IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

RUSSELL E. GARNER, * 

 * 

PLAINTIFF, * 

 * 

VS. * Case No. 1:06cv781-MHT 

 * 

PROGRESSIVE DIRECT INSURANCE * 

COMPANY, * 

 * 

DEFENDANT. * 

Plaintiff’s Response to Defendant’s Motion for Summary Judgment

 Comes now the Plaintiff by and through the undersigned attorney and would 

show unto the Court as follows: 

 1. From Counsel’s reading of the Court’s scheduling order of September 28, 

2006, the Defendant’s motion for summary judgment is untimely filed. The deadline was 

February 12, 2007. 

 2. The Defendant never affirmatively pled the statute of limitations in its answer. 

 The deadline to amend the pleadings was January 3, 2007. Failure to assert constitutes 

waiver. 

 3. The party responsible for the accident, Cindy R. Greene, was listed as having 

Progressive Insurance on the accident report. A copy of the accident report is attached to 

this pleading as Exhibit “A”. 

 4. Counsel was informed sometime before September 28, 2004, that Ms. 

Green’s policy had lapsed due to non–payment. See letter sent to Ms. Greene as Exhibit 

“B”. 

 5. Plaintiff filed suit against his uninsured motorist carrier before the two year 

statute of limitations ran. 

 6. The Defendant filed suit against Ms. Green on its behalf and on behalf of the 

Plaintiff to recover the amount paid for the property damage the Defendant paid on behalf 

of Plaintiff. A copy of that complaint is attached as Exhibit “C”. 

 7. On June 6, 2006, this Defendant sent a letter to the Plaintiff which indicated 

“Our investigation of your loss on August 9, 2004 indicates that another party is 

Case 1:06-cv-00781-MHT-TFM Document 12 Filed 03/01/2007 Page 1 of 4
responsible for some or all of your damages.” See Progressive letter attached as Exhibit 

“D”. 

 8. In addition to the numerous factual issues addressed above there are legal 

issues which prevent this Court from rendering a Summary Judgment. 

Legal Analysis

 The Defendant places a great deal of emphasis on the most recent Court of Civil 

Appeals case, State Farm v. Mason. The Mason opinion noted: 

State Farm moved for a summary judgment, alleging that because the 

motor-vehicle collision made the basis of the complaint occurred on 

March 20, 2001, and Mason's complaint was not filed until March 26, 

2003, the complaint was barred by the two-year statutory limitations 

period set out in § 6-2-38( l), Ala.Code 1975. State Farm's brief in support 

of its summary-judgment motion noted that the North Carolina Supreme 

Court, in Brown v. Lumbermens Mutual Casualty Co., 285 N.C. 313, 204 

S.E.2d 829 (1974), had held that a limitations defense available to an 

uninsured motorist should, as a matter of law, be available to an insurer 

defending against a claim for UM benefits based upon conduct of that 

motorist and should, in an appropriate case, bar such a claim. 

Mason, --- So.2d ----, 2007 WL 80487, *1 (Ala.Civ.App. 2007). In this case the Plaintiff 

filed suit the day before the statute ran. In addition, a suit was filed on the Plaintiff’s 

behalf by this Defendant. Numerous cases indicate that the Plaintiff does not need to 

obtain a judgment against the uninsured motorist to establish that he is “legally entitled to 

recovery.” Ex Parte State Farm Mut. Auto. Ins. Co., 893 So. 2d 1111, 1115 (Ala. 2005). 

 The Defendant’s analysis of Continental National Indemnity Company v. Fields, 

926 So. 2d 1033 (Ala. 2005) is similarly incorrect. In that case the plaintiff suffered a 

personal injury in a collision with an uninsured motorist. For reason totally unrelated to 

that collision, the plaintiff died before a suit or claim was filed. Claims for personal injury 

which are not filed cannot be pursued by the estate whether uninsured motorist coverage 

is an issue or not. The Fields Court noted: 

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Fields [the deceased plaintiff] argues that this case is distinguishable 

from Carlton and the cases we overruled in Carlton because, she argues, 

Tamms could have sued and recovered from the uninsured motorist in 

tort before her death. Thus, Fields asserts, this Court should allow 

Tamms's estate to recover under the uninsured-motorist statute, 

notwithstanding the fact that the estate cannot recover directly from the 

uninsured motorist. In effect, Fields asks us to create a new exception to 

the plain language of the uninsured-motorist statute, which requires the 

insured to be “legally entitled to recover” from the uninsured motorist. 

Fields, as personal representative of Tamms's estate, is not legally 

entitled to recover from the uninsured motorist. The uninsured-motorist 

statute carves out no exception for causes of action that may have been 

viable at one time but that are barred by a defense at the time they are 

filed. 

Fields, at 1038. 

In this case the Plaintiff filed suit before the two year statute ran. In addition the 

Defendant has conducted an investigation and determined that the uninsured motorist is at 

fault. Most importantly, the Defendant has retained counsel and instituted an action on its 

behalf and on behalf of my client in state court to recover the amount paid to Plaintiff for 

part of his property damage. Based upon all of these factors, Plaintiff respectfully submits 

that the Defendant’s claim is due to be denied. 

 _s/ David W. Rousseau____________

 DAVID W. ROUSSEAU (ROU007) 

 211 W. Adams Street 

 Dothan, Alabama 36303 

 (334) 699-9000 

 Attorney for Plaintiff 

CERTIFICATE OF SERVICE

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

foregoing document to: 

Nix, Holtsford, Gilliland, Higgins 

& Hitson, P.C. 

Case 1:06-cv-00781-MHT-TFM Document 12 Filed 03/01/2007 Page 3 of 4
P.O. Box 4128 

Montgomery, AL 36103-4128 

 s/ David W. Rousseau_______ 

 Of counsel 

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