Document for UNITED FINANCIAL CASUALTY COMPANY VS DLJMK INC., ET AL.

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                                1   Patrick M. Howe (SBN 154669)
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     pat@patrickhowelaw.com
     PATRICK HOWE LAW, APC
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     600 W. Broadway, Ste. 700
 4   San Diego, CA 92101
     (619) 504-8785 Phone
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     (619) 452-2507 Fax
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     Attorney for plaintiff
     United Financial Casualty Company
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10                 CALIFORNIA SUPERIOR COURT
11                           LOS ANGELES COUNTY
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     United Financial Casualty           Case No.
14   Company,
                                         COMPLAINT FOR
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                Plaintiff,               DECLARATORY RELIEF
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       v.

18   DLJMK Inc.; Bin Liu; Min
19   Wang; Zhi Qin Cai Zhang; and
     Does 1–25, inclusive;
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21              Defendants.
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                                  Complaint
 1      Plaintiff United Financial Casualty Company (“UFCC”) alleges as
 2   follows:
 3                                   VENUE
 4      1.   Venue is proper because the insurance contract issued by UFCC
 5   was applied for and purchased in Los Angeles County, California and
 6   the named insured on such policy resides in Los Angeles County,
 7   California.
 8                                  PARTIES
 9      2. UFCC is a corporation incorporated under the laws of Ohio. Its
10   principal place of business is in Ohio.
11      3. Defendant DLJMK Inc. is a corporation incorporated under
12   the laws of California. Its principal place of business is in El Monte,
13   California.
14      4. UFCC is informed and believes and thereon alleges that
15   defendant Bin Liu is a natural person, a citizen of California, and
16   resides in California.
17      5.   UFCC is informed and believes and thereon alleges that
18   defendant Min Wang is a natural person, a citizen of California, and
19   resides in California.
20      6. UFCC is informed and believes and thereon alleges that
21   defendant Zhi Qin Cai Zhang is a natural person, a citizen of
22   California, and resides in California.
23      7.   UFCC does not know the true names and capacities of
24   defendants Does 1–25. UFCC therefore sues these defendants by
25   fictitious names. UFCC will seek leave to amend this complaint to
26   insert the true names and capacities of these fictitiously named
27   defendants when they have been ascertained. Each defendant
28   designated as “Doe” is responsible in some manner for the acts,

                                   Complaint – 2
 1   occurrences, and transactions herein alleged and/or claims an interest
 2   in the insurance contracts alleged herein.
 3      8. UFCC is informed and believes and thereon alleges that each
 4   defendant, whether specifically or fictitiously named, was the agent,
 5   servant, partner, joint venturer and/or employee of each and every
 6   other defendant, and while doing the acts hereinafter alleged, was
 7   acting within the course and scope of such agency, service,
 8   partnership, joint venture, and/or employment with the advance
 9   knowledge, acquiescence and ratification of each and every other
10   defendant.
11                      GENERAL ALLEGATIONS
12      9. UFCC is an insurance company. On May 2, 2022, UFCC
13   insured defendant DLJMK Inc. under commercial auto insurance
14   policy no. 03916586-0 (the “UFCC policy”).
15      10. At the time, defendant DLJMK Inc. was a motor carrier
16   engaged in interstate trucking activities and registered with the
17   Federal Motor Carrier Safety Administration under Department of
18   Transportation DOT no. 1739789. The UFCC policy was issued to
19   meet the needs of this type of business.
20      11. Under Part I – Liability to Others, the UFCC policy contained
21   the following insuring agreement:
22            INSURING AGREEMENT - LIABILITY TO
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              OTHERS

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              Subject to the Limits of Liability, if you pay the
              premium for liability coverage for the insured auto
25            involved, we will pay damages, other than punitive
26            or exemplary damages, for bodily injury, property
              damage, and covered pollution cost or expense for
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              which an insured becomes legally responsible
28            because of an accident arising out of the ownership,


                                  Complaint – 3
 1           maintenance or use of that insured auto. However,
             we will only pay for the covered pollution cost or
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             expense if the same accident also caused bodily
 3           injury or property damage to which this insurance
 4           applies.
 5           We will settle or defend, at our option, any claim or
             lawsuit for damages covered by this Part I. We have
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             no duty to settle or defend any lawsuit, or make any
 7           additional payments, after the Limit of Liability for
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             this coverage has been exhausted by payment of
             judgments or settlements.
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       12. The UFCC policy, under Part I – Liability to Others, contained
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     the following exclusions:
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             Coverage under this Part I, including our duty to
12           defend, does not apply to:
13           …
14           3. Worker’s Compensation
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                Any obligation for which an insured or an
                insurer of that insured, even if one does not
16              exist, may be held liable under workers’
17              compensation, unemployment compensation,
                disability benefits law, or any similar law.
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             …
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             5. Employee Indemnification and Employer’s
20              Liability
21              Bodily injury to:
22               a. An employee of any insured arising out of or
                    within the course of:
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                     (i) That employee’s employment by any
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                         insured; or
25                   (ii) Performing duties related to the conduct
26                        of any insured’s business; or
27               b. The spouse, child, parent, brother or sister of
                    that employee as a consequence of Paragraph
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                    a. above.

