Opinion
7:20-CV-249-M
02-23-2023
PETER BARCLAY, Plaintiff, v. USAA GENERAL INDEMNITY COMPANY and USAA INSURANCE AGENCY OF TEXAS, Defendants.
MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr., United States Magistrate Judge
This matter comes before the court on a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure filed by Defendants USAA General Indemnity Company (“USAA”) and USAA Insurance Agency of Texas (“USAA Texas”) (collectively “Defendants”). [DE-46], Plaintiff, proceeding pro se, filed untimely responses to the motion, [DE-54, -59], and additional documents, [DE-55, -56], which the court accepted as filed, [DE-58], Defendants filed a reply. [DE-51]. For the reasons set forth below, it is recommended that the motion for summary judgment be allowed in part and denied in part.
I. STATEMENT OF THE CASE
On November 13, 2020, Plaintiff filed a verified complaint against USAA, USAA Texas, and United Services Auto Agency (“United Services”), asserting claims of breach of contract and unfair and deceptive trade practices pursuant to the North Carolina Unfair and Deceptive Trade Practices Act (“UDTPA”), N.C. Gen. Stat. § 75-1.1. [DE-1-1], The case was filed in Robeson County Superior Court, and Defendants removed the action to federal court on the basis of diversity of citizenship under 28 U.S.C. § 1332. [DE-1], The court dismissed Plaintiffs claims against United Services because Plaintiff failed to effect service upon this Defendant as ordered by the court. [DE-22], After a period of discovery, Defendants filed the instant motion for summary judgment. [DE-46].
IL STATEMENT OF FACTS
Plaintiff entered into a contract of insurance with USAA with an effective coverage period of April 23, 2019 to October 23, 2019. Compl. [DE-1-1] at 4; [DE-48] at ¶ 3. Plaintiff filed a claim with USAA that he was traveling southbound on Interstate 95 and his vehicle struck debris in the middle of the highway. [DE-1-1] at 5; [DE-48] at ¶ 8. USAA provided towing service to Plaintiffs shop of choice and provided a rental car. Id. at 6; [DE-48] at ¶ 10. Plaintiffs vehicle subsequently needed repairs for damage including the lower shroud, radiator, engine, and head gaskets. [DE-1-1] at 6; [DE-48] at ¶¶ 11-12. USAA advised Plaintiff that it would not cover the damage to the engine because it determined the damage was due to mechanical failure and wear and tear resulting from the vehicle being driven without coolant. [DE-1-1] at 6-7; [DE-48] at ¶¶ 15-17.
III. DISCUSSION
A. Standard of Review
Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The party seeking summary judgment bears the initial burden of demonstrating the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has met its burden, the nonmoving party then must affirmatively demonstrate, with specific evidence, that there exists a genuine issue of material fact requiring trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Only disputes between the parties over facts that might affect the outcome of the case properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., AH U.S. 242, 247-48 (1986). Here, Plaintiff is proceeding pro se. Pleadings drafted by a pro se litigant are held to a less stringent standard than those drafted by attorneys. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding that writings by pro se complainants are held to “less stringent standards than formal pleadings drafted by lawyers”). The court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See id.-, Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).
“[A]t the summary judgment stage the [court's] function is not [itself] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, ATI U.S. at 249. In determining whether there is a genuine issue for trial, “evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [the non-movant's] favor.” Id. at 255 (citation omitted); see also United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (“On summary judgment the inferences to be drawn from the underlying facts contained in [affidavits, attached exhibits, and depositions] must be viewed in the light most favorable to the party opposing the motion.”).
