Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

National Fire & Marine Insurance Co. v. Shirley

United States District Court, S.D. Mississippi, Eastern Division

September 4, 2018

NATIONAL FIRE & MARINE INSURANCE COMPANY PLAINTIFF
v.
ED SHIRLEY, d/b/a FUNTIME EVENT SERVICES DEFENDANT

          MEMORANDUM OPINION AND ORDER

          KEITH STARRETT UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Plaintiff National Fire & Marine Insurance Company's Motion for Summary Judgment [6]. Defendant Ed Shirley d/b/a Funtime Event Services (“Shirley”) indicated to the Court in response to a sua sponte Order to Show Cause [21] that he did not intend to respond to the motion [23]. Having considered the motion, the record in this matter, and otherwise being duly advised in the premises, the Court finds that the summary judgment shall be granted.

         I. BACKGROUND

         This case arises from an automobile accident. In January 2018, Lonnie Barrier filed an action in state court wherein it was alleged that on July 20, 2015, an employee of Funtime Event Services was hauling an inflatable jump castle that fell off the truck and was struck by a vehicle in which Barrier was a passenger. [7] at p. 3, Ex. B. The state court amended complaint alleges that the employee was negligent for, among other things, failure to properly secure a load and driving in an unsafe manner. Id. In addition, Barrier brought a claim against Shirley for negligent entrustment of the vehicle based on a number of grounds, which included failure to train, supervise, manage or control the employee from negligently operating the vehicle or negligently securing the load. Id. at p. 3-4, Ex. B. Barrier is also seeking punitive damages. Id. at p. 4, Ex. B.

         National Fire issued Commercial General Liability Policy Number 72LPS022600 to Ed Shirley d/b/a Funtime Event Services as the named insured (the “Policy”), which policy was in effect at the time of the subject accident. [7] at p. 2, Ex. A. Presumably, Shirley made a claim under the Policy for defense and indemnity for the events at issue in the state court action because it is undisputed that National Fire is providing a defense to Shirley in the state court action under a full reservation of rights. [1] at ¶ 12. National Fire made an initial determination that no coverage exists under the Policy for the subject events due to Policy exclusions, which preclude coverage for all claims arising out of the ownership or use of an automobile. [1] at ¶ 11; [7] at p. 2-3.

         National Fire brought this instant action seeking a declaration that it has no duty to defend or indemnify Shirley in connection with the state court action. [7] at p. 4. National Fire filed a Motion for Summary Judgment, asserting that there is no genuine issue of material fact that would preclude this Court from entering a judgment declaring that it has no obligation under the Policy to defend or pay claims made against Shirley in the state court action.

         II. DISCUSSION

         A. Legal Standards

         Federal Rule of Civil Procedure 56 provides that “[t]he 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). When deciding whether a genuine fact issue exits, “the court must view the facts and the inferences to be drawn therefrom in the light most favorable to the nonmoving party.” Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010). Although “' a motion for summary judgment cannot be granted simply because there is no opposition,' . . . a court may grant an unopposed summary judgment motion if the undisputed facts show that the movant is entitled to judgment as a matter of law.” Calais v. Theriot, 589 Fed.Appx. 310, 311 (5th Cir. 2015) (citing Day v. Wells Fargo Bank Nat'l Ass'n, 768 F.3d 435, 435 (5th Cir. 2014)); see also L.U.Civ.R. 7(b)(3)(E).

         In deciding whether National Fire is entitled to judgment as a matter of law, the Court applies the substantive law of Mississippi in this diversity case. Barden Miss. Gaming Ltd. Liab. Corp. v. Great N. Ins. Co., 638 F.3d 476, 478 (5th Cir. 2011). As National Fire points out, the standard under Mississippi law when making a coverage determination has been set forth previously by this Court as follows:

In Mississippi, “the interpretation of the language of an insurance policy is a question of law.” Ambiguities in an insurance contract are to be construed against the drafting party, the insurer. However, a “clear and unambiguous contract will be enforced as written.” Although policy provisions seeking to limit coverage are to be strictly construed, clear and unambiguous “exclusionary language is binding upon the insured.” An insurer's duty to defend is determined by comparing the language of the insurance policy with the allegations of wrongdoing asserted in the underlying action. “'[T]he duty to defend is broader than the insurer's duty to indemnify under its policy of insurance: the insurer has a duty to defend when there is any basis for potential liability under the policy.'” It necessarily follows that there can be no duty to indemnify in the absence of a duty to defend.

Tudor Ins. Co. v. Manchester Educ. Found., Inc., No. 3:10-cv-493, 2013 WL 228023 at *2 (S.D.Miss. 2013)(internal citations omitted).

         B. Analysis

         The undisputed facts reveal that Plaintiff issued a policy of insurance to Shirley, which, although in full force and effect at the time of the subject ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.