Brown v. Allstate Prop. & Cas. Ins. Co.

• Decision Date: 02 May 2016
• Docket Number: Civil Action No. 2:15cv488-WHA
• Citation: 184 F.Supp.3d 1326
• Parties: Barbara Brown, Plaintiff, v. Allstate Property and Casualty Insurance Co., Defendant.
• Court: U.S. District Court — Middle District of Alabama

184 F.Supp.3d 1326

Barbara Brown, Plaintiff,

v.Allstate Property and Casualty Insurance Co., Defendant.

Civil Action No. 2:15cv488-WHA

United States District Court, M.D. Alabama, Northern Division.

Signed May 2, 2016

Aaron John Luck, McPhillips, Shinbaum, LLP, Montgomery, AL, for Plaintiff.

Eugene D. Martenson, Robert L. Blackburn, Walter Jasper Price, III, Huie Fernambucq Stewart LLP, Birmingham, AL, for Defendant.

MEMORANDUM OPINION AND ORDER

W. HAROLD ALBRITTON, SENIOR UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

This case is before the court on a Motion for Final Summary Judgment of Allstate Property and Casualty Insurance Company (Doc. # 24) and Plaintiff's Response to Defendant's Motion for Final Summary Judgment and Renewed Motion for Partial Summary Judgment on the Limited Issue of Which Law Governs this Matter (Doc. # 27).

The Plaintiff filed a Complaint in the Circuit Court of Montgomery County, bringing a claim for breach of contract, and seeking compensatory and punitive damages. (Doc. # 1-4). The case was removed on the basis of diversity jurisdiction. No motion to remand was filed. Complete diversity of citizenship exists and the amount in controversy exceeds $75,000. Therefore, the court has diversity subject matter jurisdiction pursuant to 28 U.S.C. § 1332.

For reasons to be discussed, Brown's Renewed Motion for Summary Judgment is due to be DENIED and Allstate's Motion for Summary Judgment is due to be GRANTED.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is proper "if there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The party asking for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion," relying on submissions "which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323, 106 S.Ct. 2548. Once the moving party has met its burden, the nonmoving party must "go beyond the pleadings" and show that there is a genuine issue for trial. Id. at 324, 106 S.Ct. 2548.

Both the party "asserting that a fact cannot be," and a party asserting that a fact is genuinely disputed, must support their assertions by "citing to particular parts of materials in the record," or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56 (c)(1)(A),(B). Acceptable materials under Rule 56(c)(1)(A) include "depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials."

To avoid summary judgment, the nonmoving party "must do more than show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). On the other hand, the evidence of the nonmovant must be believed and all justifiable inferences must be drawn in its favor. See Anderson v. Liberty Lobby , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

After the nonmoving party has responded to the motion for summary judgment, the court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

III. FACTS

The submissions of the parties establish the following facts, construed in a light most favorable to the non-movant:

This case involves an issue of automobile uninsured motorists insurance coverage for a single car accident in which Brown, the insured, was injured and which happened in Alabama. Brown is a resident of South Carolina. At the time of the accident she had an Auto Insurance Policy issued by Allstate in South Carolina. The court has previously ruled that South Carolina, rather than Alabama, law applied to the issues presented by these motions. (Doc. # 23).

Some relevant provisions of the policy at issue are as follows:

What Law Will Apply

If a covered loss to the auto, a covered auto accident, or any other occurrence for which coverage applies under this policy happens outside South Carolina, claims or disputes regarding that covered loss to the auto , covered auto accident, or other covered occurrence may be governed by the laws of the jurisdiction in which that covered loss to the auto , covered auto accident, or other covered occurrence happened.

* * *

Uninsured Motorists Insurance—Coverage SS

* * *

An Uninsured Auto is

5. a phantom motor vehicle which causes:

a. bodily injury to an insured person without physical contact with the insured person or with a motor vehicle occupied by that person.

b. property damage to the insured auto without physical contact between the vehicles.

The facts of the accident must have been witnessed by someone other than the owner or operator of the insured vehicle, provided, however, the witness must sign an affidavit attesting to the truth of the facts of the accident contained in the affidavit.

