Meade v. Dermott, City of et al
ORDER granting 59 Motion for Summary Judgment. All claims against the City are dismissed with prejudice. Signed by Judge Susan Webber Wright on 04/01/2014. (rhm)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
CITY OF DERMOTT, ARKANSAS,
NO: 5:12CV00315 SWW
Sylvia Meade brings this action pursuant to 42 U.S.C. § 1983, claiming that the City of
Dermott and former Dermott police officer Michael Wolfe violated her constitutional rights.
Meade also brings supplemental claims under state law, including a negligence claim against the
City. Before the Court is the City’s renewed motion for summary judgment as to Meade’s
negligence claim (ECF Nos. 59, 60, 61), Meade’s response in opposition (ECF Nos. 65, 66, 67),
and the City’s reply (ECF No. 68 ). After careful consideration, and for reasons that follow, the
City’s motion is granted, and Meade’s negligence claim is dismissed with prejudice.
Summary judgment is appropriate when “the movant shows 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). As a prerequisite to summary judgment, a moving party must demonstrate “an
absence of evidence to support the non-moving party’s case.” Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986). Once the moving party has properly supported its motion for summary
judgment, the non-moving party must “do more than simply show there is some metaphysical
doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
The non-moving party may not rest on mere allegations or denials of his pleading but
must come forward with ‘specific facts showing a genuine issue for trial. Id. at 587. “[A]
genuine issue of material fact exists if: (1) there is a dispute of fact; (2) the disputed fact is
material to the outcome of the case; and (3) the dispute is genuine, that is, a reasonable jury
could return a verdict for either party.” RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d
399, 401 (8th Cir. 1995).
Under Arkansas law, the City is entitled to immunity from Meade’s negligence claim,
except to the extent that the City is covered by liability insurance. See Ark. Code § 21-9-301;
see also City of Caddo Valley v. George, 340 Ark. 203, 209, 9 S.W.3d 481, 484 (2000)(“[A]
municipal corporation's immunity for negligent acts only begins where its insurance coverage
leaves off.”). Because this immunity is an affirmative defense, the City bears the burden to
prove that it is entitled to that immunity due to a lack of insurance. Vent v. Johnson, 2009 Ark.
92, 14, 303 S.W.3d 46, 53 (2009).
By order entered February 14, 2014, the Court granted in part and denied in part the
City’s motion for summary judgment. The Court denied the motion as to Meade’s negligence
claim because it was not possible to determine on the existing record whether the City carried
liability insurance. The City has now renewed its motion and has submitted two affidavits by
Defendant Gray, the Mayor of Dermott, who testifies: “The City does not hold any type of
liability insurance.” ECF No. 68, Ex. #2. Gray further testifies that he has served as the Mayor
of Dermott for fourteen years. Id.
Meade contends that Gray’s affidavit is nothing more than a “self-serving and untestable
declaration” that fails to demonstrate beyond a genuine dispute that the City lacks liability
insurance. According to Meade, Gray’s affidavit leaves open “a number of contingencies,” and
she theorizes that the City’s contract with the Arkansas Municipal League serves as a form of
The City supports its motion with an affidavit made on the personal knowledge of Mayor
Gray on the question of whether the City carries liability insurance. Given Gray’s testimony
that the City “does not hold any type of liability insurance,” Meade must come forward with
evidence creating a genuine issue for trial. Contrary to Meade’s assertions, Gray’s testimony,
on its face, leaves no question as to whether the City carries liability insurance of any kind.
Furthermore, the Arkansas Municipal League provides funds to member cities for the defense of
certain types of lawsuits, but it does not provide liability insurance to member cities. See City of
Marianna v. Arkansas Municipal League, 291 Ark. 74, 722 S.W.2d 578 (1987)(holding that the
Arkansas Municipal League Defense Program is not an insurance contract).
Finally, Meade proposes that the Court reopen discovery on the issue liability insurance.
The City asserted the immunity defense in its answer, filed November 5, 2012. Meade does not
and cannot claim that she has not received an adequate opportunity to obtain discovery, and she
fails to make the showing required for a deferral of a ruling on summary judgment. See Fed. R.
Civ. P. 56(d).
In sum, the Court finds no genuine issues for trial on the question of whether the City
carries liability insurance and finds no cause for deferring a ruling on the City’s motion.
Accordingly, the City’s renewed motion for summary judgment (ECF No. 59) is GRANTED and
all claims against the City are dismissed with prejudice. Meade’s claim against Defendant Wolfe
remain for trial.
IT IS SO ORDERED THIS 1ST DAY OF APRIL, 2014.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE
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