Orozco v. State Farm Mutual Automobile Insurance Co., Civ. No. 72 1217.
| Decision Date | 29 November 1972 |
| Docket Number | Civ. No. 72 1217. |
| Citation | 360 F. Supp. 223 |
| Parties | Alberto OROZCO, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
Hugh H. Bernstein of Bernstein & Robrish, Coconut Grove, Fla., for plaintiff.
Martin Van Haasteen of Talburt, Kubicki, Vogler & Carhart, Miami, Fla., for defendant.
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
This cause is before the Court on defendant's motion for a summary judgment. The Court has considered the memoranda submitted by both parties, as well as the affidavits in support of and in opposition to the motion pursuant to Rule 56 of the F.R.Civ.P. It is the considered opinion of this Court that summary judgment must be granted for the defendant.
At the outset the Court acknowledges those cases that hold, and correctly so, that summary judgment is not to be granted if there remains "a genuine issue as to any material fact." Insurance Co. of North American v. Bosworth Const. Co., 469 F.2d 1266, 1268 (5th Cir. 1972) and cases cited therein. "The burden is on the moving party to show that there is not the slightest doubt as to the facts and that only the legal conclusion remains to be resolved." Bosworth, supra, at 1268.
This cause was brought by the plaintiff Orozco on the basis of diversity of citizenship alleging damages in excess of $10,000.00 resulting from the State Farm's alleged failure to arbitrate pursuant to the terms of the policy in effect between Orozco and State Farm. The need for arbitration resulted from the claim of damages asserted by Orozco arising from an automobile accident in which he was involved on April 6, 1971. The losses incurred by Orozco were alleged to be covered by the uninsured motorist provisions of Orozco's insurance contract with State Farm and for the purpose of this motion this allegation will be accepted as true.
Pursuant to the terms of the policy in effect between Orozco and State Farm1 the defendant requested Orozco to submit to a medical examination by a physician named by State Farm. On March 2, 1972, Mr. Orozco was examined by Dr. Edward S. Truppman. Dr. Truppman submitted a report to State Farm based on his examination, but further recommended that Orozco see a specialist in the type of injury he had sustained. An appointment with the specialist was made, but Mr. Orozco never kept the appointment and he refused to be examined further. Mr. Orozco subsequently demanded arbitration of the dispute, but was resisted by State Farm based on his failure to comply with the condition precedent of submitting to as many examinations as was reasonably necessary. Following the refusal of State Farm, this action resulted.
The only material issue of fact which the plaintiff alleges to remain at this juncture is whether or not the insurance policy in question was breached by Mr. Orozco. If that was a material issue of fact still at issue, this summary judgment would not be proper. Renuart-Bailey-Cheely Lumber and Supply Co. v. Phoenix of Hartford Ins. Co., 474 F.2d 555 (5th Cir. 1972).
However, a question of fact is not at issue when reasonable men could not differ on the existence of the fact. "We are of the opinion that if this information were presented at trial, intervenor would be entitled to a directed verdict in her favor, and it has been said that if the information presented entitles one to a directed verdict, a summary judgment is in order." Lundeen v. Cordner, 354 F.2d 401, 407 (8th Cir. 1966). See also, Christianson v. Gaines, 85 U.S. App.D.C. 15, 174 F.2d 534, 536 (1949); Miller v. Hoffman, 1 F.R.D. 290, 292 (D. N.J.1940); and 6 Moore's Federal Practice ¶ 56.113 (2nd Ed.1972) at 2168. This is not a question of construing insurance policy provisions to determine if notice of a claim was given "as soon as practicable" as was the case in RBC Lumber v. Phoenix of Hartford, supra, 174 F.2d at 557. The action of Orozco is not being "judged by the harsh...
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