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National Specialty Insurance Co. v. Advanced Cargo Transportation, Inc.

United States District Court, M.D. Pennsylvania

November 19, 2014

NATIONAL SPECIALTY INSURANCE COMPANY, Plaintiff,
v.
ADVANCED CARGO TRANSPORTATION, INC., et al., Defendants.

MEMORANDUM OPINION

KAROLINE MEHALCHICK, Magistrate Judge.

This is a diversity action in which the Plaintiff, National Specialty Insurance Company ("National Specialty"), seeks declaratory judgment with respect to its coverage obligations under a liability policy it issued to Defendant Advanced Cargo Transportation, Inc. ("Advanced Cargo"). In essence, National Specialty seeks a declaration excusing it from any further obligation to defend or indemnify Advanced Cargo or other insureds under the policy with respect to a motor vehicle accident that occurred on October 10, 2011, on Interstate 80, westbound, at or near milepost 298, in which a truck driven by an Advanced Cargo employee or contractor, Defendant Washington Munoz-Arevalo, [1] was involved.

National Specialty claims that the limits of liability under that policy have been exhausted by settlement payments to various individual plaintiffs - the other motorists and their passengers involved in that motor vehicle accident - in underlying tort actions. Some or all of those same tort plaintiffs have brought suit against another company, Custom Polymers, Inc. ("Custom Polymers"), which had contracted with Advanced Cargo for the transportation of certain goods, asserting tort claims arising out of the very same incident. Custom Polymers, in turn, has initiated a third-party action against Advanced Cargo and Munoz-Arevalo, seeking contribution from them as joint tort-feasors. That third-party action has precipitated the instant coverage action by National Specialty, seeking a declaration that coverage is exhausted under the policy, and thus it is free from any further duty to defend or indemnify its insureds in connection with Custom Polymers' contribution claim.

All of the defendants in this coverage action, save one, have waived formal service and appeared to defend this action. The lone straggler is the driver, Washington Munoz-Arevalo. Two attempts to mail a summons and copy of the complaint to Munoz-Arevalo in New Jersey have been unsuccessful. Attempts to locate Munoz-Arevalo within New Jersey and personally serve him there have also been unsuccessful. National Specialty now moves the Court to authorize it to serve Munoz-Arevalo by publication.

I. BACKGROUND

The complaint in this matter was filed on July 24, 2014. (Doc. 1).

On July 25, 2014, Plaintiff's counsel mailed the summons, a copy of the complaint, and a request for waiver of service to Munoz-Arevalo by certified mail, return receipt requested, at his last known address: 118 Chapel Street, Apartment 1, Newark, New Jersey 07105. (Doc. 29, at 2). That correspondence was ultimately returned to Plaintiff's counsel, marked "unclaimed." (Doc. 29, at 2).

Plaintiff's counsel engaged the services of a private investigator, who performed a background check on Munoz-Arevalo and identified "several possible residences." (Doc. 25-1, at 2). On August 16, 2014, the private investigator conducted early morning "cold calls" on two Newark addresses: 241 Oliver Street, Apartment 5, Newark, New Jersey; and 118 Chapel Street, Newark, New Jersey. (Doc. 25-1, at 2). The investigator rang the doorbell at the Chapel Street house several times, but there was no answer. The investigator spoke with a next-door neighbor, who advised that a man named "Luis" resided there. The investigator left a note on the door. (Doc. 25-1, at 2; see also Doc. 29-2, at 1).

The investigator knocked several times on the door at the Oliver Street apartment, but there was no answer. The investigator canvassed the area and spoke with a woman who advised that Munoz-Arevalo had moved away "several years ago." The woman suggested that the investigator visit 281 Adams Street, Apartment 9, recalling that relatives of Munoz-Arevalo might live there. The investigator visited the Adams Street apartment, where no one answered the door, and he or she left a note on the door. (Doc. 25-1, at 2; see also Doc. 29-2, at 1-2).

Significantly, the investigator's August 19, 2014, report further noted that: "Our background address search also reveals a Florida address for Mr. Munoz-Arevalo. Please advise us as to how we should proceed." (Doc. 25-1, at 2).

On September 13, 2014, the investigator "revisited" 275 Adams Street, Apartment 9.[2] The investigator knocked on the door, but no one answered. The investigator spoke with several neighbors, none of whom were familiar with Munoz-Arevalo. The investigator left a note on the door. (Doc. 25-2, at 2; see also Doc. 29-2, at 2). On September 19, 2014, the investigator "returned to the residence"[3] and spoke with a woman, who advised the investigator that Munoz-Arevalo "was neither a resident nor related to her." The woman requested that the investigator stop visiting the residence and closed the door. (Doc. 25-2, at 2; see also Doc. 29-2, at 2).

On September 23, 2014, pursuant to information developed by Plaintiff's counsel, the investigator visited a residence at 170 Tappan Street, Kearny, New Jersey, where he or she personally served the summons and a copy of the complaint on a man named Nuno Moniz, whom the investigator believed at the time to be Munoz-Arevalo. The investigator later determined that Moniz was not in fact the individual named as a defendant in this lawsuit. (Doc. 25-2, at 2; Doc. 29-2, at 2).

On October 3, 2014, Plaintiff's counsel attempted for a second time to mail the summons and a copy of the complaint to Munoz-Arevalo by certified mail, return receipt requested, this time at the second Newark address identified by Plaintiff's private investigator: 281 Adams Street, Newark, New Jersey, 07105. (Doc. 29, at 3). That correspondence was ultimately returned to Plaintiff's counsel, marked "unclaimed." (Doc. 29, at 3).

On October 9, 2014, the investigator once again unsuccessfully attempted personal service on Munoz-Arevalo at the Chapel Street house where he was ...


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