Atwell v. National Union Fire Insurance Company of Pittsburgh, PA et al

Filing 35

ORDER granting 29 Motion for Summary Judgment as to Hudson Insurance Co.. Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BASSAM ATWELL,1
Plaintiff,
vs.

Case No. 12-10061
Hon. Lawrence P. Zatkoff

NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA, and
HUDSON INSURANCE COMPANY,
Defendants.
___________________________________/

OPINION AND ORDER
AT A SESSION of said Court, held in the
United States Courthouse, in the City of Port Huron,
State of Michigan, on the 27th day of March, 2013
PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
This matter is before the Court on a Motion for Summary Judgment filed by Defendant
Hudson Insurance Company (“Hudson”) (Docket #29). After Plaintiff failed to file a response, the
Court issued: (a) an Order to Show Cause to Plaintiff, wherein the Court ordered Plaintiff to explain
why this case should not be dismissed for failure to prosecute, and (b) to the extent Plaintiff wanted
to file a substantive response to the Motion for Summary Judgment, an Order to file a response to
the Motion for Summary Judgment. Plaintiff filed a response to the Order to Show Cause, wherein

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As established at Plaintiff’s deposition, Plaintiff’s name is “Bassam Atweh,” not Bassam
Atwell. Plaintiff has not, however, filed anything with the Court to amend the caption of this
case.

Plaintiff argued why his case should not be dismissed for failure to prosecute. Plaintiff still has not,
in any manner, responded to Hudson’s Motion for Summary Judgment. The Court finds that the
facts and legal arguments pertinent to Hudson’s Motion for Summary Judgment are adequately
presented in the parties’ papers, and the decision process will not be aided by oral arguments.
Therefore, pursuant to E.D. Mich. Local R. 7.1(f)(2), it is hereby ORDERED that Hudson’s Motion
for Summary Judgment be resolved on the briefs submitted by the parties, without this Court
entertaining oral arguments. For the reasons that follow, Hudson’s Motion for Summary Judgment
is granted.

II. BACKGROUND
In this case, Plaintiff has pled a combined claim for no-fault and uninsured motorist benefits
for injuries Plaintiff suffered in an automobile accident that occurred on November 21, 2010. On
the date of the accident, Plaintiff was under dispatch from Bolt Express, LLC (“Bolt Express”), and
he was driving a cargo van he had leased to Bolt Express for delivering cargo. Plaintiff had picked
up a load of cargo in Michigan and was on his way to Maryland for delivery. En route, in Oregon,
Ohio, Plaintiff was proceeding eastbound on Interstate 280 when a semi-tractor drifted into his lane,
causing Plaintiff to strike the median wall. Plaintiff alleges that he suffered serious and disabling
injuries to his skeletal system and nervous system, as well as to muscles, tendons, ligaments, nerves,
and tissue in his legs, feet, knees, neck, back, shoulders, arms, hands and other parts of his body.
Plaintiff also alleges a possible closed head injury. Plaintiff asserts that Defendants have paid for
some of his expenses and losses but that Defendants have failed, neglected and/or refused to pay
additional costs that Plaintiff has accrued and will accrue.

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First party no fault coverage for Plaintiff’s injuries and damage was provided by Great West
Casualty, which Bolt Express carries for its drivers. Plaintiff was also a named insured under a
“non-trucking” insurance policy issued by Hudson (the “Hudson Policy”). The Hudson Policy
contains a “Certificate of Non-Trucking Automobile Liability” (“Certificate”) that states, in part:
No coverage is afforded when the described vehicle(s) is (are):
1.

Under motor carrier direction, control, or dispatch.

2.

Used to carry property in any business or in route for such
purpose.

The Hudson Policy, via a “Michigan Truckers-Insurance for Non-Trucking Use” endorsement (the
“Non-Trucking Use Endorsement”), also provides:
Michigan Personal Injury and Property Protection coverages do not
apply to “bodily injury” or “property damage” resulting from the
operation, maintenance or use of a covered “auto” in the business of
anyone to whom it is leased or rented if the lessee has Michigan
Personal Insurance and Property Protection coverages on the “auto.”

III. LEGAL STANDARD
“The 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.” Fed. R.
Civ. P. 56(a). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (“[T]he plain language
of Rule 56[] mandates the entry of summary judgment . . . against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.”). A party must support its assertions 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),
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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.

