Broom v. Wilson Paving & Excavating, Inc.

• Decision Date: 07 April 2015
• Docket Number: 109,813.
• Parties: Steven L. BROOM, Plaintiff–Appellant, v. WILSON PAVING & EXCAVATING, INC., an Oklahoma Corporation, Defendant–Appellant, and Mid–Continent Casualty Company, an Oklahoma Corporation, Garnishee–Appellee.
• Court: Oklahoma Supreme Court

356 P.3d 617

2015 OK 19

Steven L. BROOM, Plaintiff–Appellant

v. WILSON PAVING & EXCAVATING, INC., an Oklahoma Corporation, Defendant–AppellantandMid–Continent Casualty Company, an Oklahoma Corporation, Garnishee–Appellee.

109,813.

Supreme Court of Oklahoma.

April 7, 2015.

Rehearing Denied Aug. 26, 2015.

Kevin E. Krahl, Fuller Tubb Bickford & Krahl, PLLC, Oklahoma City, OK, for Plaintiff–Appellant Steven L. Broom.

Paula J. Quillin, Feldman, Franden, Woodard & Farris, Tulsa, OK, for Defendant–Appellant Wilson Paving & Excavating, Inc.

Dean Foote, Law Offices of Dean Foote, PLC, Tulsa, OK, for Defendant–Appellant Wilson Paving & Excavating, Inc.

James K. Secrest, II, Edward J. Main, Benjamin J. Oxford, Secrest, Hill, Butler & Secrest, Tulsa, OK, for Garnishee–Appellee Mid–Continent Casualty Company.

GURICH, J.

Facts & Procedural History

¶ 1 Wilson Paving & Excavating, Inc. was one of several subcontractors retained to perform services in connection with a renovation project at Sand Springs Memorial Stadium at Charles Page High School. Specifically, Wilson Paving contracted to dig trenches and lay pipe for a storm drainage system being installed under the school's athletic field. Wilson Paving utilized a local staffing agency, Labor Ready, to secure temporary workers to assist on the project. On or about May 30, 2007, Steven Broom went to the offices of Labor Ready to obtain employment. Broom was directed by Labor Ready to work with Wilson Paving at Sand Springs High School. He reported to the high school and, at the instruction of Wilson Paving, began work laying pipe inside a trench that was approximately five to six feet deep, four to five feet wide, and fifty feet long.¹

¶ 2 At approximately 2:30 p.m. that same day, the trench in which Broom was working collapsed twice—the first time covering him in dirt to his waist and the second time covering him in dirt to his neck.² Persons on the job site freed Broom from the neck to the waist while waiting on emergency personnel to arrive.³ Once on the scene, emergency personnel could not enter the trench to rescue Broom until the trench was safely reinforced. During this time, Broom remained buried from the waist down. Emergency personnel eventually removed Broom from the trench, and he was transported to the hospital where he was treated for serious injuries, including rib fractures

, collapsed lungs, pulmonary contusions, blood within the chest, fluid around the spleen and kidney, and a left kidney laceration

.⁴

¶ 3 The record reflects that before the trench collapsed, one of Wilson Paving's employees, Jack Bailey, was using a backhoe to dig the trench and to retrieve pipe from an area adjacent to the trench.⁵ Mr. Bailey would dig a twenty-foot section of trench, then Mr. Bailey, Broom, and another employee of Wilson Paving, Harley Nipper, would place the pipe in the trench. Mr. Bailey would then use the backhoe to put a few feet of dirt on top of the pipe to secure it, while Broom and Mr. Nipper did “the hand work” inside the trench, “leveling it and walking it in.”⁶ After completing a twenty-foot section, they would repeat the process.⁷ At some point, either while Mr. Bailey was in the process of digging another twenty-foot section or while he was retrieving pipe, the trench collapsed on Broom while he was working therein.⁸

¶ 4 Wilson Paving believed the trench collapse was due to the work of another contractor who had allegedly removed a monument and flag pole near the area of the collapse but failed to alert Mr. Bailey of such before he began digging the trench.⁹ Wilson Paving believed the removal of such increased the moisture in the soil, causing a latent hazard in the area.¹⁰ Upon investigation of the trench collapse, OSHA cited Wilson Paving with five violations including failure to instruct employees in the recognition and avoidance of unsafe conditions, failure to protect employees with protective helmets, lack of safe means of egress out of the trench, failure to place and keep excavated materials at least two feet from the edge of the excavation, and failure to provide an adequate protective system to protect employees in the excavation.¹¹

¶ 5 Broom pursued and received workers' compensation benefits from Labor Ready for the injuries he sustained in the accident. Labor Ready was identified as Broom's employer in the workers' compensation action. Wilson Paving was not a party to the action and paid no workers' compensation benefits to Broom. Broom also sued Wilson Paving for his injuries in a third-party action¹² in the District Court of Tulsa County.

