Mt. Hawley Insurance Company v. Sheila O. Aninipok also known as Sheila Moiani, Independent Executor of the Estate of Nenita A. Montgomery, Deceased

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MT. HAWLEY INSURANCE
COMPANY,
Plaintiff,
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v. 	CIVIL ACTION NO. 4:24-cv-5001
SHEILA O. ANINIPOK ALSO
KNOWN AS SHEILA MOIANI,
INDEPENDENT EXECUTOR OF
THE ESTATE OF NENITA A.
MONTGOMERY, DECEASED,
Defendant.
MEMORANDUM AND RECOMMENDATION
Pending before the Court1 is Defendant Sheila O. Aninipok’s, also known
as 	Sheila 	Moiani, 	Independent 	Executor 	of 	the 	Estate 	of 	Nenita 	A.
Montgomery, 	Deceased 	(“Defendant” 	or 	“Aninipok”) 	Motion 	for 	Partial
Summary Judgment (ECF No. 13), Plaintiff Mt. Hawley Insurance Company’s
(“Plaintiff” or “Mt. Hawley”) Motion for Summary Judgment (ECF No. 15), and
Defendant’s Motion for Summary Judgment (ECF No. 16). Based on a review
of the motions, arguments, and relevant law, the Court RECOMMENDS
Plaintiff’s 	Motion 	for 	Summary 	Judgment 	(ECF 	No. 	15) 	be 	GRANTED,
1 This case was referred to the Undersigned for all purposes pursuant to 28 U.S.C.
§ 636(b)(1)(A) and (B) and Federal Rule of Civil Procedure 72. (ECF No. 14).
United States District Court
Southern District of Texas
ENTERED
February 02, 2026
Nathan Ochsner, Clerk
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Defendant’s Motion for Summary Judgment (ECF No. 16) be DENIED, and
Defendant’s Partial Motion for Summary Judgment (ECF No. 13) be DENIED
AS MOOT.
I. 	Background
This case arises from a state court action for personal injury claims.
(ECF No. 1). On November 9, 2020, Nenita Montgomery (“Montgomery”) filed
an Original Petition in the 157th Judicial District Court, Harris County, Texas,
Cause No. 2020-72084 (the “Underlying Lawsuit”) against Greater Houston
Transportation Company (“GHTC”). (See ECF No. 15-2). Later, on March 29,
2021, Montgomery filed her First Amended Original Petition and added Dawit
Afewerki (“Afewerki”) as a Defendant. (See ECF No. 15-4).
Montgomery alleged she sustained injuries in an accident on January 2,
2020, 	when 	taxicab 	driver 	Afewerki, 	while 	acting 	in 	the 	course 	of 	his
employment with GHTC, negligently dropped Montgomery onto her front
porch while transporting Montgomery in a wheelchair from a taxicab to the
front door of Montgomery’s home. (See ECF No. 15-8 at 2–3).
GHTC filed its Original Answer on December 14, 2020. 	(See ECF No.
15-6 at 2). 	Afewerki never filed an answer or otherwise responded in the
Underlying Lawsuit. (See ECF No. 15-6 at 2).
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On July 19, 2021, Texas Taxi, Inc. and its affiliates, including GHTC,
filed petitions for relief under Chapter 11 of the U.S. Bankruptcy Code in the
U.S. Bankruptcy Court for the Southern District of Texas, which then ordered
proceedings to be jointly administered in Case No. 6:21-bk-60065 (CML) (the
“Bankruptcy”). (See ECF No. 15-14). As a result, the Underlying Lawsuit was
stayed under 11 U.S.C. § 362. (See ECF No. 15-16).
On October 28, 2021, Montgomery filed an Agreed Motion to Allow
Lifting of Bankruptcy Stay to the Extent of Applicable Insurance. 	(ECF No.
15-15). The next day, the Bankruptcy Court entered an Agreed Order granting
Montgomery relief from the automatic stay of 11 U.S.C. § 362. 	(ECF No. 15-
16). 	The Agreed Order stated that Montgomery could continue the litigation
in the Underlying Lawsuit. (See id. at 1).
