IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

RUSSELL E. GARNER, *

*

Plaintiff, *

*

vs. * CASE NUMBER: 01:06cv781-MHT

*

PROGRESSIVE DIRECT INSURANCE*

COMPANY, *

*

 Defendant. *

MOTION FOR SUMMARY JUDGMENT

COMES NOW Defendant Progressive Direct Insurance Company, by and through

the undersigned attorney, and respectfully requests that this Court grant summary

judgment in its favor against all claims in this case, pursuant to Rule 56 of the Federal

Rules of Civil Procedure. 

The undisputed facts which are relevant to this motion are primarily from the

Complaint. On August 9, 2004, Plaintiff Russell E. Garner alleges that he suffered

personal injury in an automobile accident, caused by the negligence or wantonness of an

uninsured motorist, Cindy R. Greene. Plaintiff elected to file a lawsuit on August 8,

2006, in Dale County, Alabama. The lawsuit was subsequently removed to Federal

Court, based upon diversity of citizenship. The Plaintiff did not ever file a lawsuit or

attempt to establish legal liability against the uninsured motorist, Cindy R. Greene. 

The claim for uninsured motorist coverage is interpreted by Alabama law pursuant

to Ala. Code Section 32-7-23. That statute requires that a claimant establish that he or

Case 1:06-cv-00781-MHT-TFM Document 11-2 Filed 02/28/2007 Page 1 of 5
Page 2 of 5

she is “legally entitled to recover damages from owners or operators of uninsured motor

vehicles” when attempting to seek uninsured motorist benefits from his or her own

carrier.

Since the development of uninsured motorist coverage, the appellate courts in

Alabama have interpreted that requirement in different ways. However, in Ex parte

Carlton, 867 So.2d 332 (Ala. 2003), the Alabama Supreme Court created a very strict

interpretation of that phrase, and returned to the strict requirement that a claimant

establish legal liability against the uninsured tortfeasor before attempting to claim

uninsured or underinsured motorist benefits. 

This issue was clarified more completely recently by the Alabama Court of Civil

Appeals, in State Farm Mutual Automobile Insurance Company v. Mason, _____ So.2d

____, 2007 Ala.Civ.App. Lexis 31 (Ala.Civ.App. 2007). That opinion followed a

similarly strict interpretation of the phrase “legally entitled to recover damages” set forth

by the Alabama Supreme Court in Continental National Indemnity Company v. Fields,

926 So.2d 1033 (Ala. 2005). 

In Continental National Indemnity Company v. Fields, the Plaintiff was injured in

an automobile accident, but then subsequently died from an unrelated cause before ever

filing a lawsuit. The personal representative then filed a lawsuit for uninsured motorist

coverage, arguing that the claim was a contractual claim which services the death of the

injured claimant. However, by law, a tort cause of action had been extinguished by the

Case 1:06-cv-00781-MHT-TFM Document 11-2 Filed 02/28/2007 Page 2 of 5
Page 3 of 5

death of the Plaintiff, creating an argument by the Defendant carrier that the Plaintiff was

no longer “legally entitled to recover” damages from the uninsured tortfeasor. The

Alabama Supreme Court agreed with the argument, and stated that the failure to file a

lawsuit before the death of the Plaintiff created a bar to the tort lawsuit, which also

created a complete bar to a claim for uninsured motorist benefits. Therefore, no

uninsured motorist benefits were due to be paid, regardless of the fact that the lawsuit for

uninsured motorist benefits was brought against the uninsured motorist carrier in a timely

manner.

Recently, the Alabama Court of Civil Appeals issued another strict interpretation

of that phrase in State Farm Mutual Automobile Insurance Company v. Mason, supra. In

that case, the Plaintiff elected to file a lawsuit only against the uninsured motorist carrier,

seeking uninsured motorist benefits based upon the alleged negligence of an uninsured

tortfeasor. The plaintiff never filed a lawsuit or sought to establish legal liability against

the uninsured tortfeasor. Therefore, as argued by the uninsured motorist carrier, the

Plaintiff could not establish that he was “legally entitled to recover damages” against the

tortfeasor. Because of that failure, the Alabama Court of Civil Appeals agreed with the

Defendant, and dismissed the lawsuit by reversing a jury verdict in favor of the Plaintiff. 

The Alabama Court of Civil Appeals stated that it was bound by the interpretation of the

Alabama Supreme Court, which holds that “an insured’s legal right to recover is wholly

dependent upon the viability of an action against an uninsured motorist.” Simply, if the

Case 1:06-cv-00781-MHT-TFM Document 11-2 Filed 02/28/2007 Page 3 of 5
Page 4 of 5

claimant does not establish legal liability for recovery against an uninsured motorist, he or

she cannot seek uninsured motorist benefits from the carrier. 

In the case at hand, the Plaintiff has never filed a lawsuit against the uninsured

motorist, and now the applicable two year statute of limitations for such a claim based

upon negligence has expired. Ala. Code Section 6-2-38. The Plaintiff cannot possibly be

“legally entitled to recover damages” against the uninsured motorist.

The strict interpretations by the Alabama Supreme Court and by the Alabama

Court of Civil Appeals, as set forth above, are the correct and binding interpretations of

the statutory right of recovery of uninsured motorist benefits.

In conclusion, Defendant Progressive Direct Insurance Company respectfully

requests that this Court grant summary judgment on all claims by Plaintiff Russell E.

Garner. He has not proven that he is “legally entitled to recover damages” from the

alleged uninsured tortfeasor, and at this point cannot ever establish a right to recovery

from the uninsured motorist because any such claim is barred by the statute of limitations. 

Therefore, he cannot seek uninsured motorist benefits from this Defendant, pursuant to

applicable law.

\a\Alex L. Holtsford, Jr.

ALEX L. HOLTSFORD, JR. (HOL048)

Attorney For Defendant

Case 1:06-cv-00781-MHT-TFM Document 11-2 Filed 02/28/2007 Page 4 of 5
Page 5 of 5

OF COUNSEL:

NIX HOLTSFORD GILLILAND

 HIGGINS & HITSON, P. C.

Post Office Box 4128

Montgomery, Alabama 36103-4128

Telephone: (334) 215-8585

Facsimile: (334) 215-7101

CERTIFICATE OF SERVICE

I hereby certify that I have this day mailed, postage prepaid, an exact copy of the

foregoing document to:

David W. Rousseau

Attorney For Plaintiff

211 W. Adams Street

Dothan, Alabama 36303

This the 2 day of March, 2007.

\s\ Alex L. Holtsford, Jr.

OF COUNSEL

Case 1:06-cv-00781-MHT-TFM Document 11-2 Filed 02/28/2007 Page 5 of 5