Adams v. Travelers Indem. Co. of Connecticut, No. 04-20734.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtPatrick E. Higginbotham
Citation465 F.3d 156
PartiesCorte B. ADAMS, Plaintiff-Appellant, v. TRAVELERS INDEMNITY COMPANY OF CONNECTICUT; Travelers Property & Casualty Co.; Travelers Insurance Co.; Goodyear Tire & Rubber Co., Defendants-Appellees.
Decision Date12 September 2006
Docket NumberNo. 04-20734.

Page 156

465 F.3d 156
Corte B. ADAMS, Plaintiff-Appellant,
v.
TRAVELERS INDEMNITY COMPANY OF CONNECTICUT; Travelers Property & Casualty Co.; Travelers Insurance Co.; Goodyear Tire & Rubber Co., Defendants-Appellees.
No. 04-20734.
United States Court of Appeals, Fifth Circuit.
September 12, 2006.

Page 157

COPYRIGHT MATERIAL OMITTED

Page 158

COPYRIGHT MATERIAL OMITTED

Page 159

Michael D. Papania (argued), Nederland, TX, for Adams.

David Norman Kitner (argued), Christine D. Roseveare, Strasburger & Price, Dallas, TX, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before JOLLY, HIGGINBOTHAM and SMITH, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:


This case brings questions of whether an employee acted within the permissive use authorized by his employer, Goodyear Tires, when he fell asleep at the wheel of a

Page 160

company truck. Applying Texas law, we conclude that genuine issues of material fact remain, and we reverse and remand.

I

Goodyear Tire and Rubber Company hired Corte Adams in April 1998 as a service technician to change tires and fix flats in its Houston, Texas shop. In September 1998, Adams transferred to the Bryan, Texas shop, which specializes as a commercial truck tire center; he was trained and promoted to the position of truck alignment specialist. After the transfer, Adams continued to live in Houston and commuted four hours each day to and from Bryan.

Though Adams owned a car, Goodyear allowed him to use a company-owned one-ton GMC pickup truck in his travel between Houston and Bryan. Goodyear did not hire Adams as a driver. Nevertheless, once or twice a week Adams dropped off or picked up tires at the Houston shop on his way home from Bryan in the evenings or on the way back to Bryan the next morning. When he had a delivery or a pick-up, Adams was "on the clock" for Goodyear until he dropped the tires off at the Houston shop in the evening or after he arrived at the Houston shop in the morning to pick up tires. When making a delivery or a pick-up, Adams was paid for the driving time. In addition, Goodyear required Adams to carry a pager at all times. Adams often used the company truck, with his boss's knowledge, during working hours to run small personal errands such as picking up lunch.

On Friday February 26, 1999, Adams left Bryan in the late afternoon, approximately 5:30 p.m. After he delivered the tires to the Houston shop at approximately 7:00 p.m., Adams stopped for Chinese take-out and drove to his father's house, where he arrived by approximately 8:30 p.m. There, Adams ate supper, consumed four or five beers, and slept for approximately four hours. Sometime between 1:00 and 2:00 a.m., Adams awoke and drove the Goodyear truck to a convenience store in order to purchase cigarettes for his father.1 On his way back to his father's home from the store, Adams caused a traffic accident when he fell asleep at the wheel and crossed the center stripe into oncoming traffic. He collided with a vehicle driven by Patrick Mayes, severely injuring Mayes.2 Adams, too, was injured and unable to work. Two months later, Goodyear fired Adams for using the truck in an unauthorized manner.