Nevertheless, “permissible inferences must still be within the range of reasonable probability,... and it is the duty of the court to withdraw the case from the jury when the necessary inference is so tenuous that it rests merely upon speculation and conjecture.” Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 241 (4th Cir. 1982) (quotations omitted). Thus, judgment as a matter of law is warranted where “a reasonable jury could reach only one conclusion based on the evidence,” or when “the verdict in favor of the non-moving party would necessarily be based on speculation and conjecture.” Myrick v. Prime Ins. Syndicate, Inc., 395 F.3d 485, 489 (4th Cir. 2005). By contrast, when “the evidence as a whole is susceptible of more than one reasonable inference, a jury issue is created” and judgment as a matter of law should be denied. Id. at 48990.
B. Analysis
Defendants contend that there are no genuine issues of material fact and thus Defendants are entitled to judgment as a matter of law. [DE-46]. Defendants argue that Plaintiff cannot present admissible evidence to sustain his claims against Defendants and that Plaintiff has admitted by default that there are no genuine issues of material fact. [DE-47].
1. Abandoned Claims-UDTPA Claim and all Claims against Defendant USAA Texas
In his Response to Defendants' Motion to Summary Judgment, Plaintiff states, “[a]s pertains to my second cause of action, [an] unfair trade practice, I am willing to dismiss this claim in its entirety.” [DE-54] at 4. Defendants contend that Plaintiff has abandoned the claim, and thus Defendants are entitled to summary judgment as to that claim. Defs.' Reply [DE-51] at 2-3. Defendants state that where Plaintiff has made no argument in support of the UDTPA claim, his “failure to argue [a] claim is tantamount to abandonment of the claim.” Id. at 3 (citing Wainright v. Carolina Motor Club, Inc., 2005 WL 1168463 (M.D. N.C. 2005)). Plaintiff also states in his Response that he “agrees with the Defendant and will agree for the Court to dismiss USAA Insurance Agency of Texas as a Party.” [DE-54] at 2. Defendants argue that Plaintiff has likewise abandoned any claim against USAA Texas. Defs.' Reply [DE-51] at 2 (citing Rogers v. Unitrim Auto & Home Ins. Co., 388 F.Supp.2d 638, 641 (W.D. N.C. 2005); Stanley v. Wentworth Voluntary Fire Dep 't, Inc., No. 1:10CV380, 2011 WL 3665009 (M.D. N.C. Aug. 17, 2011)).
Plaintiff has failed to brief these claims in response to Defendants' motion for summary judgment and has indicated his abandonment of these claims. Accordingly, it is recommended that summary judgment be allowed as to Plaintiffs UDTPA claim against USAA and as to all claims against USAA Texas. See Newton v. Astrue, 559 F.Supp.2d 662, 670 (E.D. N.C. 2008) (concluding litigant abandoned her claim when she “ha[d] not briefed [an] issue,” and had not “presented it to the court with any supporting discussion, argument, or authority.”); Franks v. Coleman, No. 4:19-CV-90-BO, 2021 WL 4476624, at *4 (E.D. N.C. Sept. 29, 2021) (granting Defendants motion to summary judgment where Plaintiff expressly abandoned his claims for retaliation and defamation per se and ruling that those claims were properly dismissed).
2. Remaining Breach of Contract Claim Against USAA
Plaintiff has asserted a breach of contract claim based on USAA's failure to provide insurance coverage for the cost of certain repairs to Plaintiffs vehicle as a result of the August 1, 2019 collision in accordance with the terms of the insurance policy issued by USAA. Compl. [DE-1-1] at 7-8. USAA contends it is entitled to summary judgment because Plaintiff has failed to come forward with admissible evidence that USAA breached the parties' insurance contract. Defs.' Mem. [DE-47] at 10-12. Specifically, USAA argues that (1) by failing to participate in discovery, Plaintiff has failed to come forward with any admissible evidence to establish that Defendants breached the contract, and (2) Plaintiffs failure to timely respond to its requests for admissions (“RFAs”) and failure to file a statement of facts opposing summary judgment conclusively establishes for purposes of the litigation that no genuine issues of material fact exist. Defs.' Mem. [DE-47] at 8-9; Defs.' Reply [DE-51] at 3-4.
a. Plaintiff's untimely response to Defendants' RFAs and failure to file an opposing Statement of Material Facts
i. RFAs
USAA contends Plaintiff failed to respond timely to its RFAs thereby admitting to its requests by default. According to USAA, there are no genuine issues of material fact resulting from the deemed admissions of their RFAs under Rule 36(a)(3). Defs.' Mem. [DE-47] at 14-20.
