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Maryland Casualty Co. v. Dublin Eye Associates, P.C.

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

March 23, 2017

MARYLAND CASUALTY COMPANY and FOREMOST SIGNATURE INSURANCE COMPANY, Plaintiffs,
v.
DUBLIN EYE ASSOCIATES, P.C., DR. ROGER D. SMITH and DR. JAMES Y. JONES, Defendants.

          ORDER

          LISA GODBEY WOOD, CHIEF JUDGE

         Pending before the Court is Plaintiffs' Maryland Casualty Company ("MCC") and Foremost Signature Insurance Company's ("Foremost") (collectively "Plaintiffs") Motion for Partial Summary Judgment (Dkt. No. 27) and Defendant Dr. James Y. Jones' ("Defendant") Partial Motion for Summary Judgment (Dkt. No. 29).

         For the reasons set forth below, both motions are DENIED.

         FACTUAL BACKGROUND

         Many of facts of this case are not in dispute. On April 13, 2011, Defendant and two other parties filed an Employee Retirement Income Security Act ("ERISA") lawsuit against Massachusetts Mutual Life Insurance ("Mass. Life") in the Eastern District of Kentucky. (Dkt. No. 1 ¶ 13) . The Eastern District of Kentucky ultimately granted summary judgment in Mass. Life's favor on July 12, 2013. Dublin Eye Assocs., P.C. v. Mass. Mut. Life Ins. Co., 957 F.Supp.2d 843 (E.D. Ky. 2013). On August 12, 2013, Mass. Life filed a claim for attorney's fees pursuant to 29 U.S.C. § 1132(g)(1). On March 24, 2014, Mass. Life's motion for attorney's fees was granted. Dublin Eye Assocs., P.C. v. Mass. Mut. Life Ins. Co., 2014 WL 1217664, No. 5:ll-cv-128 (E.D. Ky., Mar. 24, 2014). Defendant and his co-plaintiffs in the underlying lawsuit were ordered to pay $1, 191, 799.99 in attorney's fees. Dkt. No. 1 ¶ 22. On May 4, 2015, Plaintiffs were notified of the judgment and the award of attorney's fees.

         At the time of the award of attorney's fees, MCC insured Defendant with the following policy (the "Policy"):

We will pay those sums that the insured becomes legally obligated to pay as damages because of "personal and advertising injury" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages. However, we will have no duty to defend the insured against any "suit" seeking damages for "personal and advertising injury" to which this insurance does not apply. We may, at our discretion, investigate any offense and settle any claim or "suit" that may result.

(Dkt. No. 1 ¶ 28).

         Further, the Policy defined a "personal and advertising injury" arising out of the offense of "malicious prosecution" (as well as a number of other offenses not at issue in this case). Plaintiffs and Defendant now each seek summary judgment regarding the coverage under the Policy.

         LEGAL STANDARD

         The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To satisfy this burden, the movant must show the court that there is an absence of evidence to support the nonmoving party's case. Id. at 325. If the moving party discharges this burden, the burden shifts to the nonmovant to go beyond the pleadings and present affirmative evidence to show that a genuine issue of fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).

         The nonmovant may satisfy this burden in two ways: First, the nonmovant "may show that the record in fact contains supporting evidence, sufficient to withstand a directed verdict motion, which was 'overlooked or ignored' by the moving party, who has thus failed to meet the initial burden of showing an absence of evidence." Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993) (quoting Celotex Corp., 477 U.S. at 332 (Brennan, J., dissenting)). Second, the nonmovant "may come forward with additional evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency." Id. at 1117. Where the nonmovant instead attempts to carry this burden with nothing more "than a repetition of his conclusional allegations, summary judgment for the defendants [is] not only proper but required." Morris v. Ross, 663 F.2d 1032, 1033-34 (11th Cir. 1981). When, as here, the parties have filed cross-motions for summary judgment, the applicable Rule 56 standard is not affected. See Gerling Glob. Reinsurance Corp. of Am. v. Gallagher, 267 F.3d 1228, 1233-34 (11th Cir. 2001). "[T]he facts are viewed in the light most favorable to the non-moving party on each motion." Chavez v. Mercantil Commercebank, N.A., 701 F.3d 896, 899 (11th Cir. 2012) .

         DISCUSSION

         Both Plaintiffs and Defendant petition the Court to answer the same question: whether the facts from the underlying lawsuit could be said to support an "obligation to pay damages for malicious prosecution" under the policy. Dkt. No. 27-1 p. 6; Dkt. No. 29; Dkt. No. 29-1 pp. 1-5. Specifically, Defendant claims that the facts surrounding the underlying lawsuit were such that the grant of attorney's fees was the equivalent to a malicious prosecution action. Dkt. No. 29-1 p. 7. Plaintiffs urge the opposite conclusion. The parties agree that Georgia contract ...


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