Burlington Ins. Co. v. JC Instride, Inc.
| Decision Date | 07 July 2014 |
| Docket Number | Civil Action No. H–13–2844. |
| Citation | 30 F.Supp.3d 587 |
| Parties | The BURLINGTON INSURANCE COMPANY, Plaintiff, v. JC INSTRIDE, INC., et al., Defendants. |
| Court | U.S. District Court — Southern District of Texas |
Marcie L. Schout, William Lance Lewis, Quilling, Selander, Lownds, Winslett & Moser, P.C., Dallas, TX, for Plaintiff.
Steven Wade Comte, Starr Schoenbrun Comte McGuire PLLC, Tyler, TX, Randolph James Amaro, Jr., Amaro Law Firm, Henry Dwayne Newton, Newton and Associates, Houston, TX, for Defendants.
This insurance coverage case is before the Court on cross-motions for summary judgment. Plaintiff The Burlington Insurance Company (“TBIC”) has filed an opposed Motion for Summary Judgment [Doc. # 26] (“TBIC's Motion”). JCI has also filed an opposed Motion for Partial Summary Judgment [Doc. # 30] (“JCI's Motion”). These motions are ripe for consideration. 1
Having considered the parties' briefing, the evidence of record, and the applicable legal authorities, the Court grants JCI's Motion and denies TBIC's Motion.
On or about December 24, 2012, Defendant Benjamin Malone (“Malone”) began to work for Gordon Smith d/b/a Smith Enterprises (“Smith”), “a company which specializes in cleaning mud tanks at worksites for oil and gas drilling operations.” Plaintiff's Second Amended Original Petition [Exh. D to Doc. # 26] (“Malone Petition”), ¶ 4.1. Smith contracted with JCI, a general contractor, to clean a mud tank in Jacksonville, Texas, belonging to Forest Oil. Id ., ¶ 4.2.2 Malone arrived at Forest Oil's worksite that day, and JCI represented to him that the mud tank “contained water-based mud.” Id., ¶ 4.4. JCI did not inform Malone that the mud tank “contained large quantities of caustic materials.” Id. Based on that representation, Malone entered the mud tank without proper safety equipment and waded in the mud. Id., ¶ 4.5. Malone was exposed to the caustic materials, and as a result his clothing disintegrated, large portions of his skin became severely burned, and parts of his skin fell off. Id. Chad Horton (“Horton”), in an attempt to treat Malone, poured vinegar on Malone's burns, which exacerbated his injuries. Id., ¶ 4.6.
On March 7, 2013, Malone sued Forest Oil, Lantern Drilling, Smith, and Horton in the 55th Judicial District Court of Harris County, Texas (the “Malone Action”). Malone amended his lawsuit on August 30, 2013, to name JCI as a defendant. In relevant part, Malone alleges that JCI acted negligently by, among other things, failing to inform him of the caustic materials in the mud tank, failing to provide him with adequate safety equipment for use in the mud tank, failing to properly train and supervise its employees to respond to caustic burn injuries or other medical emergencies, and failing to hire, train, or supervise competent and qualified employees. Id., ¶ 5.1. Malone initially asserted the same causes of action against Forest Oil and Lantern Drilling. See Plaintiff's First Amended Original Petition [Exh. C to Doc. # 26], ¶ 5.1. Malone subsequently settled his claims with Forest Oil. See Malone's Objections and Answers to TBIC's First Set of Interrogatories [Exh. I to Doc. # 26], ¶ 4. Malone dismissed with prejudice his claims against Forest Oil and Lantern Drilling on September 11, 2013. See Motion to Dismiss with Prejudice [Exh. E to Doc. # 26].3
At the time of the accident, JCI was covered under an insurance policy issued by TBIC (the “Policy”).4 Complaint [Doc. # 1], ¶ 13. Under the Policy, TBIC agreed to pay “those sums that [JCI] becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damages' to which [the] insurance applies.” Policy [Exh. A to Doc. # 26], at App. 017.
