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The full case caption appears at the end of this opinion. National Union Fire Insurance Company of Pittsburgh (NationalUnion) appeals the district court’s dismissal of its complaint againstRite Aid of South Carolina (RASC). National Union sought a declaration that the commercial general liability policy it issued to Rite AidCorporation (Rite Aid), RASC’s parent company, did not obligateNational Union to provide coverage to RASC in two consolidatedproduct liability lawsuits. The district court concluded that dismissalwas appropriate because Rite Aid was a necessary and indispensableparty to the declaratory judgment action under Federal Rule of CivilProcedure 19 whose joinder would destroy complete diversity of citizenship, the only basis for subject matter jurisdiction. We hold thatthe district court did not abuse its discretion in finding that Rite Aidwas a necessary and indispensable party. Accordingly, we affirm thedistrict court’s dismissal of National Union’s complaint for lack ofsubject matter jurisdiction. I. Rite Aid is a Delaware corporation that has its principal place ofbusiness in Pennsylvania. Rite Aid negotiated with National Union,also a Pennsylvania citizen, to obtain commercial general liabilitycoverage for itself and its subsidiaries, including RASC. [FOOTNOTE 1] As a resultof these negotiations, National Union issued to Rite Aid Policy No.RMGL0174087 (the policy), with effective dates of January 1, 1995to January 1, 1996. The policy was delivered to Rite Aid in Pennsylvania and Rite Aid made all premium payments on the policy fromPennsylvania. The policy provides for general liability coverage for Rite Aid andits subsidiaries with an aggregate limit of $4,750,000 and a per occurrence limit of the same amount. [FOOTNOTE 2] Under the policy, Rite Aid has a self-insured retention obligation of $250,000 per occurrence, and NationalUnion’s insurance applies in excess of the retention amount. In otherwords, if a Rite Aid subsidiary suffers a loss covered by the policy,Rite Aid is required to cover the first $250,000 of the loss andNational Union is responsible for the subsidiary’s loss in excess of$250,000, up to the $4,750,000 policy limits.Rite Aid manages all aspects of the policy for itself and its subsidiaries through its Department of Risk Management, which islocated at Rite Aid’s corporate headquarters in Pennsylvania. To helpwith the claims handling process, Rite Aid engaged a third-partyadministrator, The MacDonald Companies, Inc. (MacDonald), whichwas selected with the approval of National Union. At all times relevant to this action, Rite Aid would report a claim to MacDonald, andMacDonald would report certain claims as required to NationalUnion. Rite Aid also employed in-house counsel and a Director ofClaims; RASC had neither. The policy sets forth certain notice requirements that Rite Aid isrequired to follow in the event of an occurrence, claim, or suit. Byendorsement, the policy explicitly states that knowledge of an occurrence by anyone other than the Corporate Risk Manager of Rite Aiddoes not constitute notice of such occurrence to any insured, including RASC. Collateral agreements between Rite Aid and National, setforth in memoranda between MacDonald and AIG Risk Management(AIG), [FOOTNOTE 3] the authorized representative of National Union for claimsadministration and analysis, further define the reporting proceduresRite Aid is required to follow. National Union takes the position thatthese agreements are supplemental in nature, while Rite Aid contendsthat the reporting requirements in these agreements supersede thereporting requirements in the policy. In 1995, during the policy period, RASC allegedly misfilled a prescription, and a customer suffered serious injuries as a result. The customer, who was a minor, and her parents sued RASC for her injuriesin two separate actions in the Court of Common Pleas of YorkCounty, South Carolina. These actions were referred to Rite Aid’s in-house counsel and to its Department of Risk Management, which inturn referred the actions to local South Carolina counsel. Accordingto AIG, it was notified of the underlying claim by telephone on October 1, 1996, less than a week before the consolidated cases werescheduled for trial. In letters addressed to Rite Aid’s Director ofClaims dated October 8, 1996 and October 9, 1996, National Unionreserved its right to deny coverage. While the jury was deliberating,National Union denied coverage by letter addressed to Rite Aid’sDirector of Claims dated October 10, 1996. The jury subsequentlyreturned verdicts for the customer and her parents totaling $5,020,000in actual damages and $11,000,000 in punitive damages. RASCappealed the judgment, which was affirmed