United States District Court, S.D. Mississippi, Eastern Division
MEMORANDUM OPINION AND ORDER
STARRETT UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiff National Fire &
Marine Insurance Company's Motion for Summary Judgment
. Defendant Ed Shirley d/b/a Funtime Event Services
(“Shirley”) indicated to the Court in response to
a sua sponte Order to Show Cause  that he did
not intend to respond to the motion . 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.
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.  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.
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.  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.  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.  at ¶
11;  at p. 2-3.
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.  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.
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).
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
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 ...