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Progressive Specialty Insurance Co v. Estate of Mock

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

August 27, 2018

The Estate of JACK WILLIAM MOCK, Deceased; AMBER CAMILE NEVELS; and the Estate of KLN, a Deceased Minor, Defendants.



         This matter is before the Court on the following motions: Plaintiff Progressive Specialty Insurance Company's (“Progressive”) Motion for Entry of Default Judgment Against Defendants Amber Camile Nevels and the Estate of KLN (Doc. 33); Progressive's Motion for Summary Judgment (Doc. 35); Defendant Estate of Jack William Mock's (“the Estate of Mock”) Cross-Motion for Summary Judgment (Doc. 40); and the Estate of Mock's Motion to Allow Filing Out of Time of its Cross-Motion for Summary Judgment (Doc. 43). Having reviewed the respective motions, the parties' briefs, and the relevant legal authority, and for the reasons that follow, the Court finds that Progressive's motion for entry of default is due to be GRANTED, Progressive's motion for summary judge is due to be GRANTED, the Estate of Mock's motion is due to be DENIED, and the Estate of Mock's Motion to Allow Filing Out of Time is denied as MOOT.


         The Court exercises subject matter jurisdiction over this declaratory judgment action pursuant to 28 U.S.C. §§ 1332(a), 2201, and 2202. The parties do not contest personal jurisdiction or venue.


         To succeed on summary judgment, the movant must demonstrate “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 court must view the evidence and the inferences from that evidence in the light most favorable to the nonmovant. Jean- Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).

         The party moving for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This responsibility includes identifying the portions of the record illustrating the absence of a genuine dispute of material fact. Id. A genuine dispute of material fact exists when the nonmoving party produces evidence allowing a reasonable factfinder to return a verdict in its favor. Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001). If the movant meets its evidentiary burden, the burden shifts to the nonmoving party to establish-with evidence beyond the pleadings-that a genuine dispute material to each of its claims for relief exists. Celotex, 477 U.S. at 324.

         Although there are cross-motions for summary judgment, each side 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). 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).


         Plaintiff and the Mock Estate have stipulated to the following facts:

1. In 2007, Plaintiff Progressive issued an Automobile Insurance Policy, Policy Number 20537994, (hereinafter “the Policy”), to Josh Lowery. The Policy insured multiple vehicles over time, including a 2002 Honda Civic, bearing VIN# 1HGEM21242LO70660. …
2. When Josh Lowery applied for the Policy in 2007, he signed a “Rejection of Uninsured/Underinsured Motorist Coverage” form. The signed rejection form states includes the language “binding on all persons insured under this policy, and that this rejection shall also apply to any renewal, reinstatement, substitute, amended, altered, modified, or replacement policy with this company or any affiliated company, unless a named insured submits a request to add the coverage and pays the additional premium.” …
3. The Policy was continually renewed by Josh Lowery over the next eight years. The Policy did not contain uninsured/underinsured motorist coverage. Additionally, Josh Lowery did not submit any request to add such coverage, nor did he pay the additional premium to obtain uninsured/underinsured motorist coverage during this time period. The latest policy renewal occurred on October 30, 2015 and extended Josh Lowery's automobile insurance coverage until April 30, 2016. See Exhibit 1. At the time of the October 30, 2015 policy renewal, the Policy continued to insure multiple vehicles, including a 2002 Honda Civic, bearing VIN No. 1HGEM21242LO70660.
4. On November 27, 2015, at 12:55 p.m., Josh Lowery requested Progressive by telephone to amend portions of the Policy previously issued by Progressive. Specifically, Josh Lowery updated his marital status from single to married. Additionally, Lowery added his new spouse, Deeanna M. Lowery, and her vehicle, a 2015 Toyota Highlander, to the Policy. The premium for coverage in relation to Deeanna M. Lowery's vehicle was paid, however, no premium for uninsured/underinsured motorist coverage was paid. Lowery was told by Progressive during this phone call that he would be mailed an uninsured motorist rejection form which would need to be returned to Progressive confirming his rejection of uninsured motorist coverage. …
5. The aforementioned amendments to the Policy were not made during a time of a renewal of the contract. Additionally, Josh Lowery was not issued a new insurance policy as a result of the amendments. The amendments were noted and incorporated into the existing Policy that was initially issued in 2007 and renewed each year, with the most recent renewal occurring on October 30, 2015. …
6. On the same day as the telephone call described above, November 27, 2015, Josh Lowery gave permission to Jack William Mock, deceased, to drive his 2002 Honda Civic. At that time, the 2002 Honda Civic was insured under the Policy issued to Josh Lowery by Progressive. KLN, a deceased minor, and Amber Camile Nevels, were passengers in the ...

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