Russ v. Safeco Ins. Co. of Am., CIVIL ACTION NO. 2:11cv195-KS-MTP
| Decision Date | 26 March 2013 |
| Docket Number | CIVIL ACTION NO. 2:11cv195-KS-MTP |
| Parties | JEFFREY RUSS PLAINTIFF v. SAFECO INSURANCE COMPANY OF AMERICA, MEMBER OF LIBERTY MUTUAL GROUP; AND DOE DEFENDANTS, INDIVIDUALS AND/OR CORPORATIONS, 1-10 DEFENDANTS And SAFECO INSURANCE COMPANY OF AMERICA COUNTER-PLAINTIFF v. JEFFREY RUSS AND WELLS FARGO BANK, N.A. COUNTER-DEFENDANTS |
| Court | U.S. District Court — Southern District of Mississippi |
This matter is before the Court on Defendant Safeco Insurance Company of America's Motion for Summary Judgment or in the Alternative for Partial Summary Judgment ("Motion for Summary Judgment") [124]; Plaintiff Jeffrey Russ's ("Plaintiff" or "Russ") Motion to Strike Defendant's Experts ("Motion to Strike Experts") [126]; Plaintiff's Motion for Partial Summary Judgment [127];1 Plaintiff's Motion to Strike Defendant's Untimely Supplemental Discovery Responses ("Motion to Strike Discovery") [129]; and Safeco Insurance Company of America's ("Safeco") Motion toDetermine Order of Proof at Trial [132]. Having considered the submissions of the parties, the record, and the applicable law, the Court finds that:
Safeco issued a policy of insurance to Russ, bearing policy number OX5802761 with effective dates of January 9, 2011, through January 9, 2012 (the "Policy"). The Policy was in effect at the time Russ suffered a fire loss on March 15, 2011 at the covered property, which was located at 2651 Ovett Moselle Road in Ovett, Mississippi (the "Covered Property"). Russ reported the fire loss to Safeco on March 16, 2011, around 9:00 a.m. That same day, he also reported the loss to Wells Fargo Bank, N.A. ("Wells Fargo") the mortgagee for the Covered Property, and to all his utility service providers. Plaintiff's subsequent dealings with various Safeco representatives prior to filing this suit were thoroughly detailed in the Court's January 1, 2012 Memorandum Opinion and Order [32] and need not be restated here.
On September 26, 2011, Plaintiff filed this action against Safeco, alleging numerous claims for relief based upon Safeco's refusal to provide benefits under the Policy. (See Compl. [1].) Plaintiff asserted diversity of citizenship jurisdiction under Title 28 U.S.C. § 1332. On November 8, 2011, Safeco filed its Answer [5], denying that Plaintiff was entitled to any relief and asserting various defenses to coverage, such as Plaintiff's failure to submit to an examination under oath prior to filing suit. Also on November 8, Safeco filed its Motion for Summary Judgment [6], seeking dismissal on the basis of its examination under oath defense. On December 1 and 5, 2011, Safeco's counsel examined the Plaintiff under oath.
On January 1, 2012, the Court denied Safeco's request for summary judgment. (See Mem. Op. and Order [32].) After exhaustively examining Plaintiff and Safeco's pre-litigation interactions, the Court found no support for the argument that Russ refused to submit to an examination under oath prior to filing this action.
On January 23, 2012, Safeco moved for leave to amend its answer to assert a counterclaim for declaratory relief and a third-party claim against Wells Fargo. (See Mot. to Amend and File Third-Party Claim [35].) On February 23, 2012, the Court granted Safeco's request for leave to file a counterclaim, but denied its request to assert a third-party claim. (See Order [42].) On February 29, 2012, Safeco filed its Amended Answer and Counterclaim for Declaratory Relief [43], which primarily requests that the Court declare that no amounts are owed to the Plaintiff under the Policy.
