United States District Court, M.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
C. MARKS UNITED STATES DISTRICT JUDGE
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.
JURISDICTION AND VENUE
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.
STANDARD OF REVIEW
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).
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.
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).
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 ...