BRANNAN v. GEICO INDEMNITY COMPANY et al
ORDER finding as moot 71 Defendant's Motion to Dismiss or Abate Counts II and III of the Second Amended Petition; finding as moot 72 Defendant's Motion to Dismiss or Abate Counts II and III of the Second Amended Peti tion; granting 75 Defendant Government Employees Insurance Company's Motion for Partial Summary Judgment on the Counterclaim and Counts I and IV; granting 82 Defendant GEICO Indemnity's Motion for Partial Summary Judgment on Counts I an d IV; denying 102 Plaintiff's Motion for Partial Summary Judgment; granting 104 Defendant Government Employees Insurance Company's Motion for Partial Summary Judgment on Counts II and III; granting 106 GEICO Indemnity's Motion for Partial Summary Judgment on Counts II and III. The Clerk is directed to enter final judgment, terminate pending motions and close the file. Signed by MAGISTRATE JUDGE GARY R JONES on 10/18/13. (grj)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
Case No. 1:12-cv-238-GRJ
GEICO INDEMNITY CO. and
This is an action for uninsured motorist benefits arising out of an October 13, 2010,
motorcycle accident in which Plaintiff James Brannan suffered injuries. There is no dispute
that the at-fault driver was an uninsured motorist. At the time of the accident, Plaintiff was the
policyholder of a motorcycle insurance policy issued by Defendant GEICO Indemnity
(“Indemnity”) (the “Motorcycle Policy”) and was also the policyholder of an automobile
insurance policy for three automobiles (the “Auto Policy”) issued by Defendant Government
Employees Insurance Company (“GEICO”). The issue before this Court is the amount of
benefits to which Plaintiff is entitled under the policies. Defendant Indemnity tendered
payment to Plaintiff of the $10,000 uninsured motorist (“UM”) benefit under the Motorcycle
Policy, but Plaintiff contends that he is entitled to an additional $300,000 in policy benefits, plus
other compensation, because the UM benefits under the Motorcycle Policy should be stacked
with the total $300,000 in UM benefits under the Auto Policy.
Plaintiff is proceeding pursuant to a Second Amended Petition for Declaratory Judgment
and Relief (Doc. 44), in which he asserts claims for breach of contract (Count I), negligence
(Count II), violation of Fla. Stat. § 627.4137 (Count III), and declaratory relief (Count IV) as to
his entitlement to stacked UM coverage. GEICO filed a Counterclaim for Declaratory Relief
(Doc. 53). The case is presently before the Court upon Defendants’ Motions to Dismiss or
Abate Counts II and III of the Second Amended Petition (Docs. 71, 72); GEICO’s Motion for
Partial Summary Judgment on its Counterclaim and Counts I and IV (Doc. 75); Indemnity’s
Motion for Partial Summary Judgment on Counts I and IV (Doc. 82); Plaintiff’s Motion for Partial
Summary Judgment (Doc. 102); GEICO’s Motion for Partial Summary Judgment on Counts II
and III (Doc. 104); and Indemnity’s Motion for Partial Summary Judgment on Counts II and III
(Doc. 106). Each party has responded to the opposing parties’ motions, and the motions are
therefore ripe for determination. For the following reasons, the Court concludes that
Defendants are entitled to summary judgment in their favor on all of Plaintiff’s claims and on
Defendant GEICO’s counterclaim.
Undisputed Material Facts1
A. GEICO Auto Policy
The facts that are relevant to the disposition of the pending motions may be summarized
as follows. Plaintiff initially insured automobiles with Defendant GEICO in or around 1998. At
the time of the accident, Plaintiff owned three automobiles which were insured under a Florida
Except where indicated, this summary of the undisputed material facts is drawn from the
parties’ statements of material facts filed pursuant to N.D. Fla. Loc. Rule 56.1.
Family Automobile Insurance Policy (“Auto Policy”) issued to him by GEICO. Doc. 1-1 pp. 5283; Doc. 44; Doc. 53-1. Pursuant to the Auto Policy Declarations, the policy provided nonstacked UM coverage limits of $100,000/$300,000 each person/each occurrence. Doc. 1-1 pp.
52-83; Doc. 53-1; Brannan Duces Tecum Response p. 0233. Plaintiff expressly rejected
stacked coverage when he signed the UM selection form for the Auto Policy on October 12,
2009. Doc. 53-2; Brannan Depo. Exh. 11; Brannan Duces Tecum Response pp. 0228-0233.
The form states, inter alia, that:
At a reduced rate, you have the option to purchase the non-stacked (limited) type
of UM coverage. Under this option, if an injury occurs in a vehicle owned or
leased by you . . . only the limits of coverage (if any) which apply to that vehicle
will be used. (Note that there is no coverage under this policy for a person who is
injured while occupying a motor vehicle or motorcycle owned by you or a family
member who resides with you which is not covered under the liability coverages
section of this policy.)
Plaintiff checked on the form: “I want Non-Stacked Uninsured Motorist coverage at the limit
checked below: (May not exceed the limits of your Bodily Injury Liability coverage.)” Plaintiff
also selected the $100,000/$300,000 coverage limit. Doc. 53-2; Brannan Depo. Exh. 11;
Brannan Duces Tecum Response pp. 0228-0233. The language of this form was approved by
the Florida Department of Insurance. See Doc. 104 Exh. D. Prior to November 10, 2009,
Plaintiff did not carry UM coverage on his Auto Policy and expressly rejected such coverage.
Brannan Depo. pp. 36-37. After electing UM coverage, every six months Plaintiff received a
declarations page for the Auto Policy which contained the designation “UNINSURED
MOTORIST/NONSTACKED.” Brannan Depo. pp. 35-43.
B. GEICO Indemnity Motorcycle Policy
In 2008, Plaintiff obtained a policy issued by Indemnity to insure his 2008 Suzuki V1800
Boulevard C50. See Doc. 103, Exh. B. Although Indemnity issues both Auto and Motorcycle
policies, they must be issued as separate policies. Hood Depo. p. 99, Doc. 106 Exh. C.
On October 5, 2009, Plaintiff contacted Indemnity’s toll-free call center and requested
that towing and stacking UM coverage be added to the Motorcycle Policy, with limits of
$10,000.00/$20,000.00 each person/each occurrence. See Doc. 82-1, pp. 64-65, 68-69, 93-94
(Brannan depo.). The representative who received and responded to Plaintiff’s call was a
licensed insurance agent by the name of Lacy Carter. See Policy Log Inquiry entry dated
10/5/09 in Exhibit 2 to Deposition of Robert Hood Doc. 89-2; Transcript of Deposition of Robert
Hood at 28, 55, 17; Doc. 89-1; Doc. 103 Exh. C.
The UM coverage provisions, endorsements, and limitations of the Motorcycle Policy
provide in relevant part:
PART IV - Uninsured Motorists Coverage
Losses We Pay
We will pay damages which a covered person is legally entitled to recover from
the owner or operator of an uninsured motor vehicle because of bodily injury
sustained by a covered person and caused by an accident. The owner’s or
operator’s liability for these damages must arise out of the ownership,
maintenance or use of the uninsured motor vehicle. We will also pay for damages
the covered person is legally entitled to recover for bodily injury caused by
accident and arising out of ownership, maintenance or use of an underinsured
Limits of Liability
1. The limit of bodily injury shown on the Declarations as applying to “each
person” is the limit we will pay for all damages sustained by one person as a
result of one accident covered by this Part. The most we will pay for all such
damages, sustained by one person as the result of one accident, is the sum of
the “each person” limits for Uninsured Motorists coverage shown in the
Doc. 1-1 pp. 46-47; Rule 26(a)(1) Disclosures; Brannan Depo. Exhs. 1, 5, 7.
The Insurance Claim
Following the accident, Plaintiff submitted a claim for UM benefits to Indemnity.
Plaintiff, through counsel, requested an affidavit of insurance pursuant to Florida Statute
§ 627.4137. Indemnity claims manager, Rita Collier, prepared an affidavit of insurance
coverage with respect to the Motorcycle Policy that confirmed that the Motorcycle Policy was
issued on the 2008 Suzuki, and provided stacking uninsured motorist coverage in the amount
of $10,000.00 per person. The affidavit then stated that the “number of listed vehicles” was “3”.
It further stated “Additional Insurance Coverage: None Known at this Time.” Doc. 1-1 at 12.
On November 11, 2010, Collier executed a second affidavit reflecting that the number of listed
vehicles was “1”. Doc. 1-1 at 14. On October 4, 2011, Indemnity claims manager Karen E.