by the Court of Appealsof South Carolina. See Hundley v. Rite Aid of South Carolina, Inc.,No. 3126, 2000 WL 225531 (S.C. Ct. App. Feb. 28, 2000).On July 9, 1997, National Union commenced this action in theUnited States District Court for the District of South Carolina seekinga declaration that RASC failed to comply with the notice provisionsof the policy and other established reporting procedures, that this failure substantially prejudiced National Union, and, therefore, thatNational Union had no obligation to provide coverage in the underlying lawsuits. The complaint alleged jurisdiction based upon diversityof citizenship between the parties. [FOOTNOTE 4] On January 16, 1998, Rite Aid andRASC filed a parallel action in the Court of Common Pleas of Cumberland County, Pennsylvania, against National Union for breach ofcontract, for a declaratory judgment that National Union was obligated to defend and indemnify Rite Aid and RASC with respect to theunderlying lawsuit, and for bad faith. Four days later, RASC movedto dismiss the instant suit pursuant to Federal Rules of Civil Procedure 12 and 19 on the ground that Rite Aid was a necessary and indispensable party to the action whose joinder would destroy completediversity of citizenship.On RASC’s motion, the district court first concluded that Rite Aidwas a necessary party under Federal Rule of Civil Procedure 19(a)because it possessed at least two important interests that it should beentitled to protect. Because joinder of Rite Aid would destroy complete diversity, the district court then proceeded to determine whetherunder Rule 19(b), Rite Aid was an indispensable party without whomthe court could not in equity and good conscience proceed. After concluding that Rite Aid was such an indispensable party, the districtcourt granted RASC’s motion to dismiss for lack of subject matterjurisdiction. National Union filed a timely notice of appeal. II. On appeal, National Union argues that Rite Aid is not a necessaryparty under Federal Rule of Civil Procedure 19 because its interestsare adequately represented by RASC, an additional named insuredunder the policy. In particular, National Union argues that Rite Aidhas no interest in the litigation separate and distinct from that ofRASC because both parties desire a finding of coverage under theNational Union policy, and that to the extent Rite Aid’s testimony anddocuments are relevant to the notice issue, it may fully and adequatelycontribute to the resolution of this issue as a witness rather than as aparty. National Union also contends that Rite Aid is not an indispensable party under Rule 19 because a judgment rendered in its absencewould be adequate and dispositive and would not prejudice Rite Aid.Specifically, National Union contends that regardless of whether RiteAid is joined in the action, the lone issue for the district court toresolve is whether there is coverage or not; Rite Aid’s interest in managing the aggregate limits of the policy is not impeded by its exclusion from this suit because the judgment against Rite Aid exceedsthose limits. Federal Rule of Civil Procedure 19 sets forth a two-step inquiry fora district court to determine whether a party should be joined in anaction. First, the district court must determine whether the party is”necessary” to the action under Rule 19(a). [FOOTNOTE 5] If the court determinesthat the party is “necessary,” it must then determine whether the partyis “indispensable” to the action under Rule 19(b). [FOOTNOTE 6] See TeamstersLocal Union No. 171 v. Keal Driveaway Co., 173 F.3d 915, 917-18(4th Cir. 1999). Because Rite Aid’s joinder would destroy completediversity of citizenship, we must affirm the district court’s dismissalof this action for lack of jurisdiction if we agree with the district courtthat Rite Aid is a necessary and indispensable party. See OwensIllinois, Inc. v. Meade, 186 F.3d 435, 440 (4th Cir. 1999); Schlumberger Indus. v. National Sur. Corp., 36 F.3d 1274, 1288 (4th Cir. 1994). “Dismissal of a case is a drastic remedy, however, which should beemployed only sparingly.” Keal, 173 F.3d at 918. In determiningwhether to dismiss a complaint, a court must proceed pragmatically,”examin[ing] the facts of the particular controversy to determine thepotential for prejudice to all parties, including those not before it.” Id.The district court’s Rule 19 dismissal of National Union’s action isreviewed for abuse of discretion. See Coastal Modular Corp. v. Laminators, Inc., 635 F.2d 1102, 1108 (4th Cir. 1980) (“The inquiry contemplated by Rule 19 . . . is addressed to the sound discretion of thetrial court.”). [FOOTNOTE 7] We review the district court’s findings of fact underlying its Rule 19 determination for clear error. See Tell v. Trustees ofDartmouth College, 145 F.3d 417, 