After Mayes sued Adams and Goodyear, Goodyear's insurer, Appellees Travelers

Page 161

Indemnity Company of Connecticut, Travelers Property & Casualty Insurance Company, Travelers Insurance Corporation (collectively "Travelers"), refused to cover Adams, thereby refusing to recompense his damages or defend and indemnify him. Adams sued Travelers and Goodyear in state court, alleging violations of the Texas Insurance Code and the Texas Deceptive Trade Practices Act and common-law bad faith, fraud, and breach of contract for refusal to provide coverage.3 Appellees removed Adams's suit to federal court on diversity grounds. Thereafter, Travelers moved for summary judgment on all claims. Adams failed to timely respond to Appellees' motion despite receiving two extensions, totaling more than 97 days, and the District Court denied both Adams's motion for leave to file out of time and his motion for a continuance. The District Court, then, granted Travelers's uncontested motion for summary judgment. The district court denied Adams's motion for a new trial, and this appeal followed.

II

Adams argues that the District Court erred by not relying upon his untimely response in opposition to Travelers's filing for summary judgment, by not granting an extension under Rule 6(b)(2),4 and by not granting a continuance for further discovery under Rule 56(f).5 We review for abuse of discretion.6 After two extensions beyond the initial February 2004 deadline, Adams filed both his response to Travelers motion for summary judgment and a request for a third extension on June 9, 2004, the day following the final due date.7 The District Court did not abuse its discretion by refusing to apply Adams's untimely response to Travelers' motion for summary judgment, despite having read it, or by denying an extension because Adams failed to demonstrate excusable neglect.8 Adams had ample time

Page 162

to comply with the extended deadline.9

Rule 56(f) authorizes a district court to "order a continuance to permit affidavits to be taken or depositions to be taken or discovery to be had," if the non-movant files affidavits showing that he or she "cannot for reasons stated present by affidavit facts necessary to justify the party's opposition."10 A non-movant seeking relief under Rule 56(f) must show: (1) why he needs additional discovery and (2) how that discovery will create a genuine issue of material fact.11 A party "cannot evade summary judgment simply by arguing that additional discovery is needed,"12 and may not "simply rely on vague assertions that additional discovery will produce needed, but unspecified, facts."13 Adams did not provide reason enough to warrant a continuance, relying solely on his personal problems to excuse the failure to rebut Travelers' assertion that no genuine issue of material fact existed. Though relevant, the evidence he wished to acquire, including deposition testimony relating to a corporate policy allowing limited personal use of company vehicles, was available throughout the 100 days of extra time granted by the District Court.14 The District Court did not abuse its discretion in denying Adams's Motion for Continuance to conduct specific limited discovery in response to Travelers' motion for summary judgment. We, therefore, make our determination regarding the appropriateness of summary judgment based on the record as developed primarily by Travelers.

III

Adams attempts to imbue the instant case with the result reached by the Texas appellate court in Mayes v. Goodyear,15 tacitly invoking both collateral estoppel16

Page 163

and the principle of diversity jurisdiction which requires this Court to apply the law of the state in which it resides.17 Mayes issued on the same day as final judgment was entered in the instant case, and, thereafter, Adams filed a Motion for New Trial and/or Motion for Reconsideration.18 The District Court denied the motion; we review for abuse of discretion.19

Mayes does not benefit Adams. As an intermediate appellate decision pending appeal to the Texas Supreme Court, it does not control and cannot be relied upon as binding state authority or as preclusive given the divergent records.20 Therefore, the District Court did not abuse its discretion by denying Adams's motion for reconsideration in light of Mayes.

IV

We review de novo a district court's grant of summary judgment, applying the same standard as below.21 Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."22 The moving party bears the initial burden of "informing the Court of the basis of its motion" and identifying those portions of the record "which it believes demonstrate the absence of a genuine issue of material fact."23 In adjudicating a motion for summary judgment, the court must view all facts in the light most favorable to the

Page 164

non-movant.24

Once the moving party meets this burden, the nonmoving party must "go beyond the pleadings" and designate "specific facts" in the record "showing that there is a genuine issue for trial."25 An issue is "genuine" if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party.26 "Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment."27 A failure on the part of the nonmoving party to offer proof concerning an essential element of its case necessarily renders all other facts immaterial and mandates a finding that no genuine issue of fact exists.28 As the District Court, therefore, explained: "[s]ince the plaintiff failed to respond to the defendant's motion for summary judgment, the inquiry must be whether the facts presented by the defendants create an appropriate basis to enter summary judgment against the plaintiff."29

