Cole v. Progressive Casualty Insurance Company

Filing 21

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 5/25/2016. (JLC)

FILED
2016 May-25 PM 04:49
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
Z.C., a minor, by and through his
father and next friend, STEVE
COLE,
Plaintiff,
v.
PROGRESSIVE SPECIALTY
INSURANCE COMPANY,
Defendant.

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) Case No.: 4:15-CV-567-VEH
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MEMORANDUM OPINION
I.

INTRODUCTION AND PROCEDURAL HISTORY
Plaintiff Z.C., through his father and next fried, Steve Cole (“Mr. Cole”),

initiated this action in the Circuit Court of St. Clair County on December 22, 2014.
(Doc. 1 at 1 ¶ 1). The case involves a single-car motor vehicle in which Plaintiff, a
minor, was injured as a passenger. (Id. at 2 ¶ 2). The sole defendant remaining in the
case is Defendant Progressive Specialty Insurance Company (“Progressive”).
Plaintiff’s claim against Progressive is for underinsured motorist (“UIM”) benefits
relating to a policy of insurance covering Plaintiff’s mother’s motor home (the
“Policy”). (Id. ¶ 4).
Progressive removed Plaintiff’s lawsuit to federal court on April 3, 2015, on

the basis of diversity jurisdiction. (Doc. 1 at 3 ¶¶ 10-11). Pending before the court is
Progressive’s Motion for Summary Judgment (Doc. 13) (the “Motion”) filed on
October 2, 2015. Plaintiff filed his opposition (Doc. 15) on October 23, 2015, and
Progressive, on November 6, 2015, followed with its reply. (Doc. 17).
The parties’ dispute is over whether Plaintiff satisfies the “primarily residing”
requirement such that he would be eligible to receive UIM benefits as an insured
“relative” pursuant to his mother’s Policy with Progressive. (Doc. 13 at 2).
Progressive maintains that based upon custody documents and the deposition
testimony given by Plaintiff, Mr. Cole, and Plaintiff’s mother, Plaintiff cannot be an
insured under the UIM portion of the Policy because the evidence establishes that his
dad, Mr. Cole, rather than his mother, is the parent with whom Plaintiff has primarily
lived. (Doc. 13 at 3). Having studied the summary judgment record and fully
considered all the arguments, Progressive’s Motion is due to be granted and
Plaintiff’s UIM claim is due to be dismissed with prejudice because the evidence
insufficiently shows that Plaintiff has primarily lived with his mother–a
straightforward requisite for coverage under the Policy which Plaintiff bears the
burden of proving.
II.

RULE 56 STANDARD
Summary judgment is proper only when there is no genuine issue of material
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fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P.
56(a). At the same time, “[s]ummary judgment procedure is properly regarded not as
a disfavored procedural shortcut, but rather as an integral part of the Federal Rules
as a whole, which are designed ‘to secure the just, speedy and inexpensive
determination of every action.’” Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.
Ct. 2548, 2555, 91 L. Ed. 2d 265 (1986) (quoting FED. R. CIV. P. 1).
All reasonable doubts about the facts and all justifiable inferences are resolved
in favor of the nonmovant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th
Cir. 1993). A dispute is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986).
“Once the moving party has properly supported its motion for summary
judgment, the burden shifts to the nonmoving party to ‘come forward with specific
facts showing that there is a genuine issue for trial.’” International Stamp Art, Inc. v.
U.S. Postal Service, 456 F.3d 1270, 1274 (11th Cir. 2006) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 1356, 89 L.
Ed. 2d 538 (1986)). Under this familiar framework, “the entry of summary judgment
[is mandated]. . . against a party who fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party will
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bear the burden of proof at trial. In such a situation, there can be ‘no genuine issue as
to any material fact,’ since a complete failure of proof concerning an essential
element of the nonmoving party’s case necessarily renders all other facts immaterial.”
Celotex, 477 U.S. at 322-23, 106 S. Ct. at 2552.
III.

