Pratt v. Shumpert et al
MEMORANDUM AND OPINION by Chief Judge Thomas B. Russell on 6/1/2011; re 19 MOTION for Summary Judgment filed by Progressive Casualty Insurance Company ; an appropriate order shall issuecc:counsel (KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
CASE NO. 5:10-CV-87
This matter is before the Court upon Defendant’s Motion for Summary Judgment
(Docket #19). Plaintiff has responded (Docket #21). Defendant has replied (Docket #24). This
matter is now ripe for adjudication. For the following reasons, Defendant’s motion is
On October 16, 2008, Plaintiff’s wife, Bettye Pratt, was driving a 1989 Chevrolet Caprice
Classic Brougham (the “Caprice”) when it collided with a 2000 Dodge Durango (the “Durango”)
driven by Delvon Shumpert, a minor. Plaintiff Thomas Pratt was a passenger in the Caprice,
which is titled and owned solely by his wife. The Durango was owned by Ray H. Mullen Motor
Company, Inc., also known as “Rent-A-Wreck,” at the time of the accident. The Durango was
insured by Grange Mutual Casualty Company (“Grange”). Delvon Shumpert’s mother, Sheila
Shumpert, was in possession of the vehicle for a test drive.
Plaintiff claims the Caprice incurred property damage totaling $1,924.28. No one was
injured in the accident. Plaintiff filed suit on October 2, 2009, against Sheila and Delvon
Shumpert, Grange, and Progressive Casualty Insurance Company (“Progressive”) in McCracken
Circuit Court. Plaintiff thereafter reached a settlement with the Shumperts and Grange for the
sum of $3,000. On January 19, 2010, an agreed order of partial dismissal was entered which
dismissed, with prejudice, all claims against Sheila Shumpert, Delvon Shumpert, and Grange.
Only Plaintiff’s claims against Progressive remained.
Progressive removed the case to this Court on April 29, 2010. Plaintiff’s Complaint
alleges that Progressive violated the Unfair Claims Settlement Practices Act, Ky. Rev. Stat. Ann.
§ 304.12-230 (“UCSPA”),
by failing to acknowledge and act reasonably and promptly upon communications
with respect to the claim; by not attempting in good faith to effectuate prompt,
fair and equitable settlement of the claim after liability had become reasonably
clear; and by compelling the Plaintiff to institute litigation to recover amounts due
when they offered substantially less than the Plaintiff is entitled.
Compl., DN 4-2, p. 5. According to Plaintiff, Progressive was Sheila Shumpert’s insurance
carrier at the time of the accident.
This matter is currently set for trial on August 29, 2011. Defendant moved for summary
judgment on April 14, 2011. The Court now considers this motion.
Summary judgment is appropriate where “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). In determining whether summary judgment is appropriate, a court must resolve
all ambiguities and draw all reasonable inferences against the moving party. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
“[N]ot every issue of fact or conflicting inference presents a genuine issue of material
fact.” Street v. J. C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989). The test is whether
the party bearing the burden of proof has presented a jury question as to each element in the
case. Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996). The plaintiff must present more than a
mere scintilla of evidence in support of his position; the plaintiff must present evidence on which
the trier of fact could reasonably find for the plaintiff. See id. (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986)). Mere speculation will not suffice to defeat a motion for
summary judgment: “the mere existence of a colorable factual dispute will not defeat a properly
supported motion for summary judgment. A genuine dispute between the parties on an issue of
material fact must exist to render summary judgment inappropriate.” Moinette v. Elec. Data Sys.
Corp., 90 F.3d 1173, 1177 (6th Cir. 1996).
Substitution of the Plaintiff
“In order for a federal court to exercise jurisdiction over a matter, the party seeking relief
must have standing to sue.” Kardules v. City of Columbus, 95 F.3d 1335, 1346 (6th Cir. 1996).
“Standing has both constitutional and prudential dimensions.” Id. In analyzing the
constitutional dimension of standing, the Court looks to three factors:
First, the plaintiff must have suffered an “injury in fact”–an invasion of a legallyprotected interest which is (a) concrete and particularized, and (b) “actual or
imminent, not ‘conjectural’ or ‘hypothetical.’” Second, there must be a causal
connection between the injury and the conduct complained of–the injury has to be
“fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e]
result [of] the independent action of some third party not before the court.” Third,
it must be “likely,” as opposed to merely “speculative,” that the injury will be
“redressed by a favorable decision.”
Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (citations and footnote
omitted)); see also Am. Civil Liberties Union of Ohio Found., Inc. v. DeWeese, 633 F.3d 424,
429 (6th Cir. 2011). “In addition to the constitutional-jurisdictional mandate, a plaintiff must also
establish, as a prudential matter, that he or she ‘is the proper proponent of the rights on which the
action is based.’” Haskell v. Wash. Twp., 864 F.2d 1266, 1275 (6th Cir. 1988) (quoting Planned
Parenthood Assoc. of Cincinnati, Inc. v. Cincinnati, 822 F.2d 1390, 1394 (6th Cir. 1987)).
Plaintiff asks the Court to substitute Bettye Pratt as plaintiff in this case. Under Federal
Rule of Civil Procedure 17, “[a]n action must be prosecuted in the name of the real party in
interest.” Fed. R. Civ. P. 17(a)(1). Under certain circumstances, a party may sue in their own
name without joining the real party in interest. This includes parties such as executors,
administrators, guardians, and trustees. Fed. R. Civ. P. 17(a)(1)(A)-(G). Rule 17 prohibits the
Court from dismissing an action “for failure to prosecute in the name of the real party in interest
until, after an objection, a reasonable time has been allowed for the real party in interest to ratify,
join, or be substituted into the action.” Fed. R. Civ. P. 17(a)(3). “However, this provision must
be read with the limitation that a federal district court must, at a minimum arguably have subject
matter jurisdiction over the original claims.” Zurich Ins. Co. v. Logitrans, Inc., 297 F.3d 528,
531 (6th Cir. 2002).
The real party in interest principle is related to, but different from, the concept of
standing. Id. at 532. The importance of the distinction between standing and the real party in
interest is their respective remedies. If a party does not have standing, it must be dismissed from
the action. On the other hand, Rule 17 liberally allows a substitution of parties “‘when the
change is merely formal and in no way alters the original complaint’s factual allegations as to the
events or the participants.’” Id. at 534 (Gilman, J., concurring) (quoting Advanced Magnetics,
Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 20 (2d Cir. 1997)). Following substitution, “the
action proceeds as if it had been originally commenced by the real party in interest.” Fed. R.
Civ. P. 17(a)(3).
Both parties acknowledge that Thomas Pratt was not the titled owner of the Caprice at
the time of the accident. Instead, Plaintiff’s wife, Bettye Pratt, is the owner of the vehicle in
question. Under Kentucky law, a husband does not have any interest in his wife’s property
throughout the duration of the marriage. See Ky. Rev. Stat. Ann. § 404.010(1) (“During the
existence of the marriage relationship the wife shall hold and own all her estate to her separate
and exclusive use, and free from the debts, liabilities or control of her husband.”). Although the
factual allegations in this case would be unaffected by the substitution of Bettye Pratt as the
plaintiff, the Court is precluded from consideration of Rule 17 where the original party lacks
Article III standing. In other words, because Thomas Pratt does not have standing, this Court
lacks subject matter jurisdiction. This lack of jurisdiction prevents the Court from even
considering a motion to substitute under Rule 17. See, e.g., Zangara v. Travelers Indem. Co. of
Am., No. 1:05CV731, 2006 WL 825231, at *3 (N.D. Ohio 2006).
Motion for Summary Judgment
Even if Bettye Pratt were substituted as the real party in interest in this action and this
case proceeded as if it was originally commenced by Mrs. Pratt, the Court finds that summary
judgment would be appropriate. In Kentucky “an insured must prove three elements in order to
prevail against an insurance company for alleged refusal in bad faith to pay the insured’s claim:”
the insurer must be obligated to pay the claim under the terms of the
the insurer must lack a reasonable basis in law or fact for denying the
it must be shown that the insurer either knew there was no reasonable
basis for denying the claim or acted with reckless disregard for
whether such a basis existed.
Wittmer v. Jones, 864 S.W.2d 885, 890 (Ky. 1993) (citation omitted). Furthermore, “there must
be sufficient evidence of intentional misconduct or reckless disregard of the rights of an insured
or a claimant to warrant submitting the right to award punitive damages to the jury.” Id.
“The moving party bears the initial burden of establishing an absence of evidence to
support the nonmoving party’s case.” Copeland v. Machulis, 57 F.3d 476, 478-79 (6th Cir.
1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Progressive argues that
because this case was settled and Grange, as the proper insurer of the Durango, paid the claim,
Plaintiff cannot establish that Progressive was obligated to pay a covered claim. In addition,
Progressive asserts it did not act with intentional misconduct or reckless disregard, and Plaintiff
has failed to produce any evidence which would demonstrate such misconduct warranting an
award of punitive damages. Progressive notes that the evidence indicates that Progressive
merely communicated to Plaintiff and Sheila Shumpert that there was no coverage under Ms.
Shumpert’s personal auto policy. “Progressive Casualty simply provided its coverage position
that was affirmed by Grange who insured the vehicle, paid the claim and obtained a release of
liability for Sheila and Delvon Shumpert.” Def.’s Mot. for Sum. Judg., DN 19, p. 11.
Progressive also argues that, based on Plaintiff’s answers during his deposition, it appears
that what Plaintiff is really seeking is damages for pain and suffering.
What damages do you believe are owed by my client as a result of this
However the law works. I think we’re entitled to something other than
our car just getting fixed. Now, however Progressive pays it or whoever
pays it. Just getting the car fixed, that’s fine. We’ve already established
that much. But how come now that you’re involved, and that was a
different insurance company, and you’re sitting in here today, so
apparently, we’re entitled to something from you too.
Pain and suffering is what you want this jury to pay you for?
This has drove my wife crazy.
That’s fine. Just answer my question. Is pain and suffering what you’re
going to ask this jury to pay you for?
That’s fine. Yes or no? Yes?
Yeah, why not? These people drove us crazy with this. We have to pay
insurance. It seems to me he just got off scot-free.
Pl.’s Depo., DN 19-1, p. 13; DN 19-2, p. 1. Additional portions of Plaintiff’s deposition suggest
Plaintiff is unclear of Progressive’s role in this lawsuit.
In this case, Plaintiff has presented insufficient evidence to create a genuine issue of
material fact as to any claims of bad faith. Page three of Plaintiff’s four-page response to the
motion for summary judgment states:
Delvon’s operation of the Durango, while it was in Sheila’s possession, is
indicative of the fact that Shelia Shumpert negligently entrusted Delvon, her
minor son, with the Durango. As such, Sheila Shumpert’s insurance carrier,
Progressive, should have acted reasonably and acknowledged coverage of the
Plaintiff’s claim for damages.
Pl.’s Resp., DN 21, p. 3. Although Plaintiff notes that Progressive was notified of the accident in
a timely fashion and denied any coverage, Plaintiff has presented no evidence to demonstrate
that Progressive was obligated to pay the claim. Because Plaintiff has not produced any
additional evidence, the Court has no way of addressing whether Progressive had an obligation
to pay the claim or lacked a reasonable basis for denying the claim. Nor has Plaintiff produced
any evidence of intentional misconduct or reckless disregard, other than asserting that
“Progressive continued to act in bad faith by intentionally, fraudulently, oppressively, and
recklessly disregarding the rights of the Plaintiff.” Pl.’s Resp., DN 21, p. 3. Plaintiff fails to
refute Progressive’s claim that Grange was the proper insurer. In fact, Plaintiff does not even
address this argument, other than noting that the settlement only released claims against Grange,
Plaintiff has not provided the Court with sufficient evidence to create a genuine issue of
material fact as to the bad faith claims asserted in the Complaint. At the summary judgment
stage, “the nonmoving party cannot rest on its pleadings, but must present significant probative
evidence in support of the complaint to defeat the motion for summary judgment.” Copeland, 57
F.3d at 479 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986)). Accordingly,
summary judgment is proper.
For the foregoing reasons, Defendant’s Motion for Summary Judgment is GRANTED.
An appropriate order shall issue.
June 1, 2011
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