MEMORANDUM AND ORDER
RICHARD D. ROGERS, District Judge.
This is a garnishment action arising from a negligence claim in state court brought by plaintiff who was seriously injured in a vehicular accident caused by the negligence of Stephanie Hoyt, who died in the accident. Plaintiff/garnishor obtained a judgment in excess of the insurance policy which Hoyt had with GEICO, defendant/garnishee. Thus, plaintiff is a judgment creditor upon a negligence claim against defendant Ball who is the Special Administrator of the Estate of Stephanie Hoyt.
This action has been removed from state court to this court. This case is now before the court upon GEICO's motion for summary judgment and plaintiff's motion for partial summary judgment and to strike expert testimony.
I. RELATED MOTIONS.
Before discussing the motions for summary judgment, the court shall address two related motions. GEICO has filed a motion to strike plaintiff's additional statement of uncontroverted facts which contains over 300 entries, some of which (contrary to Local Rule 56.1) are not concise and seem repetitive. GEICO also contends that the additional statement of uncontroverted facts is not relevant to the legal defense GEICO presents in its motion for summary judgment. The court is to some degree sympathetic to GEICO's argument. GEICO's arguments as to the motions for summary judgment are more concisely and efficiently presented in the court's opinion. But, the court shall deny the motion to strike because the court cannot say that the entire statement of uncontroverted facts is irrelevant or contrary to the local rules, and it would be an unproductive expenditure of time to consider whether to strike only parts of the statement.
Plaintiff has filed a motion for leave to file a sur-reply to GEICO's motion for summary judgment. The court shall deny this motion. Plaintiff seeks leave to file a 33-page brief in order to address two issues raised for the first time in GEICO's reply to plaintiff's response to GEICO's motion for summary judgment and to discuss two cases which were mentioned in GEICO's original motion for summary judgment. The two issues identified in plaintiff's motion for leave to file a sur-reply are not relevant to the court's decision in this matter. So, a sur-reply is not helpful to the court on those points. A sur-reply is also not warranted for a discussion of the cases mentioned in the motion for leave to file a sur-reply. Plaintiff had a sufficient opportunity to discuss those cases in her response to the motion for summary judgment.
II. SUMMARY JUDGMENT STANDARDS.
Summary judgment is warranted if the materials on record show that there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.CIV.P. 56(a). The court views "all of the facts in the light most favorable to the non-movant and reasonable inferences from the record must be drawn in favor of the non-moving party." Piercy v. Maketa , 480 F.3d 1192, 1197 (10th Cir. 2007).
III. UNCONTROVERTED FACTS AND PRIOR HISTORY OF THE CASE.
On July 13, 2005, Stephanie Hoyt was driving her car with three passengers. She improperly attempted to cross both southbound lanes of traffic on Interstate 35 from the shoulder of the road and was hit broadside by a semi-truck/trailer. She was killed instantly and her passengers - Genevie Gold, Sharon Wright, and Rachel Kannaday (plaintiff/garnishor) - were very seriously injured.
At the time of the accident Hoyt was insured by GEICO Indemnity Company with a policy which had bodily injury liability limits of $25, 000 per person and $50, 000 per accident. It quickly became apparent that each of the passengers' medical expenses would far exceed the policy limits. The Estate of Stephanie Hoyt had no assets other than the coverage provided by the GEICO insurance policy.
On August 11, 2005, GEICO advised Ms. Hoyt's father that the liability resulting from the accident would far surpass the policy limits. On October 5, 2005, counsel for Ms. Gold proposed that the $50, 000 per accident limit of the policy be divided equally among the three passengers. GEICO did not respond to this proposal. On November 4, 2005, GEICO made the following offers: a $25, 000 settlement to Ms. Gold; a $12, 500 settlement to Ms. Wright; and a $12, 500 settlement to Ms. Kannaday. The offer to Ms. Gold was accepted. In December 2005, the $12, 500 offer to Ms. Kannaday was repeated by GEICO telephonically and in writing.
On January 19, 2006, plaintiff's attorney (Paul Hasty) sent his initial demand letter requesting the $25, 000 policy limits. The letter alleged that plaintiff was the most seriously injured passenger in the Hoyt vehicle. This demand was declined in a letter dated February 22, 2006 written by counsel for GEICO. GEICO again offered to settle plaintiff's claims for $12, 500. Plaintiff's counsel reiterated the demand for $25, 000 in a letter dated February 24, 2006. On February 27, 2006, Hasty sent a letter withdrawing the $25, 000 policy limits demand. The same law firm representing GEICO was assigned by GEICO to represent the Estate of Stephanie Hoyt.
On March 17, 2006, plaintiff petitioned for the appointment of Charles Ball as the Special Administrator of the Estate of Stephanie Hoyt. Also on March 17, 2006, plaintiff filed suit against the Estate of Stephanie Hoyt in Wyandotte County District Court. Ball was appointed Special Administrator on May 4, 2006.
On March 23, 2006, GEICO, represented by the same attorney as was representing the Hoyt Estate, filed an interpleader action before Judge Marten in federal district court for the District of Kansas, naming plaintiff, Ms. Wright, and the truck driver and truck company involved in the accident, as potential lien claimants to the proceeds of the insurance policy GEICO issued to Hoyt. On February 21, 2008, Judge Marten awarded GEICO's $25, 000 (the remainder of the ...