Ochello v. Liberty Mut. Fire Ins. Co.

• Court: U.S. District Court — Southern District of Mississippi
• Writing for the Court: KEITH STARRETT, District Judge.
• Citation: Ochello v. Liberty Mut. Fire Ins. Co., 784 F.Supp.2d 681 (S.D. Miss. 2011)
• Decision Date: 06 May 2011
• Docket Number: Civil Action No. 2:10cv171 KS–MTP.
• Parties: Louis J. OCHELLO, Plaintiffv.LIBERTY MUTUAL FIRE INSURANCE COMPANY, Defendant.

784 F.Supp.2d 681

Louis J. OCHELLO, Plaintiff

v.LIBERTY MUTUAL FIRE INSURANCE COMPANY, Defendant.

Civil Action No. 2:10cv171 KS–MTP.

United States District Court, S.D. Mississippi, Hattiesburg Division.

May 6, 2011.

Orvis A. Shiyou, Jr., Al Shiyou, Attorney, Victor Arnell Dubose, Shiyou Law Firm, Hattiesburg, MS, for Plaintiff.Clifford (Ford) K. Bailey, III, Clint D. Vanderver, Kelly D. Simpkins, Wells, Marble & Hurst, PLLC, Jackson, MS, for Defendant.

MEMORANDUM OPINION AND ORDER

KEITH STARRETT, District Judge.

This matter is before the court on a Motion for Summary Judgment [# 55] and a Supplemental Motion for Summary Judgment [# 63] filed on behalf of the defendant, Liberty Mutual Fire Insurance Company (“Liberty”). The court, having reviewed the motion, the response, the briefs of counsel, the pleadings and exhibits on file and being advised in the premises, finds that the motion for summary judgment is well taken and should be granted. The court specifically finds as follows:

BACKGROUND

This is a lawsuit for uninsured,/underinsured motorist benefits under an automobile insurance policy, No. A02–251–107898–f0 (“the Policy”), issued to Plaintiff Ochello by Liberty. Ochello's claim for uninsured/underinsured motorist benefits arises from two automobile accidents which occurred on September 23, 2005, and April 18, 2006. Both accidents involved vehicles under the subject Policy issued to Ochello. Ochello seeks unspecified compensatory and punitive damages by asserting claims of breach of contract and bad faith.

Specifically, Liberty received a report of the September 23, 2005 accident on September 27, 2005. The State of Mississippi Uniform Crash Report (UCR) completed by the Hattiesburg Police Department states that a contributing circumstance was an improper lane change by Ms. Sharon Coleman, the driver of the other vehicle involved in the accident. The UCR noted that there was “no apparent improper driving” with regard to Ochello. The officer completing the UCR noted therein that there was “no proof of insurance” for Ms. Coleman. Liberty's adjuster interviewed Ochello on or around September 27, 2005, and Ochello told the adjuster the other driver had no insurance. On December 2, 2005, counsel for Ochello informed Liberty that Ochello had been “seriously injured in an automobile collision with an uninsured driver.”

The Mississippi Highway Patrol worked the April 18, 2006 accident. The State Trooper noted that there was “no apparent improper driving” by Ochello but cited Joshua Raines, the other driver for “improper passing/overtaking.” The UCR noted that Raines was insured by Farm Bureau and provided the policy number.

Shortly thereafter, Ochello obtained counsel to represent him with regard to this accident as well. Ochello's counsel contacted Raines on May 23, 2006, requesting information regarding his insurance. On June 16, 2006, Ochello's counsel wrote Trevor Hightower, Claims Representative for Mississippi Farm Bureau regarding the claim against Farm Bureau's insured, Raines. Counsel advised Hightower that Ochello had ruptured a disc and that Raines was at fault. Ochello's counsel concluded by stating, “Please advise me if your client has coverage limits under $100,000 so I can notify Mr. Ochello's underinsured carrier.” This letter was sent two days after Ochello's doctor advised that, “[Mr. Ochello] may need a two level ACDF.” ACDF is an abbreviation for anterior cervical discectomy and fusion.

On June 21, 2006, Farm Bureau responded by requesting copies of Ochello's medical records and stating, “After receiving these bills, if it appears that our limits are insufficient, I will promptly inform you of those limits. I realize the importance of notifying your client's carrier in the case of an underinsured claim.” After four months passed and Ochello's counsel still had not sent them, Farm Bureau, on October 20, 2006, sent a letter to his counsel asking for, among other things, “an update on his injuries.” Ochello's counsel finally sent the requested records on June 22, 2007.