                                  Complaint – 4
 1           This exclusion applies:
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                 a. Whether the insured may be liable as an
                    employer or in any other capacity; and
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                 b. To any obligation to share damages with or
 4                  repay someone else who must pay damages
 5                  because of the injury.
 6           …
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             6. Fellow Employee
                Bodily injury to:
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                 a. a fellow employee of an insured injured
 9                  while within the course of their employment
10                  or while performing duties related to the
                    conduct of your business.
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                 b. the spouse, child, parent, brother, or sister of
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                    that fellow employee as a consequence of
13                  Paragraph a. above.
14               …
15     13. The UFCC policy was endorsed with an MCS-90 endorsement
16   in compliance with Sections 29 and 30 of the Motor Carrier Act of
17   1980 and the rules and regulations of the Federal Motor Carrier Safety
18   Administration. The endorsement stated:
19           The insurance policy to which this endorsement is
             attached provides automobile liability insurance and
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             is amended to assure compliance by the insured,
21           within the limits stated herein, as a motor carrier of
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             property, with Sections 29 and 30 of the Motor
             Carrier Act of 1980 and the rules and regulations of
23           the Federal Motor Carrier Safety Administration
24           (FMSCA).
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             In consideration of the premium stated in the policy
             to which this endorsement is attached, the insurer
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             (the company) agrees to pay, within the limits of
27           liability described herein, any final judgment
             recovered against the insured for public liability
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             resulting from negligence in the operation,

                                  Complaint – 5
 1            maintenance or use of motor vehicles subject to the
              financial responsibility requirements of Sections 29
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              and 30 of the Motor Carrier Act of 1980 regardless
 3            of whether or not each motor vehicle is specifically
              described in the policy and whether or not such
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              negligence occurs on any route or in any territory
 5            authorized to be served by the insured or elsewhere.
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              Such insurance as is afforded, for public liability,
              does not apply to injury to or death of the insured’s
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              employees while engaged in the course of their
 8            employment, or property transported by the insured,
              designated as cargo. …
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        14. On May 5, 2022, defendants Bin Liu and Min Wang, as a
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     tandem team of drivers, were operating a tractor-trailer combo owned,
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     leased, rented, and/or operated by defendant DLJMK Inc. on an
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     interstate drive to deliver cargo. Defendant DLJMK Inc. hired
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     defendants Bin Liu and Min Wang to operate the tractor-trailer
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     combo. The trip began in Texas. The tandem drivers were driving the
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     tractor-trailer combo to California. While operating the tractor-trailer
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     combo in Texas, the tandem team was involved in a collision (the
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     “accident”). Defendant Min Wang claims he sustained injuries as a
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     result of the accident.
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        15. On April 23, 2024, defendant Min Wan filed a lawsuit in Los
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     Angeles Superior Court, action no. 24PSCV01311, for the injuries he
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     claims he sustained in the accident (the “injury lawsuit”). In his
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     complaint in the injury lawsuit, defendant Min Wan alleges that
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     defendants DLJMK Inc., Bin Liu, and Zhi Qin Cai Zhang are legally
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     responsible in damages for his claimed injuries.
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        16. Under 49 C.F.R. 390.5, defendants Bin Liu and Min Wang
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     were employees of defendant DLJMK Inc. at the time of the accident,
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     even if the two drivers and defendant DLJMK Inc. agreed each driver
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     was an independent contractor. The regulation states:

                                   Complaint – 6
 1            Employee means any individual, other than an
              employer, who is employed by an employer and who
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              in the course of his or her employment directly
 3            affects commercial motor vehicle safety. Such term
              includes a driver of a commercial motor vehicle
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              (including an independent contractor while in the
 5            course of operating a commercial motor vehicle), a
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              mechanic, and a freight handler. …

