United States District Court, N.D. Georgia, Atlanta Division
For Jeanette McGill, Plaintiff: Christopher Ron Smith, LEAD ATTORNEY, Law Offices of Shane Smith, P.C., Peachtree City, GA; John Gary Phillips, Jr., Law Offices of R. Shane Smith, Peachtree City, GA.
For American Trucking and Transportation, Ins., Co., a Risk Retention Group, Tango Transport, LLC, doing business as Tango Transport, Inc., Annie Mitchell, Defendants: R. Clay Porter, LEAD ATTORNEY, Dennis Corry Porter & Smith, Atlanta, GA; Tonya Marie Forbes Stokes, LEAD ATTORNEY, Dennis Corry Porter & Smith, LLP-ATL, Atlanta, GA.
CHARLES A. PANNELL, JR., United States District Judge.
This matter appears before the court on American Trucking and Transportation Insurance Company's (" ATTIC" ) motion for summary judgment [Doc. No. 128]. ATTIC argues that it is not subject to a direct prejudgment cause of action under O.C.G.A. § § 40-1-112, 40-2-140 (the " direct action statutes" ) and should therefore be dismissed from the instant suit.
I. Factual Background
This case arises out of a July 2011 motor vehicle accident between a vehicle driven by the plaintiff and a tractor-trailer operated by individual defendant Annie Mitchell while she was acting within the scope of her employment with Tango Transport (" Tango" ). The tractor-trailer involved in the accident was owned by Tango. ATTIC, through an insurance contract with Tango, provided the liability insurance coverage for the subject tractor-trailer unit.
A. Standard of Review
Rule 56(a) of the Federal Rules of Civil Procedure authorizes a court to enter summary judgment Aif 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). The party seeking summary judgment bears the burden of demonstrating that no dispute as to any material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 156, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Johnson v. Clifton, 74 F.3d 1087, 1090 (11th Cir. 1996). The moving party's burden is discharged merely by " 'showing'--that is, pointing out to the district court--that there is an absence of evidence to support [an essential element of] the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
In determining whether the moving party has met this burden, the district court must view the evidence and all factual inferences in the light most favorable to the party opposing the motion. Johnson, 74 F.3d at 1090. Once the moving party has adequately supported its motion, the nonmovant then has the burden of showing that summary judgment is improper by coming forward with specific facts showing a genuine dispute. Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
In deciding a motion for summary judgment, it is not the court's function to decide issues of material fact but to decide only whether there is such an issue to be tried. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The applicable substantive law will identify those facts that are material. Id. at 247. Facts that in good faith are disputed, but which do not resolve or affect the outcome of the case, will not preclude the entry of summary judgment as those facts are not material. Id. Genuine disputes are those by which the evidence is such that a reasonable jury could return a verdict for the nonmovant. Id. In order for factual issues to be " genuine" they must have a real basis in the record. Matsushita ...