1

 Defendant Zurich’s Motion is based primarily on a Response to a Motion to Stay codefendant Smith plead in another case before this Court. The case, 1:05-cv-331-BH-B, is a

personal injury suit against the Interpleader Plaintiffs arising from the same tractor trailer

accident underlying this matter and, seemingly, is the impetus for Lincoln General and Scales

filing this complaint for interpleader. 

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

SCALES EXPRESS, INC. and LINCOLN )

GENERAL INSURANCE COMPANY, )

)

Plaintiffs, )

)

v. ) Civil Action No.: 05-719-BH-B

)

ELBERT R. SMITH, JR., et. al., )

)

Defendants. )

ORDER

This matter is before the Court on Defendant Zurich American Insurance Company’s

(hereinafter, “Zurich”) Motion (Doc. 7) to Dismiss. Zurich submits that this interpleader action is

inappropriate and should be dismissed as to both Plaintiffs.1

 Defendant Gerald A. Young has also

filed a Motion (Doc. 46) to Dismiss and, due to the paucity of his pleading, the Court can only

assume that it is asserts the same grounds as his co-defendant Zurich’s motion. Based upon the

relevant pleadings submitted in this case, as well as those entered in the other case before this Court

that deals with the same underlying tractor trailer accident, the Court finds that Defendants’ Motions

to Dismiss are due to be GRANTED in Part and DENIED in Part.

Case 1:05-cv-00719-BH-B Document 55 Filed 02/14/06 Page 1 of 3
LEGAL ANALYSIS

Scales Express, Inc.

This Court finds, consistent with the Supreme Court’s holding in State Farm Fire & Casualty

Co. v. Tashire, 386 U.S. 523, 533 (1967), that Lincoln General Insurance Company’s (hereinafter,

“Lincoln General”) properly plead 28 U.S.C. §1335 statutory interpleader cannot be extended to

cover its insured, the alleged tortfeasor. Here, Scales Express, Inc. (hereinafter, “Scales”) is the

alleged tortfeasor in the underlying automobile accident. Though Scales argues that the amount in

controversy, the scope of the litigation and variety of defendants distinguish the instant action from

that at issue in Tashire, the Court finds that none of these factors affect Scales’s ability or inability

to shield itself from potential liability by joining with its insurer in an interpleader action. Currently

there are twenty-one (21) potential claimants on the deposited fund and though the Smiths are the

only ones before this Court, they are seeking compensatory and punitive damages. It seems to the

Court that there certainly is potential for the claims to exceed the amount of the fund, in which case

Scales’s assets and revenues may become accessible to any of the plaintiffs. Therefore, the Court

finds that the complaint for interpleader, to the extent that it is asserted by Scales, is due to be and

hereby DISMISSED. Defendants’ Motions are GRANTED in Part. 

Lincoln General

As to Lincoln General’s assertion of a complaint for interpleader, the Court finds, pursuant

to 28 U.S.C. §1335, that Lincoln General has met the statutory requirements and such a complaint

has been properly plead before this Court. The Court does note, however, in response to

Defendants’ concerns, that this decision does not impact any duty to defend Lincoln General may

have in regard to Scales. Such a duty is established by Scales’s policy and/or relationship with

Lincoln General and may be handled between these two parties should a dispute arise. Therefore,

Case 1:05-cv-00719-BH-B Document 55 Filed 02/14/06 Page 2 of 3
to the extent that it is brought by Lincoln General, the Court hereby DENIES Defendants’ Motions

to Dismiss the complaint for interpleader. 

So ORDERED, this 14th day of February, 2006. 

s/ W. B. Hand

SENIOR DISTRICT JUDGE

Case 1:05-cv-00719-BH-B Document 55 Filed 02/14/06 Page 3 of 3