Barron v. Amex Assurance Co.

• Decision Date: 16 June 2016
• Docket Number: Case No. 2:14-cv-1095-WKW-PWG
• Parties: GERALD BARRON, Plaintiff, v. AMEX ASSURANCE COMPANY, Defendant.
• Court: U.S. District Court — Middle District of Alabama

GERALD BARRON, Plaintiff, v. AMEX ASSURANCE COMPANY, Defendant.

Case No. 2:14-cv-1095-WKW-PWG

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

June 16, 2016

REPORT AND RECOMMENDATION

This matter is before the court on a motion for summary judgment, filed by Defendant AMEX Assurance Company ("AMEX"). (Doc. 24). Plaintiff asserts claims for breach of contract arising out of AMEX's failure to pay him benefits under his decedent sister's Accident Protection Plan ("APP") policy and Accident Guard ("AG") policy.

I. JURISDICTION

Subject matter jurisdiction is conferred by 28 U.S.C. § 1332 as to Plaintiff's causes of action. The parties do not contest personal jurisdiction or venue, and the court finds sufficient information of record to support both. See 28 U.S.C. § 1391. On November 25, 2014, the above-styled matter was referred to the undersigned for review by United States District Judge W. Keith Watkins. (Doc. 6); see also 28 U.S.C. § 636(b); Rule 72, Fed. R. Civ. P.; United States v. Raddatz, 447 U.S. 667 (1980); Jeffrey S. v. State Board of Education of State of Georgia, 896 F.2d 507 (11th Cir. 1990).

II. SUMMARY JUDGMENT STANDARD OF REVIEW

A motion for summary judgment filed pursuant to Federal Rule of Civil Procedure 56 looks to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate "'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine [dispute] as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (per curiam) (citation omitted); see also Fed.R.Civ.P. 56(c) (Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine [dispute] as to any material fact and that the movant is entitled to judgment as a matter of law.").¹

The party moving for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the [record, including pleadings, discovery materials and affidavits], which it believes demonstrate the absence of a genuine [dispute] of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may meet this burden by presenting evidence which would be admissible at trial indicating there is no dispute of material fact or by showing that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-324.

Once the movant meets his evidentiary burden and demonstrates the absence of a genuine dispute of material fact, the burden shifts to the non-moving party to establish, with appropriate evidence beyond the pleadings, that a genuine dispute material to his case exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); Celotex, 477 U.S. at 324; Fed.R.Civ.P. 56(e)(2) ("When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must . . . set out specific facts showing a genuine [dispute] for trial."). A genuine dispute of material fact exists when the nonmoving party produces evidence that would allow a reasonable fact-finder to return a verdict in its favor. Greenberg, 498 F.3d at 1263.

To survive the movant's properly supported motion for summary judgment, a party is required to produce "sufficient [favorable] evidence . . . that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "If the evidence [on which the nonmoving party relies] is merely colorable . . . or is not significantly probative . . . summary judgment may be granted." Id. at 249-50. "A mere 'scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the [trier of fact] could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1576-1577 (11th Cir. 1990) (quoting Anderson, supra).

All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the nonmovant. See Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). Conclusory allegations based on subjective beliefs, however, are insufficient to create a genuine dispute of material fact and, therefore, do not suffice to oppose a motion for summary judgment. Waddell v. Valley Forge Dental Assocs., Inc., 276 F.3d 1275, 1279 (11th Cir. 2001). Thus, when a nonmoving party fails to set forth specific facts supported by appropriate evidence sufficient to establish the existence of an element essential to its case and on which the nonmovant will bear the burden of proof at trial, summary judgment is due to be granted in favor of the moving party. Celotex, 477U.S. at 322 ("[F]ailure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.").