Hall, prepared a third affidavit reflecting that “[o]ther listed vehicles” was “[n]one.” Doc. 1–1 at
Plaintiff claimed that he was entitled to $10,000 UM coverage under the Motorcycle
Policy and additional UM coverage under the separate Auto Policy in the amount of $100,000,
stacked with his Motorcycle Policy. Doc. 103 Exh. E. GEICO denied UM coverage under the
Auto Policy due to Plaintiff’s express rejection of stacked coverage under that policy. Doc. 104,
Exh. C. Indemnity tendered the $10,000 UM limit of the Motorcycle Policy to Plaintiff. Doc.
104, Exh. C.
The Complaint and Counterclaim
Plaintiff asserts in Count I that Defendants breached their respective insurance policies
by refusing to pay him UM benefits under each policy. In Count II, he contends that
“Defendants agreed to provide Mr. Brannan with stacked uninsured motorist coverage under
his Motorcycle Policy, such that the uninsured motorist coverage provided under his Motorcycle
Policy would be stacked against the uninsured motorist coverage provided under his Auto
Policy.” He contends that Defendants owed him a duty to procure and issue a policy or policies
that would provide him with the stacked coverage he requested, and that Defendants
negligently breached that duty. In Count III, Plaintiff contends that Defendants violated Fla.
Stat. § 627.4137 by failing to timely provide him with accurate, truthful, and timely policy
information as required by the statute. In Count IV, Plaintiff seeks a declaration as to whether
the coverage exclusions of the Auto Policy apply as a bar to coverage under that policy in light
of Plaintiff’s assertion that the Auto and Motorcycle policies could or should have been issued
under a single policy. Doc. 44.
GEICO’s counterclaim seeks a declaration that the Auto Policy does not provide any UM
benefits to Plaintiff for the motorcycle accident, because the policy excludes from coverage
injuries suffered while occupying a motorcycle owned by an insured, which is not insured under
the Liability Coverages section of the Auto Policy. Doc. 53.
Summary Judgment Standard of Review
Pursuant to Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary
judgment if 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.” In applying this standard, the Court must
examine the materials on file and the record evidence “in the light most favorable to the
nonmoving party.” Samples on Behalf of Samples v. Atlanta, 846 F.2d 1328, 1330 (11th Cir.
1988). When faced with a “properly supported motion for summary judgment [the nonmoving
party] must come forward with specific factual evidence, presenting more than mere
allegations.” Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997). The party
opposing a motion for summary judgment must rely on more than conclusory statements or
allegations unsupported by facts. Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir.
1985) (“conclusory allegations without specific supporting facts have no probative value”).
At the summary judgment stage the judge’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). Some degree of factual dispute is
expected, but to successfully counter a motion for summary judgment the factual dispute must
“affect the outcome of the suit” and must be “such that a reasonable jury could return a verdict
for the nonmoving party.” Id. at 248.
I. Defendants’ Motions on Counts I, IV and GEICO’s Counterclaim
Both Defendants seek summary judgment on Counts I (breach of contract) and IV
(Plaintiff’s claim for declaratory judgment), and GEICO further seeks summary judgment on its
counterclaim for declaratory judgment. Docs. 75, 82.
Interpretation of an insurance contract raises questions of law that the Court may
resolve at the summary judgment stage. See Technical Coating Applicators, Inc. v. U.S.
Fidelity and Guar., Co., 157 F.3d 843 (11th Cir. 1998); Bedoya v. Travelers Property Cas. Co.
of America, 773 F. Supp. 2d 1326 (M.D. Fla. 2011); DEC Electric, Inc. v. Raphael Construction
Corp., 558 So. 2d 427 (Fla. 1990). “Insurance contracts are construed in accordance with the
plain language of the policies as bargained for by the parties. Ambiguities are interpreted
liberally in favor of the insured and strictly against the insurer who prepared the policy.”
Prudential Prop. & Cas. Inc. Co. v. Swindal, 622 So.2d 467, 470 (Fla.1993). This Court may
not “rewrite a contract of insurance, extending the coverage afforded beyond that plainly set
forth in the insurance contract.” AAA Life Ins. Co. v. Nicolas, 603 So.2d 622, 623 (Fla. 3d DCA
In this case, the Court is persuaded that pursuant to Florida law and the terms of the
Motorcycle and Auto Policies at issue in this case, Plaintiff is not entitled to recover additional
UM benefits based on the three vehicles insured under the Auto Policy because he expressly
rejected stacking coverage for the Auto Policy and only purchased stacking coverage for the
Under Florida law, uninsured motorist coverages stack based on the number of
premiums paid for traditional UM coverage. Coleman v. Florida Ins. Guar. Ass’n, Inc., 517 So.
