United States District Court, N.D. Alabama, Southern Division
C. TAYLOR CROCKETT, Plaintiff,
PROGRESSIVE SPECIALTY INSURANCE COMPANY, Defendant.
MEMORANDUM OPINION AND ORDER
G. CORNELIUS U.S. MAGISTRATE JUDGE
lawsuit arises from a three-car motor vehicle accident. In
the complaint, removed here from the Circuit Court of
Jefferson County, Alabama, the plaintiff, C. Taylor Crockett,
seeks underinsured motorist benefits against the defendant,
Progressive Specialty Insurance Company. (Doc. 1 at 19-24).
Presently pending is Progressive's amended motion for
partial summary judgment concerning Crockett's claim for
lost business profits. (Doc. 14). For the reasons explained
below, the motion is due to be denied.
RELEVANT FACTUAL BACKGROUND
vehicle accident at issue here occurred on October 27, 2013.
(Doc. 1 at 20). While stopped at a red light, Crockett was
rear-ended; the collision caused Crockett to rear-end the
vehicle in front of him. (Id. at 21). The accident
injured Crockett's neck, and he underwent neck surgery
two months later. (Id.). After settling his claims
against the tortfeasor, Crockett asserted the instant claims
against Progressive, including his claim for lost profits.
(See Doc. 14 at 2).
is a bankruptcy attorney who specializes in representing
petitioners in Chapter 7 and Chapter 13 proceedings. (Doc. 14
at 4). Crockett has practiced law for twenty-three (23) years
and, at the time of the accident, had run a solo bankruptcy
practice for fourteen (14) years. (Doc. 21 at 5, 7).
Crockett's base salary is $25, 000 per month; he
periodically distributes any additional profits to himself.
(Doc. 14 at 4). While his base salary has remained constant
for a number of years-both before and after the
accident-Crockett contends his profits have suffered as a
result of the accident. (Id.).
describes his law practice as a "volume practice"
in which he meets and signs several new clients each week;
the practice relies on new clients to generate fees to
sustain payroll and overhead expenses. (Doc. 21 at 5-6).
Based on his experience, Crockett testified that the
individuals who make up his client base, after suffering
financial hardships for an extended period of time, typically
hire an attorney on the same day they decide to file for
bankruptcy. (Id. at 7). Crockett further testified
that, when a typical prospective client calls to schedule an
appointment, the prospective client will often hire another
attorney if Crockett is unable to meet with them within two
days of the call. (Id.).
Crockett's years of legal practice prior to the accident,
he normally spent over eleven (11) hours per day at the
office and rarely took an hour for lunch. (Doc. 21 at 6).
Since the accident, Crockett has been unable to maintain this
schedule due to pain from his neck injury and surgery.
(Id.). Crockett testified he works fewer hours, is
less productive, and has been unable to meet with the same
number of potential clients. (Id.) While
Crockett's problems maintaining his schedule persist to
the present, his claim for lost profits focuses on 2014.
Crockett generally alleges his reduced time at the office
caused him to miss client meetings and prevented him from
signing as many clients in 2014 as he would have otherwise
signed. (Id. at 7). More specifically, Crockett
testified that his injuries caused him to turn down two
Chapter 11 cases; Crockett referred these cases to another
attorney who was paid a total of $63, 000 from these two
cases alone. (Id.).
contends he lost clients in 2014 due to his neck injury,
lowering his profits. To support this claim, Crockett
testified that he knows how many bankruptcy petitions he has
filed each year while working consistent hours over the
course of his solo practice. (Doc. 21 at 8). Crockett also
has produced a spreadsheet and analysis prepared by his
accountant showing the practice's annual profits from
2011 through 2014, and concluding that 2014 profits were
11.761% lower than 2013 profits. (Doc. 21-3). Based on this
data and analysis, Crockett contends he suffered $100, 000 in
lost profits in 2014. (Id. at 8).
STANDARD OF REVIEW
56(a) of the Federal Rules of Civil Procedure
provides that 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). The party moving for
summary judgment always bears the initial burden of proving
the absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986).
the moving party has met its burden, then the non-moving
party must "go beyond the pleadings" and point to
specific facts in the record to show there is a genuine issue
for trial. Id. at 324 (citation omitted). A dispute
is genuine "if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
'judge's function' at summary judgment is not
'to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.'" Tolan v. Cotton, 134 S.Ct. 1861,
1866 (2014) (per curiam) (quoting Anderson, 477 U.S.
at 249). The court must "examine the evidence in the
light most favorable to the non-moving party, " drawing
all inferences in favor of such party. Earl Mervyns,
Inc., 207 F.3d 1361, 1365 (11th Cir. 2000). Any factual
disputes will be resolved in the non-moving party's favor
when sufficient competent evidence supports the party's
version of the disputed facts. See Pace v.
Capobianco, 283 F.3d 1275, 1276-78 (11th Cir. 2002) (a
court is not required to resolve disputes in the non-moving
party's favor when that party's version of the events
is supported by insufficient evidence.). However, "mere
conclusions and unsupported factual allegations are legally
insufficient to defeat a summary judgment motion."
Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.
2005) (per curiam) (citation omitted).
Alabama law, a plaintiff complaining of personal injury
"may recover for the impairment of his earning capacity
and for time lost from his business by reason of the wrong
complained of." Fitzpatrick v. Dean, 177 So.2d
909, 911 ...