UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

FACTORY MUTUAL INSURANCE COMPANY, 

AMERICAN GUARANTEE AND LIABILITY

INSURANCE COMPANY, ACE INA

INSURANCE, CERTAIN UNDERWRITERS

AT LLOYDS OF LONDON SUBSCRIBING

TO POLICY NUMBERS B0823WB0701060

AND B0823WB0701018, WIENER

STADTISCHE VERSICHERUNG AG a/k/a

VIENNA INSURANCE GROUP,

and AMERICAN HOME ASSURANCE

COMPANY, as subrogees of DECOMA

INTERNATIONAL OF AMERICA, Inc.,

and DECOMA INTERNATIONAL OF

AMERICA, Inc.,

Plaintiffs, CASE NUMBER: 09-12761

HONORABLE VICTORIA A. ROBERTS

v.

WESTPORT INSURANCE CORPORATION

d/b/a INDUSTRIAL RISK INSURERS and

GENERAL SECURITY INDEMNITY COMPANY

OF ARIZONA,

Defendants.

 / 

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS 

I. INTRODUCTION

This matter is before the Court on Defendants’ Motion to Dismiss Plaintiffs’

Complaint for failure to state a claim (Dkt. #12).

Plaintiffs and Defendants respectively insure two companies, Decoma and

Plastech. In February 2008, Plastech filed for Chapter 11 bankruptcy in the Eastern

District of Michigan. On July 1, 2008, Decoma acquired certain equipment from

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Plastech; however, after the sale, Plastech continued to use and operate the equipment

at its facility in Elwood, Indiana. Two weeks later, a fire broke out which damaged

and/or destroyed the equipment. Plaintiffs allege the fire was the result of Plastech’s

negligence.

Plaintiffs paid Decoma for its losses, and, as Decoma’s subrogees, filed claim

with Defendants under Plastech’s first-party property insurance policy. Defendants

denied the claim, and Plaintiffs filed this declaratory judgment action. Plastech is not a

party to this suit; however, Plaintiffs assert they have asked for relief from the automatic

bankruptcy stay and will add Plastech as a defendant if the relief is granted.

Plaintiffs seek an order declaring that: (1) Plastech had custody of Decoma’s

equipment when the fire occurred; (2) as a result of Plastech’s negligence, the

equipment sustained damage in the amount of $1,434,827; (3) Defendants’ policy of

insurance was in full force and effect at the time of the fire; and (4) Plaintiffs are entitled

to judgment against Defendants in the amount of $1,434,827. (Compl. 7.)

Defendants argue the Complaint should be dismissed under Fed. R. Civ. P.

12(b)(6), because Plaintiffs lack standing to pursue a claim under Plastech’s insurance

policy.

Under Indiana law – which the parties agree the Court should apply – a thirdparty plaintiff who files a direct action against an insurer may seek, at most, “a

declaration of the insurer’s responsibilities should the allegations regarding the insured’s

conduct be proven.” City of S. Bend v. Century Indem. Co., 821 N.E.2d 5, 10 (Ind. Ct.

App. 2005). If the Court were to make such a declaration, it would simply say that

Defendants are obligated to pay Plaintiffs if Plaintiffs establish that the damage to

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Decoma’s equipment resulted from Plastech’s negligence, and only to the limit of

whatever insurance coverage was in effect at the time of loss.

However, Plaintiffs do not ask for this kind of declaration; instead, they seek relief

which vastly exceeds what the Court may provide. Therefore, the Court GRANTS

Defendants’ motion and DISMISSES Plaintiffs’ Complaint without prejudice.

IT IS ORDERED.

S/Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: October 8, 2009

The undersigned certifies that a copy of this

document was served on the attorneys of

record by electronic means or U.S. Mail on

October 8, 2009.

s/Carol A. Pinegar 

Deputy Clerk

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