Progressive Specialty Ins. Co. v. Mock, Case No. 1:16-cv-220-ECM-WC

• Decision Date: 27 August 2018
• Docket Number: Case No. 1:16-cv-220-ECM-WC
• Parties: PROGRESSIVE SPECIALTY INSURANCE COMPANY, Plaintiff, v. The Estate of JACK WILLIAM MOCK, Deceased; AMBER CAMILE NEVELS; and the Estate of KLN, a Deceased Minor, Defendants.
• Court: U.S. District Court — Middle District of Alabama

PROGRESSIVE SPECIALTY INSURANCE COMPANY, Plaintiff, v. The Estate of JACK WILLIAM MOCK, Deceased; AMBER CAMILE NEVELS;and the Estate of KLN, a Deceased Minor, Defendants.

Case No. 1:16-cv-220-ECM-WC

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF ALABAMA SOUTHERN DIVISION

August 27, 2018

MEMORANDUM OPINION AND ORDER

This matter is before the Court on the following motions: Plaintiff Progressive Specialty Insurance Company's ("Progressive") Motion for Entry of Default Judgment Against Defendants Amber Camile Nevels and the Estate of KLN (Doc. 33); Progressive's Motion for Summary Judgment (Doc. 35); Defendant Estate of Jack William Mock's ("the Estate of Mock") Cross-Motion for Summary Judgment (Doc. 40); and the Estate of Mock's Motion to Allow Filing Out of Time of its Cross-Motion for Summary Judgment (Doc. 43). Having reviewed the respective motions, the parties' briefs, and the relevant legal authority, and for the reasons that follow, the Court finds that Progressive's motion for entry of default is due to be GRANTED, Progressive's motion for summary judge is due to be GRANTED, the Estate of Mock's motion is due to be DENIED, and the Estate of Mock's Motion to Allow Filing Out of Time is denied as MOOT.

I. JURISDICTION AND VENUE

The Court exercises subject matter jurisdiction over this declaratory judgment action pursuant to 28 U.S.C. §§ 1332(a), 2201, and 2202. The parties do not contest personal jurisdiction or venue.

II. STANDARD OF REVIEW

To succeed on summary judgment, the movant must demonstrate "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The court must view the evidence and the inferences from that evidence in the light most favorable to the nonmovant. Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).

The party moving for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This responsibility includes identifying the portions of the record illustrating the absence of a genuine dispute of material fact. Id. A genuine dispute of material fact exists when the nonmoving party produces evidence allowing a reasonable factfinder to return a verdict in its favor. Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001). If the movant meets its evidentiary burden, the burden shifts to the nonmoving party to establish—with evidence beyond the pleadings—that a genuine dispute material to each of its claims for relief exists. Celotex, 477 U.S. at 324.

Although there are cross-motions for summary judgment, each side must still establish the lack of genuine issues of material fact and that it is entitled to judgment as a matter of law. See Chambers & Co. v. Equitable Life Assur. Soc. of the U.S., 224 F.2d 338, 345 (5th Cir. 1955). The court will consider each motion independently, and in accordance with the Rule 56 standard. See Matsushita Elec. Indus. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). "The fact that both parties simultaneously are arguing that there is no genuine issue of fact, however, does not establish that a trial is unnecessary thereby empowering the court to enter judgment as it sees fit." Citizens Bank and Trust v. LPS Nat. Flood, LLC, 51 F.Supp. 3d 1157, 1168-69 (N.D. Ala. 2014).

III. BACKGROUND

Plaintiff and the Mock Estate have stipulated to the following facts:

1. In 2007, Plaintiff Progressive issued an Automobile Insurance Policy, Policy Number 20537994, (hereinafter "the Policy"), to Josh Lowery. The Policy insured multiple vehicles over time, including a 2002 Honda Civic, bearing VIN# 1HGEM21242LO70660. ...

2. When Josh Lowery applied for the Policy in 2007, he signed a "Rejection of Uninsured/Underinsured Motorist Coverage" form. The signed rejection form states includes the language "binding on all persons insured under this policy, and that this rejection shall also apply to any renewal, reinstatement, substitute, amended, altered, modified, or replacement policy with this company or any affiliated company, unless a named insured submits a request to add the coverage and pays the additional premium." ...

3. The Policy was continually renewed by Josh Lowery over the next eight years. The Policy did not contain uninsured/underinsured motorist coverage. Additionally, Josh Lowery did not submit any request to add such coverage, nor did he pay the additional premium to obtain uninsured/underinsured motorist coverage during this time period. The latest policy renewal occurred on October 30, 2015 and extended Josh Lowery's automobile insurance coverage until April 30, 2016. See Exhibit 1. At the time of the October 30, 2015 policy renewal, the Policy continued to insure multiple vehicles, including a 2002 Honda Civic, bearing VIN No. 1HGEM21242LO70660.

