Am. Safety Ins. Co. v. Page's Thieves Mkt., Inc.
| Decision Date | 22 August 2016 |
| Docket Number | C.A. No.: 2:15-cv-3266-PMD |
| Court | U.S. District Court — District of South Carolina |
| Parties | American Safety Insurance Co., Plaintiff, v. Page's Thieves Market, Inc., and James A. Parker, Defendants. |
This matter is before the Court on Plaintiff American Safety Insurance Co.'s motion for summary judgment (ECF No. 16), Defendant Page's Thieves Market, Inc.'s motion to exclude American Safety's expert witness (ECF No. 18), Defendant James Parker's motion for leave to file a sur-reply (ECF No. 37), and American Safety's motion to exclude the defense's expert witness (ECF No. 39). For the reasons stated herein, the Court grants summary judgment for American Safety, finds the two expert witness motions moot, and denies Parker's motion.
This is a declaratory judgment action arising out of injuries that Parker suffered while working for Page's in 2013. Parker has sued Page's in state court for his injuries. American Safety asks this Court to rule it has no duty to defend or indemnify Page's, its insured, in that lawsuit.
Page's is auction business in Mount Pleasant, South Carolina. For several years, Page's purchased liability insurance from American Safety. The policy it bought for 2013 provides that American Safety "will pay those sums that [Page's] becomes legally obligated to pay as damages because of 'bodily injury' . . . to which this insurance applies." (Compl., Ex. C, Ins. Policy, ECF No. 1-3, at 4 (emphasis added)). The insurance "does not apply to" several types of bodily injury, including injuries sustained by "[a]n 'employee' of [Page's] arising out of and in the course of: (a) Employment by [Page's]; or (b) Performing duties related to the conduct of [Page's] business." (Id. at 5.)
The sole issue presented in this case is whether the policy's employee exclusion applies. The policy states that the term "'[e]mployee' . . . does not include a 'temporary worker.'" (Compl., Ex. C, Ins. Policy, ECF No. 1-3, at 16.) It then defines "temporary worker" as "a person who is furnished to [Page's] to substitute for a permanent 'employee' on leave or to meet seasonal or short-term workload conditions." (Id. at 18.) The parties dispute whether Parker was a temporary worker or an employee.
Parker worked for Page's from 2010 to 2013. He performed a variety of tasks, including yard work, merchandise delivery and pickup, and communication with customers. Parker did not, however, work scheduled hours or a set number of hours per week or month. Rather, in 2012 and 2013, and possibly in other years, Page's paid him a monthly retainer and called him in to work when it needed his "extra assistance." (E.g., Pl.'s Mot. Summ. J., Ex. 7, Parker's Answers Pl.'s Interrogs., ECF No. 16-8, at 5.) When he worked, Page's paid him by the hour. The hours he worked on a given day varied "depending on the nature and difficulty of the job requested of him." (Id.) The record indicates Parker worked at least 1,243 hours in 2012 and 1,080 hours in the first nine months of 2013.
Parker's work arrangement with Page's continued until September 26, 2013, when Page's instructed Parker to cut down a tree on its property. As he was performing that task, the tree fell onto him, crushing his back and paralyzing him.
In June 2015, Parker filed a lawsuit in state court alleging Page's negligence caused his injuries. American Safety retained counsel to defend Page's, but it also reserved its right to later deny coverage based on the policy's employee exclusion.
American Safety filed this action in August 2015. As mentioned above, it seeks a declaratory judgment that it has no duty to defend or indemnify Page's for Parker's injuries because Parker was Page's employee. Page's and Parker both filed answers, and Parker also asserted a counterclaim seeking a declaratory judgment that Page's has coverage because he was merely a temporary worker when he was injured.
Following discovery, American Safety moved for summary judgment. Page's and Parker each filed two responses in opposition. Additionally, Page's moved to exclude expert evidence on which American Safety relied in its summary judgment motion. American Safety filed a response to Page's motion, as well as replies to the defendants' briefs opposing summary judgment. Finally, Parker moved for leave to file a sur-reply to American Safety's summary judgment reply brief. The motions are therefore ripe for consideration.
