Cincinnati Ins. Co. v. Irvin

• Decision Date: 19 August 1998
• Docket Number: No. IP 97-0380-C H/G.,IP 97-0380-C H/G.
• Parties: The CINCINNATI INSURANCE COMPANY, Plaintiff, v. Derek W. IRVIN, Missy Hodge-Irvin, Patricia J. Brashear, Loretta Huff, and Sentry Insurance, Defendants.
• Court: U.S. District Court — Southern District of Indiana

19 F.Supp.2d 906

The CINCINNATI INSURANCE COMPANY, Plaintiff, v. Derek W. IRVIN, Missy Hodge-Irvin, Patricia J. Brashear, Loretta Huff, and Sentry Insurance, Defendants.

No. IP 97-0380-C H/G.

United States District Court, S.D. Indiana, Indianapolis Division.

August 19, 1998.

Arlene Rochlin, Berlon & Timmel, Indianapolis, IN, for Plaintiff.

William N. Ivers, Stewart & Irwin, Indianapolis, IN, for Defendants Derek Irvin, Missy Hodge-Irvin and Sentry Ins.

J. David Hollingsworth, Hollingsworth Meek Miller & Minglin, Indianapolis, IN, for Defendants Derek W. Irvin and Missy Hodge-Irvin.

Ralph Bailey, Patricia Brashear and Loretta Huff, pro se.

ENTRY ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

HAMILTON, District Judge.

Under most automobile liability insurance policies, a person who has permission to drive a covered vehicle is treated as an insured person who is entitled to coverage. Most such liability policies also require an insured person to cooperate with the insurance company in investigating and defending claims. In this case the driver of one car in a two-car accident was not the named insured, but she had been given permission to drive the car. The driver therefore was insured under the policy that covered the car. This case is a little unusual because after the collision, the driver fled the scene and has not been heard from since. Neither the insurer nor any other person interested in the matter has been able to find her. The issue presented is whether the driver's flight and disappearance amount to a breach of the policy's cooperation clause that relieves the liability insurer of what would otherwise be its obligation to defend and indemnify the driver in the tort actions by those injured in the accident.

The case arose from a collision between a car driven by defendant Loretta Huff and a car driven by defendant Derek W. Irvin. Huff was driving a car insured by plaintiff The Cincinnati Insurance Company under a policy issued to the car's owner, defendant Patricia J. Brashear. Cincinnati Insurance seeks a judgment declaring that it has no duty to defend or indemnify Huff for liability arising from the accident. Cincinnati Insurance seeks summary judgment on the ground that Huff materially breached the policy's cooperation clause. Under Indiana law an insurer must prove the following elements to defeat coverage based on a failure to cooperate: (1) that the insurer exercised good faith efforts and diligence in obtaining the insured's cooperation; (2) that the insured's failure to cooperate was willful and intentional; and (3) that the insured's breach of her duty to cooperate prejudiced the insurance company. As explained below, when the evidence is viewed in the light reasonably most favorable to defendants, a reasonable jury could find that Cincinnati Insurance has not satisfied this burden. Cincinnati Insurance has not shown that Huff has willfully and intentionally failed to cooperate in defending against claims of which she has no actual knowledge, nor has it shown that Huff's disappearance has caused (or will certainly cause) prejudice to the insurer. Accordingly, the court denies Cincinnati Insurance's motion for summary judgment.

Summary Judgment Standard

Under Rule 56(c) of the Federal Rules of Civil Procedure, the court should grant summary judgment if and only 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. On a motion for summary judgment, the moving party must first come forward and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which the party believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This court's Local Rule 56.1 requires parties moving for summary judgment to include a "statement of material facts" that includes citations to the relevant record materials. Where the moving party has met the threshold burden of supporting the motion, the opposing party must "set forth specific facts showing that there is a genuine issue for trial." Fed. R.Civ.P. 56(e). Not all factual disagreements are material. Factual disagreements that are irrelevant or immaterial under the applicable substantive law do not preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Under Local Rule 56.1, a party opposing the motion must identify specific and material factual disputes. In making this showing, a party opposing the motion may not rely merely on assertions in pleadings to establish a genuine issue, but must come forward with evidence that would be admissible at trial. Collier v. Budd Co., 66 F.3d 886, 892 & n. 8 (7th Cir.1995).