4. On November 27, 2015, at 12:55 p.m., Josh Lowery requested Progressive by telephone to amend portions of the Policy previously issued by Progressive. Specifically, Josh Lowery updated his marital status from single to married. Additionally, Lowery added his new spouse, Deeanna M. Lowery, and her vehicle, a 2015 Toyota Highlander, to the Policy. The premium for coverage in relation to Deeanna M. Lowery's vehicle was paid, however, no premium for uninsured/underinsured motorist coverage was paid. Lowery was told by Progressive during this phone call that he would be mailed an uninsured motorist rejection form which would need to be returned to Progressive confirming his rejection of uninsured motorist coverage. ...

5. The aforementioned amendments to the Policy were not made during a time of a renewal of the contract. Additionally, Josh Lowery was not issued a new insurance policy as a result of the amendments. The amendments were noted and incorporated into the existing Policy that was initially issued in 2007 and renewed each year, with the most recent renewal occurring on October 30, 2015. ...

6. On the same day as the telephone call described above, November 27, 2015, Josh Lowery gave permission to Jack William Mock, deceased, to drive his 2002 Honda Civic. At that time, the 2002 Honda Civic was insured under the Policy issued to Josh Lowery by Progressive. KLN, a deceased minor, and Amber Camile Nevels, were passengers in the 2002 Honda Civic at the time Jack William Mock was in control of the vehicle.

7. On November 27, 2015, at approximately 10:35 p.m., the 2002 Honda Civic was struck head-on by a pick-up truck. Jack William Mock and KLN were killed as a result of the collision. Additionally, Amber Camile Nevels was injured as a result of the impact.

8. At the time of the accident on November 27, 2015, neither Jack William Mock, KLN nor Amber Camile Nevels were resident relatives of the household of Josh Lowery and Deeanna M. Lowery. In addition, none of these parties were "named insureds" under the Policy at issue.

9. On December 5, 2015, both Josh Lowery and Deeanna Lowery signed the "Rejection of Uninsured/Underinsured Motorist Coverage" form mailed to them by Progressive. This form was mailed back to Progressive. ...

10. Subsequent to the November 27, 2015 accident, a claim for underinsured motorist coverage was made on behalf of the Estate of Jack William Mock against the above-described Progressive policy.

(Doc. 35 at 2-5; Doc. 40-9). On November 28, 2015, Progressive mailed a document to Lowery, which stated:

Previously, you rejected Uninsured/Underinsured Motorist (UM/UIM) coverage; however, since you added a secondary named insured to your policy, we now need another Rejection of UM/UIM coverage form signed by both you and the secondary named insured.

Please sign and return the enclosed form to continue to reject this coverage. If you and the secondary named insured do not sign and return the form, we'll add UM/UIM coverage back on to the policy, which will increase your premium.

(Doc. 40-6 at 1).

On March 31, 2016, Progressive filed the Complaint in this Court seeking a "judgment declaring the duties, rights, obligations, and responsibilities existing between and among the parties to this action, and that said judgment will declare that Plaintiff Progressive does not owe any obligations or contractual benefits to Defendants." (Doc. 1 at 5). On April 27, 2018, the Estate of Mock answered the Complaint, entering a general denial of the allegations. (Doc. 7). Neither Nevels nor the Estate of KLN have responded to the Complaint. On February 9, 2017, District Judge Myron H. Thompson entered an order granting Plaintiff's application (Doc. 20) for a clerk's entry of default against the Estate of KLN and denying without prejudice Plaintiff's request for a default judgment. (Doc. 28 at 2).

IV. DISCUSSION

A. Motions for Summary Judgment

The material facts in this case are not in dispute, and the parties agree as to the dispositive issue. "Progressive asserts that benefits are not due pursuant to the 2007 UM/UIM motorist rejection signed by Josh Lowery, the failure to request UM/UIM coverage once Deeanna Lowery was added to the Policy in 2015, the verbal and written declination of UM/UIM coverage of the Lowerys in 2015, and the failure of Josh Lowery and Deeanna Lowery to pay any premium to obtain UM/UIM motorist coverage." (Doc. 35 at 6). The Estate of Mock argues that "At the time Mr. Mock was killed and this claim arose, the named insureds on the Lowery policy had not executed the written rejection required by Alabama law. It is undisputed that Mr. Mock was an insured as defined in the policy. ([Doc. 40-2] Exhibit 1, p. 15). Since "the statutory conditions are present," this Court must infer the existence of minimum uninsured motorist coverage." (Doc. 40 at 15)(footnote omitted).

Alabama's uninsured-motorist statute provides, in pertinent part:

No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed

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