United States District Court, D. North Dakota
ORDER DENYING QBE INSURANCE CORPORATION'S MOTION
TO DISMISS, OR ALTERNATIVELY FOR SUMMARY JUDGMENT, ON COUNTS
2 AND 3 OF BNSF/COACH AMERICA'S COUNTERCLAIM
L. Hovland, Chief Judge.
the Court is “QBE Insurance Corporation's Motion to
Dismiss, or Alternatively for Summary Judgment, on Counts Two
and Three of Counterclaims” filed on September 26,
2016. See Docket No. 129. BNSF Railway Company and
CUSA ES, LLC filed a response in opposition to the motion on
October 3, 2016. See Docket No. 133. QBE Insurance
Corporation then filed a reply brief on October 17, 2016.
See Docket No. 134. For the reasons set forth below,
the motion is denied.
case arises out of an underlying action in which Corrie
Burckhard, as Personal Representative for the Estate of Todd
Burckhard, and Maria Mack, as Personal Representative for the
Estate of Blaine H. Mack, filed suit against BNSF Railway
Company (“BNSF”) and CUSA ES, LLC (“Coach
America”) to recover for the wrongful deaths of their
husbands. See Case No. 4:13-cv-038 (D.N.D. March 28,
Friday, August 19, 2011, Timothy P. Rennick was operating a
motor vehicle on behalf of and at the direction of the
Defendants BNSF and Coach America. Rennick was transporting
decedents Todd Burckhard and Blaine Mack, both employees of
BNSF, to Glasgow, Montana, pursuant to their employment
duties with BNSF. While traveling west on Highway 2, the
vehicle Rennick was driving collided with a vehicle driven by
Ronald Keiser. As a result of the collision, both Burckhard
and Mack were killed.
March 28, 2013, the surviving spouses of Todd Burckhard and
Blaine Mack brought the underlying action on behalf of the
estates against BNSF and Coach America. On May 2, 2013, Coach
America filed a third party complaint against Ronald Keiser
and his insurer, QBE Insurance. See Docket No. 13
(Case No. 4:13-cv-038). On July 16, 2013, Coach America filed
an amended third party complaint to add Ost Brothers, Inc.,
d/b/a Wagon Wheel Bar as an additional third party defendant.
QBE Insurance, Ronald Keiser, and Ost Brothers, Inc., each
filed motions to dismiss in the underlying action. On
September 3, 2013, the Court dismissed the third party
complaint against QBE Insurance and concluded the Plaintiffs
may not bring a direct action against an insurer unless
liability is reasonably clear. See Docket No. 40 (Case No.
4:13-cv-038). The Court later dismissed the third party
complaint against Ronald Keiser and against Ost Brothers Inc.
for lack of personal jurisdiction. See Docket Nos. 43 and 51
(Case No. 4:13-cv-038).
September 24, 2013, QBE Insurance requested leave to deposit
its policy limits with the Court to allocate the funds
between competing interests. See Docket No. 44 (Case
No. 4:13-cv-038). The Court denied QBE Insurance's
request for leave to deposit funds because QBE Insurance was
no longer a party to the lawsuit, and it was not yet
established the insurance proceeds were “in
dispute.” See Docket No. 50 (Case No.
November 1, 2013, QBE Insurance filed this interpleader
action against Corrie Burckhard as personal representative of
the estate of Todd Burckhard, Maria Mack as personal
representative of the estate of Blaine H. Mack, BNSF, Coach
America, and Timothy P. Rennick in an effort to resolve any
claims against it arising from the underlying action.
See Docket No. 3. On April 11, 2014, the Defendants,
BNSF and Coach America, filed an answer to the interpleader
complaint and a counterclaim against QBE Insurance. In their
counterclaim, BNSF and Coach America sought a declaration as
to the allocation of the QBE Insurance policy proceeds and
alleged claims against QBE Insurance for violations of unfair
trade practices under Montana law, common law bad faith,
indemnification, and attorney's fees. See Docket
No. 13. On May 12, 2014, QBE Insurance filed a motion to
dismiss BNSF and Coach America's counterclaims of
violations of unfair trade practices, common law bad faith,
indemnification, and attorney's fees. See Docket
No. 18. On October 17, 2014, the Court granted without
prejudice QBE Insurance's motion to dismiss the
counterclaims, except for the counterclaim seeking
declaratory judgment. See Docket No. 46.
underlying action proceeded to trial on December 11, 2014.
See Docket No. 167 (Case No. 4:13-cv-038). At the
conclusion of eight days of trial, the jury returned a
verdict and found BNSF was negligent under FELA and such
negligence caused the deaths of Todd Burckhard and Blaine
Mack. The jury awarded damages in the amount of $2, 668,
943.00 to Corrie Burckhard and damages in the amount of $987,
690.00 to Maria Mack. The jury further found Coach America
and/or its employee, Timothy Rennick, were negligent, but
such negligence did not play a substantial role in causing
the deaths of Todd Burckhard and Blaine Mack.
conclusion of the jury trial in the underlying action, BNSF
and Coach America renewed their counterclaim against QBE
Insurance and their cross-claim against Burckhard and Mack.
See Docket No. 49. QBE Insurance filed a Motion to
Dismiss Counts 2 through 5 of Coach America/BNSF's
renewed counterclaim on March 5, 2015. See Docket
No. 51. The Court granted in part and denied in part QBE
Insurance's motion to dismiss, dismissing Count 4 (tort
of another) and Count 5 (attorney's fees) of BNSF and
Coach America's counterclaim. See Docket No. 83.
QBE Insurance again seeks dismissal, or alternatively,
summary judgment of the remaining counts (Counts 2 and 3) of
BNSF/Coach America's counterclaim.
STANDARD OF REVIEW
pending motion before the Court filed by QBE Insurance seeks
dismissal for lack of subject matter jurisdiction of Count 2
and Count 3 of BNSF and Coach America's counterclaim.
Rule 12(b)(1) of the Federal Rules of Civil Procedure governs
challenges to subject matter jurisdiction. Fed.R.Civ.P.
12(b)(1). “Because at issue in a factual 12(b)(1)
motion is the trial court's jurisdiction - its very power
to hear the case - there is substantial authority that the
trial court is free to weigh the evidence and satisfy itself
as to the existence of its power to hear the case.”
Osborn v. United States, 918 F.2d 724, 730 (8th Cir.
1990). As a result, “no presumptive truthfulness
attaches to the plaintiff's allegations, and the
existence of disputed material facts will not preclude the
trial court from evaluating for itself the merits of
jurisdictional claims.” Id. Nonetheless, the
burden is on the plaintiff to demonstrate jurisdiction
motion to dismiss, or alternatively for summary judgment,
Count 2 (Unfair Trade Practices) and Count 3 (Third-Party
Common Law Bad Faith) of Coach America and BNSF's Second
Counterclaim, QBE Insurance contends the Court should dismiss
the counts because (1) the Court lacks subject matter
jurisdiction over the claims and (2) the doctrines of res