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Fireman's Fund Insurance Co. v. Evergreene Properties of North Carolina

April 9, 2007

FIREMAN'S FUND INSURANCE COMPANY MEDICAL LIABILITY MUTUAL INSURANCE COMPANY F/K/A HEALTHCARE UNDERWRITERS MUTUAL INSURANCE COMPANY PLAINTIFFS
v.
EVERGREENE PROPERTIES OF NORTH CAROLINA, L.L.C. DEFENDANT



The opinion of the court was delivered by: James M. Moody United States District Judge

ORDER

Pending before the Court is Defendant's motion for summary judgment. (Docket # 38). Plaintiffs have responded and Defendant has filed a reply. The Court will consider all pleadings filed, accordingly, Plaintiffs' motion to strike Defendant's reply is DENIED. (Docket # 59). For the reasons stated below, the motion for summary judgment is denied.

Facts

Medical Liability Mutual Insurance Company ("MLMIC") as successor to Fireman's Fund Insurance Company issued to Evergreene two insurance policies ("Policies") for liability in the operations of a nursing home with the effective dates of January 15, 2000 to January 15, 2001.

On March 18, 2003, Marty Fussell, as administrator of the Estate of Marshall Ford Fussell, filed suit against Evergreene in the Circuit Court of St. Francis County Arkansas, alleging negligence, breach of contract, and violations of the Arkansas Long Term Care Residents Rights Act (the "Nursing Home Lawsuit"). Mr. Fussell's residence at Crestpark Retirement Inn of Forrest City ("Crestpark") began on or about March 12, 1991 and ended on or about October 20, 2001. Therefore, as to Mr. Fussell's residence at Crestpark, coverage was in effect under the Policies from January 15, 2000 to January 15, 2001.

From January 15, 2001 to January 15, 2002, Defendant had in effect a policy issued by Lexington Insurance Company, however, Lexington denied coverage for this Nursing Home Suit pursuant to the claims-made coverage provision of its policy and Defendant did not dispute the denial of coverage.

Pursuant to the policies MLMIC assumed the defense in the Nursing Home Lawsuit. Evergreene maintained in discussions that it would not contribute to any settlement. On March 15, 2005, MLMIC made a written demand on Evergreene to contribute to a proposed settlement of the Nursing Home Lawsuit. Evergreene declined the demand and MLMIC subsequently fully funded a settlement of the case.

MLMIC now brings the above styled lawsuit against Evergreene for contribution, or reimbursement, of a portion of the settlement amount paid by MLMIC. Defendant claims that it is entitled to judgment as a matter of law.

Standard for Summary Judgment

Summary judgment is appropriate only when there is no genuine issue of material fact, so that the dispute may be decided solely on legal grounds. Holloway v. Lockhart, 813 F.2d 874 (8th Cir. 1987); Fed. R. Civ. P. 56. The Supreme Court has established guidelines to assist trial courts in determining whether this standard has been met:

The inquiry is the threshold inquiry of determining whether there is a need for trial -- whether, in other words, there are genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

The Eighth Circuit Court of Appeals has cautioned that summary judgment should be invoked carefully so that no person will be improperly deprived of a trial of disputed factual issues. Inland Oil & Transport Co. v. United States, 600 F.2d 725 (8th Cir. 1979), cert. denied, 444 U.S. 991 (1979). The Eighth Circuit set out the burden of the parties in connection with a summary judgment motion in Counts v. M.K. Ferguson Co., 862 F.2d 1338 (8th Cir. 1988):

[T]he burden on the moving party for summary judgment is only to demonstrate, i.e., '[to] point out to the District Court,' that the record does not disclose a genuine dispute on a material fact. It is enough for the movant to bring up the fact that the record does not contain such an issue and to identify that part of the record which bears out his assertion. Once this is done, his burden is discharged, and, if the record in fact bears out the claim that no genuine dispute exists on any material fact, it is then the respondent's burden to set forth affirmative evidence, ...


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