Campbell v. GEICO Indemnity Company

Filing 16

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 3/28/2016. (JLC)

FILED
2016 Mar-28 AM 11:18
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
GREGORY CAMPBELL,
Plaintiff,
v.
GEICO INDEMNITY COMPANY,
Defendant.

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) Case No.: 4:14-CV-1878-VEH
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MEMORANDUM OPINION
This is a civil action filed by the plaintiff, Gregory Campbell, appearing pro
se,1 against the defendant, GEICO Indemnity Company (“GEICO”). (Doc. 1-1). The
action was originally filed in the Circuit Court of Cleburne County, Alabama. (Doc.
1-1). It was removed to this court on October 2, 2014. (Doc. 1-1).
The complaint contains one count and alleges, in pertinent part, that
on or about August 26, 2012, the [p]laintiff[] was the driver of a
motorcycle . . . when a phantom vehicle entered his lane of traffic
causing him to wreck. [The driver of] [t]his phantom vehicle
negligently or wantonly caused or allowed [the] vehicle to enter the
[p]laintiff’s lane of traffic causing an accident. As a proximate
consequence of the negligence of the driver/operator of the uninsured
motor vehicle, the [p]laintiff was caused to suffer injuries and damages.
1

The plaintiff was represented by counsel at the time this action was filed. Counsel was
allowed to withdraw on June 23, 2015. (Doc. 11). New counsel for the plaintiff has not
appeared.

(Doc. 1-1 at 4-5). The plaintiff states that his injuries include: “physical injuries,
mental anguish, undue worry, and concern,” and that the plaintiff “was caused to seek
the services of . . . hospitals and physicians and ha[s] incurred charges and bills
related to same.” (Doc. 1-1 at 5). The complaint also alleges that GEICO insured
him at the time of the accident, and “provided, among other coverages, underinsured
and uninsured motorist coverage and benefits[.] (Doc. 1-1 at 4). He demands a
judgment against GEICO in the amount of $200,000, plus costs. (Doc. 1-1 at 5).
Although the plaintiff does not specify why GEICO is liable for his injuries, the court
assumes that the plaintiff’s claim is based on the uninsured/underinsured motorist
coverage that he alleges GEICO provided him.
The case comes before the court on GEICO’s motion for summary judgment.
(Doc. 14). On October 2, 2015, this court gave the pro se plaintiff “express, ten-day
notice of the summary judgment rules, of his right to file affidavits or other materials
in opposition to the motion, and of the consequences of default.” McBride v. Sharpe,
981 F.2d 1234, 1236 (11th Cir. 1993) (quotation and citation omitted). (Doc. 15).
He has failed to respond to the motion. For the reasons stated herein, the motion will
be GRANTED, and this case will be DISMISSED with prejudice.
I.

STANDARD
Under Federal Rule of Civil Procedure 56, summary judgment is proper if there
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is no genuine dispute as to any material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986) (“[S]ummary judgment is proper if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”) (internal quotation
marks and citation omitted). The party requesting summary judgment always bears
the initial responsibility of informing the court of the basis for its motion and
identifying those portions of the pleadings or filings that it believes demonstrate the
absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the
moving party has met its burden, Rule 56(e) requires the non-moving party to go
beyond the pleadings in answering the movant. Id. at 324. By its own affidavits – or
by the depositions, answers to interrogatories, and admissions on file – it must
designate specific facts showing that there is a genuine issue for trial. Id.
The underlying substantive law identifies which facts are material and which
are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All
reasonable doubts about the facts and all justifiable inferences are resolved in favor
of the non-movant. Chapman, 229 F.3d at 1023. Only disputes over facts that might
affect the outcome of the suit under the governing law will properly preclude the
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entry of summary judgment. Anderson, 477 U.S. at 248. A dispute is genuine “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. If the evidence presented by the non-movant to rebut the moving party’s
evidence is merely colorable, or is not significantly probative, summary judgment
may still be granted. Id. at 249.
How the movant may satisfy its initial evidentiary burden depends on whether
that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v.
City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant bears the burden
of proof on the given issue or issues at trial, then it can only meet its burden on
summary judgment by presenting affirmative evidence showing the absence of a
genuine issue of material fact – that is, facts that would entitle it to a directed verdict
if not controverted at trial. Id. (citation omitted). Once the moving party makes such
an affirmative showing, the burden shifts to the non-moving party to produce
“significant, probative evidence demonstrating the existence of a triable issue of fact.”
Id. (citation omitted) (emphasis added).
For issues on which the movant does not bear the burden of proof at trial, it can
satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16.
First, the movant may simply show that there is an absence of evidence to support the
non-movant’s case on the particular issue at hand. Id. at 1116. In such an instance,
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the non-movant must rebut by either (1) showing that the record in fact contains
supporting evidence sufficient to withstand a directed verdict motion, or (2)
proffering evidence sufficient to withstand a directed verdict motion at trial based on
the alleged evidentiary deficiency. Id. at 1116-17. When responding, the non-movant
may no longer rest on mere allegations; instead, it must set forth evidence of specific
facts. Lewis v. Casey, 518 U.S. 343, 358 (1996). The second method a movant in this
position may use to discharge its burden is to provide affirmative evidence
demonstrating that the non-moving party will be unable to prove its case at trial.
Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering
evidence sufficient to withstand a directed verdict at trial on the material fact sought
to be negated. Id.
II.

