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Duhaly v. The Cincinnati Insurance Co.

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

August 27, 2019

ALI DUHALY, Plaintiff,


          Lee H. Rosenthal, Chief United States District Judge

         Ali Duhaly sued The Cincinnati Insurance Company, alleging breach of contract and negligence based on Cincinnati's failure to pay under his employer's insurance policy for his injuries from a car accident with a third party. (Docket Entry No. 1-3). Cincinnati moved for summary judgment, and Duhaly responded. (Docket Entry Nos. 36, 38).

         The court grants Cincinnati's motion for summary judgment as to Duhaly's negligence claim. (Docket Entry No. 36). The court dismisses, without prejudice, Duhaly's breach-of-contract claim because the court lacks subject-matter jurisdiction to consider it. An order of dismissal is separately entered.

         The reasons for these rulings are discussed below.

         I. Background

         In February 2017, Buyers Barricades hired Duhaly as a “traffic control tech.” (Docket Entry No. 37-3 at 3; see Docket Entry No. 37-4 at 10-11). In April 2017, Duhaly was in the passenger seat of a Buyers Barricades Ford F650 truck when Broderick Williams, driving a Dodge Magnum station wagon, hit the rear of the truck. (Docket Entry No. 37-4 at 10, 19; Docket Entry No. 37-5; Docket Entry No. 37-6 at 18, 27). The impact crumpled the truck's Scorpion Truck Mounted Attenuator, which absorbs the impact of a rear-end collision. (See Docket Entry No. 37-5; Docket Entry No. 37-6 at 18, 27-28, 157-58, 160-61; Docket Entry No. 37-7 at 36). Williams had no insurance. (Docket Entry No. 37-5).

         Duhaly and the other Buyers Barricades employee in the truck went to the hospital. (Docket Entry No. 37-4 at 23-24; Docket Entry No. 37-6 at 33-34, 161-62). Duhaly was off work at least two days. He returned to work without restrictions. (Docket Entry No. 37-6 at 43).

         Buyers Barricades had an insurance policy with Cincinnati effective from June 11, 2015, to June 11, 2018. The policy covered damage or injury for vehicle collisions caused by an uninsured or underinsured motorist. (Docket Entry No. 37-2 at 1, 6, 28-33). The uninsured/underinsured motorist coverage stated that Cincinnati would “pay all sums the ‘insured' is legally entitled to recover as compensatory damages from the owner or operator of . . . [a]n uninsured motor vehicle” to which “no liability bond or policy applies at the time of the accident” or an underinsured motor vehicle to which the insurance coverage is insufficient to cover the damages. (Id. at 28, 32).

         In October 2018, Duhaly sued Cincinnati in Texas state court, and Cincinnati timely removed. (Docket Entry Nos. 1-3, 1). Duhaly asserts breach of contract and negligence claims against Cincinnati for failing to pay for his injuries caused by the April 2017 accident. (Docket Entry No. 1-3 at ¶¶ 9-11, 14). He seeks damages, including for current and future physical pain and disability, mental anguish, loss of earnings, medical expenses, and emotional distress. (Id. at ¶ 12). Cincinnati moves for summary judgment, arguing that Duhaly's claims fail as a matter of law. (Docket Entry No. 36).

         II. The Legal Standard

         “Summary judgment is appropriate only if ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'” Vann v. City of Southaven, 884 F.3d 307, 309 (5th Cir. 2018) (citations omitted); see also F ed. R. Civ. P. 56(a). “A genuine dispute of material fact exists when the ‘evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Burrell v. Prudential Ins. Co. of Am., 820 F.3d 132, 136 (5th Cir. 2016) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)). “The moving party ‘bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.'” Brandon v. Sage Corp., 808 F.3d 266, 269-70 (5th Cir. 2015) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).

         “Where the non-movant bears the burden of proof at trial, ‘the movant may merely point to the absence of evidence and thereby shift to the non-movant the burden of demonstrating . . . that there is an issue of material fact warranting trial.'” Kim v. Hospira, Inc., 709 Fed. App'x 287, 288 (5th Cir. 2018) (quoting Nola Spice Designs, L.L.C. v. Haydel Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015)). While the party moving for summary judgment must demonstrate the absence of a genuine issue of material fact, it does not need to negate the elements of the nonmovant's case. Austin v. Kroger Tex., L.P., 864 F.3d 326, 335 (5th Cir. 2017) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1076 n.16 (5th Cir. 1994)). A fact is material if “its resolution could affect the outcome of the actions.” Aly v. City of Lake Jackson, 605 Fed. App'x 260, 262 (5th Cir. 2015) (citing Burrell v. Dr. Pepper/Seven UP Bottling Grp., Inc., 482 F.3d 408, 411 (5th Cir. 2007)). “If the moving party fails to meet [its] initial burden, the motion [for summary judgment] must be denied, regardless of the nonmovant's response.” Pioneer Exploration, LLC v. Steadfast Ins. Co., 767 F.3d 503 (5th Cir. 2014).

         “When the moving party has met its Rule 56(c) burden, the nonmoving party cannot survive a summary judgment motion by resting on the mere allegations of its pleadings.” Bailey v. E. Baton Rouge Par. Prison, 663 Fed. App'x 328, 331 (5th Cir. 2016) (quoting Duffie v. United States, 600 F.3d 362, 371 (5th Cir. 2010)). The nonmovant must identify specific evidence in the record and articulate how that evidence supports that party's claim. Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014). “This burden will not be satisfied by ‘some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.'” Jurach v. Safety Vision, LLC, 642 Fed. App'x 313, 317 (5th Cir. 2016) (quoting Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005)). In deciding a summary judgment motion, the court draws all reasonable inferences in the light most favorable to the nonmoving party. Darden v. City of Fort Worth, 866 F.3d 698, 702 (5th Cir. 2017).

         III. ...

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