V

In defending the District Court's grant of summary judgment, Travelers contends that Adams does not qualify as an insured. The policy defines an insured as, inter alia: "Anyone else while using with your permission a covered auto you own, hire, or borrow ..." (emphasis added).30 It is uncontested that the Goodyear truck is a "covered auto." Travelers instead argues that Adams's accident occurred while without permissive use of Goodyear's truck and, therefore, that Adams is not entitled to defense or indemnification because he cannot prove coverage.31

A. Nature of permission

In Texas, permission is "consent to use the vehicle at the time and place in question and in a manner authorized by the owner, either...

To continue reading

Request your trial
888 practice notes
  • Janvey v. Democratic Senatorial Campaign Comm. Inc., Civil Action No. 3:10–CV–0346–N.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • June 22, 2011
    ...L.Ed.2d 176 (1962). Courts, however, need not sift through the record in search of triable issues. Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir.2006). The moving party bears the initial burden of informing the court of the basis for its belief that there is no genuine ......
  • Air Evac EMS, Inc. v. Sullivan, Case No. A-16-CA-060-SS
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • August 2, 2018
    ...in the record and to articulate the precise manner in which that evidence supports his claim. Adams v. Travelers Indem. Co. of Conn. , 465 F.3d 156, 164 (5th Cir. 2006). Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's......
  • Service Employees Intern. Union v. City of Houston, Civil Action No. H-06-3309.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • March 31, 2008
    ...most favorable to the non-movant and draw all reasonable inferences in favor of the non-movant. Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 163-64 (5th Cir.2006). The court must review all of the evidence in the record, but make no credibility determinations or weigh any evidence,......
  • Jackson v. Royal Caribbean Cruises, Ltd., Civil Action No. 3:18-CV-1699-S(BH)
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • March 21, 2019
    ..."to sift through the record in search of evidence to support a party's opposition to summary judgment." Adams v. Travelers Indem. Co. , 465 F.3d 156, 164 (5th Cir. 2006) (quoting Ragas v. Tenn. Gas Pipeline Co. , 136 F.3d 455, 458 (5th Cir. 1998) ). Parties must "identify specific evidence ......
  • Request a trial to view additional results
889 cases
  • Janvey v. Democratic Senatorial Campaign Comm. Inc., Civil Action No. 3:10–CV–0346–N.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • June 22, 2011
    ...L.Ed.2d 176 (1962). Courts, however, need not sift through the record in search of triable issues. Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir.2006). The moving party bears the initial burden of informing the court of the basis for its belief that there is no genuine ......
  • Air Evac EMS, Inc. v. Sullivan, Case No. A-16-CA-060-SS
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • August 2, 2018
    ...in the record and to articulate the precise manner in which that evidence supports his claim. Adams v. Travelers Indem. Co. of Conn. , 465 F.3d 156, 164 (5th Cir. 2006). Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's......
  • Service Employees Intern. Union v. City of Houston, Civil Action No. H-06-3309.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • March 31, 2008
    ...most favorable to the non-movant and draw all reasonable inferences in favor of the non-movant. Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 163-64 (5th Cir.2006). The court must review all of the evidence in the record, but make no credibility determinations or weigh any evidence,......
  • Jackson v. Royal Caribbean Cruises, Ltd., Civil Action No. 3:18-CV-1699-S(BH)
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • March 21, 2019
    ..."to sift through the record in search of evidence to support a party's opposition to summary judgment." Adams v. Travelers Indem. Co. , 465 F.3d 156, 164 (5th Cir. 2006) (quoting Ragas v. Tenn. Gas Pipeline Co. , 136 F.3d 455, 458 (5th Cir. 1998) ). Parties must "identify specific evidence ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT