Gregory et al v. Bennett Truck Transport L L C et al

Filing 64

REASONS FOR JUDGMENT re 56 MOTION for Summary Judgment filed by Progressive Specialty Insurance Co. The Motion for Summary Judgment 56 is hereby GRANTED, and accordingly, all claims asserted by plaintiffs Truett Blake Gregory and Carol Lynette Gregory against Progressive Specialty Insurance Company are DISMISSED WITH PREJUDICE. Signed by Magistrate Judge C Michael Hill on 2/19/2013. (crt,Davenport, M)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
TRUETT BLAKE GREGORY, ET AL.

*CIVIL NO. 6:11-1850

VERSUS

*MAGISTRATE JUDGE HILL

BENNETT TRUCK TRANSPORT, LLC., ET AL. *BY CONSENT OF THE PARTIES

REASONS FOR JUDGMENT
Pending before the Court is a Motion for Summary Judgment filed by defendant,
Progressive Specialty Insurance Company ("Progressive"). [rec. doc. 56]. By this Motion,
Progressive asserts that the policy of automobile liability insurance at issue in this case was
properly canceled for non-payment of the policy premium, prior to the date of the accident
which forms the basis of this litigation. Progressive's purported insureds, Michael E. Turner
("Turner") and/or Kris Oliver ("Oliver"), have not filed Opposition to the Motion. Plaintiffs
Truett Blake Gregory and Carol Lynette Gregory (collectively "plaintiffs") filed a response in
opposition to the Motion, but submitted no evidence in support of their Opposition. Rather,
plaintiffs candidly acknowledge that they are not in a position to admit or deny that the
Progressive policy at issue was properly canceled, and accordingly, they purport to adopt any
Opposition filed by Turner and Oliver. [rec. doc. 60].
For the reasons set forth below, the Motion for Summary Judgment is GRANTED.
Accordingly, Progressive Specialty Insurance Company is dismissed with prejudice from this
lawsuit.

BACKGROUND
The instant lawsuit was filed by Truett Blake Gregory and Carol Lynette Gregory in a
local state court against New Hampshire Insurance Company, Bennett Truck Transport, LLC
("Bennett"), Bennett's driver, Turner, and Oliver, the driver of an escort vehicle, for the March
10, 2011 death of their daughter, Cady L. Gregory, following an automobile accident. The
accident is alleged to have occurred when the decedent drove into the rear of a truck which was
stopped on the highway. The truck, which was hauling a mobile home, is alleged to have been
driven by Turner, and escorted by Oliver. After removal of this action to this Court, plaintiffs
amended their complaint adding Progressive as an additional defendant, alleging that
Progressive issued an automobile policy to Turner and/or Oliver, which provided coverage for
the damages sought in this lawsuit.
By the instant Motion, Progressive has provided competent Summary Judgment
evidence demonstrating that, although Progressive had issued a policy of insurance to Turner,
the insurance policy was canceled on September 11, 2010 for non-payment of the policy
premiums. Accordingly, Progressive did not have an insurance policy in force or effect
covering either Turner or Oliver on March 10, 2011, the date of the accident herein.
LAW AND ANALYSIS
Standard on Motion for Summary Judgment
Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted
“if the movant shows that there is no genuine dispute as to any material fact and the movant is
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entitled to judgment as a matter of law.”1
Rule 56(e) provides, in pertinent part, as follows:
If a party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c)2, the court may: . . . (3)
grant summary judgment if the motion and supporting materials - including the
facts considered undisputed - show that the movant is entitled to it . . . .
The Motion for Summary Judgment is properly made and supported. Thus, plaintiffs
may not rest upon the allegations in their pleadings, but rather must go beyond the pleadings
and designate specific facts demonstrating that there is a genuine issue for trial. Celotex v.
Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54 (1986). Moreover, summary judgment is
mandated against a party who fails to make a showing sufficient to establish an essential
element of that party’s case, and on which that party will bear the burden of proof at trial.
Celotex, 106 S.Ct. at 2552.
Plaintiffs have submitted no evidence in opposition to the instant Motion. Accordingly,
they have failed to demonstrate that there is a genuine issue of material fact. Furthermore,

1

Rule 56 was revised, effective December 1, 2010, “to improve the procedures for presenting and
deciding summary-judgment motions and to make the procedures more consistent with those already
used in many courts. The standard for granting summary judgment remains unchanged.” See Committee
Notes, Rule 56.
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Rule 56(c)(1) provides, in pertinent part, as follows:
A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by: (A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion
only), admissions, interrogatory answers, or other materials; or (B) showing that
the materials cited do not establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible evidence to support the fact.

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plaintiffs have failed to make a showing sufficient to establish an essential element of their
case – that Progressive had in force and effect a policy of insurance providing coverage to
Turner and/or Oliver. Summary judgment in favor of Progressive for these reasons and those
set forth set forth in Progressive's Motion is therefore appropriate.
CONCLUSION
Based on the foregoing reasons, the Motion for Summary Judgment [rec. doc. 56] is
hereby GRANTED, and accordingly, all claims asserted by plaintiffs Truett Blake Gregory
and Carol Lynette Gregory against Progressive Specialty Insurance Company are DISMISSED
WITH PREJUDICE.

Signed this 19th day of February, 2013, at Lafayette, Louisiana.

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