WMS Industries, Inc. v. Federal Insurance Company

Filing 217

ORDER granting 183 Motion for Partial Summary Judgment Signed by District Judge Louis Guirola, Jr on 10/28/08 (Guirola, Louis)

IN THE UNITED STATES DISTRICT COURT F O R THE SOUTHERN DISTRICT OF MISSISSIPPI S O U T H E R N DIVISION W M S INDUSTRIES, INC. VS. F E D E R A L INSURANCE COMPANY § § § § § P L A IN T IF F C IV IL ACTION NO. 1:06CV977-LG-JMR DEFENDANT

M E M O R A N D U M OPINION AND ORDER GRANTING WMS PARTIAL SUMMARY JUDGMENT B E F O R E THE COURT is Plaintiff WMS Industries, Inc.'s Motion for Partial Summary Ju d gm en t [183]. WMS initiated this bad faith action against its property and business income in su rer Defendant Federal Insurance Company, following a dispute over WMS's Hurricane Katrina claim s. WMS argues that the Business Income/Extra Expenses ("BI/EE") coverage applies to its K atrin a losses. The Court has considered the parties' submissions, the record, and the relevant legal authority. The motion is granted. FACTS AND PROCEDURAL HISTORY T h e Court incorporates by reference the Facts and Procedural History set forth in its M em o ran d u m Opinion and Order Denying Summary Judgment, filed contemporaneously with the in stan t Opinion. D IS C U S S IO N S TANDARD FOR SUMMARY JUDGMENT A motion for summary judgment shall be granted "if the pleadings, depositions, answers to in terro gato ries, and admissions on file, together with the affidavits, if any, show that there is no genu ine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The Court must view the evidence in the light most favorable to the non-moving party. Abarca v. Metro. Transit. Auth., 404 F.3d 938, 940 (5th Cir. 2005). A " m aterial fact" is one that might affect the outcome of the suit under the governing law. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute about a material fact exists w hen the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. The party that bears the burden of proof at trial also bears the burden of proof at the sum m ary judgment stage. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A party seeking su m m ary judgment bears the initial burden of identifying those portions of the pleadings and d isco v er y on file, together with any affidavits, which it believes demonstrate the absence of a genu ine issue of material fact. Id. at 325. Once the movant carries its burden, the burden shifts to the non-movant to show that summary judgment should not be granted. Id. at 324-25. "[W]hen a m otion for summary judgment is made and supported . . . an adverse party may not rest upon . . . m ere allegations or denials . . . but . . . must set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). W M S argues that the BI/EE coverage applies, because Hurricane Katrina (a covered peril) in flicted damage at Premises 24 (a covered premises), which caused an impairment of operations th a t caused lost income and extra expenses. Federal concedes this point. Therefore, the Court find s that WMS is entitled to judgment as a matter of law that the BI/EE coverage applies. IT IS THEREFORE ORDERED AND ADJUDGED, that Plaintiff WMS Industries, Inc.'s [183] Motion for Partial Summary Judgment is GRANTED. S O ORDERED AND ADJUDGED this the 28th day of October, 2008.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR. U N IT E D STATES DISTRICT JUDGE

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