FACTS
This court’s summary judgment scheduling order provides:
The first section [of the brief of the party opposing summary
judgment] must consist of only the non-moving party’s disputes, if any,
with the moving party’s claimed undisputed facts. The non-moving
party’s response to the moving party’s claimed undisputed facts shall be
in separately numbered paragraphs that coincide with those of the
moving party’s claimed undisputed facts. Any statements of fact that are
disputed by the non-moving party must be followed by a specific
reference to those portions of the evidentiary record upon which the
dispute is based. All material facts set forth in the statement required of
the moving party will be deemed to be admitted for summary judgment
purposes unless controverted by the response of the party opposing
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summary judgment.
(Doc. 3 at 17) (emphasis in original). The plaintiff has not filed any in opposition to
the motion for summary judgment. Accordingly, the following facts, set out in the
movant’s brief, are deemed to be admitted:
1.
On August 26, 2012, Campbell and members of his motorcycle
club—the Saints—were returning home to the Huntsville area from
Columbus, Georgia. (Exhibit A, Deposition of Greg Campbell, [62]2:1
– 64:17). That morning, Campbell “got up, took a shower, got dressed,
pack[ed] up the scoot, [and] ate a quasi-continental breakfast…at the
two-star motel” he was staying at in Columbus. (Ex. A, 60:10-21). In
addition to these things, Campbell also took a myriad of medications
including oxycodone, morphine, Topamax—a medication for
“hallucinating migraines”—a “lot of psychotropics,” and Lyrica—for
fibromyalgia. (Ex. A, 80:10 – 86:8).
2.
Campbell claims that despite taking oxycodone four times a day
and morphine twice a day, both for pain prior to the accident, no doctor
put him on any kind of driving restrictions, but admitted that “[e]very
doctor [he has] wants [him] off of that motorcycle. Every one of them.”
(Ex. A, 86:9-18). Campbell testified that this is because “I am old, I am
crippled, they don’t think I should ride it ….” (Ex. A, 86:19 – 87:1).3
3.
After taking these medications, Campbell and his group—the
Saints—got on their bikes and traveled from Columbus towards
Opelika, Alabama on Highway 280 prior to joining Highway 431 toward

2

Correction to citation made by the court.

3

The court disregards as not relevant to any issue in this case the last portion of this
statement by Campbell, specifically, that “[e]very doctor [he has] wants [him] off of that
motorcycle. Every one of them.” (Ex. A, 86:9-18). Campbell testified that this is because “I am
old, I am crippled, they don’t think I should ride it ….” (Ex. A, 86:19 – 87:1).
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Huntsville. [(Ex. A, 62:7-64:64)].4
4.
About an hour after joining Highway 431, Campbell was “pulling
anchor way in the back” of the group “going down a twisty, curvy part
of 431….” (Ex. A, 64:18 – 22). The group had gotten ahead of Campbell
and he recalls “looking up ahead and saying, I have got to catch up.”
(Ex. A, 64:23 – 65:1). Campbell testified that he “had done gotten
tractor trailer lengths apart” from his group. (Ex. A, 70:6-22).
5.
Campbell, in an attempt to catch up with his group “increase[d]
the throttle, [to] give it more fuel.” (Ex. A, 70:6 – 71:5).
6.
For various reasons, some of which are in dispute—whether a
phantom vehicle was in Campbell’s lane or not—Campbell’s motorcycle
ultimately left the paved roadway of Highway 431, entered the gravel
shoulder where Campbell lost control. (Ex. A, 65:12 – 66:15; Exhibit B,
Deposition of Thomas Lyner, 11:8 – 13:5; Exhibit C, Deposition of
Linda Lyner, 5:23 – 6:15).5 Campbell fell over an embankment or cliff
4

Correction to citation made by the court.

