United States District Court, W.D. Texas
R.M. PERSONNEL, INC., Plaintiff,
LIBERTY MUTUAL FIRE INSURANCE COMPANY, Defendant.
SPARKS, UNITED STATES DISTRICT JUDGE
REMEMBERED on this day the Court reviewed the file in the
above-styled cause, and specifically Plaintiff RM. Personnel,
Inc. (RMP)'s Motion for Partial Summary Judgment [#11]
and Defendant Liberty Mutual Fire Insurance Company (Liberty)
's Response [#20] in opposition as well as Liberty's
Unopposed Motion for Leave to File Cross Motion for Summary
[#21]. Having considered the case file and the
applicable law, the Court enters the following opinion and
case concerns a dispute over insurance coverage in the
aftermath of an accident at a commercial construction site in
El Paso, Texas. On September 17, 2007, Luis Alberto Rodriguez
fell fifty feet down an elevator shaft resulting in severe
personal injuries. Mr. Rodriguez filed suit against RMP and
others in County Court at Law Number Three in El Paso, Texas
(the Rodriguez Lawsuit). RMP Mot. [#11-1] Ex. 1 (Third Am.
Pet.). On May 19, 2015, Mr. Rodriguez obtained a judgment
against RMP in the amount of $3, 485, 000 plus pre-judgment
and post-judgment interest and costs. An appeal of the
judgment in the Rodriguez Lawsuit is still
lawsuit before this Court concerns whether Liberty had a duty
to defend RMP in the Rodriguez Lawsuit and whether Liberty
has a duty to indemnify RMP in the event of a final adverse
judgment. See Compl. [#1].
time of Mr. Rodriguez's accident, RMP was insured under a
workers' compensation and employer's liability policy
issued by Liberty and effective January 1, 2007 to January 1,
2008. RMP Mot. Ex. 3 [#16] (the Policy). Under the Policy,
Liberty is required to provide defense and indemnity coverage
for "bodily injury by accident" if "[t]he
bodily injury.. . arise[s] out of and in the course of the
injured employee's employment by [RMP]."
Id. at LM 2796.
being served in the Rodriguez Lawsuit, RMP sought coverage
from Liberty, requesting Liberty provide RMP's defense.
Compl. [#1] ¶ 6; Answer [#2] ¶ 6. Liberty denied
coverage, claiming Mr. Rodriguez's petition alleged no
employment relationship between RMP and Mr. Rodriguez as
required by the Policy. See Compl. [#1] ¶ 11;
Answer [#2] ¶ 11.
diversity jurisdiction grounds, RMP filed this lawsuit
seeking a declaratory judgment regarding Liberty's duty
to defend and indemnify RMP in the Rodriguez Lawsuit.
See Compl. [#1] ¶¶ 14-16. RMP also claims
Liberty breached the Policy and is liable under the Prompt
Payment Act, Tex. Ins. Code § 542.051 et seq.,
because it refused to defend RMP in the Rodriguez Lawsuit.
Id. ¶¶ 17-20:
filed a timely motion for partial summary judgment, is ripe
Legal Standard-Summary Judgment
judgment shall be rendered when the pleadings, the discovery
and disclosure materials on file, and any affidavits show
that there is no genuine dispute as to any material fact and
that the moving party is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett,
477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504
F.3d 505, 508 (5th Cir. 2007). A dispute regarding a material
fact is "genuine" if the evidence is such that a
reasonable jury could return a verdict in favor of the
nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). When ruling on a motion for summary
judgment, the court is required to view all inferences drawn
from the factual record in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith
Radio, 475 U.S. 574, 587 (1986); Washburn, 504
F.3d at 508. Further, a court "may not make credibility
determinations or weigh the evidence" in ruling on a
motion for summary judgment. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000);
Anderson, 477 U.S. at 254-55.
the moving party has made an initial showing that there is no
evidence to support the nonmoving party's case, the party
opposing the motion must come forward with competent summary
judgment evidence of the existence of a genuine fact issue.
Matsushita, 475 U.S. at 586. Mere conclusory
allegations are not competent summary judgment evidence, and
thus are insufficient to defeat a motion for summary
judgment. Turner v. Baylor Richardson Med. Ctr, 476
F.3d 337, 343 (5th Cir. 2007). Unsubstantiated assertions,
improbable inferences, and unsupported speculation are not
competent summary judgment evidence. Id. The party
opposing summary judgment is required to identify specific
evidence in the record and to articulate the precise manner
in which that evidence supports his claim. Adams v.
Travelers Indent. Co. of Conn., 465 F.3d 156,
164 (5th Cir. 2006). Rule 56 does not impose a duty on the
court to "sift through the record in search of
evidence" to support the nonmovant's opposition to
the motion for summary judgment. Id.
disputes over facts that might affect the outcome of the suit
under the governing laws will properly preclude the entry of
summary judgment." Anderson, 477 U.S. at 248.
Disputed fact issues that are "irrelevant and
unnecessary" will not be considered by a court in ruling
on a summary judgment motion. Id. If the nonmoving
party fails to make a showing sufficient to establish the
existence of an element essential to its case and on which ...