Opinion
No. 2:21-cv-02172-SHL-atc
2023-06-13
VANGUARD SOAP, LLC, Plaintiff, v. CERTAIN UNDERWRITERS AT LLOYD'S, LONDON, et al., Defendants.
Rikke Dierssen-Morice, Blank Rome LLP, Chicago, IL, Bryan Freeman and Judah Druck, Maslon LLP, Minneapolis, MN, Clinton H. Scott, McWherter Scott & Bobbitt PLC, Jackson, TN, James Brandon McWherter, Jonathan L. Bobbitt, McWherter Scott Bobbitt PLC, Franklin, TN, for Plaintiff. Ann Kirk, Christina Marie Nosari, Gregory Lee Mast, Fields Howell LLP, Atlanta, GA, for Defendants.
Rikke Dierssen-Morice, Blank Rome LLP, Chicago, IL, Bryan Freeman and Judah Druck, Maslon LLP, Minneapolis, MN, Clinton H. Scott, McWherter Scott & Bobbitt PLC, Jackson, TN, James Brandon McWherter, Jonathan L. Bobbitt, McWherter Scott Bobbitt PLC, Franklin, TN, for Plaintiff. Ann Kirk, Christina Marie Nosari, Gregory Lee Mast, Fields Howell LLP, Atlanta, GA, for Defendants.
ORDER GRANTING IN PART AND DENYING WITHOUT PREJUDICE IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
SHERYL H. LIPMAN, CHIEF UNITED STATES DISTRICT JUDGE
This case involves an insurance contract dispute in which Plaintiff Vanguard Soap, LLC ("Vanguard") asserts that it is entitled to compensation under insurance policies subscribed to by Defendants (collectively, the "STP Insurers") for damage to soap produced over the course of approximately six months, which necessitated a product recall. Before the Court are Vanguard's and the STP Insurers' cross-motions for summary judgment, (ECF Nos. 116, 117), filed on November 1, 2022. The parties largely agree on the facts underlying the terms of the insurance policies at issue (the "STP Policies") and the nature of the losses claimed by Vanguard. This dispute centers on whether the STP Policies cover Vanguard's damages and whether Vanguard has proven its damages. For the following reasons, Vanguard's Motion is GRANTED IN PART AND DENIED WITHOUT PREJUDICE IN PART, and the STP Insurers' Motion is DENIED.
Vanguard's Motion seeks prejudgment interest on top of its damages. Its request for prejudgment interest is DENIED WITHOUT PREJUDICE, as explained below. The remainder of Vanguard's Motion is GRANTED.
BACKGROUND
In reaching its ruling, the Court relies on the following undisputed facts, drawn from the parties' Statements of Undisputed Material Facts, (ECF Nos. 116-2, 117-1, 119-4, 121). Where a fact is disputed, it is noted and not relied on to reach this decision.
Vanguard is a manufacturer of various products, including the Kirkland Brand Signature Body Soap, which Costco sells at its stores. (ECF No. 121 at PageID 2412.) Defendants are insurance underwriters who subscribed to the STP Policies, which covered Vanguard during the relevant time period. (Id. at PageID 2408.) This dispute centers on whether the damage that resulted from the error in the manufacturing of certain soap is covered by the policies in effect and whether Vanguard proved its damages.
The Damage
In or about September 2019, Vanguard discovered that it had used the wrong formula to make its soap between April and September 2019. (ECF No. 121 at PageID 2412-13.) Specifically, when Vanguard's "batch sheets," which it also calls "soap recipe cards," were consolidated into a single location and single format for all its soap recipe cards, a .35 percent factor for potassium hydroxide was inadvertently omitted from the recipe. (ECF No. 119-4 at PageID 2355-56.) The error resulted in three times the correct amount of potassium hydroxide being added to certain production runs of the soap. (Id.) The excess potassium hydroxide caused the soap to oxidize, producing an unpleasant odor, discoloration, and skin irritation for some customers. (Id. at PageID 2356.) A product recall ensued, with Costco offering refunds to customers who bought the soap and returning the unsold soap to Vanguard. (Id.)
Following Vanguard's discovery of its losses, it sought to quantify them. Then-Vanguard Chief Financial Officer David Mitchell drafted a report calculating Vanguard's total losses caused by the damage to the soap to be $3,856,364. (ECF No. 121 at PageID 2414-16.) Mitchell arrived at this number "by adding the value of the soap returned by Costco that was not yet sold, the value of the manufactured or partially manufactured soap not yet shipped to Costco, the costs of notifying customers of the error, and other costs incurred by Vanguard such as freight and disposal costs." (ECF No. 121 at PageID 2415 (citing ECF No. 72-2 at PageID 1187).)
