Cincinnati Ins. Co. v. Hertz Corp.

• Decision Date: 28 October 1991
• Docket Number: No. C2-90-673.,C2-90-673.
• Citation: 776 F. Supp. 1235
• Parties: The CINCINNATI INSURANCE CO., Plaintiff, v. The HERTZ CORPORATION, Defendant.
• Court: U.S. District Court — Southern District of Ohio

776 F. Supp. 1235

The CINCINNATI INSURANCE CO., Plaintiff, v. The HERTZ CORPORATION, Defendant.

No. C2-90-673.

United States District Court, S.D. Ohio, E.D.

October 28, 1991.

Gregory Duval Rankin Lane, Alton and Horst, Columbus, Ohio, for plaintiff.

Jeffrey Michael Betz, Mark E. DeFossez, Reminger & Reminger, Columbus, Ohio, for defendant.

OPINION AND ORDER

GEORGE C. SMITH, District Judge.

This action was filed pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. § 2201, by Plaintiff Cincinnati Insurance Company (hereinafter "Cincinnati Insurance" or "Plaintiff"), an insurance carrier authorized and empowered to issue policies of insurance to motorists residing within the state of Ohio, against Defendant Hertz Corporation (hereinafter "Hertz" or "Defendant"), a corporation duly organized and existing under the laws of the state of Delaware. The jurisdiction of this Court is invoked under Title 28 U.S.C. § 1332(a)(1); diversity jurisdiction. Presently before this Court are cross Motions for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

FACTS

On or about September 28, 1987, Mr. Dick Malone rented an automobile from the Hertz Corporation at a rental outlet located at McCarran International Airport, Las Vegas, Nevada. Mr. Malone is a licensed Ohio driver. The rental car provided to Mr. Malone was registered in the state of Nevada.

The Hertz rental automobile which Mr. Malone was driving was rear-ended in Las Vegas, Nevada by a vehicle driven by Mr. Jose Escalera, a licensed driver of the state of California. Mr. Escalera was driving a car registered in the state of Colorado under the name of Carlos Escalero. The Cincinnati Insurance Company has been unable to locate either driver or owner of the car which rear-ended the car Mr. Malone was driving, and therefore has been unsuccessful in determining whether Mr. Escalera or Mr. Escalero were insured on the date of the accident. As a result of the accident on September 28, 1987. Mr. Malone sustained numerous injuries which have required medical treatment and therapy.

Mr. Malone has demanded coverage under the uninsured motorist portion of his policy of insurance with Cincinnati Insurance Co. for damages Malone incurred as a result of the accident. Cincinnati Insurance Co. filed this declaratory judgment action against Hertz seeking a declaration that, by operation of law, Hertz is the primary uninsured carrier and must provide uninsured coverage to Mr. Malone.

STANDARD OF REVIEW

In considering the cross motions for summary judgment, the Court is mindful that the standard for summary judgment "mirrors the standard for a directed verdict under Rule 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (citing Brady v. Southern Ry. Co., 320 U.S. 476, 479-80, 64 S.Ct. 232, 234-35, 88 L.Ed. 239 (1943)). Thus, the Supreme Court concluded in Anderson that a judge considering a motion for summary judgment must "ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair minded jury could return a verdict for the plaintiff on the evidence presented." 477 U.S. at 252, 106 S.Ct. at 2512.

Rule 56(c) of the Federal Rules of Civil Procedure provides in pertinent part:

The judgment sought shall be rendered forthwith 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 judgment as a matter of law.

In essence, the inquiry is whether the evidence presented a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2511-12.

Such an inquiry necessarily implicates the evidentiary standard of proof that would apply at the trial on the merits. As a result, the Court must view the evidence presented through the prism of the substantive evidentiary burden. Rule 56(e) therefore "requires the nonmoving party to go beyond the pleadings and by their own affidavits, or by the `depositions, answers to interrogatories, and admissions on file', designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). "The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S.Ct. at 2552.

In Banks v. Rockwell International N. Am. Aircraft Operations, 666 F.Supp. 1053 (S.D.Ohio 1987) (Graham, J.), this district enunciated the importance of granting summary judgments in appropriate situations by stating as follows: "Although summary judgment should be cautiously invoked, it is an integral part of the Federal Rules which are designed `to secure the just, speedy and inexpensive determination of every action.'" Id. at 1056 (citing Celotex Corp. v. Catrett, 477 U.S. at 327, 106 S.Ct. at 2554, (quoting Fed.R.Civ.P. 1); Anderson, 477 U.S. at 252, 106 S.Ct. at 2512.

