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Westfield Insurance Co. v. Golden Phoenix Restaurant Inc.

United States District Court, N.D. Indiana, Hammond Division

November 20, 2017

WESTFIELD INSURANCE COMPANY, Plaintiff,
v.
GOLDEN PHOENIX RESTAURANT, INC., EVELYN HUYNH, QUYNH PHUNG, and ANTHONY PARDUCCI, Defendants. AMERICAN FAMILY INSURANCE COMPANY, Intervenor Defendant.

          OPINION AND ORDER

          PAUL R. CHERRY, MAGISTRATE JUDGE UNITED STATES DISTRICT COURT.

         This matter is before the Court on an Amended Motion to Intervene [DE 44], filed by American Family Insurance Company (American Family) on October 9, 2017. On October 17, 2017, Plaintiff Westfield Insurance Company (Westfield) filed a response, and, on October November 2, 2017, American Family filed a timely reply. For the reasons set forth below, the Court grants the Motion to Intervene.

         BACKGROUND

         The instant Motion to Intervene involves the interplay of four lawsuits-an underlying personal injury lawsuit brought by Anthony Parducci against Evelyn Huynh, Quynh Phung, and Golden Phoenix Restaurant (“Parducci's Personal Injury Lawsuit”); the instant declaratory judgment action brought by Westfield, Golden Phoenix's CGL insurer (“Westfield Declaratory Judgment Action”); an uninsured motorist claim brought by Anthony Parducci against American Family, his automobile insurer (“Parducci's Uninsured Motorist Lawsuit”); and a declaratory judgment action brought in state court by Progressive Universal Insurance Company (Progressive), Evelyn's personal automobile insurer (“Progressive Declaratory Judgment Action”), with this last action not directly impacting the instant Motion to Intervene.

         1. Parducci's Personal Injury Lawsuit: Parducci v. Evelyn Huynh, Quynh Phung, and Golden Phoenix Restaurant

         In a personal injury suit pending in state court, Anthony Parducci sued Evelyn Huynh for personal injuries under a theory of negligence. Parducci later amended his complaint to add Quynh Phung and Golden Phoenix-Evelyn's alleged employers-as defendants. In the First Amended Complaint in that case, Parducci alleges that, on September 13, 2015, Parducci was a pedestrian in the parking lot located at 1715 U.S. 41 in Schererville, Indiana. On that date, Evelyn was in her vehicle in the parking lot and struck Parducci. Parducci alleges that Evelyn was at fault. Parducci further alleges that, on that date, Evelyn was the agent, servant, and/or employee of Quynh and Golden Phoenix who were negligent in the hiring, supervising, training, and retention of Evelyn. In the instant motion, American Family represents that it intends to intervene in Parducci's Personal Injury Lawsuit.

         2. Instant Westfield Declaratory Judgment Action: Westfield v. Parducci, Evelyn Huynh, Quynh Phung, and Golden Phoenix Restaurant

         On January 5, 2017, Westfield, which is Golden Phoenix's Commercial General Insurance (“CGL”) provider, filed the instant declaratory judgment action. Westfield alleges that, on January 1, 2015, it issued a CGL policy to Golden Phoenix with effective dates of coverage of January 1, 2015, to January 1, 2016, and that Quynh was the sole shareholder, president, and secretary of Golden Phoenix and is Evelyn's aunt. Westfield alleges that it denied Golden Phoenix's request to defend and indemnify Golden Phoenix, Quynh, and Evelyn under the CGL policy in Parducci's Personal Injury Lawsuit. Westfield alleges that Parducci's underlying personal injury claims against Golden Phoenix, Quynh, and Evelyn are subject to the “Auto Exclusion” to the Westfield policy's CGL “Bodily Injury And Property Damage Liability” (“CGL BI/PD coverage”), that Parducci's allegations of negligent hiring, supervising, training, and retention against Golden Phoenix and Quynh are not an “accident” or “occurrence” for purposes of the CGL BI/PD coverage, and that Parducci's underlying lawsuit does not allege a “personal and advertising injury” as that term is defined by the Policy's CGL “Personal and Advertising Injury Liability” coverage. Westfield joined Parducci in this action by virtue of his interest in the resolution of the duty to defend and duty to indemnify issues. Westfield seeks a declaratory judgment that Westfield has no duty under the policy it issued to Golden Phoenix to defend or indemnify Golden Phoenix, Quynh, and Evelyn in Parducci's Personal Injury Lawsuit.

         3. Parducci's Uninsured Motorist Lawsuit: Parducci v. American Family Insurance Company

         On August 8, 2017, Parducci filed a complaint in state court, alleging that, on September 13, 2015, Parducci was insured by American Family for uninsured motorist coverage, that Evelyn was an uninsured motorist, and that American Family breached its contract with Parducci. American Family represents that it filed a motion in state court to consolidate Parducci's Uninsured Motorist Lawsuit with Parducci's Personal Injury Lawsuit.

         4. Progressive Declaratory Judgment Action: Progressive v. Parducci, Evelyn Huynh, and Wendy Huynh

         On March 21, 2016, Progressive filed a declaratory judgment action in state court against Parducci, Evelyn, and Wendy Huynh. Therein, Progressive alleges that it issued an automobile insurance policy to Wendy and that Evelyn was a named driver and household resident listed on the policy. Progressive alleges that the vehicle Evelyn was driving on September 13, 2015, which struck Parducci, was owned by Evelyn and was insured under Wendy's Progressive policy; that, at the time of the accident, Evelyn was using the vehicle for retail delivery to transport food for Golden Phoenix; that coverage is excluded for any claims for bodily injury arising out of the use of any vehicle while being used to transport food for retail delivery; and that there is no liability coverage under the policy for Parducci's personal injury lawsuit against Evelyn. American Family represents that it is moving to intervene in the Progressive Declaratory Judgment Action in state court.

         ANALYSIS

         Movant American Family Insurance Company asks the Court to allow it to intervene in this action, citing Federal Rules of Civil ...


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