Fed. R. Civ. P. 56(c)(1). “The court need consider only the cited materials, but it may consider other
materials in the record.” Fed. R. Civ. P. 56(c)(3).
The moving party bears the initial burden of demonstrating the absence of any genuine
dispute as to a material fact, and all inferences should be made in favor of the nonmoving party.
Celotex, 477 U.S. at 323. The moving party discharges its burden by “‘showing’–that is, pointing
out to the district court–that there is an absence of evidence to support the nonmoving party’s case.”
Horton v. Potter, 369 F.3d 906, 909 (6th Cir. 2004) (citing Celotex, 477 U.S. at 325)).
Once the moving party has met its initial burden, the burden then shifts to the nonmoving
party, who “must do more than simply show that there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “[T]he mere
existence of a scintilla of evidence in support of the [nonmoving party’s] position will be insufficient
[to defeat a motion for summary judgment]; there must be evidence on which the jury could
reasonably find for the [nonmoving party].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
(1986).

IV. ANALYSIS
Hudson argues that: (a) because Plaintiff was under dispatch from Bolt Express to haul goods
on behalf of Bolt Express, (b) coverage under the Hudson Policy was precluded under the provisions
of the Hudson Policy, specifically the Certificate and the Non-Trucking Use Endorsement. For the

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reasons set forth below, the Court agrees.
The Court first reiterates that: (1) Plaintiff did not file a brief in response to Hudson’s Motion
for Summary Judgment, (2) the Court then ordered Plaintiff to show cause why the case should not
be dismissed for lack of prosecution and gave Plaintiff an additional opportunity to file a substantive
brief in opposition to Hudson’s Motion for Summary Judgment, and (3) Plaintiff filed a response
to the order to show cause but did not file a brief in opposition to Hudson’s Motion for Summary
Judgment. In other words, Plaintiff has offered no evidence or argument in opposition to Hudson’s
Motion for Summary Judgment. As such, assuming Hudson meets its burden under Rule 56 (i.e.,
by “show[ing] that there is no genuine dispute as to any material fact and [Hudson] is entitled to
judgment as a matter of law”), Plaintiff’s cause of action against Hudson must be dismissed because
Plaintiff will have “fail[ed] to make a showing sufficient to establish the existence of an [the]
element[s] essential to [his] case, and on which [he] will bear the burden of proof at trial.” Celotex,
477 U.S. at 322.
The Court finds that Hudson has met its burden of demonstrating that there is no genuine
dispute as to any material fact in this case. The language of the Hudson Policy, namely certain of
the provisions of the Certificate and the Non-Trucking Use Endorsement, unequivocally bars
coverage to Plaintiff under the undisputed facts of this case. As set forth above, it is undisputed that:
(a)

The cargo van involved in the accident was leased to Bolt Express by
Plaintiff; and

(b)

Plaintiff was under dispatch from Bolt Express to haul goods for Bolt
Express when the accident occurred and Plaintiff suffered his
injuries.

The Certificate, whose applicability to this case Plaintiff does not contest, unambiguously bars
coverage to a policyholder who is driving a covered vehicle that is: “1. Under motor carrier
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direction, control, or dispatch[,]” or “2. [Being] [u]sed to carry property in any business or in route
for such purpose.” In this case, the cargo van was under motor carrier (Bolt Express) dispatch and
being used to carry property in a business (Bolt Express goods). In addition, the Non-Trucking Use
Endorsement unambiguously bars coverage for “‘bodily injury’ or ‘property damage’ resulting from
the operation, maintenance or use of a covered ‘auto’ [the cargo van] in the business of anyone to
whom it is leased or rented if the lessee has Michigan Personal Insurance and Property Protection
coverages on the ‘auto.’” In this case, Hudson states, without objection, that “[f]irst part no fault
coverage was provided to Bolt Express drivers [i.e., Plaintiff] by Great West Casualty.”
Pursuant to the applicable law for Rule 56 analysis, the absence of a response by Plaintiff
to Hudson’s motion for summary necessitates a finding that Plaintiff has failed to:
support [the] assertions [against Hudson] 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.

Fed. R. Civ. P. 56(c)(1).
Therefore, for the reasons set forth above, the Court concludes that the coverage Plaintiff
seeks from Hudson in this case is barred by the terms of the Hudson Policy, namely the Certificate
and the Non-Trucking Use Endorsement. Accordingly, the Court grants Hudson’s Motion for
Summary Judgment.
V. CONCLUSION

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Accordingly, and for the reasons set forth above, Hudson’s Motion for Summary Judgment
(Docket #29) is GRANTED, and Plaintiff’s cause of action against Hudson is DISMISSED WITH
PREJUDICE.
IT IS SO ORDERED.

S/Lawrence P. Zatkoff
LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE

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