418 (1st Cir. 1998). A. The initial issue we must address is whether Rite Aid is a necessaryparty under Rule 19(a). We agree with the district court that Rite Aidis a necessary party to this action for two reasons. First, permittingthis action to go forward without Rite Aid would impair or impedeRite Aid’s ability to protect a “claim[ed] . . . interest relating to thesubject of the action.” Fed. R. Civ. P. 19(a)(2)(i). National Union concedes that Rite Aid possesses a claimed interest relating to the subjectof the action, but argues that the interest is adequately represented byRASC because it is limited to whether the policy provides coverageor not. If RASC is able adequately to represent Rite Aid’s interest, wewould be inclined to conclude that Rite Aid’s ability to protect itsinterest is not impaired or impeded by its absence from this suit. SeeWashington v. Daley, 173 F.3d 1158, 1167 (9th Cir. 1999); Tell, 145F.3d at 419. A court should hesitate to conclude, however, that a litigant can serve as a proxy for an absent party unless the interests ofthe two are identical. See id. Like the district court, we do not believe that Rite Aid’s interest inthe subject of this action can be characterized as simply a matter ofcoverage. Because the main issue in this declaratory action is whetherNational Union was given timely notice of the underlying tort action,the district court’s adjudication of this case on the merits will necessarily require it to interpret the notice provisions of the policy andother agreements between National Union and Rite Aid. [FOOTNOTE 8] As the contracting party and the party charged with receiving and giving noticeof claims under the policy and other agreements, Rite Aid has a directinterest in the district court’s determination of its reporting obligations as well as an interest in coverage for RASC. By contrast,RASC’s interest, as a beneficiary of the policy, is limited solely tocoverage in this particular case. Resolution of the notice issue willundoubtedly have ramifications for other cases because in decidingwhether National Union received timely notice, the district court willnecessarily have to determine what the reporting requirements are andwhat conduct satisfies those requirements. Because Rite Aid possesses an interest separate and distinct from that of RASC, we agreewith the district court that RASC is not able adequately to representthis interest in Rite Aid’s absence. Accordingly, we conclude that the district court did not err in concluding that permitting this suit to proceed without Rite Aid will “impair or impede” Rite Aid’s ability as a contracting party to protect aclaimed interest relating to the subject of the action. See Acton Co. v.Bachman Foods, Inc., 668 F.2d 76, 78-79 (1st Cir. 1982) (holdingthat parent corporation that played a substantial role in negotiating,and was party to, agreement was a necessary party to suit brought bysubsidiary alleging breach of that agreement); F & M Distribs., Inc.v. American Hardware Supply Co., 129 F.R.D. 494, 497-98 (W.D. Pa.1990) (holding that corporation that was party to contract was necessary party to suit seeking damages against third party for corporation’s alleged breach of that contract); cf. Keal, 173 F.3d at 918(holding that union was necessary party to suit that sought to vacatejoint grievance panel’s interpretation of collective bargaining agreement to which union was a party). Because the result of the suit turnson Rite Aid’s conduct in notifying National Union of the underlyingtort suit through its third-party administrator, we reject NationalUnion’s contention that Rite Aid can adequately contribute to thisaction as a witness and believe instead that fairness dictates that RiteAid be given the opportunity to protect its separate and distinct interest as a party. [FOOTNOTE 9] See Freeman v. Northwest Acceptance Corp., 754 F.2d553, 559 (5th Cir. 1985) (holding that subsidiary was a necessaryparty to conversion suit against parent corporation rather than merely”a key witness whose testimony would be of inestimable value”because subsidiary’s conduct was subject of suit (internal quotationmarks omitted)). Second, permitting this suit to continue could subject NationalUnion to “a substantial risk of incurring” conflicting legal obligations.Fed. R. Civ. P. 19(a)(2)(ii). At this time, a parallel action brought byRite Aid and RASC is pending in Pennsylvania state court. If this district court action is allowed to proceed, one court might find thatNational Union did not receive timely notice and, therefore, is notobligated to defend and indemnify Rite Aid and RASC in the underlying lawsuit. The other court might reach the opposite conclusion. Thisvery real possibility of inconsistent judgments weighs heavily in favorof