On April 4, 2022, Montgomery filed a Third Amended Complaint, which
alleged Afewerki had been served with citation and a copy of the lawsuit but
had not appeared or filed an Answer. 	(See ECF No. 15-8 at 2). 	On the same
day, the court in the Underlying Lawsuit entered an Order granting a Motion
to 	Withdraw 	filed 	by 	counsel 	for 	GHTC, 	which 	left 	GHTC 	without
representation in the Underlying Lawsuit. (See ECF No. 15-7).
On July 21, 2022, Montgomery filed a Motion for Summary Judgment
and No Evidence Motion for Summary Judgment seeking judgment as a matter
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of law against GHTC for damages sustained in the January 2, 2020 incident.
(See ECF No. 15-9). 	GHTC did not file a response. 	(See ECF No. 15-6 at 2).
On August 19, 2022, the court in the Underlying Lawsuit filed an order
granting Montgomery’s motion for summary judgment, finding GHTC was
negligent as a matter of law, through the actions of its employee Afewerki, and
that the negligence was a proximate cause of the injuries and damages
sustained by Montgomery (the “Interlocutory Summary Judgment Order”).
(See ECF No. 15-10 at 1–2). 	The state court docket sheet refers to this order
as an “Order for Interlocutory Summary Judgment Signed.” (ECF No. 15-6 at
2).
On February 24, 2023, the court in the Underlying Lawsuit filed a Notice
of Intent to Dismiss – No Answer Filed (the “Notice”). 	(See ECF No. 15-11).
The Notice advised all counsel and pro se parties that “no answer ha[d] been
filed” and the case would be dismissed for want of prosecution unless, by April
3, 2023, either (1) a meritorious motion for default judgment was filed and
heard by oral hearing or written submission or (2) an answer was filed. (Id. at
1). 	The Notice further advised that if neither was done, a verified motion to
retain the case would be necessary to avoid dismissal at an oral hearing set for
April 3, 2023. 	(Id.). 	Finally, the Notice stated that a failure to appear at the
hearing would result in dismissal for want of prosecution. (Id.).
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No response to the Notice was filed. (See ECF No. 15-6 at 2–3). As such,
on April 26, 2023, the court in the Underlying Lawsuit entered an Order of
Dismissal (the “Order of Dismissal”). (ECF No. 15-12). The Order of Dismissal
stated, “For failure to comply with the notice dated February 24, 2023, Texas
Rules of Civil Procedure 165a, the case styled above is ordered DISMISSED
FOR WANT OF PROSECUTION. 	Costs of court are assessed against the
plaintiff(s).” (Id. at 1).
On or about June 11, 2023, Montgomery passed away. 	(See ECF No. 1-
1).
On July 18, 2023, Counsel for Montgomery called and emailed GHTC
and Mt. Hawley, as the insurance company for GHTC. 	(ECF No. 13-15). 	In
the email, Counsel for Montgomery attached copies of Montgomery’s “First
Amended Original Petition and the signed Final Judgment.” 	(Id. at 1).
Defendant states there was no response to the email or phone call. 	(See ECF
No. 13 at 4).
On September 23, 2024, the County Court at Law Number Four of Fort
Bend 	County, 	Texas 	in 	case 	number 	24-CPR-040899 	signed 	an 	Order
Admitting Will to Probate and Granting Letters Testamentary Pursuant to
Texas 	Estates 	Code 	Section 	401.002(a) 	appointing 	Aninipok 	independent
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executor of the Estate of Nenita A. Montgomery, Deceased. 	(See ECF No. 15-
13).
On 	December 	4, 	2024, 	Counsel 	for 	Montgomery 	sent 	an 	email 	to
Plaintiff’s counsel with a letter attached that demanded payment. 	(See ECF
No. 13-16). 	On December 19, 2024, Plaintiff filed the instant lawsuit. 	(See
ECF No. 1). Plaintiff’s Complaint seeks a declaratory judgment stating:
1. “[T]he 	Order 	of 	Dismissal 	vacated 	the 	Interlocutory 	Summary
Judgment 	against 	GHTC 	and 	dismissed 	all 	claims 	Montgomery
asserted in the Underlying Lawsuit.”
2. “[N]either Montgomery nor Aninipok is a judgment creditor with
standing to seek recovery against Mt. Hawley under the Mt. Hawley
Policy.”
