United States District Court, S.D. Mississippi, Southern Division
SARAH D. SOARES; HERMAN S. SOARES; and MARY PAUL SOARES PLAINTIFFS
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and DOE DEFENDANTS 1-6
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS'
MOTION TO STRIKE
GUIROLA, JR. UNITED STATES DISTRICT JUDGE.
THE COURT are two motions: the  Motion for Summary
Judgment filed by Defendant State Farm Mutual Automobile
Insurance Company (“State Farm”) and the 
Motion to Strike State Farm's Motion for Summary
Judgment, Motions to Strike, and Attached Exhibits filed by
Plaintiffs Sarah D. Soares, Herman S. Soares, and Mary Paul
Soares. The Motion for Summary Judgment argues that State
Farm is entitled to summary judgment on all of
Plaintiffs' claims because the undisputed material facts
do not support their claims for bad faith delay in making
policy payments. Insofar as Plaintiffs' claim concerning
State Farm's refusal to assist them in their pursuit of
legal action against Noel Dimarco, Michael Dimarco, and
Sharon Dimarco, State Farm contends that it was never under a
duty to do so.
Motion to Strike asserts that none of the exhibits to State
Farm's summary judgment motion can be properly considered
because they are unauthenticated and otherwise inadmissible,
leaving only unsubstantiated allegations in the memorandum
brief. Both motions are fully briefed. Having considered the
submissions of the parties, the record, and relevant law, the
Court concludes that State Farm is entitled to summary
judgment. Plaintiffs' Motion to Strike will be denied,
and Plaintiffs' claims will be dismissed.
Sarah D. Soares, Herman S. Soares, and Mary Paul Soares filed
this lawsuit in the Circuit Court of Harrison County,
Mississippi against Defendant State Farm, the plaintiffs'
insurer, and Noel Dimarco, Michael Dimarco, and Sharon
Dimarco, the alleged tortfeasors. Plaintiffs allege that
Sarah Soares was injured in a motor vehicle accident caused
by underinsured individuals - the Dimarcos - and that State
Farm willfully failed to provide prompt payment due under
Plaintiffs' uninsured/underinsured motorist
(“UM”) policy. Plaintiffs also seem to claim that
the UM policy obligates State Farm to assist Plaintiffs in
pursuing tort claims against the Dimarcos. Because the Court
found the contractual claims against State Farm had been
improperly joined with tort claims against the Dimarcos, the
Court severed and remanded the tort claims. (See
Order Granting in Part and Den. in Part Mot. Remand, ECF No.
April 25, 2019, State Farm filed the instant Motion for
Summary Judgment. The Motion argues (1) the material facts
are not in dispute, (2) State Farm paid Sarah Soares the
policy limits of Plaintiffs' stacked UM coverage plus
medical payments coverage (“MPC”), (3) State Farm
did not unreasonably delay payment of the policy limits to
Sarah, and (4) there is no contractual or legal duty for
State Farm to help Plaintiffs pursue their tort claims
against the Dimarcos. In response,  Plaintiffs do not dispute
that State Farm ultimately paid the policy limits, but they
contend that State Farm's failure to immediately accept
that Sarah - a college student at the time - was covered by
the policy and that the policy limits stack under Mississippi
law constituted a bad faith delay in making policy payments.
Plaintiffs maintain that State Farm delayed its agreement to
settle all claims with the Dimarco's insurer and its
waiver of subrogation rights, which consequently delayed UM
payments for nineteen months. Furthermore, Plaintiffs assert
that State Farm shirked its obligation to share with
Plaintiffs the addresses at which the Dimarcos could be
served with process and the location of valuable assets
belonging to the Dimarcos.
6, 2019, Plaintiffs filed their Motion to Strike State
Farm's Motion for Summary Judgment, Motions to Strike,
and Attached Exhibits. Plaintiffs' Motion argues that
State Farm's motions, memoranda, and exhibits are based
“on inadmissible, incompetent, improper false
contentions and unauthenticated documents and exhibits . . .
and incompetent, improper, false contentions of [State
Farm]'s counsel without any personal knowledge.”
(Pls.' Mem. Supp. Mot. Strike 1, ECF No. 48 (emphasis and
quotation marks omitted).) State Farm responds that, at the
summary judgment stage of litigation, exhibits need only be
capable of being presented in a form that would be admissible
in evidence, and State Farm's filings meet this standard.
Summary Judgment Standard
Rule of Civil Procedure 56(a) provides that summary judgment
is appropriate “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 the moving party has carried its burden
under Rule 56(c), its opponent must do more than simply show
that there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). “[T]he nonmovant
must go beyond the pleadings and designate specific facts
showing that there is a genuine issue for trial.”
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc).
genuine dispute of material fact means that ‘evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.'” Royal v. CCC & R Tres
Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)). If the evidence presented by the nonmovant
“‘is merely colorable, or is not significantly
probative,' summary judgment is appropriate.”
Cutting Underwater Techs. USA, Inc. v. ENI U.S. Operating
Co., 671 F.3d 512, 516 (5th Cir. 2012) (quoting
Anderson, 477 U.S. at 249). In deciding whether
summary judgment is appropriate, the Court views the evidence
and inferences in the light most favorable to the nonmoving
party. RSR Corp. v. Int'l Ins. Co., 612 F.3d
851, 857 (5th Cir. 2010).
Plaintiffs' Motion to Strike
Court first addresses Plaintiffs' Motion to Strike.
Federal Rule of Civil Procedure 56 provides that factual
assertions made in support of or in opposition to summary
judgment must be supported by “citing to particular
parts of materials in the record.” Fed.R.Civ.P.
56(c)(1)(A). “A party may object that the material
cited to support or dispute a fact cannot be presented in a
form that would be admissible in evidence.”
Fed.R.Civ.P. 56(c)(2). Thus, the material cited to at summary
judgment must “be capable of being
‘presented in a form that would be admissible in
evidence.'” LSR Consulting, LLC v. Wells Fargo
Bank, N.A., 835 F.3d 530, 534 (5th Cir. 2016) (emphasis
in original) (quoting Fed.R.Civ.P. 56(c)(2)).
the standard of Rule 56, Plaintiff's arguments for
striking the documents that State Farm relies upon in its
Motion for Summary Judgment miss the mark. State Farm
attached the following exhibits to its summary judgment
motion: (1) notes made in the file maintained for Sarah
Soares' UM claim, (2) a letter from Plaintiffs'
counsel to State Farm dated May 21, 2015, (3) a letter from
State Farm to Plaintiffs' counsel dated May 27, 2015, (4)
a demand ...