Payne v. Progressive Insurance Company et al

Filing 53

ORDER granting in part and denying in part 29 Motion for Leave to file Supplemental Brief; striking 15 Motion for Partial Summary Judgment, all as more fully set forth herein. Signed by Judge Scott L. Palk on 3/27/24. (mjs)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
MICHAEL A. PAYNE,
Plaintiff,
v.
PROGRESSIVE DIRECT
INSURANCE COMPANY,
Defendant.

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Case No. CIV-22-461-SLP

ORDER

Before the Court is Plaintiff’s Motion for Leave to File Supplemental Brief in

Support of his Motion for Partial Summary Judgment [Doc. No. 29]. Defendant has
responded [Doc. No. 31], and Plaintiff has replied [Doc. No. 33]. The matter is fully
briefed and ready for determination.
In his Motion, Plaintiff seeks leave to file a five-page supplemental brief in support
of his pending Motion for Partial Summary Judgment [Doc. No. 15]. Plaintiff asserts
supplementation is necessary to present the Court with newly discovered evidence obtained
after he filed his summary judgment motion—namely, evidence that Defendant sought
approval from the Oklahoma Insurance Department to amend its standard automobile
policy to clarify the meaning of the term “licensed driver” such that the term would include
an individual with “an instructional or temporary permit.” [Doc. No. 29] at 2. Plaintiff
contends the meaning of the term “licensed driver” in Defendant’s policy is the central
issue in this case, and the newly discovered evidence is directly relevant to the meaning of
that term and whether the term is ambiguous. See id. at 1-2.

In its Response, Defendant asserts Plaintiff originally maintained the term “licensed
driver” is unambiguous, therefore the extrinsic evidence he seeks to include in the summary
judgment record has no relevance to the Court’s decision. [Doc. No. 31] at 1-2. (“This
lawsuit does not concern ambiguity for which the Court need look beyond the four corners
of the subject policy.”). Defendant also generically asserts the amendment to its policy
eliminates litigation like the present case and should be encouraged. Id. at 3. Defendant
does not cite any authority in support of either argument, nor does it explain how the latter
assertion bears any relation to whether Plaintiff should be permitted to supplement his
summary judgment motion. See id.
The Court finds Defendant’s relevance argument is without merit, and Plaintiff
should be permitted to supplement the summary judgment record with evidence which was
not available when he filed his motion. Defendant’s argument depends entirely on the
assumption that the sole issue for the Court to determine is the unambiguous meaning of
the term “licensed driver”—i.e., because Plaintiff originally asserted the policy was
unambiguous, he cannot now claim the policy is ambiguous based on the newly discovered
evidence. This fails for two reasons.
First, although Plaintiff initially asserted the term “licensed driver” was
unambiguous, Defendant’s argument wholly ignores the fact that Plaintiff subsequently
asserted the term is ambiguous in his response to Defendant’s Motion for Summary
Judgment. See Reply [Doc. No. 33] at 3; see also Pls. Resp. to Defs. MSJ [Doc. No. 25]
at 22-23. Thus, Plaintiff has not forfeited the ability to assert the term “licensed driver” is
ambiguous, and that issue is already before the Court. See Sprint Nextel Corp. v. Middle

Man, Inc., 822 F.3d 524, 531 (10th Cir. 2016) (concluding the appellant had not waived or
forfeited a contract ambiguity argument by failing to adequately raise the issue in district
court, even though it primarily maintained the contract was unambiguous and its only
ambiguity argument was found in a single sentence).
Moreover, the parties’ arguments that the term “licensed driver” is unambiguous in
their favor necessarily invites the Court to consider whether the phrase is ambiguous. See
Edens v. The Netherlands Ins. Co., 834 F.3d 1116, 1124 (10th Cir. 2016) (finding the
plaintiffs had not waived or forfeited an argument that a portion of the insurance policy
was ambiguous—even though they solely asserted it was unambiguous—because “the
district court needed to decide whether [the section at issue] was reasonably susceptible to
each of the parties’ rival readings and was therefore ambiguous” when “confronted on
summary judgment with two competing interpretations of [that section]”). Under Edens,
the evidence at issue could be relevant even if Plaintiff had not subsequently asserted the
phrase “licensed driver” is ambiguous.
In sum, the Court finds that it may consider whether the phrase “licensed driver” is
ambiguous, and Defendant’s argument to the contrary is without merit. To be clear,
however, the Court makes no definitive finding at this time as to the role or relevance of
the evidence Plaintiff seeks to include—such evidence may prove to be immaterial in the
context of the full summary judgment record. The Court merely finds Plaintiff should be
able to supplement the summary judgment record with evidence discovered after his
motion was filed, and he is not estopped or otherwise prevented from asserting alternatively
that the policy is ambiguous.

Moreover, Defendant does not assert, nor does it appear to the Court, that it would
suffer prejudice if Plaintiff is permitted to supplement the summary judgment record. The
deadline for dispositive motions has not expired, see Second Am. Sched. Order [Doc. No.
52], and Defendant is free to timely seek leave to withdraw or supplement its dispositive
motion to the extent the newly discovered evidence impacts its position. Finally, as
Plaintiff points out, the arguments Defendant made in opposition are more appropriately
raised in a summary judgment response, and Defendant is free to do so at the appropriate
time.
For these reasons, the Court will GRANT Plaintiff’s request to supplement his
summary judgment motion to reflect information learned during discovery. But the Court
is loath to entertain a partial summary judgment motion that is scattered across multiple
documents. Accordingly, Plaintiff’s pending Motion for Partial Summary Judgment [Doc.
No. 15] is STRICKEN without prejudice to refiling.
Any refiled motion shall fully comply with this Court’s Second Amended
Scheduling Order, the Local Civil Rules, and the Federal Rules of Civil Procedure.
Plaintiff may file a dispositive motion on or before August 1, 2024. See Second Am. Sched.
Order [Doc. No. 52]. The timing of response and reply briefs is governed by Local Civil
Rule 7.1(g), (i). Plaintiff’s specific request to supplement his summary judgment motion
with 5 additional pages is DENIED. Plaintiff’s dispositive motion shall comply with the
page limits set forth in Local Civil Rule 7.1(e).

IT IS THEREFORE ORDERED that Plaintiff’s Motion for Leave to File
Supplemental Brief in Support of His Pending Motion for Partial Summary Judgment [Doc.
No. 29] is GRANTED IN PART and DENIED IN PART as set forth herein.
IT IS SO ORDERED this 27th day of March, 2024.