Prior to sending the demand to Farm Bureau. medical records, Ochello made demand on Farm Bureau for $178,424.82, which began negotiations between Plaintiff and Farm Bureau. Subsequently, Farm Bureau tendered policy limits of $25,000 for injuries allegedly sustained by Ochello as a result of the 2006 accident. On February 19, 2008, without prior notification to or consent from Liberty, Ochello executed a Final Release and Settlement of Claim of the tortfeasors in exchange for the policy limits of $25,000. Only after Ochello had executed the release did his counsel advise Liberty of a potential settlement with Farm Bureau. However, counsel's letter is misleading because it asks Liberty to “Please advise as to your position thereon and if we can accept the same releasing the insured.” However, the release was signed on February 19, 2008, well over three months prior to the letter from Ochello's counsel.

Ochello originally filed his Complaint in this matter on April 17, 2009 in the Circuit Court of Lamar County, Mississippi. However, due to his failure to timely serve process, the 2009 Complaint was dismissed without prejudice. Ochello filed suit again on May 17, 2010, in the Lamar County Circuit Court. Liberty removed the action to this court on July 9, 2010. The parties have participated in discovery and Liberty has filed the present motion seeking summary judgment.

STANDARD OF REVIEW

The Federal Rules of Civil Procedure, Rule 56(c) authorizes summary judgment where “the pleadings, the discovery and disclosure materials on file, and any affidavits, show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” FRCP 56(c); and see Celotex Corporation v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The existence of a material question of fact is itself a question of law that the district court is bound to consider before granting summary judgment. John v. State of La. (Bd. of T. for State C. & U.), 757 F.2d 698, 712 (5th Cir.1985).

A Judge's function at the summary judgment stage is not himself to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment is appropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Although Rule 56 is peculiarly adapted to the disposition of legal questions, it is not limited to that role. Professional Managers, Inc. v. Fawer, Brian, Hardy & Zatzkis, 799 F.2d 218, 222 (5th Cir.1986). “The mere existence of a disputed factual issue, therefore, does not foreclose summary judgment. The dispute must be genuine, and the facts must be material.” Id. “With regard to ‘materiality’, only those disputes over facts that might affect the outcome of the lawsuit under the governing substantive law will preclude summary judgment.” Phillips Oil Company v. OKC Corporation, 812 F.2d 265, 272 (5th Cir.1987). Where “the summary judgment evidence establishes that one of the essential elements of the plaintiff's cause of action does not exist as a matter of law, ... all other contested issues of fact are rendered immaterial. See Celotex, 477 U.S. at 323, 106 S.Ct. at 2552.” Topalian v. Ehrman, 954 F.2d 1125, 1138 (5th Cir.1992). In making its determinations of fact on a motion for summary judgment, the Court must view the evidence submitted by the parties in a light most favorable to the non-moving party. McPherson v. Rankin, 736 F.2d 175, 178 (5th Cir.1984).

The moving party has the duty to demonstrate the lack of a genuine issue of material fact and the appropriateness of judgment as a matter of law to prevail on his motion. Union Planters Nat. Leasing v. Woods, 687 F.2d 117 (5th Cir.1982). The movant accomplishes this by informing the court of the basis of its motion, and by identifying portions of the record which highlight the absence of genuine factual issues. Topalian, 954 F.2d at 1131.

“Rule 56 contemplates a shifting burden: the nonmovant is under no obligation to respond unless the movant discharges [its] initial burden of demonstrating [entitlement to summary judgment].” John, 757 F.2d at 708. “Summary judgment cannot be supported solely on the ground that [plaintiff] failed to respond to defendants' motion for summary judgment,” even in light of a Local Rule of the court mandating such for failure to respond to an opposed motion. Id. at 709.

However, once a properly supported motion for summary judgment is presented, the nonmoving party must rebut with “significant probative” evidence. Ferguson v. National Broadcasting Co., Inc., 584 F.2d 111, 114 (5th Cir.1978). In other words, “the nonmoving litigant is required to bring forward ‘significant probative evidence’ demonstrating the existence of a triable issue of fact.” In Re Municipal Bond Reporting Antitrust Lit., 672 F.2d 436, 440 (5th Cir.1982). To defend against a proper summary judgment motion, one may not rely on mere denial of material facts nor on unsworn allegations in the pleadings or arguments and assertions in briefs or legal memoranda. The nonmoving party's response, by affidavit or otherwise, must set forth specific facts showing that there is a genuine issue for trial. Rule 56(e), Fed.R.Civ.P. See also, Union Planters Nat. Leasing v. Woods, 687 F.2d at 119.

While generally “ ‘[t]he burden to discover a genuine issue of fact is not on [the] court,’ ( Topalian 954 F.2d at 1137), ‘Rule 56 does not distinguish between documents merely filed and those singled out by counsel for special attention-the court must consider both before granting a summary judgment.’ ” John, 757 F.2d at 712 (quoting Keiser v. Coliseum...