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Smith v. Zurich American Insurance Co.

United States District Court, E.D. Missouri, Eastern Division

July 26, 2017

ROGER L. SMITH, Plaintiffs,



         This matter comes before the Court on Defendant Zurich American Insurance Company’s Motion for Summary Judgment [ECF No. 62], Defendant American Insurance Company’s Motion for Summary Judgment [ECF No. 72], Defendant Federal Insurance Company’s Motion for Summary Judgment [ECF No. 76], and Defendant Zurich American Insurance Company’s Motion to Deem Facts Admitted and Strike Plaintiffs’ Additional Facts [ECF No. 80].

         I. BACKGROUND

         This lawsuit originated in the Circuit Court of St. Louis County, Missouri when Plaintiff Roger L. Smith (“Plaintiff”) filed a petition against Defendant Zurich American Insurance Company (“Zurich”). After removal to this Court, Plaintiff filed a First Amended Complaint adding Defendants The Travelers Companies (“Travelers”), Chubb Limited, and Allianz SE. On August 30, 2016, Plaintiff filed a Second Amended Complaint removing Chubb Limited and Allianz SE as defendants and adding Federal Insurance Company (“Federal”) and The American Insurance Company (“American”) as defendants. Plaintiff’s Second Amended Complaint alleges Defendants failed to pay Plaintiff for his injuries in an automobile accident under insurance policies issued by Defendants to Plaintiff’s employer. The Complaint includes five counts: (1) Breach of Contract against Zurich; (2) Bad Faith/Vexatious Refusal to Pay by Zurich; (3) Request for Declaratory Relief against Travelers; (4) Request for Declaratory Relief against Federal; and (5) Request for Declaratory Relief against American. Each Request for Declaratory Relief asks the Court to determine Travelers, Federal, and American have contractual obligations to pay sums if Plaintiff’s damages exceed the policy limits set forth in the Zurich policy. The undisputed facts are as follows.

         A. Uncontroverted Facts

         Plaintiff was involved in a motor vehicle accident on December 31, 2010, in St. Louis County, Missouri. ECF No. 64, ¶ 1; 68, ¶ 1. At the time of the accident, Plaintiff was in the course and scope of his employment with TJX Companies, Inc. (“TJX”) ECF No. 64, ¶ 2; 68, ¶ 2. TJX owned or leased the vehicle in which Plaintiff was traveling at the time of the accident. ECF No. 64, ¶ 3; 68, ¶ 3. At all relevant times, the vehicle was located in Missouri. ECF No. 64, ¶ 4; 68, ¶ 4. Plaintiff filed a lawsuit against Marc Smith for causing the accident and settled those claims for Mr. Smith’s $25,000 per person policy limit. ECF No. 64, ¶ 5, 6; 68, ¶ 5, 6. Plaintiff also asserted a workers’ compensation claim against TJX, which was settled for $125,574.00. ECF No. 64, ¶ 7; 68, ¶ 7.

         Zurich issued Business Auto Policy No. BAP 4020146-03 (“Zurich policy”) to the named insured, TJX. ECF No. 64, ¶ 8; 68, ¶ 8. The Zurich policy had a coverage period of July 1, 2010, to July 11, 2010. ECF No. 64, ¶ 9; 68, ¶ 9. The Business Auto Declarations of the Zurich policy contains a chart of coverages. ECF No. 64, ¶ 10; 68, ¶ 10. Where it lists Underinsured Motorists, it states “SEE ENDT.” ECF No. 64, ¶ 10; 68, ¶ 10. The endorsement, titled Uninsured Motorist Summary, includes a list of all fifty states plus the District of Columbia and Puerto Rico with a notation next to each if coverage is available. ECF No. 64, ¶ 11; 68, ¶ 11. For Missouri, it states “25,000 / 50,000 UM ONLY – NO UIM.”[1] ECF No. 64, ¶ 12; 68, ¶ 12.

