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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA EASTERN DIVISION PROGRESSIVE NORTHWESTERN ) INSURANCE COMPANY, ) ) Plaintiff, ) ) v. ) Civil Action No. 3:16-cv-010-WC ) JOHN BOYDEN, and LIZZY ) CATHERINE HILL, individually and ) as personal representative of the estate ) of JIMMY L. HILL, SR., ) ) Defendants. ) MEMORANDUM OPINION AND ORDER Before the court are the Motions for Summary Judgment (Docs. 29, 31, and 32) filed by the parties in this case. For the reasons that follow, the court concludes that Plaintiff’s motion for summary judgment is due to be denied, that Defendants’ motions for summary judgment are due to be granted, and that declaratory judgment is due to be entered in favor of Defendants. I. BACKGROUND On January 7, 2016, Progressive Northwestern Insurance Company (“Plaintiff”) filed a complaint (Doc. 1) seeking, in pertinent part, a declaration that “Plaintiff has no duty to defend and/or indemnify John Boyden in connection with any claim brought against him” in underlying litigation concerning Boyden’s automobile’s collision with a vehicle operated by Jimmy L. Hill, Sr., on April 24, 2014, and that “Plaintiff has no coverage applicable to any claim or garnishment action that may be brought by Lizzie Catherine Hill, individually or in her representative capacity as personal representative of the Estate of Jimmy L. Hill, Sr., or by any other claimant, in the event a judgment is obtained against Defendant Boyden for damages resulting from the April 24, 2014 collision[.]” Compl. (Doc. 1) at 4-5. On March 8, 2016, Defendant Lizzie Catherine Hill, in her individual and representative capacities, filed her Answer, Counterclaim, and Crossclaim (Doc. 9), in which, in pertinent part, she seeks a declaration that “Plaintiff has a duty to defend and indemnify Defendant Boyden in connection with the April 24, 2014 collision at issue in the underlying case[,]” and that “Plaintiff has coverage applicable to any claim or garnishment action that may be brought by Lizzie Catherine Hill, individually and/or in her representative capacity[.]” Doc. 9 at 15-16. On March 10, 2016, Defendant Boyden filed his Answer and Counterclaim for Declaratory Judgment (Doc. 12), in which he, too, seeks a declaration that “Plaintiff has a duty to defend and indemnify” him “in connection with any claim brought against him arising from damages sustained by Jimmy L. Hill, Sr., or any other claimant, as a result of the April 24, 2014, collision[,]” and that “Plaintiff does, in fact, have coverage applicable to any claim or garnishment action that may be brought by Lizzie Catherine Hill, individually or in her representative capacity[.]” Doc. 12 at 4-5. On March 24, 2016, Plaintiff filed a motion to dismiss (Doc. 13) Defendant Hill’s counterclaim. Thereafter, on March 31, 2016, Defendant Hill noticed her dismissal of her counterclaim against Plaintiff and her crossclaim against Boyden pursuant to Rule 41(c) of the Federal Rules of Civil Procedure. Accordingly, the court entered its Uniform Scheduling Order (Doc. 27) on May 26, 2016, and the case proceeded into discovery. On October 31, 2016, Plaintiff filed its motion for summary judgment (Doc. 29). Defendants 2 Boyden and Hill filed their cross motions for summary judgment (Docs. 31 & 32) on November 2, 2016. All motions are fully briefed and are ripe for determination. II. STANDARD OF REVIEW Under Rule 56(a) of the Federal Rules of Civil Procedure, a reviewing court shall grant a motion for “summary judgment if the movant shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). Only disputes about material facts will preclude the granting of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “An issue of fact is ‘genuine’ if the record as a whole could lead a reasonable trier of fact to find for the nonmoving party. An issue is ‘material’ if it might affect the outcome of the case under the governing law.” Redwing Vehicleriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir. 1996) (quoting Anderson, 477 U.S. at 248). Under Rule 56, summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party asking for 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 demonstrates the absence of a genuine issue of material fact.” Id. at 323. The movant can meet this burden by presenting evidence showing there is no dispute of material fact, or by showing that the nonmoving party has failed to present 3 evidence in support of some element of his case on which he bears the ultimate burden of proof. Id. at 322–23. Once the movant has satisfied this burden, the nonmoving party must “go beyond the pleadings and by his own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’” Id. at 324. In doing so, and to avoid summary judgment, the nonmovant “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The parties must support their assertions “that a fact cannot be or is genuinely disputed” by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations[], admissions, interrogatory answers, or other materials” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A) & (B). If the nonmovant “fails to properly address another party’s assertion of fact” as required by Rule 56(c), then the court may “consider the fact undisputed for purposes of the motion” and “grant summary judgment if the motion and supporting materials – including the facts considered undisputed – show that the movant is entitled to it.” Fed. R. Civ. P. 56(e)(2) & (3). In determining whether a genuine issue for trial exists, the court must view all the evidence in the light most favorable to the nonmovant. McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003). Likewise, the reviewing court must 4 draw all justifiable inferences from the evidence in the nonmoving party’s favor. Anderson, 477 U.S. at 255. However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam). Furthermore, “[a] mere ‘scintilla’ of evidence supporting the opposing party’s position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990); see also Anderson, 477 U.S. at 249-50 (“If the evidence [on which the nonmoving party relies] is merely colorable, or is not significantly probative, summary judgment may be granted.”) (internal citations omitted). This court has recently addressed a court’s review of cross-motions for summary judgment as follows: Cross-motions for summary judgment “must be considered separately,” and “each movant bears the burden of establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.” Shaw Constructors v. ICF Kaiser Eng’rs, Inc., 395 F.3d 533, 538–39 (5th Cir. 2004); see also Bricklayers, Masons & Plasterers Int’l Union of Am., Local Union No. 15 v. Stuart Plastering Co., 512 F.2d 1017, 1023 (5th Cir. 1975) (“Cross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed.”). In some cases, “[c]ross motions for summary judgment may be probative of the nonexistence of a factual dispute.” Shook v. United States, 713 F.2d 662, 665 (11th Cir.1983). However, the existence of cross motions for summary judgment “‘do[es] not automatically empower the court to dispense with the determination whether questions of material fact exist.’” Ga. State Conference of NAACP v. Fayette Cty. Bd. of Comm’rs, 775 F.3d 1336, 1345 (11th Cir. 2015) (quoting Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 349 (7th Cir. 1983)). This is so because “each party moving for summary judgment may do so on different legal theories dependent on different constellations of material facts. Indeed, cross-motions for summary judgment may 5 demonstrate a genuine dispute as to material facts as often as not.” Bricklayers, 512 F.2d at 1023. “‘[W]hen both parties proceed on the same legal theory and rely on the same material facts[,] the court is signaled that the case is ripe for summary judgment.” Shook, 713 F.2d at 665. Even then, however, “[a] court may discover questions of material fact even though both parties, in support of cross-motions for summary judgment, have asserted that no such questions exist.

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