Progressive Nw. Ins. Co. v. Gant
| Decision Date | 19 July 2018 |
| Docket Number | Case No. 15-9267-JAR-KGG |
| Parties | PROGRESSIVE NORTHWESTERN INSURANCE COMPANY, Plaintiff/Counterclaim Defendant, v. GABRIEL GANT, Defendant/Counterclaim Plaintiff. |
| Court | U.S. District Court — District of Kansas |
Plaintiff Progressive Northwestern Insurance Company ("Progressive") filed this declaratory judgment action seeking a declaration that it fulfilled its contractual obligations in good faith and without negligence under an insurance policy issued to Edward and Linda Birk, whose son was involved in a vehicular homicide that killed Kathryn Gant in June 2011. Defendant Gabriel Gant, as assignee of the Birks' rights against Progressive, counterclaims for breach of contract/bad faith. This matter is before the Court on Gant's Motion for Partial Summary Judgment (Doc. 262), Progressive's Motion for Summary Judgment (Doc. 266), and the parties' motions to strike or exclude each other's expert witnesses (Docs. 264, 268, 270). For the reasons explained in detail below, the Court denies Gant's motion for partial summary judgment, grants in part Progressive's motion for summary judgment, and directs further briefing under Fed. R. Civ. P. 56(f)(2).
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 Where the movant bears the burden of proof on a claim or defense, it must show that the undisputed facts establish every element of the claim entitling it to judgment as a matter of law.8
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."9 The nonmoving party may not simply rest upon its pleadings to satisfy its burden.10 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."11
The facts "must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein."12 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.13 The non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.14
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."15 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."16
The following material facts are uncontroverted or stipulated to for the purposes ofsummary judgment.17 On June 10, 2011, vehicles operated by Justin Birk and Katie Gant collided in Coffey County, Kansas, resulting in Ms. Gant's death. At the time of the accident, Justin Birk was operating a 2007 Cadillac Escalade that was titled in the names of his mother and father, Edward and Linda Birk.
B&B Cooperative Ventures, a General Partnership ("B&B"), is the entity colloquially referred to as "Birk Oil."18 It is a general partnership formed under the laws of the state of Kansas, including the Kansas Uniform Partnership Act. There are two partners in B&B, each with a 50% interest: Birk Oil, Inc. (owned by Edward and Linda Birk) and Birk Petroleum (owned by Brian and Laura Birk). Brian Birk is Edward and Linda Birk's son; his wife, Laura, is involved in the family business and is familiar with the issuance of insurance for the company.19
Progressive issued an Auto Insurance Policy with effective dates of March 22, 2011 through September 22, 2011, to named insureds Edward and Linda Birk (the "Progressive Policy"). The Progressive Policy provides bodily injury liability limits of $250,000 per person/$500,000 per accident. The 2007 Cadillac Escalade Justin Birk was driving at the time ofthe accident is a listed vehicle on the Progressive Policy. The Progressive Policy was sold to the Birks through Trustpoint Insurance Agency ("Trustpoint").
Bituminous Casualty Insurance Company ("Bitco") issued a Commercial Automobile Policy to named insured B&B (the "Bitco Policy"), which provides a $1 million liability limit. Birk Oil paid in excess of $30,000 a year in premium for the Bitco Policy coverage. Justin Birk is not a listed driver nor is the 2007 Cadillac Escalade a listed vehicle on the Bitco Policy. The Bitco Policy was sold to B&B through MRH Insurance Agency.
The Birks' claim arising from the fatality collision was reported to Progressive on or about June 13, 2011, and was ultimately assigned to Casualty Specialist Robert Hansel for handling. Progressive conducted a factual investigation into the accident and concluded that coverage existed under the Progressive Policy. Progressive concluded, based on the police report as well as the finding of an accident reconstructionist retained by Progressive, that the accident occurred on Ms. Gant's side of the road.
On June 20, 2011, adjuster Hansel sent letters to both Edward and Justin Birk, which state in pertinent part:
Neither Edward nor Justin Birk directly responded to Progressive's letter. No such letter was sent to Linda Birk or Birk Oil.
Hansel testified that the intent of this correspondence was for the Birks to disclose any policies that could provide additional coverage based on the facts of the accident, whether excess, umbrella, or any other policies that might come into play.21 Hansel testified he considered any other policies that might come into play—whether household, business, policies to other family members, and the like—"excess" over the Progressive auto policy that Hansel considered to be the primary coverage for the accident.22 Hansel testified that he also contacted Linda Birk about the existence of other coverage and was told no such coverage existed; Linda Birk does not recall any such discussion and testified that if Progressive had asked what insurance company insures the business that she and her husband owned, she would have told them Bitco. Hansel also contacted Trustpoint to inquire if there was any other insurance that may provide coverage for the accident.
On June 21, 2011, Gant's attorney, Dan Lykins, sent a letter to Progressive asking, "What insurance company insured the businesses that were owned by Edward and Linda Birk and any business that was owned by Justin Birk?"23 Lykins represented Gant from approximately June 21, 2011 to May 2012. On or about June 23, 2011, Progressive retained attorney Kevin McMaster to represent Justin Birk. McMaster's representation ultimately expanded to include Edward and Linda Birk and Birk Oil (collectively, "the Birk Defendants"). Hansel testified that once McMaster was retained, any further correspondence or questions were answered or sentthrough him.24
Progressive evaluated potential damages associated with the claim, including non-pecuniary damages up to the statutory $250,000 cap; medical bills; pecuniary losses such as loss of services and support of Ms. Gant; and funeral expenses. Progressive determined and reflected in the claim file within eight weeks of the accident that, based on the fact that Ms. Gant was a 31-year old mother of three and a high wage earner, the claim had a value in excess of $5 million. Progressive accordingly concluded that it would offer its $250,000 liability limit to settle the claim.
Progressive tendered the $250,000 policy limit to Gant to settle the claims related to the accident no later than August 24, 2011, pursuant to a letter of that date from McMaster to Lykins.25 Gant rejected the offer extended by Progressive.
On August 26, 2011, Lykins responded to McMaster regarding the settlement offer and requested Justin Birk execute an assets affidavit and swear under oath that there was no other available insurance coverage that could apply to the accident.26 Lykins testified that his request for the affidavit stemmed from McMaster and Hansel telling him that the...
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