5

The court notes that the plaintiff testified:

And as I started to give it the wick -- I thought it was a tractor trailer. I remember
it being a tractor trailer -- eased over into my lane.
Q. Okay.
A. And the more he eased over into my lane coming my way, the more I eased
over to the right.
Q. Okay.
A. Until he had so much of my lane, that I dropped off, and the drop-off of the
asphalt -- they had been doing some paving in the area it looked to me like, and it
was about a good six inches at least.
Q. Okay.
A. And when I dropped off that pavement, that pea gravel from them paving, I hit
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that pea gravel and the bike went squirrely, and I -- there was two options and I
chose the wrong one. And when -- when the bike started headed towards the
woods, I did not want to dance with my bike in the woods.
Q. Okay.
A. It would have been a bad, bad dance. So I dove into what I thought was a
willow bush and it turned out to be a willow tree, and I fell through the branches
of the willow tree into the ravine down below, which, you know, ten, fifteen,
twenty feet and my head was in the water. And thank God for Mr. Lyner, he kept
me from drowning. And I couldn't pull myself out. I couldn't –
(Doc. 14-2 at 18(65-66).
Thomas Lyner was directly behind the plaintiff’s vehicle when the accident happened.
He testified:
A. We went down the curve and this is little straight and (witness indicates)
somehow he veered off the road. I have no idea how he got off the road.
Q. Okay.
A. But he veered off the road. And they was paving the road. But they wasn't
paving it that day, but they had been paving it because this was Sunday I believe.
And they had loose gravel on the side of the pavement. And he veered off and hit
that gravel.
Q. Right.
A. And he tried -- in my opinion now he tried to correct it.
Q. Uh-huh.
A. Because he turned his wheel back and he hit the edge of the pavement. Am I
going too fast for you?
Q. No.
A. And I thought he was coming up in the road, so I slammed my brakes on.
Q. Okay.
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and into a ravine. Id. Despite the dispute over the existence of a phantom
vehicle in Campbell’s lane of travel, Campbell admitted: “I was not
paying attention. I lost situational awareness.” (Ex. A, 73:1 –
74:5)(emphasis added).6

A. When he come back up, the motorcycle went up in the air.
Q. Okay.
A. Approximately ten, maybe ten foot, looked like ten foot. And he come off the
motorcycle and him and the motorcycle went down in the creek.
Q. Is that when he hit the edge of the pavement again? That's when he popped up?
A. Yeah. And I put my vehicle in park, slammed it in park. And told my wife, I
said move it or whatever. I don't remember what I told her. I run down the bank
and he was down there and I guess his helmet busted or something because it was
filling up with water. But the motorcycle was up above him. And he was down
below the motorcycle. And I picked his head up and he was wanting me to move
him and I said no, I am not going to move you because I don’t know what's wrong
with you. And I said when the paramedics get here whatever, you know, they can
move you or whatever.
(Doc. 14-3 at 4(11)-5(13)).
Linda Lyner was in the car with her husband Thomas at the time of the accident. She
testified that she did not remember the facts to be any different than how Thomas Lyner testified.
(Doc. 14-4 at 3(6)). She added that she does not remember “any vehicle coming up the hill that
was in [her] lane of travel.” (Doc. 14-4 at 3(6)).
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The court notes that the full context of this statement is as follows:

Q. So it was a way that [the tractor trailer] kind of slowly -- sounds like slowly
inched over towards you?
A. Yeah, he -- and I am inching, and because I am looking at him and looking at
the pack and looking at him and I am inching over and inching over and I am not
paying attention to the side of the road because I am looking at him, looking at
them, looking at him and looking at them, and then all the sudden it is -Q. You have lost control?
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***
8.
On July 31, 2015, GEICO served Campbell with its first set of
Interrogatories and Requests for Admission. (Exhibit D, Requests with
Service Email). GEICO’s requests for admission asked Mr. Campbell to
admit that “no tractor-trailer, semi, or other large commercial vehicle
entered your lane immediately prior to the incident;” and that “the
incident was caused, at least in part, by your own negligence.” (Ex. D,
pp. 6 of 17). Campbell failed to respond to those requests as required by
the Federal Rules of Civil Procedure.
9.
At this time, no testimony has been elicited from any medical
provider that purportedly cared for Mr. Campbell relating that care to
any injury Campbell claims to have suffered in the relevant accident. No
doctor has testified that any of the care Campbell claims was caused by
the accident was reasonable and necessary. And no doctor has testified
as to the extent of Campbell’s prior medical conditions causing him to
require multiple opioid pain medications prior to the accident.
(Doc. 14-1 at 2-5).7
III.

