United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS [#5]
AND DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE
GERSHWIN A. DRAIN United States District Judge
Esurance Insurance Company filed this declaratory judgment
action on August 2, 2017. Presently before the Court is
Defendant Lamarr Maxie's Motion to Dismiss, filed on
August 23, 2017. This matter is fully briefed and a hearing was
held on November 7, 2017. For the reasons that follow, the
Court will GRANT Defendant's Motion to Dismiss.
instant dispute stems from Plaintiff's issuance of a
homeowners insurance policy to Defendant, which insured his
interest in residential premises located at 7288 Canterbury
Drive in Romulus, Michigan, as well as the personal property
contained therein. The property is secured by a mortgage and
note in favor of Seterus Inc. in the amount $260, 000.00.
Seterus Inc.'s interest in the subject property is also
insured under the standard mortgage clause of the subject
April 14, 2016, a fire occurred at the Canterbury premises
causing damage to the home and the personal property therein.
Defendant notified Plaintiff of the fire and his intent to
submit a claim under the subject policy for his losses. He
filed a “Sworn Statement in Proof of Loss” on
June 2, 2016. Thereafter, Plaintiff commenced an
investigation into the circumstances of the fire. In the
interim, Plaintiff paid $9, 275.48 in payments for
Defendant's additional living expenses as a result of the
asserts that its investigation uncovered facts which render
the subject policy void ab initio. Plaintiff maintains that
Defendant's primary residence was not the home on
Canterbury Street on the date of the fire. Rather, an
individual by the name of Brian Glenn resided at the premises
pursuant to a rental agreement with Defendant. Plaintiff
argues that it would not have issued the subject policy of
insurance had it known Defendant was not going to primarily
reside in the home.
Plaintiff alleges that Defendant has intentionally and
fraudulently concealed and misrepresented material facts, as
well as failed to cooperate during its investigation of his
ultimately denied Defendant's claim arising from the
April 14, 2016 fire based on the results of its investigation
and Defendant's purported obstructionist behavior.
December 19, 2016, Defendant filed a breach of contract
action against Plaintiff in the Wayne County Circuit Court.
On January 20, 2017, Plaintiff filed its Answer and
Affirmative Defenses in the state court action.
Plaintiff's affirmative defenses assert that the subject
policy is void because Defendant failed to comply with the
policy's terms and conditions, has intentionally
concealed and misrepresented material facts relative to the
application for insurance as to his primary residence, as
well as relative to the loss and his claims and has failed to
cooperate. Plaintiff reserved the right to amend or
supplement its answer at the conclusion of discovery.
Discovery has just been completed as of October 30, 2017, and
the state court action is set to go to trial in March of
action before this Court, Plaintiff requests the Court
declare that the subject policy is void ab initio and that
Defendant is precluded from recovering any sums for loss and
damage stemming from the April 14, 2016 fire. Plaintiff also
requests reimbursement for the $9, 275.48 in payments made to
Plaintiff requests the Court declare that if it owes any
liability to Seturus Inc. under the subject policy, Plaintiff
is then subrogated to the rights of Seterus Inc. against any
person responsible for the fire, including Brian Glenn and
Defendant, and/or that Plaintiff may be entitled to an
assignment of the mortgage and note.
LAW & ANALYSIS
asserts that this Court lacks jurisdiction over this matter,
thus Rule 12(b)(1) requires its dismissal, however
Defendant's argument is without merit. The Declaratory
Judgment Act “provides courts with discretion to
fashion a remedy in cases where federal jurisdiction already
exists, ” therefore this Court must possess an
independent basis for subject matter jurisdiction. One
Beacon Ins. Co. v. Chiusolo, 295 F. App'x 771, 775
(6th Cir. 2008). Here, Plaintiff's Complaint sets forth
the basis for this Court's ...