United States District Court, E.D. Louisiana
COX OPERATING, L.L.C.
SETTOON TOWING, LLC ET AL.
ORDER AND REASONS
M. AFRICK UNITED STATES DISTRICT JUDGE.
parties accept the following facts as true for purposes of
the present motion.
September 2016, plaintiff Cox Operating, L.L.C.
(“Cox”) owned a well in Quarantine Bay,
Plaquemines Parish. Cox had this well insured. The insurance
policy covering the well at that time provided that “a
10% No. Claims Bonus [was] payable at expiry subject to total
gross earned premium exceeding USD2, 000, 000
hereon.” Thus, if Cox did not submit any claims
under such policy, then the insurer would refund Cox 10% of
Cox's total premium amount for the policy period,
assuming that total premium amount exceeded $2, 000, 000,
which it did. On the other hand, if Cox did submit a claim,
then no such refund would issue.
vessel owned by defendant Settoon Towing, LLC
(“Settoon”) allided with the well on September
13, 2016. As a result of this allision, Cox submitted a claim
under the policy and became obligated to repay the “no
claims bonus, ” which the insurer had prepaid to
This claim was the only claim that Cox filed during the
the Court is a motion for partial summary judgment filed by
Settoon Towing, LLC (“Settoon”), which plaintiff
Cox Operating, L.L.C. (“Cox”) opposes.
Settoon's motion raises two legal questions:
1. Is Cox precluded, as a matter of law, from pursuing
recovery of the “no claims bonus”?
2. If no, then does the collateral source rule bar Settoon
from introducing evidence of a second insurance policy held
by Cox that insured it against the loss of the “no
considering the parties' arguments and the applicable
law, the Court answers no to the first question, and yes to
judgment is proper when, after reviewing the pleadings, the
discovery and disclosure materials on file, and any
affidavits, the court determines that there is no genuine
dispute of material fact. See Fed. R. Civ. P. 56.
“[A] party seeking summary judgment always bears the
initial responsibility of informing the district court of the
basis for its motion and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The party seeking
summary judgment need not produce evidence negating the
existence of material fact, but need only point out the
absence of evidence supporting the other party's case.
Id.; Fontenot v. Upjohn Co., 780 F.2d 1190,
1195 (5th Cir. 1986).
the party seeking summary judgment carries its initial
burden, the nonmoving party must come forward with specific
facts showing that there is a genuine dispute of material
fact for trial. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). The showing of a
genuine issue of material fact is not satisfied by creating
“‘some metaphysical doubt as to the material
facts, ' by ‘conclusory allegations, ' by
‘unsubstantiated assertions, ' or by only a
‘scintilla' of evidence.” Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(citations omitted). Instead, a genuine issue of material
fact exists when the “evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
party responding to the motion for summary judgment may not
rest upon the pleadings, but must identify specific facts
that establish a genuine issue. Id. However, the
nonmoving party's evidence “is to be believed, and
all justifiable inferences are to be drawn in [the nonmoving
party's] favor.” Id. at 255; see also
Hunt v. Cromartie, 526 U.S. 541, 552 (1999).
“[a]lthough the substance or content of the evidence
submitted to support or dispute a fact on summary judgment
must be admissible . . ., the material may be presented in a
form that would not, in itself, be admissible at
trial.” Lee v. Offshore Logistical & Transp.,
LLC, 859 F.3d 353, 355 (5th Cir. 2017) (quoting 11
Moore's Federal Practice-Civil ¶ 56.91 (2017)).
“This flexibility allows the court to consider the
evidence that would likely be admitted at trial . . . without
imposing on parties the time and expense it takes to
authenticate everything in the record.” Maurer v.
Independence Town, No. 16-30673, 2017 WL 3866561, at *3
(5th Cir. Sept. 5, 2017).