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Crockett v. Progressive Specialty Insurance Co.

United States District Court, N.D. Alabama, Southern Division

March 31, 2017




         This 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.


         The 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).

         Crockett 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.).

         Crockett 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.).

         During 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.).

         Crockett 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).


         Rule 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).

         Once 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 (1986).

         "[A] '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).


         Under 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 ...

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