Importantly, however, "the court may not weigh conflicting evidence to resolve disputed factual issues; if a genuine dispute is found, summary judgment must be denied." Carlin Commc'n, Inc. v. Southern Bell Tel. & Tel. Co., 802 F.2d 1352, 1356 (11th Cir. 1986); see also Aurich v. Sanchez, No. 08-80113, 2011 WL 5838233, at *1 (S.D. Fla. Nov. 21, 2011) ("If a reasonable fact finder could draw more than one inference from the facts, and that inference creates an issue of material fact, then the court must not grant summary judgment."). In particular, summary judgment is inappropriate where the court would be required to weigh conflicting renditions of material fact or determine witness credibility. See Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 919 (11th Cir. 1993) (noting a court must not weigh conflicting surveillance nor make credibility determinations when ruling on a motion for summary judgment); Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) ("It is not the court's role to weigh conflicting evidence or to make credibility determinations; the non-movant's evidence is to be accepted for purposes of summary judgment."); Gary v. Modena, No. 05-16973, 2006 WL 3741364, at *16 (11th Cir. Dec.21, 2006) (Rule 56 precludes summary judgment where court would be required to reconcile conflicting testimony or assess witness credibility).

III. BACKGROUND AND STATEMENT OF MATERIAL FACTS²

Plaintiff's sister, Rhonda Barron, was an insured at all relevant times under two accidental death policies (APP and AG) issued by AMEX. (Doc. 24-10; Doc. 24-11). Pursuant to the APP policy, Ms. Barron was provided with $50,000 in coverage for accidental death due to an injury. (Doc. 31-10 at p. 2). The APP policy contains a general clause requiring AMEX to pay the maximum amount of the accidental death benefit "[i]f injury to the insured Person results in death within 365 days of the accident that caused the injury." (Doc. 24-10 at p. 3). The APP policy defines "Injury" as follows:

Injury means bodily injury: (1) which is sustained as a direct result of an unintended, unanticipated accident that is external to the body and that occurs while the injured person's coverage under the Policy is in force; (2) which occurs while such person is participating in a Covered Activity; and (3) which directly (independent of sickness, disease, mental incapacity, bodily infirmity, or any other cause) causes a covered loss.

(Doc. 24-10 at p. 2). In its exclusion clause, the APP policy provides in pertinent part that:

No coverage shall be provided under the Policy and no payment shall be made for any loss resulting in whole or in part from, or contributed to by, or as a natural and probable consequence of any of the following excluded risks even if the proximate cause of the loss is an accidental bodily injury.

. . .

2. Sickness, or disease, mental incapacity or bodily infirmity whether the loss results directly or indirectly from any of these[.]

(Doc. 24-10 at p. 5).

Pursuant to the AG policy, Ms. Barron was provided with $100,000 in coverage for accidental death due to an injury. (Doc. 31-10 at p. 2). Similar to the APP policy, the AG policy contains a general clause requiring AMEX to pay the amount of the accidental death benefit selected "[i]f a Covered Person dies as a result of an Accident." (Doc. 24-11 at p. 5). Likewise, in its list of exclusions, the AG policy provided in pertinent part that:

The benefits under this Policy will not be paid if the loss for which the coverage is sought was directly or indirectly, wholly or partially, contributed to or caused by any of the following:

. . .

6. Any disease, illness or infirmity[.]

(Doc. 24-11 at p. 9).

On July 18, 2013, Ms. Barron was transported by ambulance to Elmore Community Hospital. (Doc. 24-2 at p. 2). According to the EMT records, Ms. Barron was found lying on her bed with extreme weakness, shortness of breath, mental confusion, and no ability to walk. (Doc. 24-2 at p. 2). While at the hospital, a chest x-ray was taken of Ms. Barron, which revealed evidence of severe Chronic Obstructive Pulmonary Disease ("COPD") as well as Congestive Heart Failure ("CHF"). (Doc. 24-3 at p. 2). Hospital notes further reflected that Ms. Barron was unable to stand and was unable to use a walker to ambulate. (Doc. 24-3 at p. 2). The hospital's admitting physician, Dr. Bethany Meredith, assessed Ms. Barron as requiring treatment for CHF and an exacerbated COPD. (Doc. 24-3 at p. 3). Four days later, Ms. Barron was discharged from the hospital and transferred to Hillview Terrace Health & Rehab ("Hillview"), a rehabilitation and long-term...