TBIC also agreed in the Policy to defend JCI against a lawsuit seeking “those damages.” Id. TBIC is not obligated, under the Policy, to defend JCI “against any suit seeking damages ... to which [the] insurance does not apply.” Id.
The Policy excludes from coverage “bodily injury or property damages which would not have occurred in whole or in party but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of ‘pollutants' at any time” (the “Pollution Exclusion”). Id., at App. 051. The Policy defines “Pollutants” as:
[A]ny solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.
Furthermore, the Policy's coverage extends to include “as an additional insured” any party with whom JCI “agree[s] ... to name as an additional insured with respect to liability arising out [JCI's] ongoing operations performed on the project or service specified ...” Id., at App. 045. However, coverage does not extend to an additional insured for bodily injury to “an employee of any insured, or a person hired to do work for or on behalf of any insured ... that arises out of and in the course of ... performing duties related to the conduct of any insured's business ...” (the “Employee Exclusion”). Id.
Around April 2013, Forest Oil requested that TBIC defend and indemnify it in the Malone Action as an “additional insured” under the Policy. Declaration of Kelly DuBois [Exh. A to Doc. # 26] (“DuBois Decl.”), at App. 01, ¶ 4. TBIC denied that request. Id., at App. 01, ¶ 5. Around September 2013, JCI requested that TBIC defend and indemnify it in the same action. Id., at App. 01, ¶ 6. TBIC agreed to defend JCI under a reservation of rights. Id., at App. 01, ¶ 7. Around that time, Forest Oil (together with JCI) again requested that TBIC indemnify it in the Malone Action, a request which TBIC again denied. Id., at App. 01, ¶ 8.
On September 26, 2013, TBIC filed the instant action against JCI, Forest Oil, and Malone, seeking a declaratory judgment that it has no duty to defend or indemnify JCI or Forest Oil in the Malone Action.5
Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing of the existence of an element essential to the party's case, and on which that party will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc); see also Baton Rouge Oil and Chem. Workers Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir.2002). Summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a) ; Celotex, 477 U.S. at 322–23, 106 S.Ct. 2548 ; Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir.2008).
For summary judgment, the initial burden falls on the movant to identify areas essential to the non-movant's claim in which there is an “absence of a genuine issue of material fact.” Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir.2005). The moving party, however, need not negate the elements of the non-movant's case. See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir.2005). The moving party may meet its burden by pointing out “ ‘the absence of evidence supporting the nonmoving party's case.’ ” Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th Cir.1995) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 913 (5th Cir.1992) ).
If the moving party meets its initial burden, the non-movant must go beyond the pleadings and designate specific facts showing that there is a genuine issue of material fact for trial. Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir.2001) (internal citation omitted). DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir.2005) (internal citations omitted).
In deciding whether a genuine and material fact issue has been created, the court reviews the facts and inferences to be drawn from them in the light most favorable to the non-moving party. Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d 410, 412 (5th Cir.2003). The non-movant's burden is not met by mere reliance on the allegations or denials in the non-movant's pleadings. See King v. Dogan, 31 F.3d 344, 346 (5th Cir.1994) (). Likewise, “conclusory allegations” or “unsubstantiated assertions” do not meet the non-movant's burden. Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th Cir.2008). Instead, the nonmoving party must present specific facts which show “the existence of a genuine issue concerning every essential component of its case.” Am. Eagle Airlines, Inc. v. Air Line Pilots Ass'n, Int'l, 343 F.3d 401, 405 (5th Cir.2003) (citation and internal quotation marks omitted). In the absence of any proof, the court will not assume that the non-movant could or would prove the necessary facts. Little, 37 F.3d at 1075 (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) ).
The Court may make no credibility determinations or weigh any evidence, and must disregard all evidence favorable to the moving party that the jury is not required to believe. See Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229 (5th Cir.2010) (citing Reaves Brokerage Co., 336 F.3d at 412–413 ). The Court is not required to accept the non-movant's conclusory allegations, speculation, and unsubstantiated assertions which are either entirely unsupported, or supported by a mere scintilla of evidence. Id. (citin...
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