3. “[T]he 	Mt. 	Hawley 	Policy 	does 	not 	provide 	coverage 	for 	the
Interlocutory 	Summary 	Judgment 	entered 	in 	the 	Underlying
Lawsuit; that Mt. Hawley has no obligation to indemnify for or to
satisfy 	the 	Interlocutory 	Summary 	Judgment 	entered 	in 	the
Underlying Lawsuit or to pay any amount to Aninipok, Independent
Executor of the Estate of Nenita A. Montgomery, Deceased, under the
Mt. Hawley Policy.”
(Id. at 13–14). 	The parties have since filed motions for summary judgment.
(See ECF Nos. 13, 15–16).
II. 	Legal Standard
Motions for summary judgment are governed by Federal Rule of Civil
Procedure (“Rule”) 56. 	Rule 56(a) instructs the Court to “grant summary
judgment if the movant shows that there is no genuine dispute as to any
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material fact and the movant is entitled to judgment as a matter of law.” 	See
Nall v. BNSF Ry. Co., 917 F.3d 335, 340 (5th Cir. 2019). “Summary judgment
is appropriate ‘if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits, if any, 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.’” Talasek v. Nat’l Oilwell Varco, L.P., 16 F.4th
164, 168 (5th Cir. 2021) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986)). A material fact is one that “might affect the outcome of the suit under
the governing law.” 	Bazan ex rel. v. Hidalgo Cty., 246 F.3d 481, 489 (5th Cir.
2001) (emphasis omitted); see Aguirre v. City of San Antonio, 995 F.3d 395, 406
(5th Cir. 2021). 	“An issue is ‘genuine’ if it is real and substantial, as opposed
to merely formal, pretended, or a sham.” 	Bazan, 246 F.3d at 489 (emphasis
omitted). 	The Court must view the evidence in a light most favorable to the
nonmovant. Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir.
1997).
The movant is tasked with the initial burden of informing the Court of
the basis for the motion and pointing to relevant excerpts in evidence that
demonstrate the absence of genuine issues of material fact. See Coastal Agric.
Supply, Inc. v. JP Morgan Chase Bank, N.A., 759 F.3d 498, 505 (5th Cir. 2014)
(quoting Celotex Corp., 477 U.S. at 323). The movant may also argue that the
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nonmovant failed to produce evidence in support of at least one element of a
cause of action for which he bears the burden of proof. 	See Austin v. Kroger
Tex., L.P., 864 F.3d 326, 335 (5th Cir. 2017).
If the movant satisfies the initial burden, it shifts to the nonmovant who
must produce evidence of a genuine factual dispute; he may not merely rest on
the allegations in his pleading. 	See Coastal Agric. Supply, Inc., 759 F.3d at
505 (quoting Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir.
2005)). The Court should not accept “[u]nsubstantiated assertions, improbable
inferences, 	[or] 	unsupported 	speculation” 	as 	sufficient 	to 	carry 	the
nonmovant’s burden. 	Brown v. City of Houston, Tex., 337 F.3d 539, 541 (5th
Cir. 2003). However, where there is evidence of a genuine factual dispute, such
disputes 	are 	resolved 	in 	favor 	of 	the 	nonmoving 	party 	“when 	an 	actual
controversy exists, that is, when both parties have submitted evidence of
contradictory facts.” 	Olabisiomotosho v. City of Houston, 185 F.3d 521, 525
(5th Cir. 1999); McCarty v. Hillstone Rest. Grp., Inc., 864 F.3d 354, 358 (5th
Cir. 2017). 	Further, a genuine issue of material fact exists “if 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); Baker v. Coburn, 68
F.4th 240, 244 (5th Cir. 2023), as revised (May 19, 2023).
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III. 	Discussion
Plaintiff moves for summary judgment, arguing (1) Aninipok does not
hold a valid, final judgment against GHTC, and therefore cannot recover any
amount from Mt. Hawley; (2) GHTC’s failure to pay the self-insured retention
and the corridor self-insured retention amounts is fatal to any claim for
coverage; and (3) GHTC’s failure to take reasonable steps to avoid or minimize
liability 	in 	the 	Underlying 	Lawsuit 	provides 	an 	independent 	basis 	for
summary judgment. 	(See ECF No. 15 at 20–31). 	Defendant also moves for
summary judgment, arguing (1) the state district court judgment is a final
judgment and (2) Mt. Hawley has a contractual duty to pay the judgment.2 (See
ECF No. 16 at 3–10). With no material factual disputes, the question becomes
whether either party is entitled to judgment as a matter of law.
