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Universal North America Insurance Co. v. Bower

United States District Court, D. South Carolina, Charleston Division

October 27, 2017

Universal North America Insurance Company, Plaintiff,
v.
George Bower, Danielle T. Bower, Aimee Spencer, Sara Gibbons, and Lacey Gibbons, .individually and as parent and natural guardian and legal representative of Logan Gibbons and Mikelyn Gibbons, Defendants.

          ORDER

          DAVID C. NORTON UNITED STATES DISTRICT JUDGE.

         This matter is before the court upon the report and recommendation ("R&R") of United States Magistrate Judge Bristow Marchant recommending that plaintiff Universal North America Insurance Company's ("Universal") second motion for summary judgment be denied. For the reasons set forth below, the court adopts the R&R and denies Univeral's second motion for summary judgment.

         I. BACKGROUND

         A. Facts

         On November 28, 2015, defendant Danielle T. Bower ("Mrs. Bower") operated a golf cart on a public road in her neighborhood, Rivertowne Country Club, in Mt. Pleasant,, South Carolina. Compl. ¶ 11, ECF No. 1. Defendants Aimee Spencer, [1] Sara Gibbons, - and Lacey Gibbons ("Gibbons"), along with her two minor children Logan and Mikelyn Gibbons, were passengers on the golf cart. Compl. ¶¶ 6-7. The purpose of the golf cart ride was to "cruise around the neighborhood" and "look at houses." Mrs. Bower Exam. 17:15-23, ECF No. 34-3; Mrs. Bower Dep. 9:13-18, ECF No. 72-11.

         Mrs. Bower drove the golf cart on Rivertowne Country Club Drive at ten miles per hour and was approximately a mile from her residence when traffic began to back up behind the golf cart. Mrs. Bower Exam. 18:3-5, 19:8-10, 20:1-6, 13-20. According to Mrs. Bower:

[T]here is a golf course in Our neighborhood and there is sidewalks. So I pulled up on this little grass area, and then there is a sidewalk and then there is the golf course. So I pulled up on the grass area to stop and let all-probably like two or three cars behind me. . . . [M]y intentions were to pull up there and stop and let them pass and then get back to the road and keep going. ... I got all the way up onto the grass, and then ... it felt wobbly. Because I think I just overcorrected a little bit and then it tipped over.

         Mrs. Bower Exam. 21:3-21. However, in a later deposition, Mrs. Bower testified that the golf cart flipped immediately after hitting the curb. Bower Dep. 11:13-21. The accident resulted in injuries to the occupants of the golf cart. Compl. ¶ 14.

         At the time of the accident, Mrs. Bower and George Bower (collectively, the "Bowers") were insured under a homeowner's policy (the "Policy") issued by Universal. Compl. ¶ 5; see Policy, ECF No. 1-1. An attorney for the injured parties has made a claim against the Policy. Compl. ¶ 15.

         B. Procedural History

         On March 3, 2016, Universal brought this declaratory judgment action, seeking a declaration that the Bowers are not entitled to coverage with respect to the golf cart accident. Compl. 3. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(e) (D.S.C.); the case was referred to the magistrate judge for pre-trial proceedings. On August 29, 2016, Universal filed a motion for summary judgment, contending that the underlying incident is excluded from coverage because the incident involved an unregistered golf cart that was required by law to be registered for use on public roads. ECF No. 42. On October 4, 2016, Magistrate Judge Bristow Marchant issued an R&R recommending that Universal's motion for summary judgment be denied, finding that a potential question of fact existed based on (1) a plat submitted by Gibbons purporting to show that the golf cart overturned in an area out of the public right-of-way; (2) Mrs. Bower's testimony that the golf cart flipped after it was on the grassland (3) and a potential question of fact concerning whether the golf cart was being used for a recreational Or leisure activity permitted by the golf course. R&R 5-7, ECF No. 45. On February; 17, 2017, the court adopted the R&R and denied Universal's motion for summary judgment. ECF No. 50. Thereafter, Universal filed a motion to alter or amend the court's February 17, 2017 order, ECF No. 54, which was denied on April 12, 2017, ECF No. 62.

         On June 30, 2017, Universal filed a second motion for summary judgment, presenting additional evidence to support its request for summary judgment-depositions of Aimee Spencer, Richard Kijanka, Mrs. Bower, George Bower, Gibbons, Tyler Gibbons, Sarah Gibbons, and Tate Gibbons; video footage of the scene of the accident recorded by the Mount Pleasant Police Department; and a witness statement taken by the Mount Pleasant Police Department-to show that the golf cart accident at issue did not occur on-the golf course, but rather on the public road, and, therefore, is not covered under the Policy. ECF No. 72. As one or more of defendants are proceeding pro se, [2] the case was referred to the magistrate judge for an R&R, who promptly issued a Roseboro order, advising defendants of the importance of a motion for summary judgment and the need to file an appropriate response. ECF No. 76. On July 14, 2017, Gibbons filed a response in opposition to the second motion for summary judgment, ECF No. 78, and on July 21, 2017, Universal filed a reply thereto, ECF No. 79. On August 18, 2017, Magistrate Judge Bristow Marchant issued an R&R recommending that Universal's second motion for summary judgment be denied, again finding that he is unable to determine that there is no question of fact that the occurrence occurred on a public road and that he is "unable to find as a matter of law based on the evidence provided that the golf cart ride at issue .. . could not be considered 'other recreational or leisure activity allowed by the facility' under the terms of the [P]olicy." R&R 9-10, ECF No. 86 (citation omitted). On September 1, 2017, Universal submitted objections to the R&R, ECF No. 88, and on September 15, 2017, Gibbons filed a response thereto, ECF No. 89.

         II. LEGAL STANDARD

         Summary judgment is appropriate when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. A genuine issue of fact exists if the evidence presented could lead a reasonable fact-finder to return a verdict in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S..242, 255 (1986). A court considering a motion for summary judgment must view all facts and draw all reasonable inferences from the evidence before it in a light most favorable to the non-moving party. Id. "The party moving for summary judgment bears the initial burden of pointing to the absence of a genuine issue of material fact." Temkin v. Frederick Cty. Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). If the movant carries this burden, then the burden "shifts to the non-moving party to come forward with facts sufficient to create a triable issue of fact." Id. at 718-19 (citing Anderson, 477 U.S. at 247-48). "A mere scintilla of evidence supporting the [non-moving party's] case is insufficient" to defeat a motion for summary judgment. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994) (citation omitted); Anderson, 477 U.S. at 256 (noting that a non-moving party "may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial").

         III. DISCUSSION

         This matter is now before the court for disposition. The magistrate judge makes only a recommendation to this court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the court. Id. at 271. The court is charged with making a de novo determination of any portions of the magistrate judge's recommendation to which a specific objection is made. 28 U.S.C. § 636(b)(1). The court evaluates the evidence without, granting any deference to the magistrate judge's findings and conclusions. Mathews, 423 U.S. at 270-71; Estrada v. Witkowski, 816 F.Supp. 408, 410 (D.S.C. 1993). The court's final decision is based upon the actual record, not merely the magistrate judge's reported findings. Wimmer v. Cook, 774 F.2d 68, 76 (4th Cir. 1985). The court "may accept, reject, or modify, in whole or in part, " the R&R, "or recommit the matter .. . with instructions." 28 U.S.C. § 636(b)(1).

         A. Duty to ...


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