When a party receives a request for admissions, the request is admitted “unless, within 30 days after being served,” that party “serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney.” United States for Graybar Elec. Co., Inc. v. TEAM Constr., LLC, 275 F.Supp.3d 737, 742 (E.D. N.C. 2017) (citing Fed.R.Civ.P. 36(a)(3)). “The purpose of such admissions is to narrow the array of issues before the court, and thus expedite both the discovery process and the resolution of the litigation.” Adventis, Inc. v. Consol. Prop. Holdings, Inc., 124 F. App'x. 169, 172 (4th Cir. 2005). Further, a “matter admitted under [Rule 36] is conclusively established unless the court on motion permits withdrawal or amendment of the admission.” Fed. R. Civ.P. 36(b). “A party's failure to respond to a request for admissions under Federal Rule of Civil Procedure 36 may result in a material fact being deemed admitted and subject the party to an adverse grant of summary judgment.” United States v. Renfrow, No. 5:07-CV-l 17-FL, 2009 WL 903202, at *3 (E.D. N.C. Jan. 26, 2009) (deeming unanswered requests admitted for purposes of summary judgment) (citations omitted), report and recommendation adopted, 612 F.Supp.2d 677 (E.D. N.C. 2009).
However, some courts have been reluctant to award summary judgment on the basis of a pro se party's default on requests for admissions on the grounds that such a party may not have understood the effect of failure to respond to the requests. See Jones v. Jack Henry & Assocs., Inc., Civ. No. 3:06-CV-428, 2007 WL 4226083, at *2 (W.D. N.C. Nov. 30, 2007) (declining to deem unanswered requests admitted where there was no evidence in the record that pro se plaintiff was ever notified of the consequences of failing to respond); United States v. Turk, 139 F.R.D. 615, 618 (D. Md. 1991) (declining to grant summary judgment against a pro se defendant based solely upon failure to answer requests for admissions); In re Savage, 303 B.R. 766, 773 (Bankr. D. Md. 2003) (“Federal Rule of Civil Procedure 36 was not intended to be used as a technical weapon to defeat the rights of pro se litigants to have their cases fairly judged on the merits.”)); SMP Invs., LLC v. Rose, No. CIV.A. 2:11-1374-CWH, 2013 WL 5467954, at *3-4 (D.S.C. Sept. 30, 2013) (distinguishing Renfrow and affirming magistrate judge's refusal to deem RFAs admitted by pro se party who failed to respond where it appeared defendant was unaware of consequences of failing to respond, describing result of admissions under the circumstances as “harsh,” and observing that plaintiff had not filed a motion to compel such admissions) (collecting cases). In fact, courts are often disinclined to “use Rule 36 procedures as a snare for [an] unwary pro se defendant.” Yates v. Overholt, No. 7:19-CV-26-BO, 2021 WL 495856, at *2 (E.D. N.C. Feb. 10, 2021) (quoting Turk, 139 F.R.D. at 618). Instances where courts have deemed unanswered RFAs to pro se parties as admitted have been under circumstances where the responses were either not made or were made months late, where the pro se party had shown general awareness of the requirements of litigation and the Federal Rules of Civil Procedure as evidenced by more sophisticated pro se filings, and where the moving party was not relying solely on the admissions to support its summary judgment motion. See Renfrow, 2009 WL 903202, at *3-4 (collecting cases).