2d 686, 690-91 (Fla. 1988). However, in 1987 the Florida Legislature authorized non-stacking
provisions in UM policies. Under Fla. Stat. § 627.727(1) & (9), traditional UM coverage is
provided with limits that stack unless an insured selects coverage with policy provisions limiting
By operation of [§ 627.727(1) ], the insured receives stacked UM coverage unless
the insured either makes a written rejection of the coverage . . . or the insured
elects to accept non-stacked UM coverage from the insurer. . . . While the policy
premium for non-stacked coverage is at least twenty percent less than the
premium for stacked coverage, non-stacked coverage is subject to numerous
coverage limitations that are not applicable to stacked coverage. . . . These
limitations include not just the inability to add together (or “stack”) the UM liability
limits of two or more motor vehicle policies—which is the primary focus of the
appellants— . . . but also the restriction that non-stacked coverage does not apply
to an insured who is injured “while occupying any vehicle owned by such insured
for which uninsured motorist coverage was not purchased.” Therefore, a crucial
distinction between stacked and non-stacked coverage that is overlooked by the
appellants is that, unlike stacked coverage, non-stacked UM coverage does not
provide coverage for every vehicle that the insured owns—it only provides
coverage for the vehicle on which the UM premium was paid.
Swan v. State Farm Mut. Auto. Ins. Co. 60 So.3d 514, 517 -518 (Fla. 3rd DCA 2011) (quoting
Fla. Stat. § 627.727(9)(d)) (emphasis added).
Plaintiff’s Auto Policy provided non-stacked UM coverage for three automobiles. There
is no dispute that Plaintiff did not insure the motorcycle under the Auto Policy, nor did he pay a
UM premium under that policy for the motorcycle. The terms of the rejection form executed by
Plaintiff – which the Court finds to be unambiguous – expressly provide that in exchange for a
reduced premium “if an injury occurs in a vehicle owned or leased by you . . . only the limits of
coverage (if any) which apply to that vehicle will be used.” The form further made clear that the
non-stacked UM coverage purchased under the Auto Policy did not extend to “a motor vehicle
or motorcycle owned by you . . . which is not covered under the liability coverages section of
this policy.” Doc. 53-2. These coverage exclusions plainly bar coverage under the Auto Policy
for Plaintiff’s motorcycle accident.
Contrary to Plaintiff’s assertion, the unavailability of another policy against which to stack
the UM benefits under the Motorcycle Policy does not render that contract illusory. Florida
courts have rejected this argument, noting that stacked coverage, such as the coverage
purchased in the Motorcycle Policy, carries “a very valuable benefit . . . beyond just the ability
to aggregate UM benefits.” Swan, 60 So.3d at 519 (citing Collins v. Government Employees
Ins. Co. 922 So.2d 353, 355 (Fla. 3rd DCA 2006)). In Collins, the court rejected an insured’s
claim that she was entitled to a return of her stacked UM premium for the years she owned only
one automobile because, absent the ability to aggregate or stack coverage with another
vehicle, she received no benefit for the higher premium paid for stacked coverage. The court
We disagree. It is true that stacked uninsured coverage enables the insured to
stack the coverage for one owned automobile onto the coverage of another
owned automobile. That is not the only benefit of stacked coverage. Even with
one automobile, should the insured have an uninsured motorist claim, stacked
coverage provides certain benefits above those received with non-stacked.
Section 627.727(9)(a)-(e) delineates the limitations in uninsured motorist
coverage, in addition to the limitation of not being able to stack the coverage from
one vehicle onto another, when non-stacked insurance is obtained for a twenty
percent decrease in premium. When the insured purchases stacked coverage,
the limitations of section 627.727(9)(a)-(e) do not apply thereby giving the insured
certain benefits for the twenty percent additional premium even when only one
vehicle is owned. Therefore, a benefit was received by [appellant] for the
premiums she paid for stacked coverage.
Collins, 922 So.2d at 353. In this case, Petitioner’s Motorcycle Policy – in contrast to the Auto
Policy – was not illusory because it provided benefits unavailable under a nonstacking policy.