Thus, the mere existence of a scintilla of evidence in support of a plaintiff's claim is insufficient — there must be evidence upon which a jury could reasonably find for the plaintiff. Anderson, 477 U.S. at 252, 106 S.Ct. at 2512. Having discussed the Rule 56 standard of review, the Court now turns to the merits.

DECISION

On May 31, 1991, Plaintiff Cincinnati Insurance filed a Motion for Summary Judgment seeking a declaration that Defendant Hertz is the primary insurer for the uninsured motorist accident involving Malone's rental car. On July 15, 1991, Hertz filed a Motion to Dismiss the Complaint for Failure to State a Claim upon which relief can be granted. Hertz supports the motion on two grounds; First, defendant asserts that the complaint should be dismissed for lack of standing, and second, defendant asserts that the complaint should be dismissed because defendant is not an "insurer" under Nevada law.

Cincinnati Insurance subsequently filed a Motion to Strike Defendant's Motion to Dismiss. Plaintiff's Motion to Strike alleges that Hertz's Motion to Dismiss makes references to matters "outside the pleadings," including an attached exhibit and certain factual allegations. Plaintiff therefore requested that this Court convert Defendant's Motion to Dismiss into a Motion for Summary Judgment.

The parties were previously ordered by the Court to file motions for summary judgment no later than May 31, 1991. Because defendant filed its motion on July 15, 1991, plaintiff further requests that this Court strike such converted Motion for Summary Judgment on the basis that the motion was not timely filed. The Court will address all of these matters seriatim.

I. Conversion of a Motion to Dismiss to a Motion for Summary Judgment

When considering a Motion to Dismiss, matters presented outside the pleadings must be excluded by the Court. Carter v. Stanton, 405 U.S. 669, 671, 92 S.Ct. 1232, 1234, 31 L.Ed.2d 569 (1972). If material outside the pleadings has been offered to accompany a Motion to Dismiss, the Court has two options. First, the Court may exclude the additional material and decide the motion based upon the complaint alone. Kopec v. Coughlin, 922 F.2d 152, 154 (2nd Cir.1991). Second, the Court may treat the Motion to Dismiss as a Motion for Summary Judgment and dispose of the motion as provided in Rule 56. Carter v. Stanton, 405 U.S. 669, 671, 92 S.Ct. 1232, 1234, 31 L.Ed.2d 569 (1972); Rose v. Bartle, 871 F.2d 331, 340 (3rd Cir.1989). If matters outside the complaint are considered by the Court in ruling on a Motion to Dismiss, then the motion must be considered as a Motion for Summary Judgment. Sims v. Mercy Hospital of Monroe, 451 F.2d 171 (6th Cir.1971).

Pursuant to the Court's Notice dated September 19, 1991, the motion to dismiss was converted to a motion for summary judgment. Rule 56 requires an opportunity for the parties to present pertinent material, which presumes notice to the parties so that the parties may take advantage of such opportunity. Davis Elliott International, Inc. v. Pan American Container Corp., 705 F.2d 705, 708 (3rd Cir. 1983). Whether notice of conversion is required or not depends on the facts and circumstances of each case. Dayco Corp. v. Goodyear Tire & Rubber Co., 523 F.2d 389 (6th Cir.1975). In general, however, courts require notice of conversion in order to give the parties an opportunity to present material to the Court. Rose v. Bartle, 871 F.2d 331 (3rd Cir.1989). Applying these standards to the facts of this case, the Court gave the parties an opportunity to either support or oppose defendant's motion with material "outside the pleadings," including depositions, answers to interrogatories, admissions on file, and affidavits. Rule 56(c) requires that all parties have at least ten days notice before the Court will consider a Motion for Summary Judgment. The Court has therefore given the parties ten business days notice to submit materials "outside the pleadings" for the Court's consideration of the converted Motion for Summary Judgment of defendant.

In response, Defendant Hertz filed a Memorandum of Law in Support of Its Converted Motion for Summary Judgment on October 11, 1991. As previously alluded to, due to the conversion, the Court now has before it cross motions for summary judgment.

Although the converted Motion for Summary Judgment was filed after the deadline set by the Magistrate for the parties to file motions for summary judgment, in the interest of justice the...