GREENBANK v. GREAT AMERICAN ASSURANCE COMPANY

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

EVANSVILLE DIVISION

JULIE GREENBANK, )

)

Plaintiff, )

)

v. ) No. 3:18-cv-00239-SEB-MPB

)

GREAT AMERICAN ASSURANCE )

COMPANY, )

)

Defendant. )

ORDER

This long-running litigation originated from Defendant Great American Assurance

Company's ("Great American") refusal to pay insurance coverage benefits on its equine

mortality policy with Plaintiff Julie Greenbank. On March 31, 2020, we granted in part

and denied in part Great American's Motion for Summary Judgment and denied Ms.

Greenbank's Cross-Motion for Partial Summary Judgment.1

1 Our Summary Judgment Order granted Great American's motion with respect to Ms.

Greenbank's breach of contract claim based on her allegation that Great American improperly

denied mortality coverage. We denied Ms. Greenbank's parallel summary judgment motion on

this same claim. We also granted summary judgment in favor of Great American on Ms.

Greenbank's corresponding bad faith claim, her claims for statutory and tortuous conversion as

they related to Great American's possession of the insured horse, and her theft claim. We denied,

Great American's Motion for Summary Judgment with respect to Ms. Greenbank's claims for

criminal mischief, fraud, and negligence on the grounds that the motion was underdeveloped as

to each of those issues. Three other breach of contract/bad faith and two other conversion claims

remain as well.

As trial approaches, Great American has moved in limine for an order to restrict

Ms. Greenbank from denying various material facts that were found as a result of our

summary judgment determinations, either because they were undisputed or were admitted

pursuant to our local rules or both.2 During the August 4, 2020 final pre-trial conference

with the attorneys conducted by the undersigned judge, counsel for Great American

orally moved for an order pursuant to Federal Rule of Civil Procedure 56(g), which

motion the court took under advisement pending the issuance of this written ruling. In a

nutshell, regarding claims not resolved on summary judgment, Rule 56(g) authorizes the

court to deem established any additional material facts that are not genuinely in dispute in

the case.

As a preliminary matter, we can swiftly dismiss Ms. Greenbank's generalized

contention that, despite the summary judgment determinations, there are no undisputed,

material facts that should be deemed established at trial. Clearly, a number of the claims

raised in this litigation and resolved on summary judgment were based on our

determination that the underlying facts were material, were supported by competent,

uncontroverted record evidence, and were not genuinely in dispute. That is the state of

the evidence at this point with regard to the claims resolved on summary judgment; those

uncontroverted facts material to our summary judgment rulings are not now disputable at

trial. See Cytomedix, Inc. v. Little Rock Foot Clinic, P.A., 2004 WL 1921070, at *4 (N.D.

2 Our Local Rule 56-1(f) provides that "facts as claimed and supported by admissible evidence

by the movant [at summary judgment] are admitted without controversy" unless "the non-movant

specifically controverts the facts . . . with admissible evidence."

Ill. Aug. 4, 2004) (noting that a successful summary judgment movant establishes the

"undisputed and admitted facts in [the] case"); Hamlyn v. Rock Island Cty. Metro. Mass

Transit Dist., 986 F. Supp. 1126, 1129 (C.D. Ill. 1997) (granting plaintiff's partial motion

for summary judgment and finding that the facts underlying the court's ruling, which had

not been properly disputed in accordance with local rules, were established for trial). We,

therefore, overrule Ms. Greenbank's broadly framed objection to the motion in limine.

We turn next to Great American's list of settled facts which it characterizes as not

genuinely in dispute as laid out in its motion in limine. Plaintiff has not indicated which,

if any, of these facts do or do not remain in dispute.

Though Great American failed to secure summary judgment on a few lesser claims

asserted against it by Ms. Greenback, as to those claims Great American now invokes

Federal Rule of Civil Procedure 56(g) to request that any additional facts underlying

them that are within the scope of the found facts or otherwise not genuinely in dispute

also be deemed established for purposes of trial. Great American contends that judicial

efficacy will best be served by establishing as settled at trial the facts underlying the

undecided claims.

Rule 56(g) provides: "If the court does not grant all the relief requested by the

[summary judgment] motion, it may enter an order stating any material fact—including

an item of damages or other relief—that is not genuinely in dispute and treating the fact

as established in the case." When the court has determined that it could not grant all the

relief requested by the motion, it may weigh the costs of eliminating certain factual

disputes rather than allowing them to proceed to review at trial. Id. Rule 56(g) thus

empowers the district court in its discretion, following the entry of partial summary

judgment, to treat any unrefuted and material facts as established for purposes of

efficiently adjudicating the remaining issues. See Kreg Therapeutics, Inc. v. VitalGo, Inc.,

919 F.3d 405, 415 (7th Cir. 2019) (noting that Rule 56 "operat[es] to salvage some results

from the time and resources spent in deciding unsuccessful summary judgment

motions."). This is the ostensible thrust of Great American's pending motion—to secure

such factual determinations as to the unresolved claims.

We agree with Great American that relitigating and rehashing settled and admitted

facts, whether underlying the decided or the so far undecided issues, would serve to

needlessly complicate and confuse and prolong the trial proceedings. Ms. Greenbank's

factual obfuscations and unfounded legal theories in resisting this motion exacerbate our

concerns. To date, she has not identified which, if any, specific facts outlined in Great

American's motion in limine she contests as being unsettled and thus still in dispute

following summary judgment. Nor has she explained how the facts listed in Great

American's motion in limine differ from the facts already established by the Court as

undisputed and material or differ from those underlying the unresolved claims.

We acknowledge the caution contained in Rule 56(g)'s advisory committee notes

as directed to the district court to "take care" to ensure that the use of Rule 56(g) "does

not interfere" with a nonmovant's ability to accept facts "for purposes of the [summary

judgment] motion only":

A nonmovant, for example, may feel confident that a genuine dispute as to one

or a few facts will defeat the motion, and prefer to avoid the cost of detailed

response to all facts stated b the movant. This position should be available without

running the risk that the fact will be taken as established under subdivision (g) or

otherwise found to have been accepted for other purposes.

There was no such limitation requested by Ms. Greenbank, however, during the

summary judgment briefing process. To avoid the reach of Rule 56(g), Ms. Greenbank

would have been required to qualify her admissions at summary judgment or differentiate

between the facts found at summary judgment (which are binding at trial) and those

underlying the unresolved claims for purposes of trial. Ms. Greenbank has not advanced

any such explanation or limitation. Ms. Greenbank's own cross-motion for summary

judgment was premised on her submissions of and reliance on uncontroverted material

facts, which undermines any claim she may assert at this juncture that such found facts

remain in dispute. We repeat: we have found no indication by Ms. Greenbank in her

summary judgment briefing that she was admitting the underlying factual assertions only

for purposes of summary judgment. The concerns expressed in the committee's notes

accompanying Rule 56(g) are thus not relevant here. Kreg Therapeutics, 919 F.3d at 415.

("[Appellant] may have had the right to assume [facts], but it had no right to challenge

the [facts] without evidentiary support. Summary judgment is no time for half-hearted

advocacy."); Ello v. Seven Peaks Mktg. Chicago, LLC, No. 2L14-cv-299-TLS-JPK, 2019

WL 3956186, at *5 (N.D. Ind. Aug. 21, 2019).

Conclusion

For these reasons, we grant in part Great American's motion in limine [Dkt.

148] as well as its oral motion to the extent that the undisputed and admitted material

facts from summary judgment are deemed established for purposes of trial. In authorizing

factual findings as settled, we expressly do not include any inferences flowing

therefrom.?

We defer a ruling as to the specific facts listed in Great American's motion in

limine (attached hereto) as to whether they are established for trial until Ms. Greenbank

has filed a response. No later than twenty-one days following the date of this Order, Ms.

Greenbank 1s ordered to respond to each of the proposed facts presented in Great

American's motion indicating whether she consents or objects to the stipulation thereof.

As to any objections to facts to which Ms. Greenbank interposes alleging that it remains

unresolved, she must identify with specificity the basis for her objection. For example, if

she believes a fact that was uncontested at summary judgment "will be illuminated by the

trial of related facts," she must state with specificity those "related facts" that potentially

would cast doubt on the accuracy of the otherwise found/settled facts. Following the

Court's receipt of Ms. Greenbank's objections, an Order identifying those facts to be

treated as established at trial will issue

IT IS SO ORDERED.

SARAH EVANS BARKER, JUDGE

United States District Court

Southern District of Indiana

3 For example, Great American asks the Court to find as a fact that Ms. Greenbank did not

provide "immediate" notice of Thomas ailments to the insurer. It is undisputed that she waited

two months. However, because Indiana law mandates that, absent a specific time provision,

"immediate notice" in insurance contracts transmutes to "reasonable notice,” this becomes an

issue for the jury to resolve. Oxford Fin. Grp., Ltd. v. Evans, 795 N.E.2d 1135, 1144 (Ind. Ct.

App. 2003) (“Indiana courts have found an implied ‘reasonableness’ time requirement when they

have been called upon to define the word ‘immediate’ in a statute or contract.").

Distribution:

Robert L. Burkart

ZIEMER STAYMAN WEITZEL & SHOULDERS

rburkart@zsws.com

Christopher S. Burnside

FROST BROWN TODD LLC

cburnside@fbtlaw.com

Kevin Nathaniel Fowler

FROST BROWN TODD LLC (Louisville)

nfowler@fbtlaw.com

Justin S. Fowles

FROST BROWN TODD LLC

jfowles@fbtlaw.com

Christopher Glade Johnson

FROST BROWN TODD LLC

cjohnson@fbtlaw.com

Patrick A. Shoulders

ZIEMER STAYMAN WEITZEL & SHOULDERS

pshoulders@zsws.com

Clifford R. Whitehead

ZIEMER STAYMAN WEITZEL & SHOULDERS LLP

cwhitehead@zsws.com