United States District Court, D. South Carolina, Charleston Division
C. NORTON UNITED STATES DISTRICT JUDGE.
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.
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,  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.
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
[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.
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. ¶
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.
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.
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,  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.
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
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).
Duty to ...