Accident Ins. Co. v. Classic Bldg. Design, LLC
| Decision Date | 07 September 2012 |
| Docket Number | CIVIL ACTION NO. 2:11cv33KS-MTP |
| Parties | ACCIDENT INSURANCE COMPANY PLAINTIFF v. CLASSIC BUILDING DESIGN, LLC, et al. DEFENDANTS |
| Court | U.S. District Court — Southern District of Mississippi |
This matter is before the Court on Accident Insurance Company's ("AIC") Motion for Order Declaring Rights and for Clarification ("Motion for Declaration") [148]; Robert D. Brewer and Classic Building Design, LLC's ("Classic") Motion for Summary Judgment on Crossclaims [149] and Motion in Limine to Exclude Expert Testimony of James R. Neal on Issues of Breach and Causation ("Motion in Limine") [151]; and Martha Pace's Motion to Strike AIC's Rebuttal and Amended and Revised Rebuttal ("Motion to Strike AIC's Rebuttal") [168] and Motion to Strike Supplement to Motion for Summary Judgment and Rebuttal Memorandum Brief Filed by Brewer and Classic ("Motion to Strike Supplement") [169]. Having considered the submissions of the parties, the record and the applicable law, the Court finds that: 1) Brewer and Classic's Motion in Limine [151] should be granted in part and denied in part; 2) Martha Pace's Motion to Strike Supplement [169] should be denied; 3) Brewer and Classic's Motion for Summary Judgment on Crossclaims [149] should be granted; 4) Martha Pace's Motion to Strike AIC's Rebuttal [168] should be denied as moot; and 5) AIC's Motion for Declaration [148] should be denied as moot.
Martha Pace's residence was constructed by Classic in 2005. On or aboutFebruary 26, 2010, Pace was struck in the head by a light fixture that fell from her bathroom ceiling. On March 9, 2010, Pace's attorney sent Robert D. Brewer, Classic's sole member, correspondence advising of the incident and alleging that the light fixture was not properly installed when the house was built. (See March 9, 2010 Letter [1-2].) The letter from Pace's counsel requested that Brewer's liability insurer contact him within ten (10) days in order to avoid litigation.
Classic subsequently demanded coverage from AIC regarding Pace's claim under a commercial general liability insurance policy with effective dates being March 13, 2009, through March 13, 2010 (the "Policy"). On February 16, 2011, AIC forwarded a reservation of rights letter to Classic. (See February 16, 2011 Letter [8-2].)
On February 17, 2011, AIC filed its Complaint for Declaratory Judgment [1], requesting, inter alia, an order declaring that the Policy does not provide coverage for Pace's claims against Classic. The Complaint named Classic and Pace as Defendants. Jurisdiction was asserted on the basis of diversity of citizenship under 28 U.S.C. § 1332.
On March 18, 2011, Classic filed its Answer and Defenses to Complaint and Counterclaim [5]. Through its counterclaim, Classic requested a declaration that AIC has a duty to defend and indemnify Classic with respect to Pace's claims. Classic also sought compensatory and punitive damages as a result of AIC's alleged bad faith in including a Contractors Special Condition endorsement in the Policy, and due to AIC refusing to defend and indemnify Classic. The Court subsequently dismissed Classic's request for punitive damages without prejudice. (See Order [25] at p. 9.)
On March 22, 2011, Martha Pace filed her Answer, Counter-Complaint and Cross-Complaint [6]. Pace alleged that she suffered personal injury as a result of the lightfixture falling from her bathroom ceiling and striking her head. She further alleged that Classic negligently and improperly installed the light fixture, and that Classic was negligent in screening, training and supervising workers on the job site. (See Answer [6] at p. 9.)
On June 9, 2011, the Court, sua sponte, ordered any party seeking to address the issue of possible bifurcation between the liability issues on Pace's crossclaim and the coverage issues under the Policy to file a memorandum of law. (See Order [38].) Also on June 9, Classic filed a Third-Party Complaint [39] against Danny Wilks and Danny Wilks Insurance Agency, LLC (hereinafter collectively referred to as "Wilks"). Classic stated that the Policy was procured through Wilks. (See Third-Party Complaint [39] at & 7.) Classic alleged that Wilks was negligent in the procurement of the Policy since AIC contended the Policy does not cover the claims for which Classic specifically sought coverage. (See Third-Party Complaint [39] at & 10.)
