Allied Prop. & Cas. Ins. Co. v. Clean N Go, LLC
Allied Prop. & Cas. Ins. Co. v. Clean N Go, LLC
Opinion of the Court
Pending before the Court is Plaintiff Allied Property and Casualty Insurance Company's Motion for Summary Judgment (Dkt. # 22). After considering the motion, the responses, and the relevant pleadings, the Court finds that Plaintiff's motion is denied.
BACKGROUND
Defendant Clean N Go, LLC ("Clean N Go") is the named insured under a policy of insurance issued by Plaintiff Allied Property and Casualty Insurance Company ("Allied"), which is titled "Texas Business Owners Policy," and is numbered ACP BPAC7225400538 (the "Policy"). The Policy has a policy period of November 7, 2013, to November 7, 2014.
On June 16, 2014, Hector Amaya ("Amaya") was working for Clean N Go, drying vehicles at an automated car wash. Amaya claims that as he was drying a customer's vehicle that was parked in front of the automated car wash, another vehicle that was exiting the car wash pinned Amaya between the two vehicles. On February 11, 2016, a lawsuit was filed against Clean N Go in Denton County, Texas, District Court, styled Alvarez, et al. v. Spencer, et al. , No. 16-01118-431, which asserted claims of negligence and gross negligence against Clean N Go (the "Amaya litigation" or "underlying litigation"). Amaya and Elizabeth Alvarez ("Alvarez"), as next friend of Amaya, assert that Amaya suffered injuries due to Clean N Go's failure to provide and maintain a place of employment that is reasonably safe.
Allied commenced this action on February 16, 2017, seeking a declaration that it has no duty to defend Clean N Go (Dkt. # 1). On August 7, 2017, Allied filed the instant Motion for Summary Judgment (Dkt. # 22). On August 21, 2017, Defendant Clean N Go filed its response (Dkt. # 24). Defendants Amaya and Alvarez joined in on the response (Dkt. # 25). On August 30, 2017, Allied filed its reply (Dkt. # 28). On September 6, 2017, Defendants filed their sur-reply (Dkt. # 30).
LEGAL STANDARD
The purpose of summary judgment is to isolate and dispose of factually unsupported claims or defenses. See Celotex Corp. v. Catrett ,
*622Anderson v. Liberty Lobby, Inc. ,
The party moving for summary judgment has the burden to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.
ANALYSIS
Allied asserts it is entitled to summary judgment because the claims in the underlying litigation are not covered under the Policy because the policy includes an "Employer's Liability" exclusion that disclaims coverage for bodily injury to an employee acting in the course and scope of his employment for the insured. Defendants argue that the Policy expressly does not exclude all employees, specifically "temporary workers." Defendants contend that looking at the face of the state court petition (the "Petition"), it is unclear whether Amaya was an "employee" or "temporary worker" and Allied had to conclusively show that Amaya was not a "temporary worker" on the face of the Petition.
The Court must "apply Texas law as interpreted by Texas state courts." Gilbane Bldg. Co. v. Admiral Ins. Co. ,
*623Don's Bldg. Supply, Inc. v. OneBeacon Ins. Co. ,
"Under Texas law, an insurer may have two responsibilities relating to coverage-the duty to defend and the duty to indemnify." Gilbane ,
In determining whether an insurer has a duty to defend, the policyholder "bears the initial burden of showing that the claim [in the underlying action] is potentially within the insurance policy's scope of coverage." Harken Exploration Co. v. Sphere Drake Ins. PLC ,
Four Corners of the Policy
Turning to the employee exclusion, the Court looks at the language of the exclusion, which states as follows:
Section I. Coverages
A. Coverage A-Bodily Injury and Property Damage Liability
1. Insuring Agreement
a. We will pay those sums up to the applicable Limit of Insurance that the insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages for which there is coverage under this policy. However, we will have no duty to defend the insured against any "suit" seeking damages for "bodily injury" or "property damage" to which this insurance does not apply....
2. Exclusions
This insurance, including any duty we have to defend "suits", does not apply to:
...
e. Employer's Liability
"Bodily injury" to:
(1) 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; or
(2) The spouse, child, parent, brother or sister of that "employee" as a consequence of Paragraph (1) above.
This exclusion applies:
(1) Whether the insured may be liable as an employer or in any other capacity; and
(2) To any obligation to share damages with or repay someone else who must pay damages because of the injury.
(Dkt. # 22, Exhibit B at p. 66-67).
The term "Employee" is defined to include a "leased worker" but does not include a "temporary worker" (Dkt. # 22, Exhibit B at p. 82). The term "leased worker" is defined as "a person leased to you by a labor leasing firm under an agreement between you and the labor leasing firm, to perform duties related to the conduct of your business. 'Leased worker' does not include a 'temporary worker' " (Dkt. # 22, Exhibit B at p. 83). The term "temporary worker" is defined as "a person who is furnished to you to substitute for a permanent 'employee' on leave or to meet seasonal or short-term workload conditions." (Dkt. # 22, Exhibit B at p. 85).
Having reviewed the four corners of the policy, the Court now turns to the facts alleged in the four corners of the underlying Petition.
