Kemp v. Hudgins

• Decision Date: 22 September 2015
• Docket Number: Case No. 12–2739–JAR.
• Citation: 133 F.Supp.3d 1271
• Parties: John KEMP, individually and as Special Administrator of the Estate of Teresa Leann Kemp, Plaintiff/Judgment Creditor, v. Kaston HUDGINS, Defendant/Judgment Debtor, and Dairyland Insurance Company, Garnishee.
• Court: U.S. District Court — District of Kansas

133 F.Supp.3d 1271

John KEMP, individually and as Special Administrator of the Estate of Teresa Leann Kemp, Plaintiff/Judgment Creditor,

v. Kaston HUDGINS, Defendant/Judgment Debtor,andDairyland Insurance Company, Garnishee.

Case No. 12–2739–JAR.

United States District Court, D. Kansas.

Signed Sept. 22, 2015.

Bruce A. Copeland, Copeland and Brown, Joplin, MO, for Plaintiff/Judgment Creditor.

Matthew J. Brooker, Michael D. Matteuzzi, Matteuzzi & Brooker, Overland Park, KS, for Defendant/Judgment Debtor.

James Patrick Maloney, W. James Foland, Foland, Wickens, Eisfelder, Roper & Hofer, PC, Kansas City, MO, for Garnishee.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, District Judge.

In this garnishment action, which was removed in 2012 by Garnishee Dairyland Insurance Company ("Dairyland"), Judgment Creditor John Kemp seeks to collect from Dairyland a $5,700,000 judgment against Dairyland's insured, Judgment Debtor Kaston Hudgins. Kemp alleges that Dairyland should be liable for the full amount of the judgment, notwithstanding the $50,000 policy limit, because it refused in bad faith to settle the underlying claim. The matter is before the Court on Dairyland's Motion for Summary Judgment (Doc. 57), and Kemp's Motion for Leave to File Surreply (Doc. 113). The Court grants Plaintiff's motion for leave to file a surreply. The summary judgment motion is now fully briefed and the Court has considered the proposed surreply attached to Plaintiff's motion for leave. For the reasons stated in detail below, the Court grants Dairyland's motion for summary judgment.

I. Summary Judgment Standard

Summary judgment is appropriate if the moving party demonstrates that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.¹ In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.² "There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the nonmoving party, is such that a reasonable jury could return a verdict for the nonmoving party."³ A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim."⁴ An issue of fact is "genuine" if " ‘the evidence is such that a reasonable jury could return a verdict for the non-moving party.’ "⁵

The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.⁶ In attempting to meet this standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim.⁷

Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial."⁸ The nonmoving party may not simply rest upon its pleadings to satisfy its burden.⁹ Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant."¹⁰

The facts "must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein."¹¹ Rule 56(c)(4) provides that opposing affidavits must be made on personal knowledge and shall set forth such facts as would be admissible in evidence.¹² The non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.¹³

Finally, summary judgment is not a "disfavored procedural shortcut;" on the contrary, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action."¹⁴ In responding to a motion for summary judgment, "a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial."¹⁵

II. Uncontroverted Facts

Before reciting the material uncontroverted facts for purposes of summary judgment, the Court notes the unnecessarily voluminous manner in which the parties present what amount to largely undisputed facts. Indeed, almost all of the facts recited by both parties are undisputed for purposes of summary judgment. The objections or bases for controverting the remaining facts can be summarized as follows: (1) evidentiary objections; (2) complaints as to the completeness of a referenced document; (3) arguments that the evidence cited by a party does not fully support a stated fact; and (4) complaints that the facts include legal conclusions or arguments. Kemp has presented 218 statements of additional facts in his response brief, largely based on Dairyland's responses to his 541 requests for admissions.¹⁶ Given the great many facts that were uncontroverted by the parties in the briefing, and admitted by Dairyland in discovery,¹⁷ this motion could have been presented on largely stipulated facts, saving the parties and the Court time and effort.