The STP Insurers assert that various portions of Mitchell's report are unsubstantiated, specifically citing the following issues: (1) in some instances, Costco included freight charges in addition to the cost of the products being returned, while in others it did not, (2) Vanguard did not possess details of the number of returned units of soap and/or Costco claimed freight charges, (3) Vanguard did not provide any supporting documentation for the quantity or valuation for packaging material for the soap that could no longer be used, and (4) Vanguard did not provide any support for the claimed costs Costco charged Vanguard to notify customers who purchased the affected soap, or for fees allegedly incurred to store the affected product. (ECF No. 121 at PageID 2414-15.)
The STP Insurers do not dispute that "Mr. Mitchell submitted [his report] to 3D Marine and that the [report] set forth Vanguard's claimed loss calculation, citing to certain records including invoices and deductions," but "[o]therwise, this allegation is disputed as stated." (ECF No. 121 at PageID 2415.) However, because this disputed fact is not supported by a citation to the record, the Court finds no genuine dispute as to this fact. See L.R. 56.1(b).
Mitchell's report and the documents supporting it were provided to Chuck Gillespie of 3D Marine USA, Inc., whom the STP Insurers retained to investigate and adjust the claimed loss. (ECF No. 121 at PageID 2416.) Gillespie issued a report summarizing his investigation of Vanguard's claim, which Vanguard asserts "does not dispute Mr. Mitchell's calculated claim of $3,856,364." (Id. at 2417.)
The STP Insurers do not dispute that Vanguard submitted documents supporting aspects of Mitchell's claimed loss calculation, but dispute that all supporting documents were submitted. (ECF No. 121 at PageID 2416.) This dispute is immaterial for resolution of these Motions. See Part III, infra.
The STP Insurers assert that "[t]his allegation is undisputed. However, to the extent this allegation implies that Mr. Gillespie agreed with Mr. Mitchell's loss calculation, it is disputed . . . Mr. Gillespie was not provided certain information and documentation necessary to confirm the claimed loss amounts." (ECF No. 121 at PageID 2417.) To the extent the STP Insurers intend to dispute the amount of Vanguard's damages, that dispute is improper, as it is not supported by a citation to any evidence in the record demonstrating that Vanguard's damages are different than what it claims. This bare assertion that Mitchell's report is unsubstantiated is insufficient to carry the STP Insurers' burden of bringing forward specific facts showing that either there is a genuine dispute of material fact or that it is entitled to summary judgment. The Court therefore finds no genuine dispute that Vanguard's damages are $3,856,364.
In or about December 2019, the STP Insurers received notice of Vanguard's losses. (ECF No. 121 at PageID 2413-14.) The STP Insurers issued a denial letter several months later. (Id. at PageID 2414.)
The parties dispute exactly how the STP Insurers came to have notice of Vanguard's claim, but do not dispute that it did. (Id.) Exactly how this happened is immaterial for resolution of these Motions.
While the exact dates of the denial letters are in dispute, this dispute is immaterial for resolution of these Motions.
The STP Policies
Certain Underwriters at Lloyd's, London subscribed to stock throughput insurance Policy No. 18M704921010, with "Unique Market Reference" B090218 M706407200, issued to Vanguard for the policy period August 1, 2018, to August 7, 2019. (Id. at PageID 2412.) The following year, Certain Underwriters at Lloyd's, London and Assicurazioni Generali S.p.A. UK Branch subscribed to stock throughput Policy No. 19M704921002, with "Unique Market Reference" B090219 M706407140, issued to Vanguard for the policy period August 8, 2019, to July 31, 2020. (Id.) The parties treat both policies as being materially identical, save for the policy period, and indeed there appears to be no material difference between them. (See generally id.; ECF No. 116-2; ECF No. 117-1; ECF No. 119-4 (referring to both policies collectively throughout as the "STP Policies")).
