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Casher v. Hudson Specialty Insurance Co.

United States District Court, Southern District of Alabama, Southern Division

July 18, 2017

DIANNE CASHER, individually and as representative of the Estate of Darryl Casher, deceased Plaintiff,



         This 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.

         I. Background

         On 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.

         II. Procedural History

         On February 17, 2012, Dianne Casher, individually and as the representative of Darryl's estate, filed suit against Crown Theater, Inc.[1]-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. 1-3).

         Hudson 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 12.

         Thereafter, 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).

         On July 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).

         On 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).

         III. Summary Judgment Standard

         Summary 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).

         As noted, Plaintiff filed no response to the instant motion. Summary judgment is not automatically granted by virtue of a nonmovant's silence.[2]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.

         IV. ...

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