion of the claim
seeking to reform the Non-Implicated Policies, this Court’s subject matter
jurisdiction is in doubt and requires further clarification in the parties’
forthcoming supplemental briefing. Accordingly, Hartford’s motion for
judgment on the pleadings is DENIED.
To put it another way, from the other insurers’ point of view, it is not sufficient
that Hartford and Dana agree that they, and not Hartford, are liable.
For the reasons set forth above:
(1) Great West’s and AGLIC’s motions to join Axis’s motion to dismiss
and AGLIC’s motions to join Axis’s opposition brief (ECF nos. 23, 29,
43) are GRANTED;
(2) Axis’s motion to dismiss (ECF no. 21) is GRANTED IN PART as to
Count 1 and the portion of Count 2 seeking a declaration reforming
the Hartford 2012 Policy, and is ADMINSTRATIVELY TERMINATED IN
PART, WITHOUT PREJUDICE, as to the portion of Count 2 seeking a
declaration reforming the 2010, 2013, and 2014 Hartford Policies;
(3) Hartford’s motion for judgment on the pleadings (ECF no. 33) is
An appropriate Order follows.
Dated: August 23, 2017
HON. HEWN MCNULTY, U.Sf9.
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