Progressive Specialty Insurance Company v. Mims et al

Filing 64

OPINION. Signed by Honorable Judge Myron H. Thompson on 7/11/11. (scn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION

PROGRESSIVE SPECIALTY
INSURANCE COMPANY,

)
)
)
Plaintiff,
)
)
v.
)
)
LARRY DWAYNE MIMS; et al., )
)
Defendants.
)

CIVIL ACTION NO.
1:10cv681-MHT
(WO)

OPINION
Plaintiff Progressive Specialty Insurance Company
filed this lawsuit against defendants Larry Dwayne Mims,
Paula

Denise

Traylor,

Dazia

M.

Fumbah,

and

Werner

Enterprises, Inc., seeking a declaration as follows with
regard to a state lawsuit: that Progressive has no duty
to provide liability insurance coverage under the terms
of a policy issued to Mims; and that Progressive has no
duty to provide a defense to Mims or Traylor and no duty
to indemnify them for any lawsuits arising out of the
accident at issue.

Jurisdiction is proper pursuant to 28

U.S.C. § 1332 (diversity).

By order dated June 21, 2011,

this

court

entered

a

default

judgment

in

favor

of

Progressive and against Werner Enterprises and set for
submission the issue of damages.

This cause is now

before the court, therefore, on the issue of damages as
to

Werner Enterprises.
It is clear from Progressive’s filing as to the issue

of damages, however, that the company does not actually
request damages; rather, Progressive seeks declaratory
relief in accordance with the relief it requested in its
complaint.

Specifically, Progressive asks this court to

enter an order, as to

Werner Enterprises, that “there is

no coverage under the Progressive Policy for Defendants
Larry

Dwayne

Mims

and

Paula

Denise

Traylor”;

that

“Progressive does not have a duty to defend or indemnify
Larry

Dwayne

Mims

or

Paula

Denise

Traylor

for

any

lawsuits arising out of the accident at issue”; and that
“Werner Enterprises, Inc. cannot recover from Plaintiff
for any damages, including but not limited to subrogation
interests, that it seeks or claims it has rights to under

2

the Progressive policy at issue.”
damages at 1 (doc. no. 61).

Pl. submission on

This court is of the opinion

that it should grant the requested declaratory relief
against Werner Enterprises.
A judgment will be entered in accordance with this
opinion.
DONE, this the 11th day of July, 2011.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE