The opinion of the court was delivered by: A. Richard Caputo United States District Judge
This case presents the issue of the extent of the rights of an insured to underinsurance benefits under the provisions of his own policy when he has settled with the tortfeasor insured.
In August 2000, Defendants Victoria Wagner, Jennifer Heath and others were involved in an accident with a vehicle operated by Samuel Keir. Mr. Keir failed to stop his vehicle at a stop sign and as a result collided with the Wagner vehicle in which Ms. Heath was a passenger. Mr. Keir's brother, Benjamin, was a passenger in the Keir vehicle and later died from injuries suffered in the collision. Samuel Keir was insured by Progressive Insurance Company and his employer, Valley Antenna and Satellites, Inc. ("Valley Antenna") was insured by Selective Insurance Company.
Progressive's coverage was $100,000 per person and $300,000 per accident.
Selective's coverage was $1 million dollars for bodily injury and an excess liability limit of $5 million dollars.
Defendant Wagner settled against Samuel Keir and Valley Antenna for $40,000, $34,000 of which was paid by Progressive and $6,000 of which was paid by Selective. Defendant Heath settled against Samuel Keir and Valley Antenna for $95,000, $72,750 of which was paid by Progressive and $22,250 of which was paid by Selective. Standard Fire, the plaintiff and Defendant Wagner's personal automobile insurance carrier consented to the settlements noted above.
Defendants Wagner and Heath now seek to recover from Plaintiff, Standard Fire, under the underinsurance motorist coverage (UIM) under the policy.
The case is before me on Standard Fire's complaint seeking a declaratory judgment as to coverage and its extent. Cross motions for summary judgment were filed and oral argument on the motions was held on May 2, 2006. The matter is ripe for disposition.
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." FED. R. CIV. P. 56 (c). A fact is material if proof of its existence or non-existence might affect the outcome of the suit under the applicable substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. See id. at 248. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id.
Where there is a material fact in dispute, the moving party has the initial burden of proving that (1) there is no genuine issue of material fact; and (2) the moving party is entitled to judgment as a matter of law. See CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL2D § 2727 (2d ed. 1983). The moving party may present its own evidence or, where the nonmoving party has the burden of proof, simply point out to the court that "the nonmoving party has failed to make a sufficient showing of an essential element of her case." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. See White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). Once the moving party has satisfied its initial burden, the burden shifts to the nonmoving party to either present affirmative evidence supporting its version of the material facts or to refute the ...