FACTUAL BACKGROUND1
Plaintiff’s parents got divorced in 2010. (Doc. 13-4 at 12).2 The Divorce

Agreement reflects that Plaintiff’s parents have shared custody of him and his older
brother (Doc. 13-4 at 2 ¶ 3.(a); Doc. 13-3 at 11 at 43)3 and that Mr. Cole will have
physical custody of Plaintiff subject to a visitation schedule with his mother. (Doc.
13-4 at 2-3 ¶ 3.(b)). Plaintiff’s parents did not follow the default custody schedule set
out in the Divorce Agreement with any regularity. (See Doc. 13-3 at 6 at 22 (“No. We
never had [the Divorce Agreement] altered. We never followed it, but we never
altered it.”)).
1

Keeping in mind that when deciding a motion for summary judgment the court must view
the evidence and all factual inferences in the light most favorable to the party opposing the motion,
the court provides the following statement of facts. See Optimum Techs., Inc. v. Henkel Consumer
Adhesives, Inc., 496 F.3d 1231, 1241 (11th Cir. 2007) (observing that, in connection with summary
judgment, a court must review all facts and inferences in a light most favorable to the non-moving
party). This statement does not represent actual findings of fact. See In re Celotex Corp., 487 F.3d
1320, 1328 (11th Cir. 2007). Instead, the court has provided this statement simply to place the
court’s legal analysis in the context of this particular case or controversy.
2

All page references to Doc. 13-4 correspond with the court’s CM/ECF numbering system.

3

All initial page references to Doc. 13-3 correspond with the court’s CM/ECF numbering

system.
4

The underlying motor vehicle accident injuring Plaintiff happened in April
2014. (Doc. 13-1 at 2 at 6).4 At the time of the wreck, Plaintiff’s mother lived in
Moody and Plaintiff’s father–Mr. Cole–lived in Leeds. Id.
After the divorce, Plaintiff lived primarily with his father during school days,
and primarily with his mother when he was not in school. (Doc. 13-2 at 6 at 21).5
When Plaintiff was asked during his deposition where he had been living when the
accident occurred, he answered, “I had been staying at my mom’s for about a week.”
(Doc. 13-1 at 2 at 6).
When Plaintiff’s older brother learned to drive about a year or so before the
accident, Plaintiff testified that his brother “could come and pick [him] up and we
could go to [our] mom’s or he could come to [our] dad’s when he wanted” (Doc. 13-1
at 18 at 69), but Plaintiff did not ever quantify how this impacted with whom he
primarily lived. Plaintiff did answer affirmatively that Mr. Cole was the person who
took him to and from school most of the time. (Id. at 5 at 18).
Overall, Plaintiff’s testimony about which parent he lived with primarily was
inconclusive due to his lack of recollection:

4

All initial page references to Doc. 13-1 correspond with the court’s CM/ECF numbering

5

All initial page references to Doc. 13-2 correspond with the court’s CM/ECF numbering

system.
system.
5

Q.
And during that time period from the time of the divorce up
until the time of the accident we are here about, you were staying more
with your daddy; correct?
A.

I don’t know.

Q.

Why don’t you know?

A.

I can’t remember.