See id. The Motorcycle Policy entitled Plaintiff to UM benefits even if he was occupying a
different vehicle than the motorcycle insured under the policy. See Doc. 1-1, Swan, 60 So.3d
at 519; Collins, 922 So.2d at 353.
Plaintiff seeks a declaration in Count IV as to whether the coverage exclusions of the
Auto Policy apply as a bar to coverage under that policy in light of Plaintiff’s assertion that the
Auto and Motorcycle policies “could or should have” been issued under a single policy. Doc.
44. This claim appears to be interwoven with Plaintiff’s negligence claim regarding the manner
in which the Motorcycle Policy was procured, and to that extent will be addressed below. As a
matter of contract interpretation, Plaintiff’s claims fail.
Accordingly, the Court concludes that Defendant GEICO is entitled to summary
judgment on its counterclaim for declaratory relief that the Auto Policy does not provide any UM
benefits to Plaintiff for the motorcycle accident, and therefore Plaintiff’s breach-of-contract
claim against GEICO also fails. Plaintiff’s breach of contract claim fails as a matter of law as to
Indemnity because the Motorcycle Policy plainly provides $10,000 in UM coverage, and it is
undisputed that Indemnity tendered that amount to Plaintiff.
II. Defendants’ Motions on Count II and Plaintiff’s Motion
Both Defendants seek summary judgment on Plaintiff’s negligence claim, set forth in
Count II. Docs. 104, 106. Plaintiff opposes Defendants’ motions, and separately requests a
partial summary judgment finding that Defendants owed Plaintiff certain duties as licensed
insurance agents in the procurement of Plaintiff’s insurance. Doc. 102. These motions are
premised on Plaintiff’s assertion that to the extent that it is determined that the policies cannot
be stacked—as the Court has concluded—Plaintiff is entitled to recover against Defendants for
negligence and/or breach of their fiduciary duty for failing to provide him with the requested
coverage. Plaintiff asserts that even though the Defendants are insurance companies they can
be held liable under a theory of negligence or breach of fiduciary duty because the Defendants
acted in the role of both agent and insurance carrier when Plaintiff requested insurance
For the purposes of these motions, the Court will assume that Indemnity acted in the
role of both agent and insurance carrier, by way of the call center through which Plaintiff
requested the Motorcycle Policy. As outlined above, the undisputed evidence reflects that
Plaintiff contacted the call center and requested a motorcycle policy with stacking UM
coverage. He was issued the Motorcycle Policy with stacking UM coverage, which, by its terms
and in accordance with Florida law, followed Plaintiff wherever and whenever he might be
injured by an uninsured motorist, and which was available to stack with any other UM coverage
to which he was entitled under another policy. There is no evidence in the record that Plaintiff
expressed any confusion during the call regarding the UM coverage under the Motorcycle
Policy, or that he in fact requested something other than the policy he received.
deposition does not reflect that he requested an explanation or clarification as to how or
whether his rejection of stacking UM benefits under the Auto Policy would affect his stacking
UM benefits under the Motorcycle Policy. Plaintiff contends that Defendants could or should
have issued one global policy for all of his vehicles, but there is no evidence that Plaintiff
requested such a policy and the undisputed evidence establishes that even if Indemnity had
provided coverage for Plaintiff’s automobiles as well as the motorcycle, such coverage would
have been issued as two policies. Robert Hood depo. p. 99.
Moreover, Plaintiff’s execution of the unambiguous UM selection form rejecting stacking
coverage under the Auto Policy bars his claim that Defendants negligently failed to procure or
advise him regarding stacking UM coverage under the Motorcycle Policy. Fla. Stat.
§ 627.727(1) requires that uninsured motorist coverage be applicable to all, unless “an insured
named in the policy makes a written rejection of the coverage on behalf of all insureds under
the policy.” The statute was amended in 1984 to include the following: “If this form is signed by
a named insured . . . it shall be conclusively presumed that there was an informed, knowing
acceptance of such limitations.” Fla. Stat. § 627.727(9); Mitleider v. Brier Grieves Agency, Inc.
53 So.3d 410, 412 (Fla. 4th DCA 2011) (citing Auger v. State Farm Mut. Auto. Ins. Co., 516
So.2d 1024, 1024 (Fla. 2d DCA 1987) (discussing the 1984 amendment to section 627.727)).