Though the STP Insurers assert in their SUMF that the policy period was August 1, 2018, to July 31, 2019, (ECF No. 117-1 at PageID 2202), they admit in their response to Vanguard's SUMF that the policy period of the 2018 STP policy was August 1, 2018, to August 7, 2019, (ECF No. 121 at PageID 2408). Moreover, in their Amended Answer, the STP Insurers admit paragraph 17 of Vanguard's Complaint, (ECF No. 27 at PageID 209), which asserts that the 2018 STP Policy was amended to extend the policy period through August 7, 2019, (ECF No. 1 at PageID 5). Therefore, there is no genuine dispute that the policy period of the 2018 STP Policy extended through August 7, 2019.
The STP Policies insure goods and merchandise handled by Vanguard in its business, including, as relevant here, its soap. (ECF No. 121 at PageID 2409.) Here, certain provisions are relied on by the parties to support their positions. To support its claim for coverage, Vanguard first relies on the "Conditions Clause," which insures Vanguard's soap against various types of damage, including "[a]gainst all risks of physical loss of or damage to the subject matter insured from any external cause and extended to include spoilage and/or contamination howsoever arising which shall arise during the currency of this insurance." (Id. at PageID 2408.) In addition, it points to the "Duration Clause," which states, in part, that "the Insurance hereunder attaches . . . whilst the subject-matter insured is . . . undergoing packing, processing, assembly, renovation or repair." (Id. at PageID 2410.) Finally, it highlights the "Benefit of the Insured Clause," which states that "[i]t is agreed that if any clause(s) and/or wording(s) contained herein appear contradictory and/or conflicting, the wider interpretation to the benefit of the Insured shall prevail." (Id.)
The STP Insurers contend that the exclusions contained in the "Process Clause" are applicable here. That provision states that "[t]his insurance remains in full force whilst the subject matter insured is under any process but in no case shall extend to cover damage thereto solely caused by such process, other than as covered elsewhere herein." (ECF No. 119-4 at PageID 2353.) Both sides agree that the STP Policies also state that they shall be governed by and construed in accordance with Tennessee law. (Id.)
STANDARD
Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. A dispute is genuine if a reasonable jury could find in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court must draw all reasonable factual inferences in favor of the non-moving party when deciding a motion for summary judgment. Cox v. Ky. Dep't of Transp., 53 F.3d 146, 150 (6th Cir. 1995). The moving party bears the burden of showing there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the non-moving party to come forward with specific facts to show there is a genuine issue for trial, or, as in this setting, to show that it is entitled to judgment as a matter of law. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
ANALYSIS
According to Vanguard, its losses are covered under the Conditions Clause and the Duration Clause of the STP Policies, and it proved the amount of its losses by submitting the Mitchell report, which it argues the STP Insurers' own adjuster did not dispute. The STP Insurers argue that these clauses do not cover Vanguard's losses and that, even if they do, the Process Clause excludes Vanguard's losses notwithstanding the Conditions and Duration Clauses' grant of coverage. The STP Insurers also argue that certain portions of the Mitchell report's calculations are unsubstantiated, though they submit no evidence of their own as to the extent of Vanguard's damages.
The interpretation of an insurance contract is a matter of law to be determined by the Court. Davidson Hotel Co. v. St. Paul Fire and Marine Ins. Co., 136 F. Supp. 2d 901, 905 (W.D. Tenn. 2001). The parties' intent in entering into the STP Policies governs, which the Court must determine by looking within the four corners of the STP Policies, giving the words contained therein their usual, natural, and ordinary meaning. See VanBebber v. Roach, 252 S.W.3d 279, 284 (Tenn. Ct. App. 2007). The language of the STP Policy provisions must be examined in the context of the entire agreement. Id.
Because the terms of the STP Policies are unambiguous, the large amount of extrinsic evidence the parties offer need not be considered here. See Adkins v. Bluegrass Estates, Inc., 360 S.W.3d 404, 412 (Tenn. Ct. App. 2011). Moreover, the cases the STP Insurers cite in support of the position that stock throughput insurance policies generally only cover goods while in storage or transit are not relevant, as the question here is what the STP Policies cover.
An insurance policy is defined with reference to an initial, broad grant of coverage which sets the "outer limits" of coverage, along with exclusions to that broad grant of coverage that exempt from coverage certain losses that otherwise come within the "outer limits" of the policy. Standard Fire Ins. Co. v. Chester O'Donley & Assocs., Inc., 972 S.W.2d 1, 7-8 (Tenn. Ct. App. 1998). Those exclusions help shape and define the scope of coverage and must be read in the context of the insurance policy to which they apply. Id.