(Doc. 13-1 at 4-5 at 16-17 (emphasis added)).
Regarding Plaintiff’s living arrangements, Mr. Cole testified:
He has three months off for the summer. He gets two weekend
days. And then he is at her house sometime during the week. So I would
say that when he is not with her, he is with me. Truthfully, the balance
would be in favor of him being with me, but I couldn’t say by a lot.
(Doc. 13-2 at 6 at 21 (emphasis added)). When Mr. Cole was asked whether these
arrangements changed–i.e., “either more with you or more with Catherine [Plaintiff’s
mother], at any time from 2010 up to the time of the accident?” Mr. Cole answered,
“No.” Id.
Plaintiff’s mother was unable to quantify where Plaintiff primarily lived at the
time of the accident:
Q.
So am I correct that as far as 365 days in the year, Zach, not
only pursuant to the divorce decree but pursuant because he asked it to
be this way, was staying with Steve more than you?
A.
I mean, I can’t quantitatively tell you that. Yes, that’s what
he said. But I can’t say it’s more or less – I mean, there is what, 180 days
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in the school year. You know, I mean, I can’t give you a number. I can’t
say he was because he would be at my house sometimes a week at a
time, you know. So I can’t say that he was at my house a certain
percentage and Steve’s. I’m sorry. To give you a definite answer, I
would not be –
Q.

Are you testifying that he lived with you more than Steve?

A.

No. I am not saying that either.

(Doc. 13-3 at 6 at 21-22 (emphasis added)).
IV.

ANALYSIS6
Under the Policy an “Insured person” for the purposes of the UIM benefits

means “you or a relative[.]” (Doc. 13-5 at 5 ¶ 1.a).7 The Policy defines “relative” to
mean:
[A] person primarily residing in the same household as you, and related
to you by blood, marriage, or adoption, and includes a ward, stepchild,
or foster child. Your unmarried dependent children temporarily away
from home will qualify as primarily residing in the same household as
you if they intend to continue to reside in your household.
(Doc. 13-5 at 3 ¶ 7).
In the case of State Farm Mut. Auto. Ins. Co. v. Harris, 882 So. 2d 849 (Ala.
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“‘Under the Erie doctrine, a federal court adjudicating state law claims applies the
substantive law of the state.’” Sphinx Intern., Inc. v. National Union Fire Ins. Co. of Pittsburgh, Pa.,
412 F.3d 1224, 1227 (11th Cir. 2005) (quoting Ungaro-Benages v. Dresdner Bank AG, 379 F.3d
1227, 1232 (11th Cir. 2004) (citations omitted)). Moreover, the substantive law of the state governs
the interpretation of insurance contracts. Provau v. State Farm Mut. Ins. Co., 772 F.2d 817, 819
(11th Cir. 1985). Hence, the insurance contract issues in this case are governed by Alabama law.
7

All page references to Doc. 13-5 correspond with the court’s CM/ECF numbering system.
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2003), the Alabama Supreme Court dealt with the identical modifier of “primarily”
in deciding whether the plaintiff qualified as a “relative” under his dad’s automobile
policy so that he could stack UIM coverage. As the Harris court explained in
reversing the trial court’s ruling in favor of the plaintiff:
In this case, as in B.D.B., we must construe the modifier
“primarily” as it applies to the phrase “lives with you [the insured].” We
note that Merriam–Webster’s Collegiate Dictionary (11th ed. 2003)
defines the word “primarily” to mean “for the most part” or “chiefly.”
Although this Court has held that a person may “live” in more than one
place for purposes of uninsured-motorist coverage, see Davis v. State
Farm Mutual Automobile Insurance Co., supra, we fail to see how a
person may “primarily” or “for the most part” live in more than one
place at one time. Because at the time of the accident Bo Harris lived
“for the most part” with his mother, he could not also “live primarily
with” his father.
We conclude that the trial court erred in finding that Bo Harris
was a “relative,” as that term is defined in the State Farm insurance
policies. Because Bo Harris did not fall within the definition of the term
“relative” or under any other definition of “insured,” he was not entitled
to stack the uninsured-motorist coverage available in the insurance
policies issued to Hugh Harris by State Farm.
Harris, 882 So. 2d at 854 (emphasis added).
Several other courts have agreed with the reasoning in Harris. See, e.g., Lewis
v. Likens, No. CIV. A. 3:12-1675, 2013 WL 633208, at *4 (S.D.W. Va. Feb. 20,
2013) (“In line with the cases above [including Harris], this Court finds that ‘resides
primarily’ is an unambiguous term, and refers to the chief or main residence of an