Before the Court discusses the substance of American Safety's motion, it first addresses several issues affecting what materials it has considered in its analysis of that motion.
First, one of the materials American Safety has submitted in support of its summary judgment motion is an affidavit from its expert witness. Likewise, Page's and Parker base their opposition to summary judgment in part on a report from their shared expert witness. Page's has moved to exclude American Safety's expert, and vice versa. In the Court's view, AmericanSafety is entitled to summary judgment even without its expert's affidavit, and the defense expert's report does not create a genuine issue of material fact. Accordingly, the Court need not rule on either motion. Instead, assuming arguendo that the defense has the better argument on both motions, the Court has considered the defense expert's report, but not American Safety's expert's affidavit, in its summary judgment analysis.1 The motions to exclude are therefore moot.2
Second, in an earlier order, this Court gave Page's and Parker additional time to depose American Safety's expert witness and file supplemental briefs opposing summary judgment that related only to the expert's deposition testimony. The briefs were to be filed by July 25, 2016, but neither Page's nor Parker met that deadline. Rather, Page's and Parker filed their supplemental briefs on August 4. Because they did not seek extensions of their filing deadline, the Court will not consider their briefs. See Fed. R. Civ. P. 6(b)(1)(B) .3 Consequently, the Court also will not consider American Safety's August 9 reply to those supplemental briefs.
As explained herein, the Court finds that undisputed facts in the record demonstrate Parker was not a temporary worker.
To grant a motion for summary judgment, a court must find that "there is no genuine dispute as to any material fact." Fed. R. Civ. P. 56(a). The judge is not to weigh the evidence but rather must determine if there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). All evidence should be viewed in the light most favorable to the nonmoving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 124 (4th Cir. 1990). CoreTel Va., LLC v. Verizon Va., LLC, 752 F.3d 364, 370 (4th Cir. 2014) (citations omitted). "[W]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate." Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115, 119 (4th Cir. 1991). Summary judgment is not "a disfavored procedural shortcut," but an important mechanism for weeding out "claims and defenses [that] have no factual basis." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
The parties have focused their arguments exclusively on whether Parker was a temporary worker under the insurance policy. They appear to agree, then, that Parker's status is dispositive.4 Moreover, although the policy's definition of "temporary worker" includes three categories—a person "substitut[ing] for a permanent 'employee' on leave," a person "meet[ing] seasonal . . . workload conditions," and a person "meet[ing] . . . short-term workload conditions"—the parties have discussed only whether Parker fits the last of those alternatives.Thus, the question before the Court is narrow: was Parker a person furnished to Page's to meet short-term workload conditions?
South Carolina law governs this dispute. Both sides rely principally upon the South Carolina Court of Appeals' recent decision in Canal Insurance Co. v. National House Movers, LLC. Canal Insurance involved a liability insurance policy that excluded coverage for employee injuries and that had definitions of "employee" and "temporary worker" materially identical to the ones at issue here. See 777 S.E.2d 418, 420 (S.C. Ct. App. 2015). Tracking the language of the policy's "temporary worker" definition, the Court of Appeals stated that determining whether an injured putative employee is a temporary worker is "a two-step analysis": a court must determine (1) whether the insured hired the person to meet "short-term workload conditions," and, if so, (2) whether the person was "furnished to" the insured. Id. at 421.
In Canal Insurance, the Court of Appeals concluded the injured worker's relationship to the insured satisfied both steps of that analysis. 777 S.E.2d at 421. Here, however, the record before the Court does not establish even the first step. Records and discovery responses from Page's and Parker show that Parker worked for Page's recurrently for at least two years before his injury.5 In 2012 and 2013, and possibly before that, Page's paid Parker a monthly retainer to secure Parker's availability to work as needed. Page's would call him into work whenever it had tasks for him to perform, such as yard work, merchandise pickup and delivery, moving items at the...
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