In reviewing the parties' submissions, the court must consider the evidence in the light reasonably most favorable to the non-moving parties, in this case the defendants. However, the existence of some "metaphysical doubt" does not create a genuine issue of fact. The issue is whether a rational trier of fact could reasonably find for the party opposing the motion with respect to the particular issue. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court should neither "look the other way" to ignore genuine issues of material fact, nor "strain to find" material factual issues where there are none. Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359, 1363-64 (7th Cir.1988). Summary judgment is not a substitute for a jury's determinations about credibility or about whether a reasonable inference should be drawn from circumstantial evidence of a person's intentions.

Undisputed Facts

Based on this standard, the following facts are either undisputed or reflect the evidence in the light reasonably most favorable to defendants. Plaintiff Cincinnati Insurance issued a homeowner's automobile liability insurance policy identified as policy number HRA 6658947C to defendant Patricia Brashear. See Pl.Ex. 1. This policy provided coverage for a 1977 Plymouth Grand Fury owned by Brashear with effective dates of July 7, 1994, to July 7, 1995. See id.

On November 19, 1994, Brashear gave permission to her son, Ralph D. Bailey, to drive the insured car. See Bailey Aff. ¶¶ 4, 5. Bailey later permitted Loretta Huff to drive the car while Bailey rode in the car as a passenger. See id. at ¶¶ 2, 3, 5. While driving in Frankfort, Indiana, Huff collided with a car driven by defendant Derek Irvin, in which defendant Melissa Hodge-Irvin was a passenger. See Irvin Dep. 11-13; Hodge-Irvin Dep. 15. The Irvin car was insured by defendant Sentry Insurance Company, which also provided uninsured motorist coverage.

The central fact in this case is that immediately after the collision, Huff fled the scene without giving anyone her name or any information about her address, and neither Cincinnati Insurance nor any defendant has had any contact with her since then. See Bailey Dep. 9 (1996); Bailey Dep. 31 (1995); Irvin Dep. 34; Hodge-Irvin Dep. 47. Cincinnati Insurance has made extensive efforts to locate Huff. First it placed a personal advertisement in local newspapers and questioned individuals at the establishment where Bailey and Huff met. See Cunningham Aff. ¶¶ 6-7. After Cincinnati Insurance itself failed to locate Huff, it hired a private investigative firm, Research Consultants Group, Inc., to locate her. See Cunningham Aff. ¶¶ 8, 9. That investigation included screening Loretta Huff's name through various Indiana databases, including credit records, social security number searches, driving records, employment records, vehicle registration records, and court records. See Hupfer Aff. ¶ 7; Hupfer Dep. 9. This search revealed only one person by the name of Loretta Huff, and she did not fit the age or physical description of the Loretta Huff involved in the accident. See Hupfer Aff. ¶ 8. The investigators then located fourteen Huff families in Lafayette, Indiana, and after researching each family, found only one Loretta Huff. See id. at ¶ 9. She, too, failed to match the description of the Loretta Huff involved in the accident. See id. Finally, although Research Consultants Group did not investigate the scene of the accident, it investigated the establishment where Huff was reportedly seen on the night of the accident. See Hupfer Aff. ¶ 10; Hupfer Dep. 20. No person at that establishment recalled or knew of a Loretta Huff. See Hupfer Aff. ¶ 10. Thus, these efforts failed to uncover any information about the true identity or location of Huff. See id. at ¶ 11.¹

There was one other witness to the accident: Hope Worth. See McCarty Dep. 27. Since Worth's telephone number was unlisted, Cincinnati Insurance left contact cards and business cards at Worth's personal residence. See id. at 25. On April 22, 1998, Cincinnati Insurance contacted Worth's landlord, who responded that Worth had not lived at her reported address for three to four years and that he had no knowledge of her present residence. See id. at 25-26. On April 23, 1998, Cincinnati Insurance then contacted a location service, Rapid Track, to locate Worth. See id. at 26. Cincinnati Insurance has not yet been able to locate Worth. See id. at 27.

Several lawsuits have been filed in the wake of the accident. First, on January 18, 1995, Irvin and Hodge-Irvin brought suit in the Clinton Superior Court against Bailey, Brashear, and Huff for personal injuries. See Def.Ex. 7. Bailey filed a counterclaim against Irvin and a cross-claim against Huff for his own injuries. Bailey also brought a claim against Cincinnati Insurance for under-insured and uninsured motorist benefits. Cincinnati Insurance received prompt notice of the accident on or around November 28, 1994, and has provided coverage and defense to Bailey and Brashear in the Irvin action....