Mid–Continent Casualty Company's Declaratory Action in Tulsa County in February 2008, CJ–2008–1532

¶ 6 Wilson Paving purchased a Commercial General Liability Policy from Mid–Continent Casualty Company for the period of April 1, 2007, to April 1, 2008.

The policy was in effect at the time of Broom's injuries.¹³ In February of 2008, Mid–Continent filed a declaratory action in Tulsa County, Case No. CJ–2008–1532, seeking a ruling from the district court that it had no duty to defend or indemnify Wilson Paving under the policy with respect to any claims asserted by Broom. At the time of the declaratory judgment action, Broom had not yet sued Wilson Paving in the district court. Upon a renewed Motion for Summary Judgment by Mid–Continent, the Honorable Daman H. Cantrell, found Mid–Continent had a duty to defend Wilson Paving and that “[t]he issue regarding a duty to indemnify [could] be reurged after the matter ha[d] been tried on the merits.”¹⁴ Judge Cantrell did not make any determination as to coverage under Mid–Continent's policy. Upon motion by Mid–Continent, Judge Cantrell certified the ruling for interlocutory appeal. Mid–Continent petitioned this Court for certiorari review of the certified interlocutory order, Case No. 108,476, but moved to dismiss the petition prior to this Court's consideration of the Petition for Certiorari. This Court, in an Order filed October 25, 2010, dismissed Mid–Continent's appeal in Case No. 108,476.

¶ 7 On January 5, 2011, Wilson Paving filed a Motion for Partial Summary Judgment. The trial court, on November 10, 2011, again found Mid–Continent had a duty to defend under the policy but did not make any determination as to coverage under Mid–Continent's policy. Upon motion by Mid–Continent, the trial court again certified the order for interlocutory appeal on January 17, 2012. Mid–Continent again filed a Petition for Certiorari to review the certified interlocutory order, which was denied by this Court by Order on March 12, 2012, in Case No. 110,364. The last docket entry in CJ–2008–1532, filed on April 19, 2012, was this Court's mandate dismissing the appeal in Case No. 110,364.

American Interstate Insurance Company's Declaratory Action in Federal Court in June 2009

¶ 8 In addition to Mid–Continent's Commercial General Liability Policy, Wilson Paving also purchased a Workers' Compensation and Employers Liability Insurance Policy from American Interstate Insurance Company for the period of October 1, 2006, to October 1, 2007. That policy was also in effect at the time of Broom's injuries. On June 3, 2009, AIIC filed a declaratory judgment action in the U.S. District Court for the Northern District of Oklahoma, seeking a declaration regarding its rights and responsibilities under the AIIC policy. Both Wilson Paving and Broom were parties to the action. Mid–Continent was not a party to the action and coverage under the Mid–Continent policy was not at issue. AIIC, Wilson Paving, and Broom agreed that the workers' compensation insurance coverage provided for in Part One of the AIIC policy did not apply in the case. At issue was Part Two of the policy—the Employers Liability Policy—which applied to bodily injury to an employee of the insured.

¶ 9 AIIC moved for summary judgment, arguing that although the AIIC policy provided coverage for bodily injury to an employee caused by accident or disease, the AIIC policy specifically excluded from coverage “bodily injury intentionally caused or aggravated by you [the insured].”¹⁵ The Honorable James H. Payne found Broom had only alleged intentional conduct in the state court litigation, and as such, Broom's injuries were excluded from coverage under AIIC's policy because the policy did not cover bodily injury intentionally caused or aggravated by the insured and the “allegations against Wilson Paving, if true [were] clearly not for bodily injury caused by accident or ‘an unknown cause,’ ” as required for coverage under the policy.¹⁶ The ruling by Judge Payne was not appealed.¹⁷

Broom v. Wilson Paving, CJ–2009–2127, Filed in March 2009

¶ 10 In March of 2009, Broom sued Wilson Paving in the District Court of Tulsa County, Case No. CJ–2009–2127, alleging Wilson Paving “owed Plaintiff a non-delegable duty to provide employees a safe place in which to work and breached that duty by ignoring standards set by OSHA for safety in trenches knowing injury or death was certain and/or substantially certain to occur with this combination of safety measures being ignore.”¹⁸ Broom also alleged Wilson Paving knew or should have known “the manner in which they were requiring Plaintiff to work presented a substantial certainty of injury or death to Plaintiff and/or others similarly situated.”¹⁹

¶ 11 Although Judge Cantrell ruled against Mid–Continent in the declaratory judgment action, CJ–2008–1532, and found that Mid–Continent had a duty to defend Wilson Paving, Mid–Continent never provided a defense to Wilson Paving. AIIC “agreed to provide a defense to Wilson Paving ... under a Reservation of Rights Letter until the coverage questions” raised in the federal court action were resolved.²⁰ After the ruling by Judge Payne in June of 2010, AIIC discontinued its participation in Broom's suit against Wilson Paving.

¶ 12 On July 26, 2010, the Honorable Jefferson D. Sellers conducted a bench trial and found Wilson Paving liable for Broom's injuries. He rendered a $1,150,000.00...