United States District Court, E.D. Michigan, Southern Division
SPINE SPECIALISTS OF MICHIGAN, P.C., Stella Najor and Aracelis Najjar Plaintiff,
ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY, a foreign corporation, and CITIZENS INSURANCE COMPANY OF AMERICA, Defendants.
OPINION AND ORDER GRANTING DEFENDANT CITIZENS
INSURANCE COMPANY OF AMERICA'S MOTION FOR SUMMARY
JUDGMENT [ECF NO. 32]
V. PARKER U.S. DISTRICT JUDGE.
14, 2015, Plaintiff Spine Specialists of Michigan, P.C.
(“Plaintiff” or “Spine Specialists”)
filed this lawsuit in a Michigan state court against
Defendant Allstate Property & Casualty Insurance Company
(“Allstate”). (ECF No. 1-1 at Pg ID 17.) An
amended complaint was filed on August 31, 2015, naming
Citizens Insurance Company of America
(“Citizens”) as a Defendant. (Id. at Pg
ID 22.) Citizens was served on October 30, 2015, and removed
Plaintiff's Amended Complaint to federal court on the
basis of diversity jurisdiction on November 23, 2015. (ECF
No. 1 at Pg ID 3.) Presently before the Court are
Citizens' (1) motion for summary judgment filed pursuant
to Federal Rule of Civil Procedure 56 on November 28, 2016
(ECF No. 32) and (2) motion to dismiss for failure to comply
with discovery, or in the alternative, to compel the
deposition of Dr. Louis Radden (ECF No. 33). The motions have
been fully briefed. For the following reasons, the Court
grants Citizens' motion for summary judgment and denies
as moot Citizens' motion to dismiss.
Summary Judgment Standard
judgment pursuant to Federal Rule of Civil Procedure 56 is
appropriate “if 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 central inquiry is “whether the evidence
presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must
prevail as a matter of law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-52 (1986). After adequate
time for discovery and upon motion, Rule 56 mandates summary
judgment against a party who fails to establish the existence
of an element essential to that party's case and on which
that party bears the burden of proof at trial. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986).
movant has the initial burden of showing “the absence
of a genuine issue of material fact.” Id. at
323. Once the movant meets this burden, the “nonmoving
party must come forward with specific facts showing that
there is a genuine issue for trial.” Matsushita
Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (internal quotation marks and citation omitted).
To demonstrate a genuine issue, the nonmoving party must
present sufficient evidence upon which a jury could
reasonably find for that party; a “scintilla of
evidence” is insufficient. See Liberty Lobby,
477 U.S. at 252.
party asserting that a fact cannot be or is genuinely
disputed” must designate specifically the materials in
the record supporting the assertion, “including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations, admissions,
interrogatory answers, or other materials.”
Fed.R.Civ.P. 56(c)(1). Rule 56 provides that “[a]n
affidavit or declaration used to support or oppose a motion
must be made on personal knowledge, set out facts that would
be admissible in evidence, and show that the affiant or
declarant is competent to testify to the matters
stated.” Fed.R.Civ.P. 56(c)(4). “In order to
survive a motion for summary judgment, the non-moving party
must be able to show sufficient probative evidence that would
permit a finding in his favor on more than mere speculation,
conjecture, or fantasy.” Lewis v. Philip Morris,
Inc., 355 F.3d 515, 533 (6th Cir. 2004) (internal
quotations and brackets omitted).
the trial court is not required to construct a party's
argument from the record or search out facts from the record
supporting those arguments. See, e.g., Street v. J.C.
Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir.
1989) (“the trial court no longer has a duty to search
the entire record to establish that it is bereft of a genuine
issue of material fact”) (citing Frito-Lay, Inc. v.
Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988));
see also InterRoyal Corp. v. Sponseller, 889 F.2d
108, 111 (6th Cir. 1989), cert. denied, 494 U.S.
1091 (1990) (“A district court is not required to
speculate on which portion of the record the nonmoving party
relies, nor is it obligated to wade through and search the
entire record for some specific facts that might support the
nonmoving party's claim.”). The parties are
required to designate with specificity the portions of the
record such that the court can “readily identify the
facts upon which the...party relies[.]” InterRoyal
Corp., 889 F.2d at 111.
Factual and Procedural Background
March 18, 2014, Stella Najor (“Stella”) and
Aracelis Najjar (“Aracelis”) were injured in a
motor vehicle accident. (Amend. Compl. ¶ 4.) At the time
of the accident, Najor had a policy of no-fault insurance
with Allstate and Najjar with Citizens. (ECF No. 32-3-4.)
On May 27, 2014, Najor and Najjar visited Dr. Louis Radden, a
doctor employed with Plaintiff Spine Specialists, for
injuries related to the motor vehicle accident. (ECF No.
30, 2014, Citizens received a telephone call from a
representative of Allstate advising them of a motor vehicle
accident that occurred in a vehicle owned by Martin
Najjar. (ECF No. 32-7 at Pg ID 454.) On August 13,
2014, an adjuster from Citizens spoke with Mr. Najjar to
arrange for a meeting to obtain an in-person statement about
the accident from Stella and Aracelis. Mr. Najjar stated he
would reach out at a later time with a date for a meeting,
but failed to do so. The Citizens adjuster reached out again
on September 3, 2014; September 23, 2014; and October 9,
2014. (ECF No. 32 at Pg ID 210.) During the first follow-up
call on September 3rd, Mr. Najjar stated he would call back
with a date for Citizens to obtain an in-person statement.
(Id.; see also ECF No. 32-8 at Pg ID 472.)
On September 23rd, the Citizens adjuster followed up again
and was told by Mr. Najjar that he was at work but would call
back the next day. (ECF No. 32-8 at Pg ID 471-72.) On October
9th, the Citizens adjuster again attempted to determine a
date for an in-person statement and left a voicemail, but
never received a phone call in return. (ECF No. 32-8 at Pg ID
the failed attempts to obtain an in-person statement,
Citizens issued a reservation of rights letter on November 7,
2014. (ECF No. 32-10 at Pg ID 498.) This letter highlighted
the importance of the in-person statement in determining
whether coverage will be provided under the policy:
At this time, we have a lack of sufficient proof and
information for any injuries/conditions possibly related to
the motor vehicle accident listed above. We have also had no
success in arranging a statement with the involved parties
and without cooperation our investigation cannot move forward
to make any determinations. All benefits will remain pending
until we have completed our investigation.
We need to arrange a time for an in person statement with
Jacob Way with Citizens Insurance Company has made attempts
to arrange prior to this correspondence.
(Id.) Citizens did not receive any contact from Mr.
Najjar, Stella, or Aracelis after sending that letter. (ECF