United States District Court, S.D. Texas, Houston Division
MEMORANDUM & OPINION
Rosenthal, Chief United States District Judge
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).
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.
reasons for these rulings are discussed below.
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).
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).
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,
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).
The Legal Standard
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
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).
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).