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McKeel v. Auto-Owners Insurance Co.

United States District Court, S.D. Georgia, Savannah Division

March 24, 2015

ERICA N. McKEEL, individually; ERICA N. McKEEL, as surviving parent of Murphy Foster McKeel, deceased; DANIEL CALEB McKEEL, as surviving parent of Murphy Foster McKeel, deceased; ASSIGNEES OF CUONG NGUYEN AND MINH NGUYEN, individually doing businessr as Limelight Bar & Grill, LLC; Plaintiffs,


WILLIAM T. MOORE, Jr., District Judge.s

Before the Court is Defendant Auto-Owners Insurance Company's ("Auto-Owners") Motion for Summary Judgment. (Doc. 21.) For the following reasons, Defendant's motion is GRANTED. The Clerk of Court is DIRECTED to close this case.


Plaintiffs originally filed this action in the Superior Court of Bryan County, Georgia. (Doc. 1, Ex. A.) According to Plaintiffs' complaint, Plaintiff Erica McKeel was involved in a car accident on January 12, 2012 when Cuong Nguyen improperly turned into the path of her vehicle. (Id., Compl. ¶¶ 7-8.) Plaintiff Erica McKeel, who was seven months pregnant at the time of the incident, suffered injuries and prematurely delivered her baby. (Id. ¶ 9.) Sadly, the newborn child subsequently died due to injuries sustained as the result of the accident. (Id.)

According to the complaint, Cuong Nguyen was an employee of Limelight Bar and Grill, LLC ("Limelight") at the time of the accident. (Id. ¶ 12.) Limelight was owned by Cuong Nguyen's brother, Minh Nguyen, and was covered under a Commercial General Liability Policy providing for personal injury liability coverage up to $1, 000, 000 per occurrence.[1] (Id. ¶¶ 10-11.) Initially, Defendant determined the policy did not provide coverage because Cuong Nguyen was driving a personal vehicle and not working for the business. (Id. ¶ 13.) Based on later statements by Cuong Nguyen that he was conducting business on behalf of Limelight at the time of the accident, Defendant denied a demand by McKeel Plaintiffs[2] for the policy limits because the policy excluded bodily injuries that arose out of the use of an automobile. (Id. ¶¶ 15-16.)

Ultimately, McKeel Plaintiffs filed a personal injury suit in the State Court of Bryan County, Georgia, obtaining a jury verdict against Cuong Nguyen in excess of $3, 000, 000. (Id. ¶¶ 18-20.) Following the entry of judgment in that case, Cuong Nguyen and Minh Nguyen assigned their interest in any claim they might have against Defendant to McKeel Plaintiffs. (Id. ¶ 21.) Based on that assignment, Plaintiffs filed the present suit in the Superior Court of Bryan County, Georgia seeking a declaratory judgment that "the insurance policy at issue covers the events giving rise to the underlying lawsuits." (Id. ¶ 25.) Defendant timely removed that complaint to this Court, pursuant to 28 U.S.C. § 1332, based on the diversity of the parties. (Doc. 1.) In its answer, Defendant brought a counterclaim for a declaratory judgment that it has "no obligation to make payment for any amount relating to the [Plaintiffs'] judgment for damages obtained by them in the Underlying Liability Lawsuit." (Doc. 5 at 19.)

Following discovery, Defendant filed a Motion for Summary Judgment.[3] In its motion, Defendant argues that "Plaintiffs' claims, and the [State Court] Judgment upon which they are based, are totally and unambiguously excluded by the Policy's Automobile Exclusion."[4] (Doc. 21, Attach. 1 at 19.) In response to this argument, Plaintiffs state only that "a reasonable insured, Minh Nguyen, could have believed that the acts of his volunteer worker' which were done within the scope of their work for Limelight might have been covered by the Policy." (Doc. 26, Attach. 1 at 8.)



According to Fed.R.Civ.P. 56(a), "[a] party may move for summary judgment, identifying each claim or defense-or the part of each claim of defense-on which summary judgment is sought." Such a motion must be granted "if 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." Id . The "purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56 advisory committee notes).

Summary judgment is appropriate when the nonmovant "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The substantive law governing the action determines whether an element is essential. DeLong Equip. Co. v. Wash. Mills Abrasive Co., 887 F.2d 1499, 1505 (11th Cir. 1989).

As the Supreme Court explained:

[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.

Celotex, 477 U.S. at 323. The burden then shifts to the nonmovant to establish, by going beyond the pleadings, that there is a genuine issue as to facts that are material to the nonmovant's case. Clark v. ...

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