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                         FIRST CAUSE OF ACTION
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                           (Declaratory Relief on Duty to
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                       Indemnify – Against all Defendants)
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        17. UFCC incorporates the allegations in paragraphs 1–16 as
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     though fully set forth within this first cause of action.
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        18.   An actual controversy exists between UFCC and each
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     defendant. On the one hand, UFCC contends it has no obligation
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     under the UFCC policy to indemnify defendants DLJMK Inc., Bin Liu,
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     or Zhi Qin Cai Zhang against the claims in the injury lawsuit or
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     otherwise arising out of the accident, because the UFCC policy
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     excludes coverage for employee and fellow employee injuries and
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     defendants Bin Liu and Min Wang were employees of defendant
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     DLJMK Inc. On the other hand, UFCC is informed and believes and
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     thereon alleges that each defendant contends that UFCC does have
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     such an obligation.
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        19. A judicial determination is necessary and appropriate at this
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     time regarding the respective rights and duties of UFCC and each
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     defendant under the UFCC policy, specifically, for a declaration that
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     UFCC has no obligation under the UFCC policy to indemnify
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     defendants DLJMK Inc., Bin Liu, or Zhi Qin Cai Zhang against the
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     claims in the injury lawsuit or otherwise arising out of the accident.
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                                    Complaint – 7
 1                     SECOND CAUSE OF ACTION
 2                         (Declaratory Relief on Duty to
 3                      Defend – Against all Defendants)
 4      20. UFCC incorporates the allegations in paragraphs 1–16 as
 5   though fully set forth within this second cause of action.
 6      21. An actual controversy exists between UFCC and each
 7   defendant. On the one hand, UFCC contends it has no obligation
 8   under the UFCC policy to defend defendants DLJMK Inc., Bin Liu, or
 9   Zhi Qin Cai Zhang against the claims in the injury lawsuit or
10   otherwise arising out of the accident, because the UFCC policy
11   excludes coverage for employee and fellow employee injuries and
12   defendants Bin Liu and Min Wang were employees of defendant
13   DLJMK Inc. On the other hand, UFCC is informed and believes and
14   thereon alleges that each defendant contends that UFCC does have
15   such an obligation.
16      22. A judicial determination is necessary and appropriate at this
17   time regarding the respective rights and duties of UFCC and each
18   defendant under the UFCC policy, specifically, for a declaration that
19   UFCC has no obligation under the UFCC policy to defend defendants
20   DLJMK Inc., Bin Liu, or Zhi Qin Cai Zhang against the claims in the
21   injury lawsuit or otherwise arising out of the accident.
22                      THIRD CAUSE OF ACTION
23            (Declaratory Relief on Duty to Pay for Legal Liability
24           under MCS-90 Endorsement – Against all Defendants)
25      23. UFCC incorporates the allegations in paragraphs 1–16 as
26   though fully set forth within this third cause of action.
27      24. An actual controversy exists between UFCC and each
28   defendant. On the one hand, UFCC contends it has no obligation

                                   Complaint – 8
 1   under the MCS-90 endorsement to the UFCC policy to pay for claims
 2   in the injury lawsuit or otherwise arising out of the accident, because
 3   the endorsement does not apply to employee and fellow employee
 4   injuries and defendants Bin Liu and Min Wang were employees of
 5   defendant DLJMK Inc. On the other hand, each defendant contends
 6   that UFCC does have such an obligation.
 7      25. A judicial determination is necessary and appropriate at this
 8   time regarding the respective rights and duties of UFCC and each
 9   defendant under the MCS-90 endorsement to the UFCC policy,
10   specifically, for a declaration that UFCC has no obligation under the
11   endorsement to pay for claims in the injury lawsuit or otherwise
12   arising out of the accident.
13                                   PRAYER
14      Wherefore, UFCC prays for judgment as follows:
15      1.   For a judicial declaration that UFCC has no obligation under
16   the UFCC policy to indemnify defendants DLJMK Inc., Bin Liu, or Zhi
17   Qin Cai Zhang against claims in the injury lawsuit or otherwise arising
18   out of the accident;
19      2. For a judicial declaration that UFCC has no obligation under
20   the UFCC policy to defend defendants DLJMK Inc., Bin Liu, or Zhi
21   Qin Cai Zhang against claims in the injury lawsuit or otherwise arising
22   out of the accident;
23      3. For a judicial declaration that UFCC has no obligation under
24   the MCS-90 endorsement to the UFCC policy to pay for any claims in
25   the injury lawsuit or otherwise arising out of the accident;
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                                    Complaint – 9
 1   4. For costs of suit incurred herein; and
 2   5.   For such further relief the court deems just and proper.
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 4   July 8, 2024                   PATRICK HOWE LAW, APC
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                                    By:
 6                                  Patrick M. Howe
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                                    Attorney for plaintiff United
                                    Financial Casualty Company
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                               Complaint – 10