United States District Court, N.D. Georgia, Gainesville Division
RICHARD W. STORY, District Judge.
This case comes before the Court on Defendant Allmerica Financial Alliance Insurance Company's ("Allmerica") Motion for Summary Judgment  and Plaintiff's Motion for Leave to File Sur-Reply Brief in Opposition to Defendant's Motion for Summary Judgment ("Motion for Leave to File Sur-Reply") . After a review of the record, the Court enters the following Order.
This case arises out of a dispute about insurance coverage in connection with an automobile accident and subsequent lawsuit filed in state court. Selective Insurance Company ("Selective") brings this declaratory judgment action seeking a declaration of its rights and duties under an insurance policy issued to Precision Tapping, Inc. ("Precision Tapping"). Relevant to the present motion, Plaintiff names Allmerica Financial Alliance Insurance Company ("Allmerica") as Defendant in its Complaint. Allmerica and Selective dispute which party's policy affords coverage for the automobile accident forming the basis of the underlying suit.
On September 26, 2011, automobiles driven by Defendant Joyce Conner and Defendant Dorothy Craig collided in an accident that resulted in the death of Leonard W. Craig. (Allmerica's Statement of Undisputed Material Facts in Supp. of Mot. for Summ. J. ("Allmerica's SOMF"), Dkt. [40-2] ¶¶ 2-3.) At the time of the accident, Ms. Conner was operating a 2005 Nissan Xterra, Vehicle No. 5N1ANOBU15C630155 (the "Xterra"). (Id. ¶ 5.) The parties dispute who owned the Xterra at the time of the accident.
Ownership is disputed because on the day of the accident, Ms. Conner went to the Department of Motor Vehicles ("DMV") with the intent to transfer title of the Xterra from Precision Tapping into her own name. (Pl.'s Statement of Add'l Material Facts That Present a Genuine Issue for Trial ("Pl.'s SOMF"), Dkt. [45-1] ¶ 4.) Ms. Conner informed the DMV of her wish to transfer the title, signed the certificate of title, and paid for the transfer. (Id. ¶ 5.) The accident occurred after Ms. Conner left the DMV.
In addition to ownership at the time of the accident, the parties dispute whether Ms. Conner was acting as an employee of Precision Tapping and whether the Xterra was an automobile covered by Policy No. S190948101 issued by Selective (the "Selective Policy"). Selective asserts that Ms. Conner was traveling to her mother's house at the time of the accident, and therefore that she was not conducting any business for Precision Tapping. (Id. ¶¶ 8-15.) Allmerica relies on Ms. Conner's use of the Xterra as her "mobile office" to support its contention that Ms. Conner was acting as an employee of Precision Tapping at the time of the accident. (Allmerica's SOMF, Dkt. [40-2] ¶ 7.) The Selective Policy provides that "Insureds" under the policy includes Precision Tapping, anyone using a covered automobile owned by Precision Tapping, and "Your employee' if the covered auto' is owned by that employee' or a member of his or her household." (Id. ¶ 10.) Accordingly, Allmerica asserts that Selective is responsible for primary coverage under the terms of the Selective Policy. Selective, however, states that Allmerica's policy provides coverage for "newly acquired autos" and therefore Allmerica bears primary responsibility. (Pl.'s SOMF, Dkt. [45-1] ¶ 16.)
Allmerica now moves the Court for summary judgment, seeking a declaration that (1) Selective's insurance policy affords coverage for the accident, (2) Selective has a duty to defend and indemnify Ms. Conner and Precision Tapping in the underlying lawsuit, and (3) Selective bears the primary responsibility for coverage. Defendants Richard Russell, as Administrator of the Estate of Leonard W. Craig, Deceased, and Dorothy Craig support and join in Allmerica's Motion for Summary Judgment. (Dkt. .) Selective responds in opposition. The Court first sets forth the relevant legal standard before turning to the parties' arguments.
I. Legal Standard - Summary Judgment
Federal Rule of Civil Procedure 56 requires that summary judgment 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." "The moving party bears the initial responsibility of informing the... 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.'" Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259 (11th Cir. 2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Where the moving party makes such a showing, the burden shifts to the non-movant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
The applicable substantive law identifies which facts are material. Id. at 248. A fact is not material if a dispute over that fact will not affect the outcome of the suit under the governing law. Id . An issue is genuine when the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 249-50.
Finally, in resolving a motion for summary judgment, the court must view all evidence and draw all reasonable inferences in the light most favorable to the non-moving party. Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th Cir. 2002). But, the court is bound only to draw those inferences that are reasonable. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted); see also Matsushita, 475 U.S. at 586 (once the moving party has met its burden under Rule 56(a), the nonmoving party "must do more than simply show there is some metaphysical doubt as to the material facts").
As an initial matter, the Court will consider in its analysis the arguments Allmerica makes in its Reply . Courts generally do not consider issues raised for the first time in a reply brief, but the Court has the discretion to do so. See Conn. State Dental Ass'n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1352 n. 11 (11th Cir.2009). Accordingly, the Court will consider Allmerica's arguments and GRANTS Plaintiff's Motion for Leave to File ...