Thephithack v. Allstate Prop. & Cas. Ins. Co.
| Decision Date | 17 April 2013 |
| Docket Number | CIVIL ACTION NO. 12-00398-KD-M |
| Parties | PHET THEPHITHACK, Plaintiff, v. ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY Defendant. |
| Court | U.S. District Court — Southern District of Alabama |
This action is before the Court on the Motions for Partial Summary Judgment filed by Plaintiff Phet Thephithack ("Thephithack") (Doc. 12) and Defendant Allstate Property and Casualty Insurance Company ("Allstate") (Doc. 20) pursuant to Rule 56 of the Federal Rules of Civil Procedure. Both motions have been fully briefed (Docs. 12-1, 18, 21, 35-37) and are ripe for adjudication. Upon consideration of the arguments and evidence (Docs. 12-2, 22, 35-1, 36-1) submitted by the parties, and for the reasons stated herein, the Court finds that both motions are due to be DENIED.
On May 16, 2012, Thephithack filed a Complaint against "Allstate Insurance Company" in the Circuit Court of Mobile County, Alabama, alleging claims for uninsured/underinsured motorist ("UM/UIM") coverage,1 breach of contract, and bad faith arising from Allstate's failure to pay UM/UIM benefits to her pursuant to an insurance policy she held with Allstate. (Doc. 1-1 at 25-28). On June 15, 2012, Allstate removed Thephithack's claims to this Court pursuant to 28U.S.C. § 1441. (Doc. 1). Such removal was timely pursuant to 28 U.S.C. § 1446, and the Court has original jurisdiction due to diversity pursuant to 28 U.S.C. § 1332. That same day, Allstate filed its Answer denying liability as to all claims. (Doc. 2).
On August 8, 2012, the Court bifurcated the contract claims from the extra-contractual claims and stayed discovery as to all extra-contractual claims pending resolution of the contract claims. (Doc. 8). On January 14, 2013, Thephithack filed her present motion requesting summary judgment in her favor on her claims for UM/UIM coverage and breach of contract. (Doc. 12). On February 19, 2013, in addition to its Response in opposition to Thephithack's motion (Docs. 18-19), Allstate filed its own motion requesting summary judgment in its favor on Thephithack's contractual claims (Doc. 20).
"The 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). Rule 56(c) governs procedures and provides as follows:
The party seeking summary judgment bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The mere existence of a factual dispute will not automatically necessitate denial; rather, only factual disputes that are material preclude entry of summary judgment. Lofton v. Sec'y of Dep't of Children & Family Servs., 358 F.3d 804, 809 (11th Cir. 2004).
If the non-moving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323. In reviewing whether the non-moving party has met its burden, the Court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in its favor. Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998-99 (11th Cir. 1992) (internal citations and quotations omitted).
" 'Cross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed . . . Nonetheless, cross-motions may be probative of the non-existence of a factual dispute when . . . they demonstrate a basic agreement concerning what legal theories and material facts are dispositive.' " United States v. Oakley, 744 F.2d 1553, 1555-56 (11th Cir. 1984) (quoting Bricklayers Int'l Union, Local 15 v. Stuart Plastering Co., 512F.2d 1017 (5th Cir. 1975)) (per curiam) (second ellipsis added). See also Wermager v. Cormorant Twp. Bd., 716 F.2d 1211, 1214 (8th Cir. 1983) ().
On April 25, 2010, Thephithack was involved in a motor vehicle accident in Mobile County, Alabama, when the van in which she was riding was struck by another car driven by Rachael White ("White"). (Complaint, Doc. 22-1 at 2, ¶ 3; Defendant's Admissions, Doc. 12-2 at 2-3; J. Lockett's Order, Doc. 22-4 at 2-3). Thephithack and the other ten occupants of the van claimed injury due to the accident. (Doc. 22-4).
At the time of the accident, First Acceptance Insurance Company, Inc. ("First Acceptance") provided a policy of insurance covering both White and Brian Drake ("Drake"), the owner of the car White was driving. (Interpleader Complaint, Doc. 22-5 at 6-7, ¶¶ 22, 24). On November 5, 2010, pursuant to Rule 22 of the Alabama Rules of Civil Procedure,3 FirstAcceptance, "as insurer of" Drake and White, filed a Complaint in Interpleader in the Circuit Court of Mobile County, Case No. CV 10-1465. (Doc. 22-5). In initiating the interpleader action, First Acceptance sought, "on behalf of Brian Drake and Rachel Olivia White" and "[w]ithout admitting liability and specifically denying liability," to 1) deposit into the court $50,000, "the entirety of its available liability insurance proceeds for all bodily injury claims and property injury claims related thereto arising out of" the subject accident, 2) "join all claimants and potential claimants" of the funds and have the court adjudicate the various claimants' entitlement to the funds, and 3) obtain "a release and discharge of liability on behalf of itself and its insured, Brian Drake."4 (Doc. 22-5).
All eleven occupants of the van, including Thephithack, were parties to the interpleader action. (Id.). On November 17, 2010, Thephithack filed an "Answer and Claim to Proceeds" in the interpleader action, in which she "ma[d]e claim to all monies, request[ed] the Court to establish damages for all victims, and divide up the proceeds at issue as this Court deems just or the parties agree upon." (Doc. 12-2, Plaintiff's Ex. C 4).
The driver of the van had a policy of underinsured motorist coverage with GEICO Insurance Company, which was also a party to the interpleader complaint. (Doc. 22-5 at 2). GEICO requested and was granted leave to interplead $20,000, the limits of its underinsured motorist coverage under the policy. (Id.). White was never made a party to the interpleader action. (Id.; Doc. 22-4).
At the time of the accident, Thephithack had in effect a policy with Allstate for UM/UIM benefits. (Defendant's Admissions, Doc. 12-2 at 2-3, ¶¶ 1, 4). In relevant part, the policy states:"[Allstate] will pay damages an insured person is legally entitled to recover from the owner or operator of an uninsured auto because of: bodily injury sustained by an insured person." (Doc. 22-6 at 39, Part 3 "General Statement of Coverage"). Counsel for Thephithack sent Allstate a letter dated August 10, 2011, notifying it of the accident and making a claim for uninsured motorist benefits under Thephithack's policy. (Dailey Letter, Doc. 12-2 at 25). Allstate received notice of the accident on August 20, 2010. (Defendant's Admissions, Doc. 12-2 at 3, ¶ 5). Counsel for Thephithack also provided Allstate 1) copies of Thephithack's "dec sheet" and the police report of the accident on September 22, 2010, 2) copies of the interpleader complaint and Thephithack's answer on November 17, 2010, 3) "every medical bill, the police report, criminal records, and even work-product privilege material" on November 18, 2010, 4) another copy of Thephithack's answer on December 16, 2010,5 and 5) notice of the May 19, 2011 "trial" of the interpleader action on February 14, 2011. (Dailey Letters & Allstate Response, Doc. 12-2 at 2627, 29-33, Plaintiff's Exs. C 2 - C 3, C 5 - C 9).
Allstate was not a party to the interpleader action and never attempted to intervene or otherwise participate. (Docs. 22-4 & 22-5). An Allstate representative wrote the following in response to counsel's letter informing Allstate of the "trial" date:
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