         The Zurich policy also contains a Missouri Split Underinsured Motorists Coverage Limits Endorsement that purports to modify Missouri Underinsured Motorists Coverage to have limits of $25,000 for each person and $50,000 for each accident. ECF No. 64, ¶ 19; 68, ¶ 19. TJX intended to obtain coverage for underinsured motorists coverage only in those states in which underinsured motorists coverage is mandatory, not optional. ECF No. 64, ¶ 20.[2] TJX did not intend to obtain underinsured motorists coverage in states where it is optional, because employees receive workers compensation benefits through a separate policy. ECF No. 64, ¶ 21.[3]TJX did not intend to obtain underinsured motorists coverage for Missouri. ECF No. 64, ¶ 22.[4]On June 28, 2010, TJX Vice President Joan Korzec-Brown signed an Uninsured/Underinsured Motorists Coverage Selection/Rejection/Limits Summary form for the Zurich policy, and its predecessor. ECF No. 64, ¶ 23.[5] For Missouri, the form attached to the Zurich policy at issue in this case stated “No coverage UIM.” ECF No. 64, ¶ 22.[6] Zurich did not intend for the Zurich policy to provide UIM coverage, because it was not requested by TJX.[7]

         The only other insurance policy issued by Zurich to TJX that potentially provides coverage for an automobile accident on December 31, 2010, is Commercial Umbrella Liability Policy No. AUC 9671122 02 (“Umbrella Policy”). ECF No. 64, ¶ 26.[8] TJX Companies has additional insurance policies for sums in excess of the insurance policy with Zurich with American and Federal. ECF No. 73, ¶¶ 7, 8; 77-1, ¶ 7.[9] Federal’s excess liability policy, 7974-57-55, provides excess liability coverage in the amount of $25,000,000 that is triggered once the underlying limit of insurance in the amount of $75,000,000 is exhausted.

         The Court will address each defendant’s motion for summary judgment and Zurich’s motion to strike.


         A court shall grant a motion for summary judgment only if the moving party shows “there is no genuine dispute as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). By definition, material facts “might affect the outcome of the suit under the governing law,” and a genuine dispute of material fact is one “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the non-moving party has failed to “make a showing sufficient to establish the existence of an element essential to that party’s case, . . . there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the non-moving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 322-23.

         The moving party bears the initial burden of proof in establishing “the non-existence of any genuine issue of fact that is material to a judgment in his favor.” City of Mt. Pleasant, Iowa v. Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988). If the moving party meets this initial burden, the non-moving party must then set forth affirmative evidence and specific facts demonstrating a genuine dispute on the specific issue. Anderson, 477 U.S. at 250. When the burden shifts, the non-moving party may not rest on the allegations in its pleadings, but, by affidavit and other evidence, must set forth specific facts showing a genuine dispute of material fact exists. Fed. R. Civ. P. 56(c)(1); Stone Motor Co. v. Gen. Motors Corp., 293 F.3d 456, 465 (8th Cir. 2002). The non-moving party must demonstrate sufficient favorable evidence that could enable a jury to return a verdict for it. Anderson, 477 U.S. at 249. “If the non-moving party fails to produce such evidence, summary judgment is proper.” Olson v. Pennzoil Co., 943 F.2d 881, 883 (8th Cir. 1991).

         In ruling on a motion for summary judgment, the Court may not “weigh the evidence in the summary judgment record, decide credibility questions, or determine the truth of any factual issue.” Kampouris v. St. Louis Symphony Soc., 210 F.3d 845, 847 (8th Cir. 2000). The Court instead “perform[s] only a gatekeeper function of determining whether there is evidence in the summary judgment record generating a genuine issue of material fact for trial on each essential element of a claim.” Id. The Court must view the facts and all reasonable inferences in the light most favorable to the nonmoving party. Reed v. City of St. Charles, 561 F.3d 788, 790 (8th Cir. 2009).


         A. Zurich’s Motion to Deem Facts Admitted and Strike Additional Facts

         In its motion, Zurich asks the Court to deem the facts listed in its statement of uncontroverted facts as admitted for the purpose of its summary judgment motion and strike Plaintiff’s additional facts listed in response to Zurich’s motion for failure to comply with the Federal Rules of Civil Procedure (“FRCP”) and local rules.

         FRCP 56(e) states “if a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may: (1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment . . .; or (4) issue any other appropriate order.” The Eighth Circuit Court of Appeals has recognized a district court has liberal discretion under Rule 12(f), but “striking a party’s pleadings is an extreme measure, and, as a result, we have previously held that motions to strike under [Rule 12(f)] are viewed with disfavor and are infrequently granted.” Stanbury Law Firm v. I.R.S., 221 F.3d 1059, 1063 (8th Cir. 2000) (internal quotations omitted).

         The Court finds it unnecessary to strike specific factual statements, because the Court can simply disregard portions of any statement of fact which are not supported by admissible evidence. Additionally, when determining which facts are undisputed, the Court determines whether a fact has been properly disputed or controverted before relying on the fact to determine summary judgment. Zurich filed objections to Plaintiff’s response to its statement of undisputed material facts and additional facts, which incorporate all of its arguments contained in this motion to strike. The ...

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