United States District Court, E.D. Arkansas, Western Division
OPINION AND ORDER
Kristine G. Baker United States District Judge
April 3, 2015, plaintiff United Financial Casualty Company
(“UFCC”) filed this action for declaratory
judgment against defendants pursuant to Federal Rule of Civil
procedure 57 and 28 U.S.C. § 2201 et seq. (Dkt.
No. 16, ¶ 30). UFCC is the underwriting company that
issued two insurance policies at issue in this matter. UFCC
is affiliated with the more commonly known Progressive Group
of Insurance Companies (“Progressive”)
(Id., at 2, FN 1). UFCC seeks a declaration of the
rights and other legal relations of the parties pursuant to
policies of insurance issued by UFCC to defendant Don Allen
the Court are UFCC's motion to voluntarily dismiss
separate defendants (Dkt. No. 64), UFCC's motion for
summary judgment (Dkt. No. 65), and UFCC's motion for
default judgment (Dkt. No. 70). No defendant has responded to
any of the pending motions.
reasons set forth below, the Court grants UFCC's motion
for summary judgment (Dkt. No. 65). All other pending motion
are denied as moot (Dkt. Nos. 64, 70).
otherwise noted by citation, the following facts are taken
from UFCC's statement of undisputed facts in support of
its motion for summary judgment (Dkt. No. 67), to which none
of the defendants have responded. Local Rule 56.1(b) of the
United States District Court for the Eastern and Western
Districts of Arkansas requires a non-moving party to supply
the Court with a statement of material facts “as to
which it contends a genuine issue exists to be tried.”
See Jackson v. United Parcel Serv., Inc., 643 F.3d
1081, 1088 (8th Cir. 2011). Federal Rule of Civil Procedure
56(e) states that “[i]f 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
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting
materials - including the facts considered undisputed - show
that the movant is entitled to it; or
(4) issue any other appropriate order.”
no defendant has responded, the Court will consider the
following facts undisputed for the purposes of this motion
pursuant to Rule 56(e)(2).
issued a commercial auto policy, Policy Number 02474899-0, to
Mr. Pearson for the policy period of November 4, 2013,
through November 4, 2014 (Dkt. No. 67, Ex. A). Because of Mr.
Pearson's failure to make his payments, UFCC/Progressive
mailed to Mr. Pearson a cancellation notice on March 13,
2014, regarding UFCC Policy Number 02474899-0 (Id.,
Ex. C). The cancellation notice read, in pertinent part:
“Unfortunately, we didn't receive your payment and,
as a result, your policy will be canceled at 12:01 a.m. on
March 25, 2014. Please know that this means you will no
longer have insurance coverage.” (Id.). The
cancellation notice stated, however, that Mr. Pearson could
avoid a lapse in coverage by making his payment prior to the
March 25, 2014, cancellation deadline.
March 26, 2014, UFCC/Progressive mailed to Mr. Pearson a
final bill regarding UFCC Policy Number 02474899-0, which
explicitly stated that Mr. Pearson no longer had insurance
under the UFCC policy, effective March 25, 2014
(Id., ¶ 3; Ex. D). On April 15, 2014,
UFCC/Progressive mailed to Mr. Pearson a second final bill
regarding UFCC Policy Number 02474899-0, which similarly
read, in pertinent part, as follows: “Please note that
you no longer have insurance with us, effective March 25,
2014.” (Id., ¶ 4; Ex. E). UFCC contends
that Progressive's cancellation of Mr. Pearson's
policy was effective and that Progressive fully complied with
Arkansas law and the Cancellation and Nonrenewal Endorsement
included in UFCC Policy Number 02474899-0. Ark. Code Ann.
§ 23-66-206(9); (Id., ¶ 20).
around 3:11 p.m. CST, on June 2, 2014, a 1993 Peterbilt
tractor-trailer either owned or leased by Mr. Pearson and
being driven by Jerry Hickman was involved in an accident on
U.S. Highway 65 near its intersection with Arkansas Highway
16 East in Van Buren County, Arkansas. Mr. Hickman was
transporting logs, which spilled from the trailer after a
tire blew out on the tractor-trailer, causing injuries to
several people and killing at least two others. At the time
the accident occurred, Mr. Hickman was not an employee of Mr.
Pearson, did not have Mr. Pearson's permission to operate
the tractor-trailer, and was not acting at the behest of Mr.
Pearson (See Dkt. No. 67, Ex. G).
p.m. EST, on June 2, 2014, Sherry Ragland, on behalf of Mr.
Pearson, called Progressive and attempted to reinstate UFCC
Policy Number 02474899-0 (Dkt. No. 67, Ex. H). The
Progressive representative informed Ms. Ragland and Mr.
Pearson, who could allegedly be heard in the background, that
the policy could not be reinstated. The Progressive
representative said that Mr. Pearson had to pay the balance
owed on Policy Number 02474899-0, which had been cancelled
for nonpayment, and pay a down payment on a new policy before
UFCC would issue a new policy to Mr. Pearson. During their
conversations with the Progressive/UFCC representative on
June 2, 2014, neither Ms. Ragland nor Mr. Pearson mentioned
the aforementioned accident, which had occurred just a few
Pearson made the necessary payments, and UFCC issued to Mr.
Pearson a new commercial auto policy, UFCC Policy Number
03150888-0, with an effective date and time of June 2, 2014,
at 7:26 p.m. EST (Id., ¶ 8; Ex. J). The
declarations page for UFCC Policy Number 03150888-0 provides
as follows: “Your coverage began the later of June 2,
2014, at 12:01 a.m. or at the time your application is
executed on the first day of the policy period.”
(Id., ¶ 11). The application for insurance that
UFCC sent to Mr. Pearson for his signature shows the
effective date and time for UFCC Policy Number 03150888-0 as
June 2, 2014, at 7:26 p.m. EST. The declarations page of UFCC
Policy Number 03150888-0 lists only Mr. Pearson and Brandon
Wells as rated drivers (Dkt. No. 67, Ex. K).
Policy Number 03150888-0 provides the following pertinent
A. When used in Part I - Liability To Others, insured means:
1. You with respect to an insured auto.
2. Any person while using, with your permission, and within
the scope of that permission, an insured auto you own, hire,
or borrow except:
(a) A person while he or she is working in a business of
selling, leasing, repairing, parking, storing, servicing,
delivering or testing autos, unless that business is yours