A claimant under an insurance policy bears the burden of proving that its losses are covered by the policy, while the insurer bears the burden of proving that a policy exclusion prevents the claimant from recovering. King's Palace, Inc. v. Certain Underwriters at Lloyd's, London, 558 F. Supp.3d 636, 644 (W.D. Tenn. 2021). This is true even under an "all-risk" insurance policy—such a policy "does not allow [plaintiffs] to side-step their obligation to show their claims [fall] within the coverage terms." Id.
Applying this contract-interpretation framework, the Court finds that the STP Policies cover Vanguard's losses and that the Process Clause does not exclude them. The Court also finds that Vanguard has shown that there is no genuine dispute as to its damages.
I. Coverage
Vanguard argues that the damage to the soap is covered as either "spoilage" or "contamination" under the Conditions Clause or under the Duration Clause. The STP Insurers argue it is not. As described below, the Court concludes that Vanguard's losses were the result of "contamination" as included in the Conditions Clause and therefore does not reach the questions of whether the damage to the soap constitutes "spoilage" or whether the Duration Clause provides coverage.
The word "contamination" is not defined in the STP Policies. Tennessee courts may refer to dictionary definitions to interpret undefined terms in insurance policies. Am. Justice Ins. Reciprocal v. Hutchison, 15 S.W.3d 811, 815 (Tenn. 2000). The parties agree on the dictionary definition of "contamination"—"a state of being contaminated," with "contaminated" further defined as "1: soiled, stained, corrupted, or infected by contact or association; 2: made unfit for use by the introduction of unwholesome or undesirable elements." Contamination, Merriam-Webster (January 25, 2023), https://www.merriam-webster.com/dictionary/contamination; Contaminated, Merriam-Webster (January 25, 2023), https://www.merriam-webster.com/dictionary/contaminated.
Vanguard asserts that the erroneous addition of excess potassium hydroxide to the Kirkland soap constitutes "contamination" because the additional potassium hydroxide was not intended to be added to the soap—and was therefore "undesirable"—and when it was, the damage resulted. The STP Insurers argue that the addition of excess potassium hydroxide was a simple manufacturing error instead of "contamination" because potassium hydroxide was supposed to be in the soap and was therefore "desirable," but Vanguard simply added too much. Vanguard does not dispute that the amount of potassium hydroxide that the recipe called for was "desirable" in the soap recipe. However, it emphasizes that the excess amount was "undesirable," thus "contaminat[ing]" the soap. The Court agrees with Vanguard.
This understanding of the word "contamination" is consistent with case law from other courts. Vanguard primarily relies on Bangert Bros. Const. Co. v. Americas Ins. Co., 66 F.3d 338, 1995 WL 539479 (10th Cir. 1995) (unpublished table decision). In Bangert Bros., the plaintiff general contractor was hired to construct a runway at the Denver International Airport and subcontracted much of the concrete work. Id. at *1. The subcontractor who did the concrete work failed to use a scalper screen when batching the concrete, resulting in the addition of clay balls that the scalper screen was supposed to remove. Id. at *3. After the concrete cured, the clay balls became empty voids, reducing the strength of the runway pavement and causing cracking. Id. at *1 n.3. Following construction, the airport discovered the clay balls and cracking in various sections of the runway and directed Bangert Bros. to replace those sections. Id. at *1. Bangert Bros. thereafter submitted a claim to the defendant insurer, which denied the claim in part because the insurance policy excluded damage caused by contamination. Id. at *5. In siding with the insurer, the Tenth Circuit explained that the contamination exclusion applied because, although some clay was permitted by the runway specifications, the amount of clay was more than that allowed by the specifications and constituted "contamination," rendering parts of the runway unfit for use. Id.
The STP Insurers attempt, but fail, to distinguish Bangert Bros. The STP Insurers argue that "the runway panels were not supposed to contain clay at all, although the specifications apparently allowed for it in small amounts," (ECF No. 120 at PageID 2376), but the potassium hydroxide was "intended" to be added to the soap. However, because the runway specifications allowed for some clay, but too much clay led to contamination, Ban gert Bros. is instructive.
In sum, the soap recipe here called for a particular amount of potassium hydroxide. Excess potassium hydroxide was added to the soap, rendering it unfit for use. The excess was not called for by the soap recipe and was "undesirable." Thus, the addition of the excess potassium hydroxide constitutes "contamination," and the Conditions Clause covers the damage to the soap.