With these considerations in mind, the Court has carefully reviewed the evidence submitted in support of the parties' statements of fact. The following facts are either uncontroverted, or viewed in the light most favorable to Kemp as the nonmoving party. The Court disregards legal argument presented by either party in their statements of fact, and only considers those facts that are material to issues raised in the motion. In that vein, the Court does specifically rule on one item of evidence submitted by Kemp in response to summary judgment: the Affidavit of Steve R. Fabert, an attorney who advises insurance clients on issues including methods for avoiding liability in excess of policy limits.¹⁸ Fabert asserts his professional opinion "that Dairyland Insurance Company breached the duties it owed to Kaston Hudgins both before and after suit was filed against him by John Kemp.... There were multiple breaches of duty both before and after suit was filed, each of which played some causal role in producing the ultimate judgment,"¹⁹ and attaches a report setting forth the "factual and legal" basis for this conclusion. Kemp does not cite with particularity to this report and instead appears to incorporate it by reference; Dairyland merely acknowledges that the report is attached to the summary judgment response but does not respond with particularity to the opinions therein. The Court disregards this report as an inappropriate legal opinion about the ultimate issue in this case: whether the insurance company breached the standard of care and caused the excess judgment to be entered against Hudgins.²⁰

On July 16, 2009, Defendant/Judgment Debtor Kaston Hudgins collided the vehicle he was driving into a vehicle driven by Teresa Kemp ("Mrs. Kemp"). Taylor Kemp ("Taylor"), Mrs. Kemp's thirteen year-old daughter, was a passenger in Mrs. Kemp's vehicle and was pronounced dead at the scene. Mrs. Kemp was transported to a hospital, but ultimately died on July 22, 2009, as a result of injuries she sustained in the accident. Plaintiff/Judgment Creditor John Kemp is Mrs. Kemp's husband and Taylor Kemp's father.

Ashley Kelley, Hudgins' girlfriend, owned the 1997 Nissan Maxima Hudgins was driving at the time of the collision. Kelley told an investigating officer that on the day of the accident Hudgins asked her for the keys to her car and began "making a scene" while they were visiting a hospital; that she did not want to give the keys to Hudgins because he had been drinking; that an argument ensued between her and Hudgins; that she then relented and gave Hudgins the keys to her car; that she left Hudgins in the parking lot of the hospital with the keys, and went back inside; and that she returned some time later and noticed the car was gone. She reported to Freeman Hospital Security and to the Joplin, Missouri Police Department that Hudgins had taken her car and that he had been drinking. At the time of the accident, Hudgins was fleeing police at a high rate of speed.

Kelley was the named insured on a policy of automobile insurance issued by Garnishee Dairyland. Although Hudgins was not a named insured on the Dairyland policy, the policy included liability coverage for permissive users of Kelley's 1997 Nissan Maxima. He was therefore an "insured person" under the terms of the policy. The policy covered "damages for which any insured person is legally liable because of bodily injury and/or property damage caused by a car accident arising out of the ownership, maintenance or use of a car."²¹ The declarations of the Dairyland policy stated limits of $25,000 per person and $50,000 per accident for bodily injury liability coverage, and they listed as the sole insured vehicle the 1997 Nissan Maxima driven by Hudgins at the time of the accident.

Dairyland received notice of the accident on July 21, 2009. By July 24, 2009, Dairyland knew that the potential claims in the case greatly exceeded the bodily injury policy limits available to Hudgins. Dairyland sent a letter to Kemp dated August 10, 2009, stating that it was the insurance carrier for the at-fault party. Hudgins was arrested and incarcerated at the Cherokee County Jail on August 13, 2009, on charges of murder based on his conduct that caused the collision; he has been in custody since that date.

Settlement Discussions Prior to Wrongful Death Lawsuit

Kemp retained attorney Greg Carter, who sent a letter dated August 17, 2009, to Dairyland adjuster Brian Morris, stating in part: "I am assisting John Kemp in various matters that have arisen since the motor vehicle accident that took the life of his wife and child," and requesting a copy of the policy and the declarations page.²² Morris spoke to Carter by telephone on August 19, and informed Carter that Hudgins had been charged with two counts of murder based on his...