As an initial matter, “[a] summary judgment [order] which does not
dispose of all parties and issues is interlocutory and not appealable.” 	Aguilar
v. Maverick Eng’g Co., 752 S.W.2d 727, 728 (Tex. App.—Corpus Christi–
Edinburg 1988, no writ); see City of Beaumont v. Guillory, 751 S.W.2d 491, 492
(Tex. 1988) (“A summary judgment that fails to dispose expressly of all parties
2 Defendant filed a Partial Motion for Summary Judgment (ECF No. 13) and Motion
for Summary Judgment and Response to Plaintiff’s Motion for Summary Judgment (ECF No.
16). Because Defendant’s arguments in her Partial Motion for Summary Judgment (ECF No.
13) are reiterated in her later filed Motion for Summary Judgment (ECF No. 16), the Court
RECOMMENDS Plaintiff’s Partial Motion for Summary Judgment (ECF No. 13) be
DENIED AS MOOT.
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and issues in the pending suit is interlocutory and not appealable unless a
severance of that phase of the case is ordered by the trial court.”).
When a trial court grants an interlocutory summary judgment, but later
orders dismissal of the entire case for want of prosecution, Texas Courts of
Appeals explain that the trial court’s judgment of dismissal sets aside the
terms of any interlocutory summary judgment. 	See Anderson v. Jamin, No.
09-24-cv-006, 2024 WL 3448744, at *2 (Tex. App.—Beaumont July 18, 2024,
no pet.) (collecting cases); Johnson v. Sprint Transp., Inc., No. 01-90-cv-1139,
1994 WL 109474, at *4 (Tex. App.—Houston [1st Dist.] Mar. 31, 1994, writ
dism’d w.o.j.) (“The trial court’s judgment of dismissal set aside the terms of
any 	interlocutory 	summary 	judgment.”); 	Aguilar, 	752 	S.W.2d 	at 	728
(overruling the challenge of an interlocutory summary judgment and affirming
a later dismissal for want of prosecution because the trial court granted the
interlocutory summary judgment, the subsequent dismissal order dismissing
the entire case was the appealable order, but plaintiff failed to raise an issue
or complaint as to the dismissal order); Dickson & Assocs. v. Brady, 530 S.W.2d
886, 888 (Tex. App.—Houston [1st Dist.] 1975, no writ) (finding that where an
interlocutory summary judgment was granted on plaintiff’s cause, but a year
later the entire cause was dismissed for want of prosecution, an order of
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dismissal set aside summary judgment). 	As explained by the First Court of
Appeals:
It 	is 	the 	well 	settled 	rule 	in 	Texas, 	with 	certain 	statutory
exceptions not here involved, that an appeal will lie only from a
final judgment, and that a judgment in order to be final must
dispose of all parties and of all issues involved in the suit. Prior to
the time a judgment becomes final, the court has plenary power
over it and may, on its own motion or on motion of a party, vacate,
modify, correct or reform it, according to the justice of the case.
The entry of a final judgment inconsistent in its terms with a prior
interlocutory judgment operates to set aside the interlocutory
judgment as a necessary result of the application [sic] of the rule
that only one final judgment may be entered in a case. 	The fact
that an interlocutory judgment was rendered has no limiting effect
on the final judgment actually entered.
Dickson & Assocs., 530 S.W.2d at 887–88 (internal citations omitted).
Here, the trial court granted an interlocutory summary judgment (ECF
No. 15-10 at 1–2) but later dismissed the case for want of prosecution (ECF No.
15-12 at 1). 	“Since the trial court’s order dismissed the entire cause and did
not carry forward into a final judgment the terms of the interlocutory order,
the resulting effect of the order of dismissal was to set aside the interlocutory
judgment against appellant and to dismiss the entire cause.” 	Dickson &
Assocs., 530 S.W.2d at 888; see Aguilar, 752 S.W.2d at 728 (“[The appellate
court] 	cannot 	presume 	the 	intent 	of 	the 	trial 	court 	to 	dismiss 	only 	the
remaining actions for want of prosecution” when the dismissal order does not
explicitly say as such).