On July 18, 2011, Pace filed a Third Party Complaint [54] against Robert D. Brewer. Pace alleged that the light fixture was installed by Brewer "individually, and in his capacity as owner of Classic . . . ." (See Third Party Complaint [54] at & 7.) Pace further made the same claims against Brewer that she had previously made against Classic. (Compare Answer [6] at p. 9, with Third Party Complaint [54] at & 8.)
On August 5, 2011, Brewer and Classic moved to stay proceedings on the coverage issues pending resolution of Pace's liability claims against them. (See Motion to Stay Discovery and Claims of AIC for Declaratory Relief [63].) AIC joined in the motion. (See Joinder [64].) On September 7, 2011, the Court ruled on the Motion to Stay [63] and the issue of bifurcation. (See Order [77]). The Court held that the insurance coverageclaims, included Classic's third-party claims against Wilks, would be bifurcated from Pace's crossclaims for purposes of trial. Further, Pace's crossclaims would be tried prior to the coverage action. Discovery on all issues and claims would remain consolidated and proceed on the same schedule.
On December 12, 2011, following a status conference with counsel for the parties, the Court reset several case management deadlines relevant to the subject motions. (See Order Resetting Case Deadlines [96]) (Martha Pace's expert designation deadline on crossclaims reset to March 1, 2012; Classic and Brewer's expert designation deadline regarding Pace's crossclaims reset to April 2, 2012; discovery deadline for all claims and defenses reset to June 1, 2012; and deadline for motions regarding liability on crossclaims reset to June 15, 2012).1 On March 1, 2012, Pace timely served her Designation of Experts [103], which included a signed report from James R. Neal, an electrical inspector employed by the City of Hattiesburg. (See Inspection Report [103-1].) On April 2, 2012, Classic and Brewer timely designated their expert witnesses. (See Notice of Service [110]; Designation of Experts [164-4].) On April 10, 2012, Mr. Neal was deposed and during that deposition he indicated, inter alia, that a portion of his Inspection Report no longer reflected his opinion and that the Report should have been changed. (See Neal Depo. [151-8] at 78:10-15, 81:15-19.) On July 2, 2012, Pace served Mr. Neal's Supplemental Report. (See Supplemental Report [147-1].)
On July 3, 2012, AIC filed its Motion for Declaration [148]. AIC contends that an issue central to the coverage and liability determinations is whether Mike Eubanks wasworking as an independent contractor or an employee of Classic at the time he installed the subject light fixture in Pace's residence. (See Motion for Declaration [148] at ¶ 2.) AIC requests that the Court declare that it will not be collaterally estopped from litigating the issue of Eubanks's employment status during the coverage phase of the action. Alternatively, AIC seeks an order from the Court allowing it to participate in the trial of Pace's crossclaims for the limited purpose of advancing its position that Eubanks was an independent contractor.
On July 6, 2012, Classic and Brewer filed their Motion in Limine [151] and Motion for Summary Judgment [149]. In their Motion in Limine, Classic and Brewer request that the Court strike as untimely James R. Neal's "new" opinions given at his deposition and in his Supplemental Report. Classic and Brewer further contend that Neal's initial opinion as to what caused the light fixture to fall should be excluded under Federal Rule of Evidence 702 because it is unreliable. The Motion for Summary Judgment [149] largely argues that without Neal's opinions, Martha Pace has no evidence to support the breach and causation elements of her negligence claim.
On August 6, 2012, Classic and Brewer filed a Supplement [164] to their Motion for Summary Judgment and a Rebuttal Memorandum [165] in support of summary judgment. These filings primarily address Pace's reliance on the doctrine of res ipsa loquitur in opposition to summary judgment. Pace's Motion to Strike Supplement [169] contends that Classic and Brewer's aforementioned filings improperly raise new arguments and facts in support of summary judgment.
Also on August 6, 2012, AIC filed a Rebuttal [166] and an Amended and Revised Rebuttal [167] to Pace's Response to Classic's Motion for Summary Judgment. Throughthese filings, AIC requests that the Court enter summary judgment in favor of Classic and Brewer on the basis that Mike Eubanks (the individual that AIC alleges installed the subject light fixture) was an independent contractor, as opposed to an employee of Brewer or Classic. Pace's Motion to Strike AIC's Rebuttal [168] argues that AIC's filings should be rejected because they are untimely and because neither she nor Classic has requested that the Court determine Eubanks's employment status as a matter of law.
Under Rule 26 of the Federal Rules of Civil Procedure, "a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705." Fed. R. Civ. P. 26(a)(2). As to a retained expert witness, a party's disclosure must include a written report prepared by the witness containing, inter alia, "a complete statement of all opinions the...
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