United States District Court, Southern District of Alabama, Southern Division
DIANNE CASHER, individually and as representative of the Estate of Darryl Casher, deceased Plaintiff,
HUDSON SPECIALTY INSURANCE COMPANY, Defendant.
V. S. GRANADE SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Hudson Specialty
Insurance Company's (“Hudson”)-misnamed in
the complaint as “Hudson Specialty Insurance
Group”-motion for summary judgment (Doc. 16). After a
review of the pleadings and in light of Plaintiff Dianne
Casher's decision not to respond, the Court finds
Hudson's motion is due to be granted.
September 11, 2011, Darryl Casher went with a friend to a
Mobile, Alabama nightclub called Club Atlantis. (Doc. 1-3, p.
5). This casual night out with friends, however, proved to be
fatal. After leaving Club Atlantis, Darryl passed by Cedric
Burroughs, a minor who had allegedly been drinking in the
club. Id. at p. 7. Without provocation, Cedric shot
Darryl and fatally wounded him. Id. This case
concerns the ensuing litigation.
February 17, 2012, Dianne Casher, individually and as the
representative of Darryl's estate, filed suit against
Crown Theater, Inc.-the owner of Club Atlantis-in the Circuit
Court of Mobile County (case no. 02- CV-2012-900345). (Doc.
1-3; Doc. 1-2, pp. 9). In that suit, Casher asserted claims
for (1) violations of the Alabama Dram Shop Act, (2) wrongful
death, (3) negligence, (4) wantonness, (5) negligent
training/monitoring/supervision, and (6) joint venture. (Doc.
insured Crown Theater under a liquor liability policy, number
HSLL-10039, from July 20, 2011 through July 20, 2012. (Doc.
1-1, pp. 20- 41). This policy established the limit of
liability at $100, 000 for “each common cause”
and for the “aggregate” limit. Id. at
22. Hudson received notification of the underlying claim on
October 5, 2011 from Centrex Underwriters. (Doc. 1-1, pp. 1,
4-6). The following day, Thomas Peppel, Assistant Vice
President- Claims at Hudson, sent a letter to Crown Theater
denying coverage and refusing to defend it. Id. at
pp. 11-13. Hudson refused coverage on the basis of the
policy's assault and battery exclusion. Id. at
the underlying case proceeded through discovery, and Crown
Theater and its co-defendants moved the circuit court for
summary judgment in their favor. (See Doc. 16-2).
Before the court reached a decision, however, Casher and the
underlying Defendants entered into a Pro Tanto Order
of Dismissal with Prejudice concerning counts II through VI
of the complaint. (Doc. 16-5). Casher “expressly
reserve[d] the right to continue the action against the
remaining Defendant CROWN THEATER solely on Plaintiff's
Dram Shop Claim (Count I).” Id. at p. 2. On
February 12, 2016, the circuit court entered a Consent
Judgment in Plaintiff's favor against Crown Theater in
the amount of $150, 000 for Count I. (Doc. 1-3, p. 23).
8, 2016, Casher filed suit against “Hudson Specialty
Insurance Group” in the Circuit Court of Mobile County
seeking a direct action claim for the insurance proceeds
pursuant to Alabama Code § 27-23-2. (See Doc.
1). Casher attempted service twice on the fictitious entity
and petitioned the circuit court for entry of default
judgment on October 28, 2018 in the amount of $158, 566.66
(Doc. 11-11). The circuit court entered default judgment
against Hudson on November 22, 2016. (Doc. 1-1, pp. 18-19).
March 22, 2017, Casher's counsel sent a letter notifying
Hudson Specialty Insurance Group of the default judgment and
stating it would begin collection efforts. (Doc. 1-1, pp.
1-2, 17). Peppel received the letter on March 23, and Hudson
removed the action to this Court on March 28. (Doc. 1).
Hudson moved this Court to set aside entry of the default
judgment, and the Court granted the motion of the basis of
improper service under Alabama law. (Docs. 6, 20). Casher
moved to remand the action to the circuit court, but the
undersigned denied the motion on similar findings of improper
service. (Docs. 12, 21).
Summary Judgment Standard
judgment should be granted only if “there is no issue
as to any material fact and the moving party is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(c). The
party seeking summary judgment bears “the initial
burden to show the district court, by reference to materials
on file, that there are no genuine issues of material fact
that should be decided at trial.” Clark v. Coats
& Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).
Once the moving party has satisfied its responsibility, the
burden shifts to the nonmoving party to show the existence of
a genuine issue of material fact. Id. “If the
nonmoving party fails to make ‘a sufficient showing on
an essential element of her case with respect to which she
has the burden of proof, ' the moving party is entitled
to summary judgment.” Id. (quoting Celotex
Corp. v. Catrett, 477 U.S. 317 (1986) (footnote
omitted)). “In reviewing whether the nonmoving party
has met its burden, the court must stop short of weighing the
evidence and making credibility determination of the truth of
the matter. Instead, evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in
his favor.” Tipton v. Bergrohr GMBH-Siegen,
965 F.2d 994, 999 (11th Cir. 1992) (internal citations and
quotations omitted). The mere existence, however, of any
factual dispute will not necessarily compel denial of a
motion for summary judgment; rather, only material factual
disputes preclude entry of summary judgment. Lofton v.
Secretary of Dep‘t of Children and Family Servs.,
358 F.3d 804, 809 (11th Cir. 2004).
noted, Plaintiff filed no response to the instant motion.
Summary judgment is not automatically granted by virtue of a
nonmovant's silence.Nonetheless, the Eleventh Circuit has
provided clear guidance that a court is not obligated to read
minds or to construct arguments or theories of relief that
counsel have failed to raise and that are not reasonably
presented on the face of the pleadings. See Resolution
Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.
1995) (“There is no burden upon the district court to
distill every potential argument that could be made based
upon the materials before it on summary judgment.”);
see also Gleason v. Norwest Mortg., Inc., 243 F.3d
130, 142 (3d Cir. 2001) (“The ruling on a motion for
summary judgment is to be made on the record the parties have
actually presented, not on one potentially possible.”);
Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d
252, 260 (1st Cir. 1999) (declaring a “party who
aspires to oppose a summary judgment motion must spell out
his arguments squarely and distinctly, or else forever hold
his peace, ” as a district court may ignore arguments
not adequately developed by the non-movant”); Erff
v. MarkHon Indus., Inc., 781 F.2d 613, 619 (7th Cir.
1986) (trial judge need not conduct search for unraised
issues that may lurk in the pleadings). Clearly, “the
onus is upon the parties to formulate arguments.”
Resolution Trust, 43 F.3d at 599. For that reason,
Plaintiff's election not to proffer argument, evidence,
or authority in response to the motion is at their peril, and
this Court will not commit scarce judicial resources to
ferreting out every possible contention they could have made,
but chose not to make, in opposition to the motion.