United States District Court, W.D. Pennsylvania
J. SCHWAB, UNITED STATES DISTRICT JUDGE
the Court is Defendant's Motion for Summary Judgment
(ECF 71), Brief in Support (ECF 74), and
its Concise Statement of Facts (ECF 72). Plaintiff
filed a Brief in Opposition (ECF 75), and Defendant
filed a Reply Brief (ECF 78). The matter is now ripe
for adjudication. For the following reasons set forth below,
the Court will deny Defendant's Motion for Summary
the Court writes primarily for the Parties and recently wrote
an Opinion denying Plaintiff's Motion for Summary
Judgment (ECF 64), the relevant factual and
procedural history will not be recited herein.
Standard of Review
judgment may be granted if, drawing all inferences in favor
of the non-moving party, “the movant shows that there
is no genuine issue as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a); see also Melrose, Inc. v. City of
Pittsburgh, 613 F.3d 380, 387 (3d Cir. 2010).
is “material” if proof of its existence or
non-existence might affect the outcome of the suit under
applicable law. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986); see also Lamont v. New
Jersey, 637 F.3d 177, 181 (3d Cir. 2011). Disputes must
be both: (1) material, meaning concerning facts that will
affect the outcome of the issue under substantive law, and
(2) genuine, meaning there is sufficient evidence supporting
the claimed factual dispute “to require a jury or judge
to resolve the parties' differing versions of the truth
at trial.” In re Lemington Home for Aged, 659
F.3d 282, 290 (3d Cir. 2011).
moving for summary judgment has the initial burden of
supporting its assertion that fact(s) cannot be genuinely
disputed by citing to particular parts of materials in the
record - i.e., depositions, documents, affidavits,
stipulations, or other materials - or by showing that: (1)
the materials cited by the non-moving party do not establish
the presence of a genuine dispute, or (2) that the non-moving
party cannot produce admissible evidence to support its
fact(s). Fed.R.Civ.P. 56(c)(1). The moving party may
discharge its burden by “pointing out to the district
court” the “absence of evidence to support the
nonmoving party's case” when the nonmoving party
bears the ultimate burden of proof for the claim in question.
Conoshenti v. Public Service Elec. & Gas Co, 364
F.3d 135, 140 (3d Cir. 2004), quoting Singletary v.
Pennsylvania Dept. of Corrections, 266 F.3d 186, 192 n.
2 (3d Cir. 2001), quoting Celotex, 477 U.S. 317, 325 (1986).
in order to defeat a motion for summary judgment, the
non-moving party must support its assertion that fact(s) are
genuinely disputed by citing to particular parts of materials
in the record, or by showing that: (1) the materials cited by
the moving party do not establish the absence of a genuine
dispute, or (2) the moving party cannot produce admissible
evidence to support its fact(s). Fed.R.Civ.P. 56(c)(1). When
determining whether there are any genuine issues of material
fact, all inferences should be drawn in favor of the
non-moving party. Berckeley Inv. Group, Ltd. v.
Colkitt, 455 F.3d 195, 201 (3d Cir. 2006).
reviewing a motion for summary judgment, the Court does not
make credibility determinations, and summary judgment is
“inappropriate when a case will turn on credibility
determinations.” El v. Southeastern Pennsylvania
Transp. Authority, 479 F.3d 232 (3d Cir. 2007), citing
Anderson, 477 U.S. at 255.
makes three arguments in support of its contention that
summary judgment should be entered in its favor: (1)
Defendant did not serve Vivani liquor at a time when Viviani
appeared visibly intoxicated; (2) Plaintiff voluntarily
settled the underclaim advanced by Hoey's estate against
Viviani; and (3) the doctrine of laches bars Plaintiff from
pursuing this matter. The Court will briefly address each of
as its Brief indicates, Plaintiff relies (in part) on an
expert toxicologist who opines as to when Viviani would have
consumed enough alcohol to possess a BAC of 0.177% at the
time of the accident. Plaintiff also claims there is
circumstantial evidence of Viviani's inebriated state
while he was present at the Defendant's bar. Defendant
claims the expert failed to consider that Viviani -- like
others at the party, including Hoey -- were being supplied
with alcohol from other patrons, and not just Defendant's
bartender(s). Thus, the Defendant's bartender(s) may
never have served Viviani while he was visibly intoxicated.
Rather, other attendees at the photo shoot may have given one
or more drinks to Viviani. Thus, the question of who served
Viviani appears to be unresolved, is material to the matter,
and is a question of fact for a jury to determine.
Accordingly, this Court will not enter summary judgment on
there also appears to be a question of fact as to whether
Plaintiff voluntarily paid Hoey's estate a sum of $600,
000.00, or if Plaintiff was obligated to do so under the
terms of its insurance policy with its insured (the
automobile owner who gave his car to Viviani so that Viviani
could perform work on the car). Plaintiff asserts that
Viviani and the automobile owner were friends. Important to
this case is the fact that Viviani was given the automobile
by its owner so Viviani could work on the car, but Plaintiff
claims that the owner never restricted Viviani from using the
vehicle while it was his (Viviani's) possession. However,
in an earlier filed declaratory judgment action, Plaintiff
sought a determination as to whether it owed coverage given
that Viviani's use of the vehicle on the night in
question was outside the scope of a permissive use of the
vehicle. Again, whether Viviani was permitted to use the
vehicle on the night in question for the purpose that he used
the vehicle is a question for the jury which may impact the
legal issue of whether Plaintiff made a voluntary payment to
Hoey's estate. As such, the Court will not enter summary
judgment on this matter.
Defendant argues that the Doctrine of Laches applies to this
case. This Court disagrees with Defendant. “Latches
conceptualizes the inequity which may adhere when a stale
claim is permitted to be enforced.” Gruca v. United
States Steel Corporation, 495 F.2d. 1252, 1258 (3d Cir.
1974). To prevail under this doctrine, Defendant must show
that “plaintiff [slept] on his rights for a period of
time greater than the applicable statute of limitations,
” and then the burden shifts to Plaintiff requiring him
to “prove his delay was excusable and that it did not .
. . prejudice the defendant.” Gruca, at 1259.
In the immediate case, the six-year statute of limitations
for contribution had not passed by the time Plaintiff filed
the instant lawsuit. As Plaintiff notes, the six-year statute
of limitation began to run on the day Plaintiff paid $600,
000.00 to Hoey - ...