American Safety Indem v. Stollings Trucking Co.
| Decision Date | 28 August 2006 |
| Docket Number | Civil Action No. 2:04-0752. |
| Citation | 450 F.Supp.2d 639 |
| Parties | AMERICAN SAFETY INDEMNITY COMPANY, Plaintiff v. STOLLINGS TRUCKING CO., INC., Defendant and Clarendon National Insurance Company, Intervenor Defendant. |
| Court | U.S. District Court — Southern District of West Virginia |
Brent K. Kesner, Sara A. Jones, Tanya M. Kesner, Kesner Kesner & Bramble, Charleston, WV, for Plaintiff.
Cheryl A. Simpson, Michael M. Fisher, Robert H. Akers, Offutt, Fisher & Nord, Charleston, WV, for Defendant.
Phillip C. Monroe, Campbell, Woods, Bagley, Emerson, McNeer & Herndon, Robert P. Martin, Bailey & Wyant, Charleston, WV, for Intervenor Defendant.
This matter is before the court on the following motions, all filed on December 23, 2005: defendant Stollings Trucking Company, Inc.'s ("Stollings") motion for summary judgment on the Murphy estate claim regarding coverage issues presented by its counterclaim; Stollings' motion for summary judgment on the Bartley claim regarding coverage issues presented by its counterclaim; Stollings' motion for summary judgment on the Nelson claim regarding coverage issues presented by the complaint and the counterclaim; plaintiff American Safety Indemnity Company's ("American Safety") motion for summary judgment (Nelson); and American Safety's motion for summary judgment (Murphy estate, Bartley, Stollings). Additionally, intervenor defendant Clarendon National Insurance Company ("Clarendon"), in filing its response to plaintiffs motion for summary judgment (Murphy estate, Bartley, Stollings), on January 6, 2006, included its cross-motion for summary judgment on the issue of priority of coverages with respect to the Bartley claims.1 This matter is before the court on coverage issues only.
A party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Material facts are those necessary to establish the elements of a party's cause of action. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue of material fact exists if, in viewing the record and all reasonable inferences drawn therefrom in a light most favorable to the non-moving party, a reasonable fact-finder could return a verdict for the non-movant. Id. The moving party has the burden of showing—"that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the movant satisfies this burden, then the non-movant must set forth specific facts as would be admissible in evidence that demonstrate the existence of a genuine issue of fact for trial. Fed.R.Civ.P. 56(c); Id. at 322-23, 106 S.Ct. 2548. A party is entitled to summary judgment if the record as a whole could not lead a rational trier of fact to find in favor of the non-moving party. Williams v. Griffin, 952 F.2d 820, 823 (4th Cir.1991).
Conversely, summary judgment is not appropriate if the evidence is sufficient for a reasonable fact-finder to return a verdict in favor of the non-moving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Even if there is no dispute as to the evidentiary facts, summary judgment is also not appropriate where the ultimate factual conclusions to be drawn are in dispute. Overstreet v. Kentucky Cent. Life Ins. Co., 950 F.2d 931, 937 (4th Cir.1991).
In reviewing the evidence, a court must neither resolve disputed facts or weigh the evidence, Russell v. Microdyne Corp., 65 F.3d 1229, 1239 (4th Cir.1995), nor make determinations of credibility. Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir.1986). Rather, the party opposing the motion is entitled to have his or her version of the facts accepted as true and, moreover, to have all internal conflicts resolved in his or her favor. Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979). Inferences that are "drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).
The West Virginia Supreme Court of Appeals instructs that the language of an insurance policy is to be interpreted by its plain meaning. Satterfield v. Erie Ins. Property and Cas., 217 W.Va. 474, 618 S.E.2d 483, 485-486 (2005). If the coverage is not intended to apply, the policy should clearly convey that insurance is not available. "An insurer wishing to avoid liability on a policy purporting to give general or comprehensive coverage must make exclusionary clauses conspicuous, plain, and clear, placing them in such a fashion as to make obvious their relationship to other policy terms, and must bring such provisions to the attention of the insured." Satterfield, 618 S.E.2d at 487 quoting syl. pt. 10, Nat'l Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W.Va. 734, 356 S.E.2d 488 (1987), overruled on other grounds by Potesta v. U.S. Fidelity & Guar. Co., 202 W.Va. 308, 504 S.E.2d 135 (1998).
American Safety filed, on July 22, 2004, its complaint for declaratory relief, asking the court to determine whether a commercial general liability policy of insurance issued by it to Stollings affords coverage for claims filed against Stollings by Mannie Ray Nelson. Stollings filed its answer and counterclaim on August 9, 2004, alleging that American Safety breached its duties to defend and indemnify Stollings with regard to Nelson's claims, and also in claims filed by Wyson Bartley and Georgia Murphy.
Clarendon provides or provided a defense to its insured, Stollings, under a reservation of rights in the Bartley and Murphy claims. (Def. Clarendon Mem. in Supp. of Mot. to Intervene at 1-2.) It filed its answer and counterclaim for declaratory relief on December 23, 2004. Clarendon, the issuer of a business auto coverage policy to Stollings, would have the court find that American Safety has the primary duty to defend and indemnify Stollings in the Bartley matter. (Clarendon Ans. and Counterclaim ¶ 4, "wherefore" clause ¶¶ 1-2.)
The commercial general liability policy of insurance issued by American Safety to Stollings was effective from June 9, 2001, through June 9, 2002. It contained "Coverage A" for "Bodily Injury and Property Damage Liability," which provided:
We will pay those sums 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. 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. We may, at our discretion, investigate any "occurrence" and settle any "claim" or "suit" that may result. But:
(1) The amount we will pay for damages is limited as described in SECTION III—Limits Of Insurance; and
(2) Our right and duty to defend end at such time when allegations potentially covered by the policy are either dropped or dismissed with prejudice, or when we have used up the applicable limit of insurance in the payment of judgments, in the payment of settlements, or in our offer to settle or tender to the potential plaintiff of the applicable limit of insurance under COVERAGES A or B, medical expenses under COVERAGE C, or any other "claim related costs". Once the applicable limit of insurance has been exhausted, we shall not be obligated to defend or continue to defend any "claim" or "suit" or pay any damages, "claim related costs" or supplementary payments ....
(Policy ASIC 98 00 04 00, Sec. I, Coverage A.) According to the declarations page of the policy, the general aggregate limit for the policy during the relevant period was $2,000,000, and the limit per occurrence was $1,000,000. The declarations page of the policy also shows that insurance is available for "products—completed operations" up to the amount of $1,000,000.
During the same time period that the commercial general liability policy was in effect, there also existed a commercial excess liability policy issued by American Safety to Stollings. The insuring agreement provided:
We will pay on behalf of the insured the "ultimate net loss" in excess of the "applicable underlying limit", which the insured becomes legally obligated to pay as damages because of "bodily injury", "property damage", "personal injury" or "advertising injury" to which this insurance and the "underlying insurance" apply.
(Policy ASIC XS 00 01 06 99, Sec. I, Coverage A and B(1)(a).) The insurer's "right and duty to defend and indemnify" under that insurance was "limited solely to damages which are payable under Coverages A or B but which are not payable by the `underlying insurance' because the `underlying insurance' has been exhausted by the payment of `claims' or suits.'" (Policy ASIC XS 00 01 06 99, Sec. I, Coverage A and B(2)(b).) The general aggregate limit and the per occurrence limit of the excess liability policy was $4,000,000.
Mannie Ray Nelson filed an amended complaint in the Circuit Court of Logan County, West Virginia on May 26, 2004, styled Mannie Ray Nelson, Plaintiff,...
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