Four Corners of the Petition
"Texas law requires [the Court] to consider the allegations in the complaint along with any reasonable inferences that flow from the facts alleged." Liberty Mut. Ins. Co. v. Graham ,
Where the complaint does not state facts sufficient to clearly bring the case within or without the coverage, the general rule is that the insurer is obligated to defend if there is, potentially, a case under the complaint within the coverage of the policy. Stated differently, in case of doubt as to whether or not the allegations of a complaint against the insured state a cause of action within the coverage of a liability policy sufficient to compel the insurer to defend the action, such doubt will be resolved in the insured's favor.
Nat'l Union Fire Ins. Co. v. Merchs. Fast Motor Lines, Inc. ,
The language in the Policy requires that in order for a claim for the underlying lawsuit to be covered under the Policy, Amaya must have been a "temporary worker" and not an "employee" as defined by the Policy. The underlying Petition states:
On or about June 16, 2014, Plaintiff Amaya, a minor at the time, was working at the Clean N Go Car Wash. In the course and scope of his employment, the Plaintiff was drying a customer's vehicle directly in front of the company's automated car wash, as instructed by his supervisor.... [A customer's vehicle exited] the automated car wash and continued traveling forward, pinning the Plaintiff between two vehicles and causing him serious and permanent injury.
(Dkt. # 1, Exhibit A at p. 2-3).
Allied contends that absent any allegation that Amaya qualifies as a "temporary worker," there are no facts in the Petition to impose a duty to defend. However, the cases cited by Allied are distinguishable. The polices in both Nautilus Ins. Co. v. Home Remedy Servs., LLC , and Cincinnati Specialty Underwriters Ins. Co. v. Juan Francisco Chajon , broadly defined "employee" without limitations. No. H-09-3508,
In Home Remedy , the insurance policy contained an identical employee exclusion but defined "employee" as "any person or persons who provides services directly or indirectly to any insured, regardless of whether the services are performed or where the 'bodily injury' occurs including, but not limited to, ... a contractor, a subcontractor, an independent contractor, and any person or persons hired by, loaned to, employed by, or contracted by any insured or any insured's contractor, subcontractor, or independent contractor."
In Chajon , the issue was whether the injured workers were "employee[s]" under the policy and, thus, excluded from coverage, or whether they were independent contractors.
The policy in this case does not include such a broad definition of "employee." The term "Employee" includes a "leased worker" but does not include a "temporary worker".
In JNJ Logistics, L.L.C. v. Scottsdale Ins. Co., the Western District of Tennessee has addressed an identical employee exclusion provision, which expressly exempted a "temporary worker" from the exclusion. No. 2:10-cv-02741-JPM,
In JNJ Logistics , the relevant policy did not define the term "employee" but stated " 'Employee' includes a 'leased worker'. 'Employee' does not include a 'temporary worker.' " Id. at *8. The definitions of "leased worker" and "temporary worker" are identical to this case. While the underlying plaintiff, Grove, alleged that he was the "borrowed servant" of the insured, none of the underlying allegations, if taken as true, would definitively establish whether Grove was or was not a "temporary worker" and, thus, a class of "employee" still covered by the policy. Id. at *8-10. According to the district court, applying the same "eight-corners" rule that applies in Texas:
Although the Amended Third-Party Complaint arguably states Grove was JNJ Logistics's employee via the "borrowed servant" doctrine, there are not sufficient facts to indicate that Grove was not a "temporary worker," and therefore excluded from the Employer's Liability Exclusion in the insurance policy. As a result, it is not definitively clear from the face of the Amended Third-Party Complaint whether Grove is covered. Therefore, the Policy arguably covered those claims. [citations omitted]. Having found the Amended Third-Party Complaint arguably stated a claim that was covered by the Policy, Scottsdale's duty to defend was triggered. [citation omitted].
Id. at *11.
The allegations in the present Petition only indicate to the Court that Amaya was acting within the scope of his employment when the incident occurred and it is unclear from the Petition whether or not Amaya was a temporary employee. The Petition does not use the term "temporary employee" in reference to Amaya. Instead, the Petition states that Clean N Go was negligent in failing to maintain a safe place of employment for "its employees." The Petition does not contain factual allegations to conclusively establish that Amaya was not a temporary employee.
From the facts eligible for consideration under the "eight-corners" rule, and despite the allegation that Amaya was working for Clean N Go in the course and scope of his employment, it would not be unreasonable *627for the Court to assume that Amaya was a "temporary employee" and not an employee as defined by the Policy. Taking the facts as pleaded in the Petition, the Court finds Allied owes a defense to Clean N Go.
CONCLUSION
It is therefore ORDERED that Plaintiff Allied Property and Casualty Insurance Company's Motion for Summary Judgment (Dkt. # 22) is hereby DENIED .
IT IS SO ORDERED .
Reference
- Full Case Name
- ALLIED PROPERTY AND CASUALTY INSURANCE COMPANY v. CLEAN N GO, LLC, Seung Song, Elizabeth Alvarez, Individually and as Next Friend of Hector Amaya, and Hector Amaya
- Cited By
- 1 case
- Status
- Published