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Aninipok argues that the Interlocutory Summary Judgment Order is a
final judgment because it disposed of all claims and all parties. 	(ECF No. 16
at 7). 	As such, Aninipok argues “there was nothing to sever.” 	(Id.). 	In
response, 	Mt. 	Hawley 	contends 	that 	Aninipok 	“fails 	to 	explain 	how 	the
Interlocutory Summary Judgment Order that granted a motion for summary
judgment against only GHTC ─ and not against Afewerki ─ could have possibly
disposed 	of 	all 	claims 	and 	parties 	in 	the 	Underlying 	Lawsuit, 	including
Montgomery’s claims against Afewerki.” (ECF No. 18 at 10). The Court agrees
with Mt. Hawley. 	In Montgomery’s Third Amended Petition, a negligent
undertaking cause of action was asserted against Afewerki3 (ECF No. 15-8 at
3). 	However, that claim is not addressed in the Interlocutory Summary
Judgment Order. (See ECF No. 15-10 at 1–2).
Further, Mt. Hawley argues “if the court intended the interlocutory order
to dispose of all parties and claims, the subsequent Notice and Order of
Dismissal would not have been necessary.” 	(ECF No. 18 at 11). 	Again, the
Court agrees with Mt. Hawley.
Aninipok also argues the Order of Dismissal is void because of “GHTC’s
ongoing bankruptcy and the automatic stay under the Bankruptcy Code.”
3 In Montgomery’s Third Amended Complaint, she alleges Afewerki had been served
with citation and a copy of the lawsuit but had not appeared or filed an Answer. (See ECF
No. 15-8 at 2).
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(ECF No. 16 at 7). 	Mt. Hawley responds that this argument is frivolous,
stating that “the summary judgment evidence conclusively establishes that the
bankruptcy stay was lifted specifically to permit the Underlying Lawsuit to
proceed.” 	(ECF No. 18 at 12). 	Mt. Hawley is correct, as the Order lifting the
automatic stay specifically states that Montgomery could continue to litigate
in the Underlying Lawsuit. (See ECF No. 15-16 at 1).
Because the Order of Dismissal set aside the Interlocutory Summary
Judgment Order, Montgomery did not ultimately attain a final judgment
against GHTC. As such, Aninipok is not entitled to recover from Mt. Hawley.
In light of this, the Court need not reach Plaintiff’s arguments regarding
GHTC’s failure to (1) pay the self-insured retention and the corridor self-
insured retention amounts or (2) take reasonable steps to avoid or minimize
liability in the Underlying Lawsuit.
IV. 	Conclusion
Based on the foregoing, the Court RECOMMENDS Plaintiff’s Motion
for Summary Judgment (ECF No. 15) be GRANTED, Defendant’s Motion for
Summary Judgment (ECF No. 16) be DENIED, and Defendant’s Partial
Motion for Summary Judgment (ECF No. 13) be DENIED AS MOOT.
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Should this Memorandum and Recommendation be adopted by the
District Judge, the Court recommends an Order be entered with the following
language:
1. The 	Order 	of 	Dismissal 	vacated 	the 	Interlocutory 	Summary
Judgment 	against 	GHTC 	and 	dismissed 	all 	claims 	Montgomery
asserted in the Underlying Lawsuit;
2. Neither 	Montgomery 	nor 	Aninipok 	is 	a 	judgment 	creditor 	with
standing to seek recovery against Mt. Hawley under the Mt. Hawley
Policy; and
3. The Mt. Hawley Policy does not provide coverage for the Interlocutory
Summary Judgment entered in the Underlying Lawsuit. 	Further,
Mt. Hawley has no obligation to indemnify for or to satisfy the
Interlocutory Summary Judgment entered in the Underlying Lawsuit
or to pay any amount to Aninipok, Independent Executor of the Estate
of Nenita A. Montgomery, Deceased, under the Mt. Hawley Policy.
(See ECF No. 1 at 13–14).
The Clerk shall send copies of this Memorandum and Recommendation
to the respective parties who have fourteen days from the receipt thereof to file
written objections thereto pursuant to Federal Rule of Civil Procedure 72(b)
and General Order 2002-13. Failure to file written objections within the time
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period mentioned shall bar an aggrieved party from attacking the factual
findings and legal conclusions on appeal.
SIGNED in Houston, Texas on February 2, 2026.
______________________________
Richard W. Bennett
United States Magistrate Judge
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