* * *

Proof of Claim; Medical Reports

Any person making a claim for bodily injury must give us written proof of claim as soon as practicable. Any person making claim for property damage must submit written proof of claim within 60 days, unless we extend this time in writing. All proof of claims must include all details we need to determine the amounts payable.

* * *

Conformity with State Statute

These coverages are intended to be in full conformity with the South Carolina Uninsured Motorists Law. If any provision of this coverage is in conflict with such Law, the provision is amended or eliminated to conform with such law.

Action Against Us

No one my bring an action against us in any way related to the existence or Amount of coverage, or the amount of loss for which coverage is sought, under Part 3—Uninsured Motorists Insurance, Coverage SS, unless there is full Compliance with all policy terms and, except as provided below, such action is Commenced within two years after the date of the accident.

Doc. # 28-1, p. 6, 13-14, 17.

In her deposition, Brown states that she was driving in Alabama on the day of her accident and saw something in the lane in which she was traveling. She saw a gold truck right off the road to the right of her, so she swerved to the left to avoid the object in the road, then she overcorrected or overcompensated and ultimately lost control of the vehicle, running off the road and overturning. (Doc. # 25-2 at p.41:13, 44:13-16, 45:5-7, 52:23-53:2).

Brown made a claim under her Allstate Auto Insurance Policy. Allstate did not pay her claim. The initial denial of claim letter stated that under the policy, if a phantom vehicle causes injury or damage without physical contact between the vehicles, the facts of the accident must have been witnessed by someone other than the owner or operator of the vehicle. The letter stated that the affidavits submitted by Brown stated that the affiants saw an F150 parked close to the road and heard the sounds of tires squealing but did not see the accident. (Doc. # 28-1 at p.179). The second letter, dated April 30, 2015, was in response to a letter from Brown's attorney. The letter states that the witnesses did not observe the collision or the events leading up to it. The letter states that it is the position of Allstate that the affidavits do not prove that a phantom vehicle caused this accident, and that those affidavits are not enough because none of the affiants witnessed the actual collision. (Doc. # 28-1 at p.186).

The affidavits submitted¹ state that the affiants noticed a Ford F150 parked on the side of Interstate 85. They affiants also state that they heard tires squealing and then saw the subject vehicle leaving the roadway at the approximate location of the Ford F150. The affiants state that the following is true and correct in every particular. (Doc. # 25-1 at p.2-5).

On September 15, 2015, in response to Allstate's Motion to Bifurcate and Stay Discovery filed in this case, Brown submitted new affidavits from the witnesses. (Doc. # 16-1). These new affidavits contain the statement, "[a] false statement concerning the facts contained in this affidavit may subject the person making the false statement to criminal penalties as provided by law." (Doc. # 16-1 at p.31, 33).

IV. DISCUSSION

A. Law Which Applies

The choice-of-law policy provision within the subject Auto Insurance Policy, as set out above, is entitled "What Law Will Apply," and states that "[i]f a covered loss to the auto , a covered auto accident, or any other occurrence for which coverage applies under this policy happens outside South Carolina, claims or disputes regarding that covered loss to the auto , covered auto accident, or other covered occurrence may be governed by the laws of the jurisdiction in which that covered loss to the auto , covered auto accident, or other covered occurrence happened." (Doc. # 28-1 at p.6).

A previously filed Motion for Partial Summary Judgment sought a judgment that Alabama law applies to Brown's claims. This court denied the motion, and concluded that the law of the state of contract formation applies to coverage issues before the covered loss choice-of-law provision at issue applies, relying in part on Hollins v. Adair , No. 2013 CA 1622, 2014 WL 2547977 (La.App. 1 Cir. June 3, 2014) (Doc. # 23 at p.4-5).

In her renewed motion, Brown argues that Allstate has admitted that there is coverage under the policy, so, because there is a covered loss, and the accident occurred in Alabama, Alabama law applies. In support, Brown points to Admissions filed by Allstate. Allstate was asked to admit that Plaintiff has complied with all of the terms and conditions of any policies in effect with Defendant, to which Allstate stated, "Allstate...