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Progressive Gulf Ins. Co. v. Estate of Jones

United States District Court, S.D. Mississippi.

August 1, 2013

PROGRESSIVE GULF INSURANCE COMPANY, PLAINTIFF
v.
ESTATE OF GEORGE L. JONES; THREE RIVERS TRANSIT; C& W HOMES, INC.; INFANT DAUGHTER OF PARIS BUCKNER, BY AND THROUGH GRACIE AND SONNY WILLIAMS; ESTATE AND/OR HEIRS OF PARIS BUCKNER; ESTATE AND/OR HEIRS OF MARGARET BUCKNER; AND JOHN/JANE DOES 1-10, DEFENDANTS

For Progressive Gulf Insurance Company, Plaintiff: Cecil Maison Heidelberg, LEAD ATTORNEY, Virginia R. Kennedy, HEIDELBERG HARMON, PLLC, Ridgeland, MS.

For Estate of George L. Jones, Three Rivers Transit, Defendants: Frank G. Vollor, LEAD ATTORNEY, FRANK G. VOLLOR, ATTORNEY AT LAW, PLLC, Vicksburg, MS.

For Infant Daughter of Paris Buckner, by and through Gracie and Sonny Williams, Defendant: Nick Crawford, CRAWFORD LAW FIRM, Greenville, MS.

For Estate and/or Heirs of Paris Buckner, Defendant: Nick Crawford, CRAWFORD LAW FIRM, Greenville, MS; Vicki L. Gilliam, THE GILLIAM FIRM, PLLC, Clinton, MS.

OPINION

David Bramlette, UNITED STATES DISTRICT JUDGE.

Page 707

MEMORANDUM OPINION AND ORDER

This cause is before the Court on the plaintiff Progressive Gulf Insurance Company (" Progressive Gulf" )'s Motion for Summary Judgment (docket entry 13). Having carefully considered the motion, the response of defendants Infant Daughter of Paris Buckner, by and through Gracie and Sonny Williams, and the Estate and/or heirs of Paris Buckner (collectively " the Buckner Estate" ), the memoranda of the parties and the applicable law, and being fully advised in the premises, the Court finds as follows:

In this declaratory judgment action, Progressive Gulf seeks a declaration that a contract of insurance between Progressive Gulf (the insurer) and George L. Jones (" Jones" ) / Three Rivers Transit (the insureds) does not provide a defense or indemnity to the Estate of George L. Jones (" Jones Estate" ), or to any of the defendants,

Page 708

for the claims arising from a May 5, 2012, automobile collision of vehicles driven by Jones and Paris Buckner (" Buckner" ), resulting in Buckner's death. Asserting that there are no genuine issues of material fact, and that it is entitled to judgment as a matter of law, Progressive Gulf moves for summary judgment.

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, a party is entitled to summary judgment in its favor if it " 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). " The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact." Canal Ins. Co. v. Herrington, 846 F.Supp.2d 654, 657 (S.D. Miss. 2012)(" Herrington" )(citations and internal quotation marks omitted). " The nonmoving party must then go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial." Id. Factual controversies are to be resolved in favor of the nonmovant, " but only when ... both parties have submitted evidence of contradictory facts." Id. " Conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments have never constituted an adequate substitute for specific facts showing a genuine issue for trial." Id. " The interpretation of an insurance policy's language presents a question of law." Herrington, 846 F.Supp.2d at 657. " The Court must give effect to the plain meaning of an insurance policy's clear and unambiguous language." Id. at 658.

Progressive Gulf asserts that its policy specifically requires that the accident must arise out of the use of an " insured auto" in order to implicate coverage. At the time of the accident, which occurred on May 5, 2012, in Hollandale, Mississippi, Jones was operating a 1991 Volvo truck which Progressive Gulf contends was not, and had never been, a listed vehicle on Jones's commercial automobile insurance policy.

The commercial auto policy in issue was issued to Jones and Three Rivers Transit, and underwritten by Progressive Gulf. The policy period was October 27, 2011 through October 27, 2012. The policy listed one vehicle; it did not list the 1991 Volvo truck involved in the accident. Progressive Gulf Insurance Policy 08299832-0. The Insuring Agreement, Part I, of the insurance contract between Progressive Gulf and Jones provides as follows:

INSURING AGREEMENT - LIABILITY TO OTHERS
Subject to the Limits of Liability, if you pay the premium for liability coverage, we will pay damages, OTHER THAN PUNITIVE OR EXEMPLARY DAMAGES, for bodily injury, property damage, and covered pollution cost or expense, for which an insured becomes legally responsible because of an accident arising out of the ownership, maintenance or use of an insured auto.

Id., Part I, Liability to Others, p. 10. Thus, according to the Progressive Gulf

Page 709

policy, in order to implicate liability coverage, the accident must arise out of the use of an " insured auto."

The Insuring Agreement, Part II, of the insurance contract between Progressive Gulf and Jones provides:

INSURING AGREEMENT - COLLISION COVERAGE
Subject to the Limits of Liability, if you pay the premium for Collision Coverage, we will pay for loss to your insured auto and its equipment when it collides with another object or overturns.

Id., Part II, Damage to Your Auto, p. 22. Thus, according to the Progressive Gulf policy, in order to implicate collision coverage, claims for property damage must likewise arise from the use of an " insured auto."

The Insuring Agreement, Part II, of the insurance contract between Progressive Gulf and Jones also provides:

INSURING AGREEMENT - COMPREHENSIVE COVERAGE
Subject to the Limits of Liability, if you pay the premium for Comprehensive Coverage, we will pay for loss to your insured auto and its equipment from any cause other than those covered under Collision Coverage.

Id., Part II, Damage to Your Auto, p. 22. Thus, according to the Progressive Gulf policy, in order to implicate comprehensive coverage, claims for property damage must also arise from the use of an " insured auto."

The policy's definition of " insured auto" or " your insured auto" is as follows:

a. Any auto specifically described on the Declarations Page, unless you have asked us to delete ...

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