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Amerisure Insurance Company and v. Kenroy Walker

November 16, 2011

AMERISURE INSURANCE COMPANY AND AMERISURE MUTUAL INSURANCE COMPANY, PLAINTIFF,
v.
KENROY WALKER, JBI, INC., JOHN JAY BIGGIE, JR., MARIA PAREDES-BIGGIE, AND DYNAMIC MASONRY, INC., DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Seltzer

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AS TO COUNTS III AND IV

THIS CAUSE is before the Court upon Plaintiff Amerisure Mutual Insurance Company's Motion for Final Summary Judgment [DE 36], Defendants JBI, Inc., John Jay Biggie, Jr., and Maria Paredes-Biggie's Response in Opposition [DE 42], Defendant Kenroy Walker's Response in Opposition [DE 43], and Plaintiff's Reply [DE 47]. The Court has carefully considered the motion, responses, and reply, and is otherwise fully advised in the premises.

On July 5, 2011, Amerisure Mutual Insurance Company and Amerisure Insurance Company ("Plaintiffs") filed this declaratory judgment action to determine whether there is a duty to defend and/or indemnify Defendant JBI under liability insurance policies issued by Plaintiffs in connection with an underlying lawsuit filed by Defendant Kenroy Walker ("Walker") against the other Defendants in this case. Plaintiffs have filed an Amended Complaint stating various claims, each of which seeks to exclude coverage under either a Commercial General Liability ("CGL") policy or a Workers' Compensation and Employers' Liability (WC/EL) policy issued to JBI. Plaintiff Amerisure Mutual Insurance Company has moved for final summary judgment as to Counts III and IV of the Amended Complaint, which seek a declaration that Amerisure Mutual owes no duty to defend and indemnify JBI, Inc. under the CGL because Walker was an employee of JBI.

I. BACKGROUND

On August 3, 2006, while working for JBI on a construction site, Walker was directed by his supervisor, Defendant John Jay Biggie, Jr. ("Biggie"), to climb up a ladder to the top of a wall in order to put rebar into the wall. Deposition of Kenroy Walker at 181, Exhibit 20 to Plaintiffs' Notice of Filing Depositions and Discovery [DE 34-20]. Walker sat on top of the wall, which was not reinforced at that time, took the rebar as handed to him by Biggie, and placed it into the wall. Id. at 182-83. Walker had to move the ladder a few times and climb back up the wall to continue the process of placing the rebar into the wall. Id. at 185. Walker testified that: "I believe I was coming down the ladder to do the next wall when Mr. Biggie's phone rang. And I just came on down and moved the ladder from that wall to the next wall and go up on that wall to drop the rebar in and then the wall collapse." Id. at 186.

Walker received serious injuries from this incident. Walker filed several petitions for workers' compensation benefits, ultimately resulting in a settlement of his workers' compensation claim on December 10, 2008. The settlement agreement and release included a provision that the release only included the workers' compensation coverage, and Walker's rights were "not released as to the extent of any other coverage available to JBI, Inc. and/or John Bigge [sic]. . . ." Settlement Agreement and Release, p.2, Exhibit 16 to Plaintiffs' Notice of Filing [DE 34-16]. The Agreement contemplated that Walker "will be proceeding against Mr. Bigge individually and as owner/builder of the subject property and potentially against JBI, Inc. . . . and that this release shall in no way release or encumber in any way Mr. Walker's rights or claims arising from the subject accident . . . other than the specific claims/causes of actions released above." Id. at 2-3. Finally, the Agreement stated that the it does not release JBI or Amerisure Insurance Company under the GCL policy. Id. at 3.

On December 30, 2008, Walker filed suit in state court for his personal injuries. Eventually, his action included JBI, Biggie, his wife Maria Paredes-Biggie, and Dynamic Masonry, Inc. Walker alleges in his state court complaint that he "was an employee of JBI, Inc. and/or John J. Biggie, Jr., and was a business invitee on the subject premises." Third Amended Complaint (in state court action), ¶ 14, Exhibit C to Amended Complaint [DE 46-3]. The insurance policy language at issue in this declaratory judgment action states that exclusions to coverage include "any obligation of the insured under a workers' compensation, disability benefits or unemployment compensation law or any similar law." See CGL Policy, Commercial General Liability Coverage Form, Section I.2(d) [DE 46-1 at 9 of 77]. In addition, the policy excluded bodily injury to "an 'employee' of the insured arising out of and in the course of:

(a) employment by the insured; or (b) performing duties related to the conduct of the insured's business. Id., § 1.2(e)(1). This exclusion applies "whether the insured may be liable as an employer or in any other capacity." Id.

II. DISCUSSION

A. Summary Judgment Standard

The Court may grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant "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). To discharge this burden, the movant must point out to the Court that "there is an absence of evidence to support the non-moving party's case." Id. at 325.

After the movant has met its burden under Rule 56(a), the burden of production shifts and the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). According to the plain language of Federal Rule of Civil Procedure 56(e), "[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact [the Court may] grant summary judgment if the motion and supporting materials -- including the facts considered undisputed -- show that the movant is entitled to it." Fed. R. Civ. P. 56(e)(3).

At the summary judgment stage, the judge's function is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In making this determination, the Court must decide which issues are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the ...


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