Destefano v. Cochran, Jr.

Decision Date29 May 2007
Docket NumberNo. 4:04-CV-0076.,4:04-CV-0076.
Citation491 F.Supp.2d 796
PartiesLouis and Donna DeSTEFANO, Individually and as the Natural Parents of Brittany Leigh DeStefano, and Louis DeStefano, as the Personal Representative of the Estate of Brittany Leigh DeStefano, Plaintiffs, v. Robert D. COCHRAN, JR., Robert Cochran, Sr., Barbara Cochran, Brian Cochran, Carol Smith, and Daniel J. and Jenny Smith, Defendants. Daniel J. Smith and Jenny Smith, Third-Party Plaintiffs, v. Country Mutual Insurance Company, Third-Party Defendant.
CourtU.S. District Court — Northern District of Indiana

Mary Beth Ramey, Richard D. Hailey, Ramey & Hailey, Indianapolis, IN, for Plaintiffs.

Thomas W. Kramer, W. Brent Threlkeld, Threlkeld-Reynolds LLP, Jon C. Abernathy, Goodin Abernathy & Miller LLP, Indianapolis, IN, for Defendants.

Thomas R. Haley, III, Jennings Taylor Wheeler & Haley PC, Carmel, IN, Bradley J. Schulz, Jon C. Abernathy, Goodin Abernathy & Miller LLP, Indianapolis, IN, for Third-Party Plaintiffs.

Keith G. Carlson PHV, Carlson Law Offices, Chicago, IL, for Third-Party Defendant.


ALLEN SHARP, District Judge.

This matter is before the Court on the Motion for Summary Judgment (Docket No. 161) filed by Third-Party Defendant Country Mutual Insurance Company on March 16, 2007 and the Motion for Summary Judgment (Docket No. 162) filed by Defendants Daniel J. Smith and Jenny Smith on March 16, 2007. The Court heard oral arguments in Lafayette, Indiana on April 3, 2007, and the issues have been fully briefed.1 For the reasons stated below, the Court grants in part the motion for summary judgment filed by Defendants Daniel J. and Jenny Smith and denies the motion for summary judgment filed by Third-Party Defendant Country Mutual.

I. Jurisdiction

Jurisdiction is conferred on this Court by 28 U.S.C. § 1323 in that there is diversity of citizenship between the parties and the amount in controversy exceeds $100,000.00.

II. Standard of Review

Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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." FED.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Bragg v. Navistar Int'l Trans. Corp., 164 F.3d 373 (7th Cir. 1998). After affording the parties adequate time for discovery, a court must grant summary judgment against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

The initial burden is on the moving party to demonstrate, "with or without supporting affidavits," the absence of a genuine issue of material fact and that judgment as a matter of law should be granted in the moving party's favor. Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (quoting FED.R.Civ.P. 56); Larimer v. Dayton Hudson Corp., 137 F.3d 497 (7th Cir.1998), reh'g denied. A question of material fact is a question which will be outcome-determinative of an issue in the case. The Supreme Court has instructed that the facts material in a specific case shall be determined by the substantive law controlling the given case or issue. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The moving party may discharge this initial burden by demonstrating that there is insufficient evidence to support the nonmoving party's case. Celotex, 477 U.S. at 325, 106 S.Ct. 2548. The moving party may also choose to support its motion for summary judgment with affidavits and other admissible material, thereby shifting the burden to the nonmoving party to demonstrate that an issue of material fact exists. Steen, 2006 WL 335521 at *1 (7th Cir. Feb. 13, 2006); See Kaszuk v. Bakery & Confectionery Union & Indus. Int'l Pension Fund, 791 F.2d 548, 558 (7th Cir. 1986); Bowers v. De Vito, 686 F.2d 616, 617 (7th Cir.1982). The nonmoving party cannot rest on its pleadings, Weicherding v. Riegel, 160 F.3d 1139 (7th Cir.1998); Waldridge v. American Hoechst Corp., 24 F.3d 918, 920-21 (7th Cir.1994); nor may that party rely upon conclusory allegations in affidavits. Smith v. Shawnee Library Sys., 60 F.3d 317, 320 (7th Cir. 1995).

During its summary judgment analysis, the court must analyze summary judgment motions under the standard of proof relevant to the case or issue. Anderson, 477 U.S. at 252-55, 106 S.Ct. 2505. The court must construe the facts and draw all reasonable inferences in the light most favorable to the nonmoving party. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560 (7th Cir.1996). However, the plaintiff must do more than raise a "metaphysical doubt" as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 577, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, he must come forward with "specific facts" showing that there is a genuine issue for trial. Id. at 587, 106 S.Ct. 1348 (quoting FED. R.CIV.P. 56(e)).