This is not the case where a party has failed to respond to another party's RFAs. See Nipper v. Wells Fargo Bank, N.A., No. 1:09CV418, 2010 WL 4720045, at *2 (M.D. N.C. Nov. 15, 2010) (“Plaintiffs complete failure to respond to the requests constitutes an admission to all of the requestsf;] [accordingly, it is conclusively established in this case that there is no factual basis for Plaintiffs claims . . . .”) (citing Weva Oil Corp. v. Belco Petroleum Corp., 68 F.R.D. 663, 664 (N.D. W.Va. 1975) (internal citation omitted)). Rather, Plaintiff provided his written responses to Defendants on December 20, 2021, a mere five days late, albeit through a mediator in this case. Plaintiff then provided a second response to the RFAs on April 26, 2022, apparently in response to the court's ruling on Defendants' motion to compel other outstanding discovery. Plaintiffs apparent misunderstanding of the court's order demonstrates a lack of sophistication. There does not appear to be any evidence presented to the court that Plaintiff was knowledgeable of the consequences of failing to provide timely responses to Defendants' requests. Defendants did not, for example, file a separate motion requesting the court to deem admitted Plaintiffs untimely responses, thereby allowing this pro se plaintiff an opportunity to respond directly to the issue. Although such a motion is not required by Rule 36, it would have put the Plaintiff on notice of the consequences of failing to timely respond to the RFAs. SMP Invs, 2013 WL 5467954, at *3-4. Defendants could have also made the consequences of failing to timely respond clear in the RFAs themselves but did not do so. See [DE-47-1]; id.
In conclusory fashion, Defendants argue that what Plaintiff has provided in his RFA responses is contradictory and inconsistent. However, upon careful examination, it appears Defendants take issue with Plaintiffs further qualifications of certain answers, further evidence of Plaintiffs unsophistication and circumstances under which deeming his admissions admitted would not be appropriate. Finally, Defendants have essentially relied exclusively on the admission and purported lack of discovery to support summary judgment; Defendants do not appear to make a substantive argument. Defs.' Mem. [DE-47] at 14-20; Defs.' Reply [DE-51] at 3-6. Accordingly, this is not a case where the court should deem the RFAs admitted for the purpose of summary judgment.
ii. Plaintiffs Failure to Submit a Statement of Facts in Response to Defendants' Motion for Summary Judgment
Defendants contend that Plaintiff has not complied with Local Rule 56.1(a)(2), requiring a party responding to a motion for summary judgment to file a statement of facts. Defs.' Reply [DE-51 ] at 3-4. Defendants argue that because of this failure their statement of facts is deemed admitted and that no genuine issue of material fact exists. Id. (citing Local Rule 56.1(a)(2)).
In accordance with Local Civil Rule 56.1, a party opposing a motion for summary judgment shall submit “a separate statement including a response to each numbered paragraph in the moving party's statement [of material facts].” Local Civ. R. 56.1(a)(2), E.D. N.C. “Each numbered paragraph in the moving party's statement of material facts will be deemed admitted for purposes of the motion unless it is specifically controverted by a correspondingly numbered paragraph in the opposing statement.” Id. (emphasis added). “Each statement by the movant or opponent. . . must be followed by citation to evidence that would be admissible, as required by Federal Rule of Civil Procedure 56(c).” Local Civ. R. 56.1(a)(4), E.D. N.C. Under Rule 56(c), a party disputing a material fact must support its position by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). Merely responding that a party “disputes” a material fact is insufficient under Rule 56 and Local Rule 56.1. United States v. $31,448.00 in U.S. Currency, No. 5:16-CV-177-D, 2020 WL 7050555, at *2 (E.D. N.C. Nov. 30, 2020) (citing Howard v. Coll, of the Albermarle, 262 F.Supp.3d 322, 329 n.l (E.D. N.C. 2017), aff'd, 697 Fed.Appx. 257 (per curiam)).
Upon the filing of USAA's motion for summary judgment, the Clerk issued Plaintiff a letter pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising him of the following:
Under Local Civil Rule 56.1(a)(2), you MUST file a separate statement with numbered paragraphs responding to each paragraph in the statement of facts. Note that if you fail to respond to any numbered paragraph in the defendants' statement of facts, the facts in that paragraph will be deemed to be admitted.
[DE-50] at 2. In response, Plaintiff filed an “Appendix to Local Rule 56.1 Statement of Undisputed Material Facts in Support of Plaintiffs Opposition to Defendants' Motion for Summary Judgment.” [DE-55 through -55-9]. However, Plaintiff did not respond directly to each numbered paragraph in Defendants' statement of material facts. Id. Rather, Plaintiffs Appendix consisted of his verified complaint, his answers to the RFAs and interrogatories, and portions of his insurance policy, incident reports, and the initial summary report from the USAA appraiser. Id.
A court has discretion to enforce its local rules, even with regard to a pro se litigant. Mulder v. Norton, No. 5:13-CV-574-F, 2016 WL 3566655, at *4 (E.D. N.C. June 24, 2016) (citing McNeil v. United States, 508 U.S. 106, 113 (1993) (stating “we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel”)). Courts in this district have enforced the local rules when a pro se plaintiff has failed to comply with Local Civil Rule 56.1. See Kariuki v. Dep't of Ins., No. 5:18-CV-341-D, 2021 WL 3781879, at *1 n.l (E.D. N.C. Aug. 25, 2021) (noting that pro se plaintiff “did not specifically controvert the [defendant's] statement of undisputed material facts. Thus, the court sustains the [defendant's] objection to [the plaintiffs] failure to comply with Local Civil Rule 56.1, and [the defendant's] statement of undisputed material facts is deemed admitted.”) (internal citations omitted) (citing Felton v. Moneysworth Linen Serv., Inc., 295 F.Supp.3d 595, 597 n.1 (E.D. N.C. 2018); Howard, 262 F.Supp.3d at 329 n. 1; United States v. Compassionate Home Care Servs., Inc., No. 7:14-CV-113-D, 2017 WL 1030706, at *1 & n.1 (E.D. N.C. Mar. 15, 2017)), appeal dismissed sub nom., No. 21-2068, 2022 WL 17412872 (4th Cir. Dec. 5, 2022); Progress Solar Sols., LLC v. Fire Prot., Inc.,No. 5:17-CV-152-D, 2021 WL 3575846, at *1 (E.D. N.C. Aug. 12, 2021) (“Progress Solar correctly notes that [pro se plaintiffs'] failure to comply with Local Civil Rule 56.1 means that Progress Solar's statement of material facts is ‘deemed admitted.'”) (citing Local Civ. R. 56.1(a)(2), E.D. N.C. ).
Plaintiff has failed to comply with Local Civil Rule 56.1, because he did not submit “a separate statement including a response to each numbered paragraph in the moving party's statement [of material facts],” and accordingly “[e]ach numbered paragraph in the [Defendants'] statement of material facts will be deemed admitted [].” Local Civ. R. 56.1(a)(2), E.D. N.C. ; see Williamson v. Bridgestone Americas, Inc., No. 5:20-CV-377-D, 2022 WL 4084413, at *3 (E.D. N.C. Sept. 6, 2022) (“Notably, Williamson failed to respond to Ford's motion for summary judgment and submit an opposing statement of material facts. Therefore, under Local Civil Rule 56.1(a)(2), each numbered paragraph in Fords ‘statement of material facts [is] deemed admitted for the purposes of [Ford's] motion.'”). The Roseboro Letter placed Plaintiff on notice that he was required to respond to Defendants' statement of material facts and the consequences for failing to do so. Accordingly, Defendants' statement of material facts should be deemed admitted for the purpose of summary judgment.
b. Even if Defendants' RFAs or Statement of Material Facts were deemed admitted, there remains a genuine issue of material fact that precluding summary judgment.
Defendants' primary argument is that Plaintiff has failed to establish a genuine issue of material fact that there was a breach of the insurance contract. Defs.' Mem. [DE-47] at 10-12. Plaintiff contends that USAA breached the insurance contract because it did not pay for all of the damage caused to his vehicle by the collision as required by the policy. Compl. [DE-1-1] at 7 ¶¶ 37, 46-47. Defendants argue that the engine damage is excluded from coverage because the damage was caused by “wear and tear” and/or “mechanical or electrical breakdown or failure,” due to Plaintiffs driving the vehicle while it was overheating. Defs.' Mem. [DE-47] at 18. This remains an issue of material fact.
“Under North Carolina law, ‘[t]he elements of a claim for breach of contract are (1) existence of a valid contract and (2) breach of the terms of that contract.'” E. Carolina Masonry, Inc. v. Weaver Cooke Constr., LLC, No. 5:15-CV-98-BR, 2016 WL 749547, at *1 (E.D. N.C. Feb. 25, 2016) (quoting Supplee v. Miller-Motte Bus. Coll., Inc., 768 S.E.2d 582, 590 (N.C. Ct. App. 2015)). A breach of a contract occurs where there is “[n]on-performance[,] . . . unless the person charged . . . shows some valid reason which may excuse the non-performance; and the burden of doing so rests upon him.” Michael Borovsky Goldsmith LLC v. Jewelers Mut. Ins. Co., 359 F.Supp.3d 306, 311 (E.D. N.C. 2019) (quoting Cater v. Barker, 172 N.C.App. 441, 447, 617 S.E.2d 113,117 (2005), aff'd, 360 N.C. 357, 625 S.E.2d 778 (2006)). An insurance policy is a contract, and the policy's provisions govern the rights and duties of the contracting parties. Id. at 311-12 (citing Gaston Cnty. Dyeing Mach. Co. v. Northfield Ins. Co., 351 N.C. 293, 299, 524 S.E.2d 558, 563 (2000); C.D. Spangler Constr. Co. v. Indus. Crankshaft & Eng'g Co., 326 N.C. 133, 142, 388 S.E.2d 557, 562 (1990)). The insured party “has the burden of bringing itself within the insuring language of the policy.” Id. (citing Nelson v. Hartford Underwriters Ins. Co., 177 N.C.App. 595, 630 S.E.2d 221, 229 (2006) (quotation omitted)).
If Defendants' RFAs were to be deemed admitted, Plaintiff is deemed to have admitted the following:
• “Plaintiff [] was advised [] that radiator damage which may have resulted from impact was below the 500 dollar deductible of the Policy.” [DE-47-1] at 3 ¶ 6.
• “Plaintiff [] was advised that the Truck engine had failed, the head gaskets were blown, and these engine issues were not covered under the policy.” Id. at 3 ¶ 7.
• “[Plaintiff] continued to drive after striking the alleged tire debris on the interstate which [Plaintiff] reported to USAA GIC.” Id. at 4 ¶ 11.
• “[O]nce off the road [Plaintiff] continued to run the engine while there were ‘liquid sounds coming from the engine compartment' of the Truck.” Id. at 5 ¶ 12.
• “[Plaintiff] advised USAA GIC [] that police had been called to report that Plaintiff [] had struck debris on the interstate.” Id. ¶ 13.
• Plaintiff admitted to the authenticity of the police report prepared by Trooper A.H. Batchelor. Id. ¶ 14.
• Plaintiff also admitted to the authenticity of the repair quote document prepared by Aycock Transmission Auto Service, attached as Exhibit C to the RFAs, dated August 16,2019, and as to what it says, that Aycock “evaluated the vehicle and stated that the Truck continued to be driven after being damaged resulting in overheating and damage to the engine.” Id. ¶15.
• Plaintiff admitted that quote number 239 from Aycock Transmission Auto Service was the basis for his claims in paragraphs 19-21 of his complaint. Id. at 6 ¶ 16.
• Finally, Plaintiff admitted that the policy excludes coverage for damage due to “wear and tear” and/or “mechanical or electrical breakdown or failure.” Id. ¶ 17.
Defendants' statement of material facts mirrors its RFAs. Compare, [DE-47-1] with Defs.' SOMF [DE-48]. In particular, the statements indicate Plaintiff continued to drive the vehicle after reportedly striking debris citing RFAs and the Aycock quote number 239, Defs.' SOMF [DE-48] at 2 ¶ 9; that USAA investigated the claim and determined the engine/head gasket damage was due to mechanical failure/wear and tear resulting from the vehicle being driven without coolant, id. at 3 ¶ 12; and, that Plaintiffs shop of choice noted that the mechanical failure/wear and tear damage resulted from overheating due to the vehicle's being driven without coolant, also citing the RFAs and the Aycock quote number 239, id. ¶ 13.
Despite Plaintiffs apparent failure to conduct discovery, Plaintiff does have some admissible evidence in the record for purposes of summary judgment in the form of his sworn deposition testimony, [DE-36-2, -47-5], and his verified complaint, [DE-1-1], See Mulder, 2016 WL 3566655, at *4 (“Plaintiff's verified complaint, which describes the allegedly unconstitutional conduct, is based on his own personal knowledge and sets forth facts admissible in evidence”) (citing Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991) (stating “a verified complaint is the equivalent of an opposing affidavit for summary judgment purposes, when the allegations contained therein are based on personal knowledge”)); 28 U.S.C. § 1746 (a party's signature “under penalty of perjury” and an execution date qualifies a pleading as “verified”). Plaintiff's complaint contains a verification, signed by a Notary Public, and sworn and signed by Plaintiff indicating the answers and responses are based on his personal knowledge except those he believes to be true based on information and belief. [DE-1-1] at 11.
The page number referenced is from the CM/ECF footer whereas in Docket Entry 36-2 it differs from the document's internal page number.
Defendants contend Plaintiffs admission of the RFAs and Statement of Material Facts result in his engine damage claim being excluded from the policy. There is no dispute that Plaintiff continued to drive his vehicle after it struck the tire debris in the roadway on 1-95. Defs.' SOMF [DE-48] at 2 ¶ 9; Defs.' RFAs [DE-47-1] at 4¶ 11; Compl. [DE-1-1] at 5 ¶¶ 9-10. In fact, Plaintiff was legally required to do so in order to remove his vehicle from the highway under N.C. Gen. Stat. §20-161 (a)(1), which prohibits a person from leaving a standing vehicle on the main-traveled portion of a highway “unless the vehicle is disabled to such an extent that it is impossible to avoid stopping and temporarily leaving the vehicle upon the paved or main-traveled portion of the highway or highway bridge.” Plaintiff testified at his deposition that he was in the left lane when he hit the blown-out tire, cars were ahead of and beside his vehicle, and he worked his vehicle over to the right lane and pulled the vehicle over. Pl.'sDep. [DE-36-2] at 40:10-41:8. Plaintiff traveled twenty to thirty feet from where he hit the debris until he pulled off the road, and he did so as quickly and safely as possible. Id. at 41:14-25. Once stopped, he looked around his vehicle and saw liquids, what he believed to be oil and anti-freeze. Id. at 42:10-25. The engine “shut off' after the explosion when he hit the tire, he thought the engine was off when he pulled off the road, and he turned the key ignition off once the vehicle was off the road whether or not the engine was still running. Id. at 43:1-44:4. The relevant facts in Plaintiff's verified complaint are consistent with his deposition testimony. Compl. [DE-1-1] at 5 ¶¶ 9-11. Plaintiffs sworn testimony is consistent with the admission that he continued to drive his vehicle after it struck the tire debris in the roadway but does not necessarily lead to USAA's conclusion that the damage to the engine was not caused by the collision and thus excluded from coverage under the policy. See Diebold, Inc., 369 U.S. at 655 (“On summary judgment the inferences to be drawn from the underlying facts contained in [affidavits, attached exhibits, and depositions] must be viewed in the light most favorable to the party opposing the motion.”).