II. No Exclusion
The STP Insurers argue that, even if the Conditions Clause covers Vanguard's losses, the Process Clause then excludes those losses from coverage. Vanguard argues that the STP Insurers' interpretation is incorrect, or at the very least creates an ambiguity, which the Benefit of the Insured Clause requires the Court to resolve in Vanguard's favor. As explained below, the Court agrees with Vanguard.
According to the language, to be excluded by the Process Clause, the damage to the soap must be caused solely by the "process" that the soap is under when damaged. However, the provision also states that, even if the damage is caused solely by that "process," it is not excluded if the damage is "covered elsewhere" in the STP Policies. Although there is a dispute as to whether the damage at issue was "solely" caused by the manufacturing process, the result here revolves around the carve out to the exclusion, if the damage is "covered elsewhere."
The exclusion relied upon by the STP Insurers does not apply if the damage to the soap is covered elsewhere in the STP Policies, specifically, in the Conditions Clause or Duration Clause. Vanguard argues that it is covered in both clauses. The STP Insurers, on the other hand, argue that the damage cannot be "covered elsewhere" via the Conditions Clause or Duration Clause because, if it was, the Process Clause would be rendered surplusage, as no damage that comes within the outer limits of the STP Policies would be excluded by the Process Clause.
As described above, the Court concludes that the damage to the soap is covered by the Conditions Clause. This interpretation results in the damage being "covered elsewhere" in the STP Policies and thus part of the carve-out to the exclusion at issue. The Conditions Clause's language that the coverage of contamination includes "howsoever arising" is further evidence that, even if the damage to the soap was caused solely by the manufacturing process, the Process Clause does not exclude Vanguard's losses.
According to the STP Insurers, if the damage was solely caused by the manufacturing process, interpreting the Process Clause to not exclude damage covered as "contamination" under the Conditions Clause would render the Process Clause surplusage. However, not every possible manufacturing issue that damages the soap would constitute "spoilage and/or contamination," and the Process Clause would seemingly exclude such non-spoliation or contamination damage. Moreover, the STP Insurers' proposed interpretation of the Process Clause would render the "other than as covered elsewhere herein" language of that clause surplusage. Indeed, although the STP Insurers argue that the language does not apply here despite the Conditions Clause's coverage of "contamination" elsewhere in the STP Policies, they never explain when the "other than as covered elsewhere herein" language would apply, if not here. Finally, even if the STP Insurers are correct that Vanguard's interpretation of the Process Clause creates an ambiguity, theirs does as well, and the Benefit of the Insured Clause requires the Court to resolve this ambiguity in favor of Vanguard.
The one example the STP Insurers provide is a hypothetical fire within the manufacturing process, with smoke contaminating the soap. (ECF No. 120 at PageID 2374.) The STP Insurers assert that "[t]his scenario differs markedly from that at issue here, where Vanguard's loss was caused solely by the manufacturing process." (Id.) This hypothetical confuses the issue. It addresses whether the damage is caused solely by the manufacturing process, not whether the damage is "covered elsewhere" in the STP Policies.
III. Damages
Vanguard argues that there is no genuine dispute as to its damages because Vanguard's former CFO, David Mitchell, provided a submission calculating Vanguard's damages, and the STP Insurers' own adjuster did not dispute the total amount claimed. Vanguard further argues that, because the STP Insurers failed to dispute Vanguard's statement of additional undisputed material facts regarding damages in its Response to the STP Insurers' first, now-moot motion for summary judgment, its damage calculations are undisputed. Vanguard also seeks 10% prejudgment interest per year, calculated from the date they allege the STP Insurers denied coverage—June 18, 2020—to the date of entry of judgment, pursuant to Tenn. Code Ann. § 47-14-123. (ECF No. 116-1 at PageID 1982.) The STP Insurers respond that "large portions of [Mitchell's submission] have not been substantiated" and that the Local Rules do not require a response to a non-movant's statement of additional undisputed facts unless the moving party files a reply. (ECF No. 120 at PageID 2387.)
First, the STP Insurers' failure to respond to Vanguard's "Statement of Additional Undisputed Material Facts" during briefing on the prior motion for summary judgment does not render its damages undisputed here. Local Rule 56.1(b) states that, in responding to a moving party's statement of undisputed material facts, the non-moving party may provide additional facts it considers material and in dispute, such that a trial is necessary. See L.R. 56.1(b). If the moving party files a reply, it must respond to those additional facts. Id. 56.1(d). Normally, failure to respond to the nonmoving party's statement of additional facts "shall indicate that the asserted facts are not disputed for purposes of summary judgment," in effect constituting a waiver of any argument by the moving party that there is no genuine dispute that all material facts show it is entitled to judgment in its favor. Id.