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individual.”); State Farm Mut. Auto. Ins. Co. v. Fultz, No. CIV. A. 2:06CV15, 2007
WL 2789461, at *4 (N.D.W. Va. Sept. 24, 2007) (“Courts which have construed
language identical to that contained in the Fultz policy have rejected defendant’s
argument reasoning that there can only be one primary residence.” (citing and then
discussing Harris)); State Farm Fire & Cas. Co. v. Lange, 480 F. App’x 309, 313
(5th Cir. 2012) (citing Harris and “agree[ing] with district court that the Texas
Supreme Court would conclude that the phrase ‘primary residence’ is unambiguous
[in light of] [s]everal state courts hav[ing] found similar phrases to be
unambiguous”). Thus adhering to Harris, Progressive is correct that under Alabama
law Plaintiff can only have one primary residence at any given time.
Further, under Alabama law the insured bears the initial burden of proving that
a particular claim or occurrence falls within coverage under the insurance policy. See,
e.g., Colonial Life & Acc. Ins. Co. v. Collins, 194 So.2d 532, 535 (Ala. 1967) (“The
burden was on plaintiff to prove that the insured’s death resulted from injuries
sustained in such manner as to bring him within the coverage of the policy.”). For this
particular case, this means that Plaintiff bears the burden of demonstrating that he
primarily resided with his mother at the time of the accident. Here the court finds that,
in light of the testimony he and his parents provided, Plaintiff has not presented a
triable issue as to that fact and, as a result, Progressive’s Motion is due to be granted.
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A close reading the underlying deposition transcripts reveals that only one of
the three witnesses gave an unequivocal opinion about where Plaintiff primarily lived
leading up to the accident–Mr. Cole. More specifically, Mr. Cole affirmatively stated,
“the balance would be in favor of him being with me” and also answered negatively
when counsel for Progressive asked him if his opinion would be different for any time
period before the accident. (Doc. 13-2 at 6 at 21).
Neither Plaintiff’s testimony nor his mother’s contradicts this evidence
provided under oath by Mr. Cole. Plaintiff responded that he could not remember
with whom he has lived primarily and Plaintiff’s mother was unable to pick a parent
with whom Plaintiff has primarily resided. While Plaintiff did indicate that he was
staying with his mother for about a week immediately proceeding the accident, he did
not ever suggest that this was intended to be more permanent arrangement going
forward. Additionally, Plaintiff offers no case authority that such a sliver of time,
without more, would somehow satisfy the Policy’s “primarily residing” requirement
just because that week of time spent at his mother’s home happened to take place
right before the wreck.
When reading the record in a light most favorable to Plaintiff, the best that he
has shown is that he resided at both residences equally and neither one primarily.
Although the court does not disagree with Plaintiff that Alabama law has, at times,
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permitted UIM coverage under a parent’s policy for a child who has two documented
residences (Doc. 15 at 9), the policy language interpreted in those cases did not
include any qualifying language like “primarily” that removed any lack of clarity over
the scope of the contract’s intended coverage. See, e.g., Davis v. State Farm Mut.
Auto. Ins. Co., 583 So. 2d 225, 230 (Ala. 1991) (“Therefore, we hold that the term
‘live with,’ as used in the policy in question, is an ‘ambiguous, elastic, or relative
term, and includes a very temporary, as well as a permanent, abode.’”); id. (“Although
we cannot hold the trial court clearly erroneous in finding that Chuck ‘lived’ at the
apartment, there was no evidence from which the trial court could reasonably infer
that Chuck did not also ‘live with’ his father at the time of the accident for purposes
of uninsured motorist coverage.”).
Here, unlike the contractual language examined in Davis, there is no ambiguity
in the Policy’s grant of UIM coverage and Plaintiff lacks sufficient evidence to show
that he qualifies as an insured relative of his mother under the Policy’s unambiguous