USAA attempts to fill the gap with Plaintiffs admissions that USAA “investigated the claim and determined that the engine/head gasket damage was due to mechanical failure/wear and tear from the Vehicle being driven without coolant,” and that Plaintiffs repair shop “noted that the mechanical failure/wear and tear damages resulted from overheating due to the vehicle continuing to be driven without coolant.” Defs.' SOMF [DE-48] ¶¶ 12-13. However, the underlying documents USAA relies on to support these facts are not so clear cut. USAA's initial summary report notes that “the owner claims impact damaged the radiator causing overheating issues damaging head gaskets,” “there was impact, whether or not it caused the damage, is open for review,” “tear down and diagnosis is required to determine extent and cause of the engine failure,” “the engine has issues that may be Head Gasket related. If the owner continued to drive with fluids leaking this may not be covered,” and “the damages would need to be further diagnosed for the actual damages and caus[e].” [DE-49] at 170,180. A later note on a supplemental summary report stated “Poss[ible] damage due to driving the veh[icle] with a damaged radiator . .. .” Id. at 180. USAA does not assert that it performed further diagnostics to determine the cause of the engine failure, but rather relied on a quote from Aycock Transmission, Plaintiffs repair shop, which stated “Found radiator tank on drivers side blown off of radiator cause all antifreeze to come out of engine and appears that vehicle kept going and then overheated which stopped the vehicle.” [DE-49] at 164-68. The Aycock statement is somewhat speculative and not dispositive.
Defendants' RFAs and Statement of Material Facts indicating that Plaintiff continued to drive his vehicle without coolant or left the engine running without coolant are disputed by admissible evidence in the record. Plaintiffs deposition testimony and his complaint state that he stopped as soon as safely possible after hitting the debris. Plaintiff admits he was advised of the extent of damage to his truck caused by the accident and that USAA concluded the engine issues were not covered under the insurance policy. He has also admitted to the authenticity of the repair quote by Aycock Transmission Service and what it says regarding the apparent cause of the engine damage. But Plaintiffs notice of damage or his acknowledgement of Aycock's opinion is not a material fact; neither of these constitutes an admission by Plaintiff that the cause of the damage to the engine was Plaintiffs continued operation of his vehicle rather than the collision or that the engine damage was excluded from insurance coverage. This may be the result of the particular wording of Defendants' requests for admission, but where Defendants are seeking summary judgment on that basis alone, the court is stuck with the evidence Defendants presented.
Defendants' RFA and Statement of Material Fact concerning Aycock's evaluation do not sufficiently show that engine damage was caused by wear and tear or mechanical failure and not by the collision, and thus excludable under the policy. In fact, the IANET initial and supplemental estimates attached as support for Defendants' statement of facts appear to indicate uncertainty as to the cause of the engine damage. [DE-49] at 170, 180.
Thus, even with Plaintiffs deemed admission that he “continued to drive after striking the alleged tire debris” there appears to be a missing link between this admission and that his continued driving of the car was the cause of the engine damage USAA determined was excluded under the policy. There is a genuine issue of material fact as to whether the engine repair was properly excluded by USAA under the policy, and the court cannot find that a reasonable jury could reach only one conclusion based on the evidence.
Accordingly, it is recommended that Defendants' motion be denied as to the breach of contract claim against USAA.
IV. CONCLUSION
For the foregoing reasons, it is recommended that Defendants' motion for summary judgment, [DE-46], be allowed as the UDTPA claim and all claims against USAA Texas and denied as to the breach of contract claim against USAA.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. You shall have until Thursday, March 9, 2023 , to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C.
If you do not file written objections to the Memorandum and Recommendation by the foregoing deadline, you will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, your failure to file written objections by the foregoing deadline will bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).