On July 16, 2012, Safeco renewed its request to add Wells Fargo to the litigation. (See Mot. for Joinder of Wells Fargo [112].) Safeco contended that circumstances had changed since the Court's February 23, 2012 Order [42], in that a corporaterepresentative of Wells Fargo testified at deposition on July 9 that Wells Fargo asserted a claim to Policy proceeds. The Court granted this joinder request and Safeco subsequently filed its Second Amended Answer and Amended Counterclaim for Declaratory Relief [140], requesting, inter alia, that the Court declare that Wells Fargo has no claim to Policy proceeds in light of its foreclosure on the Covered Property. Plaintiff later filed a crossclaim against Wells Fargo, (see Doc. No. [170]), asserting numerous claims relating to the foreclosure and the mortgagee/mortgagor relationship between Wells Fargo and himself. The parties are presently engaged in discovery on Plaintiff and Safeco's claims against Wells Fargo.
Safeco's Motion for Summary Judgment [124] and Motion to Determine Order of Proof at Trial [132], as well as Plaintiff's Motion to Strike Experts [126], Motion for Partial Summary Judgment [127] and Motion to Strike Discovery [129] were all filed on August 6, 2012. The motions have been fully briefed and the Court is ready to rule.
Federal Rule of Civil Procedure 56 provides that "[t]he court shall grant summary judgment if the movant shows 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). Initially, the movant has "the burden of demonstrating the absence of a genuine issue of material fact." Cannata v. Catholic Diocese of Austin, 700 F.3d 169, 172 (5th Cir. 2012) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265(1986)). If the movant meets this burden, the nonmovant must go beyond the pleadings and point out specific facts showing the existence of a genuine issue for trial. Id. "'An issue is material if its resolution could affect the outcome of the action.'" Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010) (quoting Daniels v. City of Arlington, Tex., 246 F.3d 500, 502 (5th Cir. 2001)). "An issue is 'genuine' if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party." Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010) (citation omitted).
The Court is not permitted to make credibility determinations or weigh the evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009). When deciding whether a genuine fact issue exists, "the court must view the facts and the inferences to be drawn therefrom in the light most favorable to the nonmoving party." Sierra Club, Inc., 627 F.3d at 138. However, "[c]onclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial." Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002). Summary Judgment is mandatory "'against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Brown v. Offshore Specialty Fabricators, Inc., 663 F.3d 759, 766 (5th Cir. 2011) (quoting Celotex Corp., 477 U.S. at 322), cert. denied, 132 S. Ct. 2103 (2012).
Safeco first contends that Russ is not owed any proceeds under the Policy pursuant to its examination under oath ("EUO") and concealment-misrepresentation affirmative defenses. "When a party seeks summary judgment pursuant to anaffirmative defense, such as . . . [Safeco], the movant must establish all of the elements of the defense." Citigroup, Inc. v. Fed. Ins. Co., 649 F.3d 367, 371 (5th Cir. 2011) (citing Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)). Safeco's remaining bases for summary judgment focus on Plaintiff's alleged inability to meet the essential elements of his claims for relief. "Where the burden of production at trial ultimately rests on the nonmovant, the movant must merely demonstrate an absence of evidentiary support in the record for the nonmovant's case." Cuadra, 626 F.3d at 812 (citation and internal quotation marks omitted).
Safeco asserts that Russ failed to submit to an EUO demanded by Safeco prior to filing suit and that he may not collect any proceeds under the Policy as a result. This same argument was made in Safeco's November 8, 2011, Motion for Summary Judgment [6]. In ruling on that motion, the Court exhaustively detailed Russ and Safeco's pre-suit interactions and found:
While it is true that . . . [Russ] filed suit prior to being examined under oath, there is no support for any argument that he refused to submit to such an examination. The record is replete with instances of Russ' full cooperation with Safeco, and by that of his attorneys. It is unfortunate that there was such a delay in securing the documents that Safeco deemed it needed in order to perform the examination under oath, but the record reveals that the blame for that could be equally shouldered by all concerned. That being said, summary judgment is not appropriate in this case.
(Mem. Op. and Order [32] at p. 15.)
Safeco's present request for summary judgment offers nothing justifying a different decision than was reached as to its prior request. Again, no evidence ispresented showing that Russ refused to submit to an EUO requested by Safeco. The record reveals that Russ's EUO was set to occur on July 20, 2011, but that counsel for Safeco and Russ mutually agreed to continue the EUO until Safeco could obtain certain information it deemed necessary to conduct the EUO. Although there was a significant...
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