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The Cincinnati Specialty Underwriters Insurance Co. v. Solaris Power Services, LLC

United States District Court, W.D. Missouri, Western Division

June 4, 2015

THE CINCINNATI SPECIALTY UNDERWRITERS INSURANCE COMPANY, Plaintiff,
v.
SOLARIS POWER SERVICES, LLC, GLEN SIMONS, KEVIN JOHNSON and ANITA JOHNSON, Defendants.

ORDER AND OPINION DENYING DEFENDANTS' MOTIONS TO DISMISS OR TO STAY

ORTRIE D. SMITH, Senior District Judge.

Pending are two separate motions to dismiss or to stay the case. Both motions (Doc. #20 and Doc. #21) are denied.

I. BACKGROUND

In November 2013 Kevin and Anita Johnson filed suit against Solaris Power Services and Glen Simons in Jackson County Circuit Court. The suit arose out of injuries Kevin suffered while performing maintenance on electrical equipment at the General Motors Fairfax Assembly Plant in Kansas City, Kansas. The Johnsons' suit alleges Solaris was an electrical contractor responsible for insuring the equipment that Kevin was servicing had been turned off and de-energized. Simons was Solaris's agent at the time. The state court suit alleges Solaris and Simons were negligent in a variety of respects.

Plaintiff in this case - Cincinnati Specialty Underwriters Insurance Company, or "CSU" - issued a Commercial General Liability ("CGL") policy to Solaris. CSU alleges that Solaris and Simons have sought "coverage" under the policy, that it is defending Solaris and Simons under a reservation of rights, and that it owes no duty to defend or indemnify. Amended Complaint, ΒΆΒΆ 12, 35-36. CSU asks the Court to declare the parties' rights and obligations and declare that the CGL policy "do[es] not provide coverage, including a defense or indemnification, to Simons and/or Solaris, for the liability asserted against them in the underlying lawsuit...." Amended Complaint, page 16.

The Johnsons have filed a motion to dismiss or to stay. Solaris and Simons have filed their own motion seeking the same relief.

II. DISCUSSION

A.

Defendants have intimated CSU is forum shopping, and present this insinuation as both a reason to dismiss and a reason to award them costs. The Court rejects the insinuation.

CSU filed this suit in Michigan state court, choosing that forum because Solaris is a Michigan limited liability company. CSU voluntarily dismissed the suit; it says it dismissed the suit because the individual defendants (the Johnsons and Simons) contested personal jurisdiction. The Court credits this explanation because (1) Defendants do not deny it and (2) it seems plausible in light of subsequent events.

CSU tried again, this time in federal district court in Kansas. The Johnsons and Simons filed motions to dismiss, contending they were not subject to personal jurisdiction, and their motions were granted. CSU then voluntarily dismissed the suit as to Solaris.

To suggest CSU is "forum shopping" (as Defendants have) is an inappropriate use of the term. The Court finds nothing particularly untoward in what CSU has done, and is far more bothered by Defendants' insinuations that CSU has engaged in condemnable conduct. The Court further declares that it is not inclined to exercise its discretion under Rule 41(d) to order CSU to pay costs of the prior actions over and above any costs that have been imposed by the judges in the prior actions.

Defendants also contend CSU could have filed this suit in state court. True, but this could be said of practically any suit filed in federal court, and of every suit predicated on state law claims. The Court declines to attach negative ...


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