United States District Court, N.D. Georgia, Atlanta Division
MICHAEL W. COOK, Plaintiff,
ENCOMPASS INSURANCE COMPANY OF AMERICA, Defendant.
RICHARD W. STORY UNITED STATES DISTRICT JUDGE
case comes before the Court on the Motion for Summary
Judgment of Encompass Insurance Company of America .
After reviewing the record, the Court enters the following
December 29, 2014, Danielle Stegall rear-ended Plaintiff
Michael W. Cook's Dodge Caravan, rendering the vehicle a
total loss. (Def. Encompass Ins. Co. of Am.'s Statement
of Undisputed Material Facts (“Def.'s SOMF”),
Dkt. [17-2] ¶ 1.) In a prior state court action,
Plaintiff received, via settlement, $33, 269.82 from State
Farm, Stegall's insurance provider. (Id. ¶
3.) He also received $25, 000 from his insurer, Defendant,
the policy limit for uninsured/underinsured physical damage
claims. (Id. ¶ 4.) Defendant subsequently
tendered an additional $14, 028.79 to close the physical
damage and loss of use claim. (Id. ¶ 5.) To
reach this amount, Defendant took the gross actual cash value
of the vehicle ($71, 048.61) minus the deductible ($1,
000.00) plus the loss of use limit under the policy ($2,
250.00). (Id.) From this subtotal of $72, 298.61,
Defendant subtracted the amounts Plaintiff already received
from State Farm ($33, 269.82) and Defendant ($25, 000)
leaving a total of $14, 028.70. (Id.)
filed this suit on October 25, 2016, in the State Court of
Fulton County, and Defendant removed the case to this Court
on November 23, 2016. He seeks to recover the full $72,
298.61, which he argues was agreed to by Meredith Todaro,
Defendant's claims analyst. Defendant argues that the
terms of the insurance policy entitle it to subrogation of
the amounts Plaintiff has already received. Plaintiff also
brings claims for attorney's fees and expenses of
litigation and for bad faith by Defendant.
initial matter, Plaintiff's Request for Oral Hearing 
is DENIED. The Court now addresses
Defendant's motion for summary judgment.
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
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.
“the plain language of Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and upon
motion, against a party who 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). No. genuine issue of
material fact exists “since a complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial.”
Id. at 323. Thus, if a party who has the burden of
proof fails to make a showing sufficient to establish the
existence of any essential element to a claim, summary
judgment may be properly granted against him.
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”).
argues that summary judgment is appropriate because the
insurance policy's subrogation clause prohibits
duplication of payments to Plaintiff. “[C]onstruction
of a contract is a question of law for the court.”
Bituminous Cas. Corp. v. Advanced Adhesive Tech.,
Inc., 73 F.3d 335, 337 (11th Cir. 1996). This case,
however, is not simply about the interpretation of the
policy. Plaintiff's claim centers around a settlement he
alleges Defendant agreed to via Meredith Todaro,
Defendant's claims analyst. Defendant maintains that no
agreement to settle was ever reached. (Def.'s ...