finding that Rite Aid is a necessary party. [FOOTNOTE 10] See Owens-Illinois, 186F.3d at 441 (holding that possibility that one court might compel arbitration while the other court might allow alternative judicial remediesto some of the plaintiffs warranted having one court adjudicate theentire case with all of the affected parties before it); Keal, 173 F.3dat 918-19 (holding that continuing without unjoined party was impermissible because that party could file suit in another forum to protectits interests and subject joined party to conflicting legal judgments);Schlumberger, 36 F.3d at 1286-87 (holding that the potential for factual “whipsaw” from two pending cases warranted having one courtadjudicate the entire matter with all the parties before it); cf. CoastalModular, 635 F.2d at 1108 (affirming trial court’s denial of joinder of the Navy as a party under Rule 19(a) where the defendant “could only theorize the possibility that the Navy would institute suit against it”). In light of these considerations, we conclude that the district court did not abuse its discretion in concluding that Rite Aid was a necessary party to this declaratory judgment action. B. Because Rite Aid is a necessary party to this litigation and its joinder would destroy complete diversity, we must next determinewhether the district court abused its discretion in concluding that RiteAid is an indispensable party under Rule 19(b). At the outset, we notethat “precedent supports the proposition that a contracting party is theparadigm of an indispensable party.” Travelers Indem. Co. v. Household Int’l, Inc., 775 F. Supp. 518, 527 (D. Conn. 1991) (citing cases).With this principle in mind, we address the factors outlined in Rule19(b) seriatim. “A Rule 19(b) analysis is not mechanical; rather it isconducted in light of the equities of the case at bar.” Schlumberger,36 F.3d at 1287. The first Rule 19(b) factor asks to what extent a judgment renderedin the non-party’s absence will prejudice that person or those alreadyparties. This factor addresses many of the same concerns as Rule19(a)(2). See Keal, 186 F.3d at 919. As we noted in our Rule 19(a)analysis, if this suit were to proceed without Rite Aid, Rite Aid wouldbe impaired or impeded from protecting its separate and distinct interest in the district court’s determination of Rite Aid’s reportingrequirements under the policy and other agreements while NationalUnion could be whipsawed by inconsistent judgments. The prejudiceto Rite Aid if this suit is not dismissed is particularly strong given thatRite Aid negotiated and entered into the policy, and this suit concernsRite Aid’s conduct. See H.D. Corp. v. Ford Motor Co., 791 F.2d 987,993 (1st Cir. 1986) (noting that first Rule 19(b) factor favored findingthat parent corporation was indispensable to complaint broughtagainst subsidiary where complaint was largely directed against parent corporation and parent corporation was signatory to agreementunderlying breach of contract claims in complaint); Envirotech Corp.v. Bethlehem Steel Corp., 729 F.2d 70, 75-76 (2d Cir. 1984) (notingthat parent corporation was indispensable to breach of contract counterclaims against subsidiary in part because parent corporation wasthe sole obligor on three of the contracts at issue). The second factor to consider under Rule 19(b) is whether a courtcan tailor relief to lessen or avoid the prejudice to the absent personor to those already parties. As to this factor, we cannot fathom howthe district court could have tailored its relief to lessen or avoid prejudice to Rite Aid and National Union. In order to reach a judgment onthe merits in this action, the district court could not have avoidedaddressing the notice provisions of the policy and ancillary agreements, which are also at issue in the Pennsylvania state court action. See Owens-Illinois, 186 F.3d at 442 (noting that in order to reach merits of the petition to compel arbitration, district court could not haveavoided addressing the validity and applicability of settlement agreement’s arbitration provision, which was also at issue in pending statecourt action); Keal, 173 F.3d at 919 (noting that in order to reach merits of the case, district court could not have avoided addressing thevalidity of the joint grievance panel’s interpretation of collective bargaining agreement). To allow both this suit and the suit in Pennsylvania state court to proceed would “complicate and enlarge what wouldotherwise be a relatively straightforward contract action in a singlecourt.” Acton Co., 668 F.2d at 81. The third factor is whether a judgment without the absent personwill be adequate. This factor implicates “the interest of the courts andthe public in complete, consistent, and efficient settlement of controversies.” Provident