WEST VIRGINIA RECORD

CLARKSBURG – A federal judge has remanded a lawsuit over the death of a man who was riding a motorcycle when he was struck by a dump truck to Taylor County Circuit Court.

U.S. District Judge Irene Keeley ruled May 10 that the complaint filed over the death of Terry Allen McCloy does not present a necessary question of federal law and that the case should be heard in a state court.

The lawsuit was originally filed in Taylor Circuit Court on Sept. 14, 2010, two years after the fatal accident.

At issue was the MCS-90 endorsement in commercial auto policy issued by National Casualty Company to BB&T Auto Crushers.

An MCS-90 endorsement ensures certain regulated motor carriers have federally mandated coverage and was created by the Motor Carrier Act of 1980.

“On its face, Count Five (of the complaint) seeks a declaratory judgment pursuant to the Uniform Declaratory Judgments Act… as to coverage under the CTO policy issue to BB&T Auto Crushers,” Keeley wrote.

“It does not explicitly seek a declaration of coverage under the MCS-90. In fact, the MCS-0 is mentioned only once in County Five… in which the McCloys describe a demand they made to NCC ‘for coverage relating to this accident under the specific terms of both policies of insurance [the CTO and another policy issued by NCC to another Larew-owned business] as well as the MCS-90 endorsement to the policy.’

“In sum, based on the face of the McCloys’ complaint, the MCS-90 is no more than a ‘federal element,’ which, in and of itself, does not open the ‘arising under’ door.”

The accident occurred when McCloy and his son, Terry Jr., were riding motorcycles on U.S. Route 50 near Pruntytown. The opinion says a dump truck driven by Eric Larew swerved into their lined, striking McCloy and causing fatal injuries.

According to his obituary, McCloy was 57 at the time of his passing and was a Grafton native who worked for the Department of Highways as a mechanic for more than 20 years. He was married to Anna, who filed the lawsuit on behalf of his estate, for 36 years.

The dump truck was registered to Larew Used Cars and titled to L&L Rebuilders, which were operated by Eric Larew’s father Lowell. BB&T Auto Crushers and BB&T Salvage are also owned and operated by Lowell.

The lawsuit was filed against Lowell’s various companies and their insurers – NCC, Scottsdale Insurance, Bloss & Dillard and Geico.

“(T)he McCloys cannot recover under the MCS-90 unless coverage is lacking under the CTO policy,” Keeley wrote.

“Therefore, the McCloys clearly will first seek recovery under the CTO policy, turning to the MCS-90 only as an alternative means of relief.

“In short, recovery under the CTO policy and the MCS-90 is mutually exclusive.”

The plaintiffs are represented by Mullens & Mullens of Philippi.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.