ANALYSIS
The plaintiff’s claims against GEICO require, at the very least, that there was

an “uninsured” or “underinsured” tractor trailer truck that engaged in the conduct

A. I have lost it.
Q. Okay.
A. And I was not paying attention. I lost situational awareness.
(Doc. 14-2 at 20(73-74)).
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Because the plaintiff is proceeding pro se the court has verified that the evidence cited
supports each fact set out herein.
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described by the plaintiff in his deposition. In this case, the plaintiff is deemed to
have admitted that there was “no tractor-trailer, semi, or other large commercial
vehicle [which] entered your lane immediately prior to the accident.” (Doc. 14-5 at
6). Fed. R. Civ. P. 36(a)(3); see also, Broad. Music, Inc. v. L.S. Horne Inv. III, LLC,
No. 1:14-CV-01157-ELR, 2015 WL 1812777, at *1 (N.D. Ga. Apr. 16, 2015) (noting
that the failure to respond to a Request for Admission results in that request being
admitted). Since there was no truck, there is no claim.
The defendant also notes that the plaintiff has failed to produce evidence of any
injury proximately caused by either the negligence or wantonness of the alleged
tractor trailer. “Proximate cause is an essential element of both negligence claims and
wantonness claims.... Proximate cause is an act or omission that in a natural and
continuous sequence, unbroken by any new independent causes, produces the injury
and without which the injury would not have occurred.” Lingefelt v. Int'l Paper Co.,
57 So. 3d 118, 122-23 (Ala. Civ. App. 2010) (internal quotations and citations
omitted). Because the plaintiff has failed to produce such evidence, summary
judgment on the plaintiff’s claims is due to be granted.8
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One might assume some injuries proximately caused by the type of wreck described by
the plaintiff and the witnesses. However, the defendant notes that the plaintiff has had many
injuries over the years and that expert testimony would be necessary to determine which injuries
are connected to this incident. (Doc. 14-1 at 10-11). Regardless, in the absence of any showing
by the plaintiff on summary judgment that he was injured at all, even through lay testimony, the
issue is moot. Also, “[i]t is the rule in [Alabama] that proof of reasonableness of charges for
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The wantonness claim also fails for alternative reason that there is a lack of
evidence of wantonness on the part of the driver of the alleged tractor trailer.
Wantonness is the doing of some act or the omission to do some act with reckless
indifference that such act or omission will likely or probably result in injury. Crouch
v. N. Alabama Sand & Gravel, LLC, No. 1131086, 2015 WL 1388139, at *5 (Ala.
Mar. 27, 2015) (internal citations omitted). As noted by the defendant, even assuming
that the tractor trailer truck existed, there has been no such showing by the plaintiff.9

surgical or medical services is a matter for expert opinion.” Aetna Life Ins. Co. v. Hare, 47 Ala.
App. 478, 484, 256 So. 2d 904, 908 (Civ. App. 1972) (citing Birmingham Amusement Co. v.
Norris, 216 Ala. 138, 112 So. 633; Harden v. Ala. Gr. Sou. RR Co., 45 Ala.App. 301, 229 So.2d
803)). As noted by the defendant, summary judgment is also due to be granted because this
evidence too is lacking. Finally, the plaintiff’s claims for mental anguish damages are due to be
dismissed for the alternative reason that the plaintiff testified that the wreck did not bother him.
(Doc. 14-2 at 23(85)).
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The plaintiff also admits that the accident “was caused, at least part, by [his] own
negligence.” (Doc. 14-5 at 6). See FED. R. CIV. P. 36(a)(3). The defendant argues that this
admission establishes the plaintiff’s “contributory negligence.” As the Alabama Supreme Court
has noted:
Contributory negligence is an affirmative and complete defense to a claim based
on negligence. In order to establish contributory negligence, the defendant bears
the burden of proving that the plaintiff 1) had knowledge of the dangerous
condition; 2) had an appreciation of the danger under the surrounding
circumstances; and 3) failed to exercise reasonable care, by placing himself in the
way of danger. See Knight v. Alabama Power Co., 580 So.2d 576 (Ala.1991).
Ridgeway v. CSX Transp., Inc., 723 So. 2d 600, 606 (Ala. 1998). In the absence of any argument
by GEICO that the above elements have been satisfied, summary judgment on this issue is not
appropriate simply because of the plaintiff’s admission. The same goes for GEICO’s argument,
in a footnote, that the plaintiff was contributorily negligent because he “was not paying
attention,” and that he “lost situational awareness.” (Doc. 14-1 at 6, n. 3). Regardless, the point
is moot in light of the court’s holding.
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IV.

CONCLUSION
For the foregoing reasons, summary judgment will be GRANTED and this

case DISMISSED with prejudice. A final order will be entered.
DONE and ORDERED this 28th day of March, 2016.

VIRGINIA EMERSON HOPKINS
United States District Judge

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