Tradesmens Bank & Trust Co. v. Patterson, 390U.S. 102, 111 (1968). As the district court noted, if the instant suitproceeded without Rite Aid, it is possible that a judgment could berendered against RASC for failure to provide timely notice. It is alsopossible that if RASC brought a subsequent action against Rite Aid,RASC could again have a judgment rendered against it if Rite Aidproves that it provided timely notice on behalf of RASC, resulting inan inconsistent verdict. We agree with the district court that becauseNational Union, Rite Aid, and RASC are all proper parties in thePennsylvania state court action, and all claims and potential cross-claims can be heard in one case, resolving the entire controversy inthat court will promote “[t]he public interest in avoiding piecemealand inefficient litigation.” Acton Co., 668 F.2d at 81. Finally, Rule 19(b) directs us to determine whether dismissal fornonjoinder will leave the plaintiff with an adequate remedy. We seeno reason, and National Union posits none, why the Pennsylvaniastate court will not provide an adequate remedy for the parties in thiscase. In fact, we believe that the Pennsylvania state court will be amore convenient place for adjudication of this matter because bothNational Union and Rite Aid are Pennsylvania citizens, and the plaintiffs in the underlying lawsuits, who are residents of South Carolina,are no longer involved in this dispute concerning coverage. SeeOwens-Illinois, 186 F.3d at 442 (noting that West Virginia state court”is likely the best place for adjudication of this matter since all of thePlaintiffs work at the same location and will share many witnessesand exhibits in the event a trial is held”). National Union’s plea thatit prefers to be a plaintiff in a declaratory judgment action rather thana defendant in a bad-faith lawsuit rings hollow, because if the Pennsylvania state court finds that there is no coverage under the policy,it need not reach the bad-faith issue. Because all four factors favor afinding that Rite Aid is an indispensable party, we conclude that thedistrict court did not abuse its discretion in determining that it couldnot “in equity and good conscience” allow this case to proceed in theabsence of Rite Aid. III. In sum, we conclude that the district court did not abuse its discretion in concluding that Rite Aid was a necessary and indispensableparty to National Union’s declaratory judgment action. Because RiteAid’s joinder would destroy complete diversity of citizenship,National Union’s complaint must be dismissed. We, therefore, affirmthe judgment of the district court. AFFIRMED :::FOOTNOTES::: FN1 National Union is a Pennsylvania corporation with its principal place of business in Pennsylvania. RASC is a South Carolina corporation with its principal place of business in South Carolina. FN2The aggregate limit applies to Rite Aid and all the subsidiary insureds combined, regardless of the particular subsidiary involved. FN3The record also mentions an entity named AIG Vendor Services. Because the parties make no meaningful distinction between AIG Risk Management and AIG Vendor Services, for the sake of convenience, we refer to both entities simply as AIG. FN4The minor child and her parents who were awarded the $16,020,000 verdict against RASC were initially also named as defendants but were subsequently dismissed from the action by stipulation. FN5Rule 19(a) provides in pertinent part as follows:A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matterimpair or impede the person’s ability to protect that interest or(ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.Fed. R. Civ. P. 19(a). FN6Rule 19(b) provides as follows:If a person as described in subdivision (a)(1)-(2) hereof cannotbe made a party, the court shall determine whether in equity andgood conscience the action should proceed among the partiesbefore it, or should be dismissed, the absent person being thusregarded as indispensable. The factors to be considered by thecourt include: first, to what extent a judgment rendered in theperson’s absence might be prejudicial to the person or thosealready parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether ajudgment rendered in the person’s absence will be adequate;fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.Fed. R. Civ. P. 19(b). FN7The circuits vary greatly in the standard of review to apply to a district court’s Rule 19 determination. The Ninth and Tenth Circuits apply an abuse of discretion standard to the district court’s determination underboth 19(a) and 19(b). See Washington v. Daley , 173 F.3d 1158, 1165 (9thCir. 