United Fire & Cas. Co. v. Dennis Thompson, Wayne Rocket & Rose Concrete Prods., Inc.
| Decision Date | 26 April 2013 |
| Docket Number | No. 1:09–CV–51 JAR.,1:09–CV–51 JAR. |
| Court | U.S. District Court — Eastern District of Missouri |
| Parties | UNITED FIRE & CASUALTY COMPANY, Plaintiff/Counter Defendant, v. Dennis THOMPSON, Wayne Rocket and Rose Concrete Products, Inc., Defendants, and Wayne Rockett, Counterclaim Plaintiff Cross-claim Plaintiff, v. United Fire & Casualty Company, James A. Spain, and Spain, Miller and Spain, LLC, Counterclaim Defendant Cross-claim Defendants. |
OPINION TEXT STARTS HERE
John W. Grimm, Limbaugh Firm, Cape Girardeau, MO, John G. Schultz, Franke And Schultz, Kansas City, MO, for Plaintiff/Counterclaim Defendant.
Jon E. Rosenstengel, Bonifield & Rosenstengel, PC, Belleville, IL, for Counterclaim Plaintiff/Defendants.
Shaun D. Hanschen, Thomas W. Collins, III, Blanton And Rice, Sikeston, MO, for Counterclaim Defendant Cross-claim Defendants.
This diversity matter 2 is before the Court on United Fire & Casualty Company's Motion for Summary Judgment (ECF No. 141) and Spain, Miller and Spain, LLC and James E. Spain's Motion for Summary Judgment (ECF No. 150). 3 These motions are fully briefed and ready for disposition.
Wayne Rockett sought defense and indemnification for claims made against him in a suit styled Thompson v. Payne, Case No. 07SO–CV00214, filed in the Circuit Court of Scott County, Missouri (“the Underlying Suit”), under a policy issued by the United Fire to its insured, Rose Concrete Products, Inc. (“the Policy”). In the Underlying Suit, Rose Concrete employee Dennis Thompson sued Wayne Rockett, Rose Concrete's general manager, claiming that Rockett was liable for Thompson's injuries because Rockett directed Thompson to drive a vehicle that Rockett knew was dangerous. The Policy had effective dates of December 31, 2004 to December 31, 2005, and provided liability limits of $1,000,000.
United Fire agreed to defend Rockett under a reservation of rights and hired the Spain defendants to provide this defense.
On July 28, 2009, the Honorable David A. Dolan entered a default judgment in the amount of $850,000 in favor of Dennis Thompson and against Wayne Rockett (the “Underlying Judgment”).
In the present action, United Fire filed a declaratory judgment action seeking a finding that Rockett was not entitled to indemnity for the Underlying Judgment. Thompson filed a counterclaim for equitable garnishment of the insurance policy, arguing that Rockett was an insured under the policy. Rockett filed a counterclaim asserting that he was an insured under the Policy and that United Fire must satisfy the judgment entered against him. Rockett also claimed that United Fire breached the fiduciary duty it owed him during the Scott County proceedings.
On August 30, 2011, 2011 WL 3847256, the Court entered partial summary judgment in favor of United Fire and held that Rockett was not an insured under the CGL policy, that the Commercial Auto Policy did not provide coverage for Thompson's injuries, and that United Fire was not liable under the Commercial Umbrella Liability Policy. (ECF No. 102). The Court, however, held that neither party demonstrated entitlement to summary judgment on Rockett's counterclaim that United Fire breached the duty of care it owed Rockett. ( Id., p. 14).
Rockett filed an amended counterclaim and a third-party claim on October 21, 2011. Rockett alleged counterclaims against United Fire for bad faith and breach of its fiduciary duty and a third-party claim against the Spain defendants for legal malpractice. On February 23, 2012, Rockett filed a Voluntary Petition for bankruptcy under Chapter 7 of the Bankruptcy Code in the United States Bankruptcy Court for the Eastern District of Missouri. Rockett's bankruptcy schedules listed the Underlying Judgment against him, including the case style and number. Brian McChesney, counsel for the judgment creditor Dennis Thompson, was identified in the Creditor's Matrix. Rockett did not list his counterclaim against United Fire or his third-party claim against the Spain defendants as assets of his personal bankruptcy estate.
On Rockett's Schedule B—Personal Property, next to the “Type of Property,” “Other contingent and unliquidated claims of every nature, including tax refunds, counterclaims of the debtor, and rights to set off claims,” Rockett marked “none.” Throughout his Voluntary Petition, Rockett declared under penalty of perjury that the information he was submitting to the Bankruptcy Court was true and correct.
