United States District Court, M.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER
A. Baker United States Magistrate Judge
matter arises from an insurance contribution declaratory
judgment action in which Star Insurance Company
("Star") and Progressive Specialty Insurance
Company ("Progressive") each seek reimbursement of
monies paid in settlement of underlying litigation against
their mutual insured, Gilow Wood, Inc. ("Gilow
Wood"), for Gilow Wood's liability arising from an
automobile accident. Before the Court are the parties'
respective motions for summary judgment. (Docs. 21 & 23).
The motions have been fully briefed and orally argued before
this court. For the reasons stated herein, Star's motion
for summary judgment is DENIED, and
Progressive's motion for summary judgment is
parties bring their respective claims pursuant to 28 U.S.C.
§ 2201 and Rule 57, Fed. R. Civ. P., and subject matter
jurisdiction is conferred by 28 U.S.C. § 1332(a)(1). The
parties do not dispute venue or personal jurisdiction, and
there are adequate allegations in the Complaint (Doc. 1) and
Answer and Counterclaim (Doc. 5). On March 15, 2017, the
parties consented to Magistrate Judge Jurisdiction for all
matters pursuant to Rule 73, Fed. R. Civ. P., and 28 U.S.C.
§ 636(c). (Docs. 33 & 34). On March 16, 2017, this
matter was reassigned to the undersigned Magistrate Judge
"to conduct all proceedings and order the entry of a
final judgment" by United States District Judge Myron H.
Thompson. (Doc. 35).
SUMMARY JUDGMENT STANDARD OF REVIEW
Federal Rule of Civil Procedure 56, summary judgment is
proper "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." See Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Chapman v. AI
Transport, 229 F.3d 1012, 1023 (11th Cir. 2000). The
party asking for summary judgment always bears the initial
responsibility of informing the court of the basis for its
motion, and identifying those portions of the pleadings or
filings which it believes demonstrate the absence of a
genuine issue of material fact. Celotex, Ml U.S. at
323. Once the moving party has met its burden, Rule 56
requires the nonmoving party to go beyond the pleadings and,
by its own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific
facts showing that there is a genuine issue for trial.
Celotex, Ml U.S. at 324. "Where 'the
adverse party does not respond, summary judgment, if
appropriate, shall be entered against the adverse
party.' Fed.R.Civ.P. 56(e) (emphasis added). Thus,
summary judgment, even when unopposed, can only be entered
when 'appropriate.'" United States v. One
Piece of Real Prop. Located at 5800 SW 74th Ave., Miami,
Fla., 363 F.3d 1099, 1101 (11th Cir. 2004).
substantive law will identify which facts are material and
which are irrelevant. Chapman, 229 F.3d at 1023;
Anderson v. Liberty Lobby, Inc., Ml U.S. 242, 248
(1986). All reasonable doubts about the facts and all
justifiable inferences are resolved in favor of the
non-movant. See Chapman, 229 F.3d at 1023;
Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115
(11th Cir. 1993). When opposing a motion for summary
judgment, however, the nonmovant can no longer rest on mere
allegations, but must set forth evidence of specific facts.
See Lewis v. Casey, 518 U.S. 343 (1996) (citing
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
(1992)). A dispute is genuine "if the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party." Anderson, Ml U.S. at 248;
Chapman, 229 F.3d at 1023. "If the evidence
[presented by the nonmoving party to rebut the moving
party's evidence] is merely colorable, or is not
significantly probative, summary judgment may be
granted." Anderson, 477 U.S. at 249 (internal
there are cross-motions for summary judgment, each party must
still establish the lack of genuine issues of material fact
and that it is entitled to judgment as a matter of law.
See Chambers & Co. v. Equitable Life Assur. Soc. of
the U.S., 224 F.2d 338, 345 (5th Cir. 1955); Matter
of Lanting, 198 B.R. 817, 820 (Bankr. N.D. Ala. 1996).
The court will consider each motion independently, and in
accordance with the Rule 56 standard. See Matsushita
Elec. Indus. Ltd. v. Zenith Radio Corp., 475 U.S. 574,
587-88 (1986). "The fact that both parties
simultaneously are arguing that there is no genuine issue of
fact, however, does not establish that a trial is unnecessary
thereby empowering the court to enter judgment as it sees
fit." Citizens Bank and Trust v. LPS Nat. Flood,
LLC, 51 F.Supp.3d 1157, 1168-69 (N.D. Ala. 2014);
see also Culpepper v. Inland Mortg. Corp., 243
F.R.D. 459, 463 n. 1 (N.D. Ala. 2006) (quoting Wright, Miller
& Kane, Federal Practice and Procedure § 2720, at
327-28 (3d ed. 1998)) (same).
BACKGROUND AND FACTS
Wood was incorporated in Alabama in 1995. (Doc. 21-1 at 14).
Although Gilow Wood was originally incorporated with a third
party, at all times material to this matter, Gilow Wood was
exclusively owned and operated by Charles R. Owens, Sr., and
Charles R. Owens, Jr. (Doc. 21-1 at 3). "Gilow Wood is a
timber dealership, " (Doc. 23-4 at 4), in the business
of negotiating the sale of timber from landowners to various
mills, and contracting with pulpwood haulers to do the actual
harvesting and hauling of the timber. (Doc. 23-4 at 16-18).
Owens Pulpwood, Inc., ("Owens Pulpwood") is a
timber harvesting and hauling corporation owned by Charles R.
Owens, Sr., and Charles R. Owens, Jr. (Doc. 23-4 at 14-15).
All the timber harvesting brokered by Gilow Wood is
contracted to Owens Pulpwood for harvesting and hauling, but
Owens Pulpwood occasionally hauls for other companies. (Doc.
23-4 at 29-30). Owens Pulpwood employs a number of workers
for its hauling crew, including Larry Savage, a pulpwood
truck driver. (Doc. 23-4 at 37, 66).
issued a Commercial General Liability policy ("the Star
policy") to Gilow Wood which was in force at the time of
the underlying accident. (Doc. 23-10). The Star policy
included an exclusion of coverage for "Aircraft, Auto or
Watercraft, " ("the auto exclusion"):
"Bodily injury" or "property damage"
arising out of ownership, maintenance, use or entrustment to
others of any aircraft, "auto" or watercraft owned
or operated by or rented or loaned to any Insured. Use
includes operation and "loading or unloading, "
This exclusion applies even if the claims against Insured
allege negligence or other wrongdoing in the supervision,
hiring, employment, training or monitoring of others by that
insured, if the "occurrence" which caused the
"bodily injury" or "property damage"
involved the ownership, maintenance, use or entrustment to
others of any aircraft, "auto" or watercraft that