This conclusive presumption forestalls Plaintiff’s claim that he was not informed
regarding the relationship of the Motorcycle Policy UM coverage to the Auto Policy’s nonstacking UM coverage. Mitleider, 53 So.3d at 412. “‘The presumption created by § 627.727
cannot be rebutted by testimony that the person signing the rejection form did not read it. The
consequences of signing any document or contract cannot be avoided by merely testifying that
the document or contract was not read[.]’” Id. (quoting White v. Allstate Ins. Co., 530 So.2d
967, 969 (Fla. 1st DCA 1988)).
Accordingly, the Court concludes that Defendants’ motions for summary judgment on
Plaintiff’s negligence claim in Count II is due to be granted, and Plaintiff’s motion for partial
summary judgment is due to be denied.
III. Defendants’ Motions on Count III
Count III seeks unspecified damages against Defendants under Fla. Stat. § 627.4137.
That statute provides that:
(1) Each insurer which does or may provide liability insurance coverage to pay all
or a portion of any claim which might be made shall provide, within 30 days of the
written request of the claimant, a statement, under oath, of a corporate officer or
the insurer's claims manager or superintendent setting forth the following
information with regard to each known policy of insurance, including excess or
(a) The name of the insurer.
(b) The name of each insured.
(c) The limits of the liability coverage.
(d) A statement of any policy or coverage defense which such insurer reasonably
believes is available to such insurer at the time of filing such statement.
(e) A copy of the policy.
In addition, the insured, or her or his insurance agent, upon written request of the
claimant or the claimant's attorney, shall disclose the name and coverage of each
known insurer to the claimant and shall forward such request for information as
required by this subsection to all affected insurers. The insurer shall then supply
the information required in this subsection to the claimant within 30 days of
receipt of such request.
(2) The statement required by subsection (1) shall be amended immediately upon
discovery of facts calling for an amendment to such statement.
(3) Any request made to a self-insured corporation pursuant to this section shall
be sent by certified mail to the registered agent of the disclosing entity.
Fla. Stat. § 627.4137 (2011).
Plaintiff contends that Defendants violated Fla. Stat. § 627.4137 by failing to timely
provide him with accurate, truthful, and timely policy information as required by the statute.
Initially, there is nothing in the statute–which applies to insurers who provide “liability
insurance coverage”–that suggests it applies to Plaintiff’s UM policy. Moreover, as Defendants
argue, there is nothing in the statute that creates a private cause of action against insurers by
their insureds for violating the statute. Insureds ordinarily have available to them the same
information required to be disclosed by the statute. There is no evidence in the record that
suggests Plaintiff did not have his own policy information. It is evident that the purpose of the
statute is to provide third-party claimants with a means to obtain information regarding liability
insurance coverage that they otherwise would be unable to obtain. It is questionable whether
the statute creates a cause of action against an insurance company even by a third party
claimaint. See Lucente v. State Farm Mut. Auto. Ins. Co., 591 So. 2d 1126, 1127 (Fla. 4th
DCA 1992) (§ 627.7264 “does not contain an implicit cause of action for a third party against an
insurance company,” and even if it did, such a claim could not be brought unless or until
claimant obtained a judgment against the insured).
Therefore, even if the statute could be read to create a first-party cause of action, there
is nothing in the record that suggests Plaintiff suffered any damages in connection with any
violation of the statute by Defendants. In this case, Plaintiff received all UM benefits to which
he was entitled under the Motorcycle Policy. On this record, the Court concludes that
Defendants are entitled to summary judgment on Count III.
For the foregoing reasons, it is ORDERED AND ADJUDGED:
1. Defendants’ Motions to Dismiss or Abate Counts II and III of the Second Amended
Petition (Docs. 71, 72) are MOOT;
2. GEICO’s Motion for Partial Summary Judgment on the Counterclaim and Counts I
and IV (Doc. 75), and Indemnity’s Motion for Partial Summary Judgment on Counts I
and IV (Doc. 82) are GRANTED;
3. Plaintiff’s Motion for Partial Summary Judgment (Doc. 102) is DENIED;
4. Defendants’ Motions for Partial Summary Judgment on Counts II and III (Docs. 104,
106) are GRANTED.
The Clerk must enter judgment in Defendants’ favor, terminate any pending motions,
and close the file.2
DONE AND ORDERED this 18th day of October 2013.
s/ Gary R. Jones s/GaryR.Jone
GARY R. JONES
United States Magistrate Judge
The final pretrial conference scheduled for October 23, 2013 is cancelled.
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