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Gavion v. Ace American Insurance Co.

United States District Court, S.D. Texas, Houston Division

May 4, 2017

MICHAEL J. GAVION, JR. and MICHAEL JACKSON and AMANDA JACKSON, As Successors in Interest to the Rights of MICHAEL GAVION, JR., Plaintiffs,



         Plaintiffs brought this action against defendant ACE American Insurance Company ("ACE American") for failing to defend plaintiff Michael J. Gavion, Jr. in a suit arising from an automobile accident and for failing to pay the resulting judgment. Pending before the court are ACE American Insurance Company's Motion for Summary Judgment ("Defendant's MSJ") (Docket Entry No. 11) and plaintiffs' Motion to Strike Requests for Admissions and Alternatively to Extend Time to Respond to Those Requests ("Plaintiffs' Motion to Strike") (Docket Entry No. 12). For the reasons explained below, Plaintiffs' Motion to Strike will be granted in part and denied in part, and ACE American's Motion for Summary Judgment will be granted.

         I. Undisputed Facts and Procedural Background[1]

         In August of 2009 plaintiff, Michael J. Gavion, Jr., drove into the path of a Houston Metropolitan Transit Authority train and was struck by the train. Gavion was driving a company vehicle provided to his mother, an employee of Xerox Corporation ("Xerox"). Gavion's mother lent Gavion the vehicle for personal use. Plaintiff Amanda Jackson was a passenger at the time of the accident and was injured as a result. She, along with plaintiff Michael Jackson, sued Gavion and ACE American in Louisiana state court (the "Louisiana action"). ACE American was dismissed from that suit. Gavion never appeared in the Louisiana action and never tendered the lawsuit to ACE American or sought a defense. The Jacksons obtained a default judgment against Gavion for $185, 000. Gavion then assigned any rights he may have had to recover against ACE American to the Jacksons.

         The Jacksons asserted Gavion's rights in a suit in the 129th Judicial District Court of Harris County, Texas. ACE American timely removed and now moves for summary judgment.

         II. Motion for Summary Judgment

         A. Standard of Review

         Summary judgment is appropriate if the movant establishes that there is no genuine dispute about any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Disputes about material facts are genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2510 (1986). The moving party is entitled to judgment as a matter of law if "the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2552 (1986) .

         A party moving for summary judgment "must 'demonstrate the absence of a genuine issue of material fact, ' but need not negate the elements of the nonmovant's case." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam) (quoting Celotex, 106 S.Ct. at 2553). "If the moving party fails to meet this initial burden, the motion must be denied, regardless of the nonmovant's response." Id. If, however, the moving party meets this burden, "the nonmovant must go beyond the pleadings" and produce evidence that specific facts exist over which there is a genuine issue for trial. Id. (citing Celotex, 106 S.Ct. at 2553-54) . The nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 106 S.Ct. 1348, 1356 (1986) .

         In reviewing the evidence "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, 2110 (2000). Factual controversies are to be resolved in favor of the nonmovant, "but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Little, 37 F.3d at 1075.

         B. Analysis

         1. Requests for Admission

         ACE American served requests for admissions on Gavion on December 15, 2016.[2] As of the filing of ACE American's Motion for Summary Judgment on March 14, 2017, Gavion had not responded.[3] As part of its motion, ACE American moved to have the requests for admissions deemed admitted under Federal Rule of Civil Procedure 36(a) (3) .[4] Gavion moved to strike the admissions and, alternatively, to extend the time to respond.[5] Because an extension does not prejudice ACE American, and because Gavion provided the court with a credible reason for the delay, an extension will be granted. The admissions attached to Plaintiffs' Motion to Strike will be considered timely responses to ACE American's original requests for admission.[6]

         2. Motion for ...

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