United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER GRANTING MOTIONS FOR
GUIROLA, JR., UNITED STATES DISTRICT JUDGE
THE COURT are the  Motion for Partial Summary Judgment
filed by Defendant Allstate Property and Casualty Insurance
Company, and the  Motion for Summary Judgment filed by
Plaintiff Kathy Harrell in this automobile insurance case.
The motions have been fully briefed. After due consideration
of the submissions, it is the Court's opinion that
Allstate's affirmative defenses identified by Harrell
should be dismissed. It is also clear that the tortfeasor was
driving an underinsured motor vehicle under Mississippi law.
Accordingly, Harrell's Motion for Summary Judgment will
be granted. Additionally, the Court concludes that Allstate
has shown that it is entitled to summary judgment regarding
Harrell's claims of bad faith and other extra-contractual
damages. Both Motions will be granted.
complains about Allstate's handling of her claim for
underinsured motorist benefits after she was struck from
behind by Alice Arena while waiting at a stop sign. Both
drivers are insured by Allstate. Harrell does not name Arena
but alleges a negligence claim against her. As against
Allstate, Harrell alleges she is entitled to $50, 000 in
underinsured motorist benefits and Allstate is acting in bad
faith by failing to pay that amount. (Id. at 4-7).
Allstate concluded after its investigation of her claim that
“Mrs. Harrell has been fully compensated for her
injuries by the underlying carrier and her medical payments
coverage.” (2d Am. Compl. Ex. 1, ECF No. 13-1).
seeks summary judgment on two affirmative defenses asserted
by Allstate, and a finding that Arena was driving an
underinsured motor vehicle under Mississippi law. Allstate
seeks summary judgment on the issue of its liability for bad
faith, asserting that it has a reasonable basis for denying
payment of benefits, and this is a pocketbook dispute not
suitable for punitive or extra-contractual damages under
judgment is granted when “there is no genuine dispute
as to any material fact and the movant is entitled to
judgment as a matter of law.” Kemp v. Holder,
610 F.3d 231, 234 (5th Cir. 2010) (citing Fed.R.Civ.P.
56(a)). The “burden of production at trial ultimately
rests on the nonmovant” and the movant must merely show
an “absence of evidentiary support in the record for
the nonmovant's case.” Cuadra v. Houston Indep.
Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010). The
nonmoving party must then come forward with specific facts
showing that there is a genuine issue for trial. Id.
The Court must draw justifiable inferences in favor of the
nonmovant, provided there is sufficient evidence to draw the
inference. State Farm Life Ins. Co. v.
Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). There is
“no issue for trial unless there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict
for that party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986).
Harrell's Motion For Partial Summary Judgment
seeks summary judgment and dismissal of the fourth and fifth
affirmative defenses asserted by Allstate: “each and
every applicable affirmative defense, ” and mitigation
of damages. (Allstate Answer 9, ECF No. 17). Allstate does
not oppose dismissal of these affirmative defenses.
(See Allstate Resp. 1, ECF No. 54). They will be
also seeks summary judgment on the issue of “whether
the vehicle driven by Arena was an ‘Uninsured Motor
Vehicle' under Mississippi law.” (Harrell Mem. 8,
ECF No. 51). She refers to the Mississippi statute defining
an underinsured vehicle as an uninsured
vehicle. Harrell submits that because the uninsured
coverage of her two vehicles can be stacked, she has $50, 000
in coverage, which is greater than Arena's $25, 000 in
coverage. Harrell therefore claims she is entitled to UM/UIM
benefits totaling $50, 000.
contends that Allstate has denied that Arena was an uninsured
motor vehicle in its 30(b)(6) deposition, and asks the Court
to recognize that the “undisputed facts satisfy the
definition of ‘Uninsured Motor Vehicle' under
Mississippi law.” (Harrell Mem. 8, ECF No. 51). But in
her reply she states that she “seeks summary judgment
on whether Arena is an ‘uninsured motorist' under
Mississippi law, not an ‘uninsured auto' under
Allstate's policy.” (Harrell Reply 3, ECF No. 58).
It is not clear to the Court what declaration Harrell seeks,
or if there is any real difference in her formulations. The
statute at issue here mandates uninsured motorist coverage in
insurance policies, but does not define an “uninsured
motorist.” Instead, it speaks in terms of uninsured
vehicles. See Miss. Code Ann. § 83-11-101, et
after reviewing Allstate's response and the transcript of
the 30(b)(6) deposition, it appears that the parties agree
that Arena's vehicle was underinsured as defined by
Mississippi statute. Disagreement arose when the deponent was
pressed to agree that Arena was underinsured - her $25, 000
in coverage was inadequate to compensate Harrell.
(See Harrell Mem. Ex. 1, at 25-27, ECF No. 51-1).
The Allstate deponent was understandably reluctant to give
the impression that Allstate agreed that Arena's
liability and Harrell's injuries were such that Arena was
actually underinsured. That is the ultimate issue in this
case, and will be determined after Arena's liability for
Harrell's damages, and the extent of those damages, are
proven. Thus the Court grants summary judgment as to
Harrell's original formulation of her issue, and
concludes that Arena's vehicle meets the definition of an
Uninsured Motor Vehicle under Mississippi law because Arena
had less UM/UIM coverage than Harrell. See Byrd v.
Hutchinson, 876 So.2d 1092, 1095 (Miss. Ct. App. 2004)
(underinsured motorist coverage is determined solely by a
comparison of the tortfeasor's liability coverage and the
personal coverage carried by, or available to the injured
Allstate's Motion for Partial Summary Judgment
requests dismissal of the bad faith punitive damages claim
and any extra-contractual damages claim, arguing that this
case presents a pocketbook dispute that cannot support bad
faith or punitive damages in Mississippi. Allstate argues
that it has not denied Harrell's claim - it has evaluated
the claim as having been fully satisfied, subject to
consideration of “any additional documentation you have
to review.” (2d Am. Compl. Ex. 1, ECF No. 13-1).
Allstate states that Harrell has “already recovered
$30, 000 between the tort carrier and her medical payments
coverage.” (Allstate Mem. 17, ECF No. 49). Allstate
argues that its reasons for having evaluated the claim as it
did are supported by 1) Harrell's medical records, which
indicate that she had suffered from back pain for five to six
months prior to the accident and reached ...