Here, Vanguard, the non-moving party as to the prior motion for summary judgment, asserts that the facts contained in its Statement of Additional Undisputed Material Facts are not disputed. (See ECF No. 116-1 at PageID 1981.) Because Vanguard does not assert that this additional statement contains genuine factual issues to be tried, this filing is not covered by Local Rule 56.1. See Lansky v. Protection One Alarm Monitoring, Inc., No. 17-2883, 2019 WL 575390, at *1 (W.D. Tenn. Feb. 12, 2019). Thus, the Insurers' failure to respond to it is not a waiver of their right to dispute Vanguard's damages here.
Second, however, there is no properly disputed fact as to Vanguard's damages. The STP Insurers assert that 3D Marine's report disputes Mitchell's report, stating that portions of Mitchell's report are unsubstantiated. But the STP Insurers point to nothing in 3D Marine's report that actually disputes the final tally of Vanguard's losses, nor do they provide any other evidence rebutting it. In fact, 3D Marine was able to substantiate some portions of Mitchell's report that the Insurers contend are unsubstantiated, including extrapolating the claimed freight costs across all of its products being returned, (ECF No. 116-8 at PageID 2131), and estimating the number of units returned, (Id. at PageID 2132). And while 3D Marine does not indicate that it was able to estimate the quantity or valuation of the soap packaging or the costs of notifying Costco customers who purchased the recalled soap, 3D Marine seemingly did not think these unsubstantiated portions of Vanguard's calculation were enough to adjust Vanguard's damages calculation. (Id. at PageID 2144-45 ("Vanguard have [sic] presented a claim quantum of three million eight hundred fifty-six thousand three hundred sixty-four US dollars . . . We make no comment on the recoverability of the items presented under the policy and defer to underwriters' adjustment of the claim.").)
In sum, Vanguard relies on Mitchell's report for evidence of its losses. Although the STP Insurers point to alleged holes in that report, their own adjuster does not directly dispute the amount of Vanguard's damages, and the STP Insurers provide no evidence that Vanguard's losses are any less than what it claims. The STP Insurers' sole argument on this point appears to be that a jury may not believe that the Mitchell report is substantiated. However, more is required. See Fogerty v. MGM Grp. Holdings Corp., Inc., 379 F.3d 348, 353 (6th Cir. 2004) ("First, [the non-moving parties] suggest that they can respond to this evidence simply by claiming that a jury might choose to disregard it or might find it unpersuasive. That is not true.") (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ("When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts."); Cox v. Ky. Dep't of Transp., 53 F.3d 146, 150 (6th Cir. 1995) ("[A] nonmoving party may not avoid a properly supported motion for summary judgment by simply arguing that it relies solely or in part upon credibility considerations . . . [I]nstead, the nonmoving party must present affirmative evidence to defeat a properly supported motion for summary judgment."); Curl v. Int'l Bus. Machs. Corp., 517 F.2d 212, 214 (5th Cir. 1975) ("[T]he party opposing summary judgment must be able to point to some facts which may or will entitle him to judgment, or refute the proof of the moving party in some material portion, and . . . the opposing party may not merely recite the incantation, 'Credibility,' and have a trial on the hope that a jury may disbelieve factually uncontested proof.")).
Because the STP Insurers offer no evidence to contradict the Mitchell report, or even create a factual dispute, summary judgment as to Vanguard's total loss of $3,856,364 is appropriate.
As for Vanguard's request for prejudgment interest, the STP Insurers do not respond to it. Further briefing is necessary on this issue.
CONCLUSION
For the foregoing reasons, Vanguard's Motion is GRANTED IN PART, and the STP Insurers' Motion is DENIED. Vanguard is GRANTED summary judgment as to liability and its damages as established in the Mitchell report but DENIED summary judgment as to prejudgment interest without prejudice. If Vanguard still seeks prejudgment interest, it is ORDERED to file a separate motion for summary judgment within fourteen (14) days of entry of this Order, to which the STP Insurers are ORDERED to respond within fourteen (14) days if they wish to dispute that claim.
IT IS SO ORDERED, this 13th day of June, 2023.