Insurer: Plaintiff and defendant in lawsuit over drive-thru fight on same side

WHEELING – A Pennsylvania man and the person who punched him in the face at a Kwik King Food Stores drive-thru should be allies since they are both seeking an insurance company’s money, the company is arguing.

Michael B. Slusarek, of Washington County, Pa., filed a lawsuit Sept. 20 in Brooke County Circuit Court. It was removed to U.S. District Court for the Northern District of West Virginia on Oct. 24.

Slusarek’s lawsuit is filed against John Riley Company, doing business as Kwik King Food Stores, the company’s owner, its insurer and Jordan Parker.

It seeks a judgment declaring Parker’s actions were covered under a $1 million policy issued by State Auto Property and Casualty Company.

The alleged incident took place on July 7, 2012, and began with a dispute over whether Slusarek had received correct change after purchasing a pack of cigarettes in the drive-thru.

During the discussion, Parker told Slusarek that he would get the issue resolve and talked to him near his driver’s side window outside the store, the complaint says. The insurer says Parker is not an employee of the company and was there to visit his friend, who was the shift supervisor at the time.

The complaint does not state what provoked the alleged attack.

“Defendant Jordan Parker punched the Plaintiff several times in the head, face and neck through his open driver’s side car window while he was still parked at the Kwik King Food Stores drive-thru,” the complaint says.

“Once the Plaintiff had fled the attack in his vehicle and left the Kwik King Food Stores premises, Defendant Jordan Parker reentered the store, spoke to the Kwik King Food Stores personnel, and left shortly thereafter.”

The allegations were made in a lawsuit currently pending in Brooke Circuit Court.

The lawsuit now in federal court seeks a judgment that declares Parker is a covered “insured” under the insurance policy issued to Kwik King by State Auto..

The policy provides $1 million in liability coverage for bodily injuries occurring at convenience stores owned by John Riley, the complaint says.

State Auto filed a motion to realign the parties after the removing the suit to federal court.

“Despite Mr. Parker never being employed by John Riley Company, LLC, Jordan Parker was provided a defense by State Auto…,” the motion says.

“As Mr. Slusarek’s civil action progressed, it became abundantly clear that Mr. Parker was not an insured under the policy; was not entitled to defense under the policy; and was not entitled to indemnity under the policy.

“As such, State Auto withdrew Mr. Parker’s defense in the pending civil action pursuant to its previously provided reservation of rights.”

Slusarek and Parker both have an interest in a judgment that declares Parker is insured under the State Auto policy, the insurer states.

As such, Parker should be declared a plaintiff in the case, the insurer says.

“On the face of this declaratory judgment action, it is evident that Mr. Parker and Mr. Slusarek have an overriding interest in coverage under the State Auto policy,” the motion says.

“Mr. Slusarek’s interest is in recovery under the policy, while Mr. Parker’s interest is in not having his personal assets at stake.”

State Auto is represented by Tim J. Yianne and Michael P. Markins of Mannion & Gray in Charleston.

The docket of the original lawsuit shows the Riley defendants’ motions for summary judgment were denied on Oct. 31. A trial is scheduled for Nov. 25.

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