1999); Davis v. United States, 192 F.3d 951, 957 (10th Cir. 1999).The Sixth Circuit applies an abuse of discretion standard to the districtcourt’s analysis under 19(a) and a de novo standard to its analysis under19(b). See Keweenaw Bay Indian Community v. Michigan, 11 F.3d 1341,1346 (6th Cir. 1993). The First, Second, Third, Fifth, Eighth, Eleventh,and D.C. Circuits do not appear to have decided on a standard for a district court’s determination under 19(a) and apply an abuse of discretionstandard to its determination under 19(b). See Tell v. Trustees of Dartmouth College, 145 F.3d 417, 418-19 (1st Cir. 1998); Jota v. Texaco, Inc., 157 F.3d 153, 161 (2d Cir. 1998); Janney Montgomery Scott, Inc.v. Shepard Niles, Inc., 11 F.3d 399, 403-04 (3d Cir. 1993); Pulitzer Polster v. Pulitzer, 784 F.2d 1305, 1309 (5th Cir. 1986); United States ex rel. Steele v. Turn Key Gaming, Inc., 135 F.3d 1249, 1251 (8th Cir. 1998); Kickapoo Tribe of Indians v. Babbitt, 43 F.3d 1491, 1495 (D.C.Cir. 1995). The Seventh Circuit has expressly declined to adopt a standard of review at all. See Thomas v. United States, 189 F.3d 662, 666(7th Cir. 1999).In Owens-Illinois, Inc. v. Meade, 186 F.3d 435 (4th Cir. 1999), thisCourt stated, in the context of a district court’s dismissal of a motion tocompel arbitration for failure to join a necessary and indispensable partywhose joinder would destroy diversity, that a district court’s order dismissing a case for lack of subject matter jurisdiction is reviewed de novo.See id. at 439. This statement correctly articulates the law in general, butdoes not address the standard of review to apply to a district court’s dismissal based upon its finding that a non-party whose joinder to a suitwould destroy subject matter jurisdiction is necessary and indispensableunder Rule 19. In Coastal Modular Corp. v. Laminators, Inc., 635 F.2d1102 (4th Cir. 1980), this Court enunciated an abuse of discretion standard of review in the context of a district court’s denial of a motion forjoinder of a non-party upon finding that the non-party was not a necessary party under Rule 19(a). See id. at 1108. In light of the Supreme Court’s admonition that the Rule 19(b) inquiry is fact-specific, see Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 118 &n.14 (1968), we believe that this abuse of discretion standard of reviewapplies to a district court’s determination under 19(b) as well. FN8The record suggests that National Union will likely argue that thereporting requirements in the collateral agreements between NationalUnion and Rite Aid, set forth in the memoranda between MacDonald andAIG, supplement the reporting requirements of the policy and that underboth Rite Aid failed to give timely notice to National Union. Rite Aidwill likely argue that the reporting requirements in the collateral agreements supersede the reporting requirements of the policy and that underthe former Rite Aid gave timely notice to National Union. FN9Because the Court of Appeals of South Carolina affirmed the$16,020,000 verdict against RASC, which is greater than the aggregatelimits of the policy, Rite Aid’s interest in managing these limits amongitself and its subsidiaries is not impeded by its exclusion from the instantsuit. Nevertheless, we believe that Rite Aid’s interest in the district court’s determination of its reporting obligations under the contract and the course of dealing with National Union is sufficient to make Rite Aid a necessary party under Rule 19(a)(2)(i). FN10 National Union argues that RASC’s motion to dismiss for lack ofsubject matter jurisdiction is a pretext for forum shopping in light of thefact that it was brought four days after Rite Aid and RASC filed theirparallel action in Pennsylvania state court. We disagree. National Unionfails to identify any reason why RASC would “shop” for a Pennsylvaniaforum as opposed to a South Carolina forum. RASC’s argument that the Pennsylvania state court was selected because it was a forum in which all parties, including Rite Aid, could be joined in a single action is eminently reasonable.
National Union Fire Insurance Company of Pittsburgh v. Rite Aid of South Carolina, Inc. United States Court of Appeals for the Fourth Circuit NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA, Plaintiff-Appellant, v. RITE AID OF SOUTH CAROLINA, INCORPORATED, Defendant-Appellee, and GABRIELLE HUNDLEY, Gabrielle Hundley, a minor under the age of 14 years, by and through her Guardian ad Litem, Peggy W. Hundley; RONALD HUNDLEY; PEGGY HUNDLEY, Defendants. No. 99-1539 Appeal From: United States District Court for the District of South Carolina Argued: March 2, 2000 Decided: April 20, 2000 Before: WILKINSON, Chief Judge, and WILLIAMS and MICHAEL, Circuit Judges. Counsel for Appellant: Joel Wyman Collins, Jr. and Eric G. Fosmire Counsel for Appellee: James C. Gray, Jr., Elizabeth Scott Moise, and William C. Wood, Jr.
 
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