“primarily residing” requirement. Furthermore, a ruling in Plaintiff’s favor calls for
an impermissible rewriting of the Policy and a reversible overreach under Alabama
law. See, e.g., St. Paul Mercury Ins. Co. v. Chilton–Shelby Mental Health Ctr., 595
So. 2d 1375, 1377 (Ala. 1992) (“If there is no ambiguity, courts must enforce
insurance contracts as written and cannot defeat express provisions in a policy,
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including exclusions from coverage, by making a new contract for the parties.”
(emphasis added) (citing Johnson v. Allstate Ins. Co., 505 So. 2d 362, 365 (Ala.
1987))); Turner v. U.S. Fid. & Guar. Co., 440 So. 2d 1026, 1028 (Ala. 1983) (same)
(citing Westchester Fire Ins. Co. v. Barnett Millworks, Inc., 364 So. 2d 1137 (Ala.
1978)).
The court acknowledges that Plaintiff alternatively argues that even if he does
not fit within the first sentence of the Policy’s definition for “relative,” the second
sentence of that section provides him with UIM coverage. More specifically, Plaintiff
contends that:
[t]his portion of the definition [of relative] does not qualify or require
that the residence be ‘primary’ under the plain meaning of that word as
Defendant suggests, but rather expands the definition of primary to
include those situations, such as here, in which an unmarried dependent
child resides at the home of the named insured and intends to continue
residing at the home of the named insured, regardless of where he is
actually primarily living at the time.
(Doc. 15 at 14-15).
Thus, Plaintiff urges that when he spent time with his father he was temporarily away
from his mother’s household and UIM coverage is triggered under the second
meaning of “relative” in her Policy regardless of whether her home was his primary
household. Noticeably absent from Plaintiff’s alternative argument is any on-point
supportive authority.
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After reviewing several coverage opinions on policies containing similar
language, the court has found that this second sentence is designed to address
instances in which a minor is temporarily away from his primary household because
he is attending school, a summer camp, or some other transitory place. In any event,
Plaintiff’s strained construction of this sentence is directly at odds with controlling
Alabama law. The Alabama Supreme Court has made it clear under a comparablyworded policy that this second sentence does not provide an independent definition
of “relative” for UIM coverage and that it, unambiguously, must be read in
conjunction with the first sentence.
In particular, the dependent language applies to clarify that in the context of
when the policyholder’s home is also the place where a minor primarily lives, UIM
coverage for an accident will still be in effect on that child, despite his temporary
absence from the primary residence. See State Farm Mut. Auto. Ins. Co. v. Brown, 26
So. 3d 1167, 1170 (Ala. 2009) (“Such a reading requires Rachel to be, while ‘away
at school’ away from her primary residence, not simply the policyholder’s residence,
in order to recover UIM benefits under Mr. Brown’s policy.”) (emphasis added); id.
(“To read the two-sentence definition of ‘relative’ disjunctively would, in effect,
rewrite State Farm’s policy to [inappropriately] expand UIM coverage to unintended
beneficiaries.”); id. (“Rachel cannot ‘qualif[y] as [Mr. Brown]’s ‘relative’ as his
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‘unmarried and unemancipated child away at school’ so as to be entitled to UIM
benefits under [Mr. Brown]’s State Farm polic[y,]’ because she does not live
primarily with Mr. Brown, her father, and she is not temporarily away from her
primary residence for the purpose of attending school.”) (emphasis added). Therefore
in light of Brown, the court rejects Plaintiff’s secondary contention in opposition to
the Motion.
V.

CONCLUSION
Thus, Progressive’s Motion is due to granted and, Plaintiff’s case is due to be

dismissed with prejudice. The court will enter a separate order in conformance with
the foregoing summary judgment opinion.
DONE and ORDERED this 25th day of May, 2016.

VIRGINIA EMERSON HOPKINS
United States District Judge

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