III. Factual and Procedural Background

This lawsuit arises out of a jet ski accident on the Tippecanoe River that occurred on August 10, 2004, resulting in the death of Brittany DeStefano. (Pls.' Compl., para. 6-9; Pls.' Am. Compl.). Brittany DeStefano was the daughter of Plaintiffs Louis and Donna DeStefano. (Pls.' Compl., para. 1; Pls.' Am. Compl.).

Prior to August 10, 2004, Deborah and Michael Lichay (hereinafter "Debbie" and "Michael," respectively) along with their two daughters, Jamie Lichay (hereinafter "Jamie") and Jordan Lichay (hereinafter "Jordan") planned a trip from their home in New Jersey to Chicago, Illinois to visit Deborah's parents, Tom and Carol Smith (hereinafter "Tom" and "Carol," respectively).2 Jordan requested that two of her friends, Brittany DeStefano (hereinafter "Brittany") and Tiana Kulik (hereinafter "Tiana"), join the Lichay family on this trip. (D. Lichay Dep., p. 28). Debbie Lichay became ill and could not make the trip to Chicago. Instead, Jamie, Jordan, Brittany, and Tiana made the trip without Debbie or Michael Lichay. (See D. Lichay Dep., pp. 8-9). For the sake of clarity, Court includes the following organizational the charts to illustrate the relationships amongst the parties:


Jordan, Jamie, Brittany, and Tiana arrived in Chicago and proceeded to Carol Smith's home. On the same date, Daniel and Jenny Smith (hereinafter collectively referred to as the "Smiths") visited Tom and Carol Smith's home.3 (D. Smith Dep., pp. 20-21). Daniel Smith invited the four girls to visit a cottage on the Tippecanoe River in Buffalo, Indiana. The Cochran family cottage (also referred to as the "lake house") is owned by Jenny Smith's family and was titled in the names of Robert Cochran, Sr. and Barbara Cochran, and their two sons, Robert Cochran, Jr., and Brian Cochran. ®. (Cochran, Jr. Dep., p. 9).4 Jordan called her mother and asked for permission to go with her aunt and uncle, Jenny and Daniel Smith, to the Cochran family cottage5 in Indiana. (D. Lichay Dep., pp. 15-16). Jordan's mother consented, and on August 9, 2004, the Smiths took Jordan, Jamie, Brittany, and Tiana to the Cochran family cottage. (D. Smith Dep., pp. 20-23, 59).

On August 10, 2004, Jordan called her mother to ask for permission to use the jet skis that were located at the cottage, and Debbie Lichay gave her consent. (D. Lichay Dep., pp. 17-18). Jenny Smith also consented to the use of the jet skis by the four girls, and the girls proceeded to use the jet skis with Jenny Smith's approval and permission. (J. Smith Dep., p. 27). Daniel Smith took Tiana out on a jet ski and permitted Tiana to operate the jet ski while he rode on the back. (D. Smith Dep., p. 30, 34). Daniel Smith then got off of the jet ski and helped Brittany get on the back of the jet ski Tiana was operating. (Jordan Lichay Dep., p. 45, ll. 3-12). Daniel Smith got on the second jet ski and followed Tiana and Brittany out toward the middle of the river. (Jordan Lichay Dep., p. 43, ll. 20-25; T. Kulik Dep., p. 27, ll. 21-25 and p. 28, ll. 1-2). Tiana and Brittany then switched places on the jet ski, such that Brittany began operating the jet ski with Tiana riding as a passenger on back. (T. Kulik Dep., p. 28). Thereafter, Brittany crashed the jet ski into a boatlift and sustained fatal injuries. (D. Smith Aff.).

On October 18, 2004, Louis and Donna DeStefano, individually and as the natural parents of Brittany Leigh DeStefano and as the personal representatives of the estate of Brittany Leigh DeStefano filed a complaint (Docket No. 1) against Daniel J. and Jenny Smith and Robert D. Cochran, Jr. The Plaintiffs amended their complaint (Docket No. 49) on April 17, 2006, adding Robert Cochran, Sr., Barbara Cochran, Brian Cochran, and Carol Smith as Defendants. Then, on September 21, 2006, Defendants/Third-Party Plaintiffs Daniel and Jenny Smith filed a third-party complaint for declaratory relief (Docket No. 120) against Third-Party Defendant Country Mutual Life Insurance Company. And on September 29, 2006, Country Mutual Insurance Company filed a counterclaim and cross-claim for declaratory judgment (Docket No. 128) against Daniel and Jenny Smith, Carol Smith, Brian Cochran, Louis and Donna DeStefano, individually and as the natural parents of Brittany DeStefano, and Louis and Donna DeStefano, as the personal representatives of the estate of Brittany DeStefano. On October 16, 2006, Cross-Claim Defendant Brian Cochran, filed a corrected counterclaim (Docket No. 137) for declaratory judgment against Country Mutual Insurance Company.

On January 26, 2007, the Plaintiffs' claims against Brian Cochran, third-party plaintiff Country Mutual Insurance Company's...

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