Collum v. Southern Specialty Services, Inc.
ORDER, GRANTING 39 Motion for Summary Judgment filed by Great West Casualty Insurance Company. Signed by Judge Callie V. S. Granade on 12/16/2015. (mab)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
JAMES BYRON COLLUM and
SERVICES INC., et al.,
) CIVIL ACTION NO. 15-208-CG-N
MEMORANDUM OPINION AND ORDER
This matter is before the court on the motion of Great West Casualty
Insurance Company (“Great West”) for summary judgment. (Doc. 39). After review of
the pleadings and in light of the fact that Plaintiffs have failed to oppose summary
judgment, the court finds that Great West’s motion is due to be granted.
Plaintiff initiated this action on March 3, 2015, in the Circuit Court of
Marengo County, Alabama, case number CV 15-900044. The case was removed to
this Court on April 15, 2015, based on diversity jurisdiction. (Doc. 1). The
complaint asserts three Counts in relation to an accident that occurred on or about
March 14, 2013: (1) negligent entrustment, (2) negligent hiring, training, and
retention, and (3) uninsured/underinsured motorist. (Doc. 1-1). Only Count Three
of the complaint names Great West. (Doc. 1-1, pp. 8-10). Count Three alleges that
Plaintiff James Byron Collum was insured under an insurance policy by Great
West. (Doc. 1-1, p. 9).
On October 22, 2015, Great West moved for summary judgment on all counts
brought against it. (Doc. 39). Great West’s motion asserts that the tractor trailer
being driven by Plaintiff James Byron Collum when he was allegedly hit by another
vehicle in March 2013, was not listed on the schedule of covered autos in the Great
West policy at issue. As such, Great West asserts that it owes no coverage to
Plaintiffs arising out of the incident that occurred in March 2015.
Any party opposing the motion for summary judgment was ordered to file a
response in opposition on or before November 5, 2015. (Doc. 40). To date, no
opposition has been filed.
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall
be granted: “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 judgment as a
matter of law.” The trial court’s function is not “to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Once the movant satisfies his initial burden under Rule 56(c), the non-moving
party "must make a sufficient showing to establish the existence of each essential
element to that party's case, and on which that party will bear the burden of proof
at trial." Howard v. BP Oil Company, 32 F.3d 520, 524 (11th Cir. 1994)(citing
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Otherwise stated, the nonmovant must “demonstrate that there is indeed a material issue of fact that
precludes summary judgment.” See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608
(11th Cir. 1991). The non-moving party “may not rest on the mere allegations or
denials of the [non-moving] party’s pleading, but ... must set forth specific facts
showing that there is a genuine issue for trial.” FED. R. CIV. P. 56(e) “A mere
‘scintilla’ of evidence supporting the [non-moving] party’s position will not suffice;
there must be enough of a showing that the jury could reasonably find for that
party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citation omitted).
“Where the record taken as a whole could not lead a rational trier of fact to find for
the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 at 587 (1986) (internal quotation and
In the instant case, Great West has asserted “undisputed facts” that, if true,
would support its assertion that it owes no coverage to Plaintiffs for the March 2013
incident involving a tractor trailer. No party has opposed Great West’s motion for
summary judgment. “In opposing a motion for summary judgment, a ‘party may
not rely on his pleadings to avoid judgment against him.’” Resolution Trust Corp. v.
Dunmar Corp., 43 F.3d 587, 592 (11th Cir. 1995), cert. denied sub nom., Jones v.
Resolution Trust Corp., 516 U.S. 817 (1995)(citing Ryan v. Int’l Union of Operating
Eng’rs., Local 675, 794 F.2d 641, 643 (11th Cir. 1986)). Moreover, “[t]here is no
burden upon the district court to distill every potential argument that could be
made based upon the materials before it on summary judgment. Rather, the onus is
upon the parties to formulate arguments; grounds alleged in the complaint [or
answer] but not relied upon in summary judgment are deemed abandoned.” Id. at
599 (citations omitted).
There being no opposition to Great West’s motion, the Court, after review of
the pleadings, finds the motion is due to be granted.
For the reasons stated above, the motion of Great West Casualty Insurance
Company (“Great West”) for summary judgment. (Doc. 39), is GRANTED.
DONE and ORDERED this 16th day of December, 2015.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE
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