On May 23, 2012, Rockett was granted a discharge by the United States Bankruptcy Court for the Eastern District of Missouri. The Bankruptcy Court entered its Final Decree on June 7, 2012.
Rockett did not seek to re-open his bankruptcy estate until his expert witness, David Knieriem, was questioned on July 23, 2012, as to whether Rockett's bankruptcy discharge affected his ability to claim he was damaged in the amount of $850,000. In his August 22, 2012 deposition, Rockett stated that his attorney, John David Moore, called and informed Rockett that his bankruptcy estate may need to be re-opened. Rockett's motion to re-open his bankruptcy case was granted on August 2, 2012.
The Court may grant a motion for summary judgment if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir.2011). The substantive law determines which facts are critical and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Only disputes over facts that might affect the outcome will properly preclude summary judgment. Id. Summary judgment is not proper if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.
A moving party always bears the burden of informing the Court of the basis of its motion. Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. Once the moving party discharges this burden, the nonmoving party must set forth specific facts demonstrating that there is a dispute as to a genuine issue of material fact, not the “mere existence of some alleged factual dispute.” Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The nonmoving party may not rest upon mere allegations or denials of his pleading. Anderson, 477 U.S. at 258, 106 S.Ct. 2505.
In passing on a motion for summary judgment, the Court must view the facts in the light most favorable to the nonmoving party, and all justifiable inferences are to be drawn in his favor. Celotex Corp., 477 U.S. at 331, 106 S.Ct. 2548. The Court's function is not to weigh the evidence but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. “ ‘Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.’ ” Torgerson, 643 F.3d at 1042 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)).
Under this Court's local rules, “[a] memorandum in support for summary judgment shall have attached a statement of uncontroverted material facts, set forth in a separately numbered paragraph for each fact, indicating whether each fact is established by the record, and, if so, the appropriate citations.” E.D. Mo. L.R. 7–4.01(E). In turn, ( Id.).
Here, Rockett fails to note the paragraph numbers of any disputed facts from movant's listing of facts. Consequently, the Court deems United Fire's and the Spain defendants' facts as admitted. See Moore v. City of Desloge, 692 F.Supp.2d 1122, 1128 (E.D.Mo.2010)aff'd sub nom.Moore v. City of Desloge, Mo., 647 F.3d 841 (8th Cir.2011); Fed.R.Civ.P. 56(e)(2).4
Rockett, however, provides the affidavit of Charles W. Riske (“Riske Affidavit,” ECF No. 153–1, 154–1), Successor Bankruptcy Trustee for the Bankruptcy Estate of Alvin Wayne Rockett. SeeFed.R.Civ.P. 56(c)(4)(“An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.”). The Court construes the Riske Affidavit as providing Rockett's statement of material facts as to which he contends a genuine issue exists. See E.D. Mo. L.R. 7–4.01(E)(“Every memorandum in opposition shall include a statement of material facts as to which the party contends a genuine issue exists.”); E.D. Mo. L.R. 7–4.01(F)(“A party opposing a motion for summary judgment under Fed.R.Civ.P. 56 shall file a memorandum and any appropriate documentary evidence ...”). Correspondingly, the Court will consider the Riske Affidavit in opposition to the pending summary judgment motions. SeeFed.R.Civ.P. 56(c)(3)(“The court need consider only the cited materials, but it may consider other materials in the record.”).
Both United Fire and the Spain defendants assert that Rockett's claims are barred by judicial estoppel and because Rockett lacks standing to pursue a claim that is rightfully the possession of the bankruptcy trustee. The Court addresses those arguments together.
“Missouri has long recognized the doctrine of judicial estoppel.” Monterey Dev. Corp. v. Lawyer's Title Ins. Corp., 4 F.3d 605, 609 (8th Cir.1993). “ ‘Judicial estoppel prevents a person who...
To continue reading
Request your trial
-
United States v. Amaya, CR11–4065–MWB.
...in arriving at this sentence. Amaya is not a hardened, recidivist criminal. He is only 25 years old and his criminal record is [949 F.Supp.2d 922]limited to four, non-violent, misdemeanor convictions. Amaya's age and limited criminal record indicate an ability to be rehabilitated. I find th......
-
Chapter 7 Tr. Fredrich Cruse v. Bi-State Dev. Agency of Missouri-Illinois Metro. Dist.
...have been had Jordan properly listed her claims as assets at the outset of the bankruptcy proceeding. See United Fire & Cas. Co. v. Thompson, 949 F. Supp. 2d 922, 930 (E.D. Mo. 2013). Conversely, those creditors would certainly be worse off if the Court strictly applied judicial estoppel an......