Canal Ins. Co. v. Earnshaw

• Decision Date: 26 April 1985
• Docket Number: Civ. A. No. 83-2164.
• Citation: 629 F. Supp. 114
• Parties: CANAL INSURANCE COMPANY, Plaintiff, v. James P. EARNSHAW, d/b/a Earnshaw House Movers, et al., Defendants.
• Court: U.S. District Court — District of Kansas

629 F. Supp. 114

CANAL INSURANCE COMPANY, Plaintiff, v. James P. EARNSHAW, d/b/a Earnshaw House Movers, et al., Defendants.

Civ. A. No. 83-2164.

United States District Court, D. Kansas.

April 26, 1985.

Douglas N. Ghertner, William G. Beck, Reggie C. Giffin, Lee M. Baty, Field, Gentry, Benjamin & Robertson, Kansas City, Mo., Edward M. Boddington, Jr., Frank Weidling, Boddington & Brown, Kansas City, Kan., for plaintiff.

John G. O'Connor, Barnett & Ross, Chartered, Kansas City, Kan., for Steven D. Jenkins.

William L. Roberts, Kansas City, Kan., Joseph B. Bott, Kansas City, Mo., for Delbert Starks.

Eric C. Rajala, Overland Park, Kan., for James P. Earnshaw.

James O. Schwinn, Jeffrey L. Lauersdorf, Wallace, Saunders, Austin, Brown & Enochs, Overland Park, Kan., for George W. Manuel.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

This matter is before the court on plaintiff's motions for sanctions and plaintiff's motion for summary judgment. Defendants Earnshaw and Manuel have filed separate motions for summary judgment. Defendant Manuel has also filed a motion for enlargement of time. The court will first consider plaintiff's motions for sanctions.

In plaintiff's first motion for sanctions (Docket Entry No. 73), plaintiff seeks sanctions against defendant Earnshaw for failure to attend his scheduled deposition and for failure to answer interrogatories. This court issued on October 15, 1984, a show cause order granting defendant Earnshaw ten (10) days to show cause why sanctions should not be entered. No response having been filed, this court finds that sanctions are in order. Pursuant to Rule 37(d), Federal Rules of Civil Procedure, defendant Earnshaw is ordered to pay plaintiff's reasonable expenses, including attorneys' fees, caused by his failure to attend the scheduled deposition and to answer interrogatories.

Plaintiff's second motion for sanctions was filed on January 2, 1985 (Docket Entry No. 87). Plaintiff requests the court to enter an order prohibiting defendants from filing pleadings or introducing matters in opposition to the proposed findings of fact and conclusions of law filed by plaintiff on December 3, 1984, and that these proposed findings of facts and conclusions of law be taken as established for the purposes of this action. Plaintiff further requests that summary judgment be entered in its favor against all defendants and that defendants be required to pay all reasonable expenses caused by defendants' failure to comply with this court's orders. Plaintiff bases this motion on defendants' failure to timely file a summary of anticipated testimony of witnesses, a trial brief and proposed findings of fact and conclusions of law. This court, in an order dated January 16, 1985, denied plaintiff's motion as it pertains to defendant Starks. Upon review of the record, this court finds that plaintiff's motion should be denied as it pertains to all defendants in this action.

In reference to defendant Manuel's motion for enlargement of time, this court notes that said defendant has already filed his reply brief to plaintiff's memo. Therefore, such motion is moot.

The court will now consider the motions of the parties for summary judgment. The uncontroverted facts are as follows. This is a declaratory judgment action filed by plaintiff pursuant to 28 U.S.C. 2201, in which this court is requested to declare plaintiff's rights and obligations under a policy of insurance issued to defendant James P. Earnshaw, doing business as Earnshaw House Moving and Development. This policy covered a 1974 International tractor, a set of dollies, and a 1982 homemade semitrailer through the period of January 27, 1982, to January 27, 1983. Defendant Jenkins has filed an action in the District Court of Wyandotte County, Kansas, against defendants Earnshaw, Manuel, Balcom and Starks alleging he was injured in the course of his employment as a result of the negligence of defendants. On June 24, 1982, at the time of the alleged accident and injury, defendant Jenkins was performing general labor for defendant Earnshaw involving the moving and relocating of a building structure to Bonner Springs, Kansas. Defendants were involved in the loading or unloading of the 1982 homemade semi-trailer at the time the alleged injury and accident occurred with defendants Manuel and Starks assisting defendant Jenkins in the movement of a beam located on the trailer.

In order to rule favorably on a motion for summary judgment, the court must first determine that the matters considered in connection with the motion disclose "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." Rule 56, Federal Rules of Civil Procedure. The principal inquiry is therefore whether a genuine issue of material fact exists. Dalke v. The Upjohn Co., 555 F.2d 245 (9th Cir.1977); Hanke v. Global Van Lines, Inc., 533 F.2d 396 (8th Cir.1976). A motion under Rule 56 will be denied unless the movant demonstrates beyond doubt that he is entitled to a favorable ruling. Madison v. Deseret Livestock Co., 574 F.2d 1027 (10th Cir.1978); Mustang Fuel Corp. v. Youngstown Sheet & Tube Co., 516 F.2d 33 (10th Cir.1975). Pleadings and documentary evidence are to be construed liberally in favor of a party opposing a Rule 56 motion. Harman v. Diversified Medical Investments Corp., 488 F.2d 111 (10th Cir.1973), cert. denied 425 U.S. 951, 96 S.Ct. 1727, 48 L.Ed.2d 195 (1976). However, once a summary judgment motion has been properly supported, the opposing party may not rest on the allegations of the complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried. Coleman v. Darden, 595 F.2d 533, 536 (10th Cir.), cert. denied 444 U.S. 927, 100 S.Ct. 267, 62 L.Ed.2d 184 (1979). A party with evidence tending to create a factual issue must present that evidence to the trial judge or summary judgment is proper. Otteson v. United States, 622 F.2d 516, 520 (10th Cir. 1980).

Plaintiff argues for summary judgment based on various exclusions contained in the policy. The court will consider plaintiff's arguments regarding each defendant separately. Defendants Earnshaw and Jenkins claim that the alleged injury arose out of and in the course of "domestic employment," and that defendant Jenkins at the time of his alleged injury was loading or unloading an "owned automobile" with defendant Earnshaw's permission as defined by the terms of the policy. Plaintiff argues that Exclusion C precludes coverage. Defendant Earnshaw admits that defendant Jenkins was not engaged in domestic employment in the sense that the duties performed were of a household nature. Exclusion C provides that this insurance does not apply "to bodily injury to any employee of the insured arising out of and in the course of his employment by the insured, or to any obligation of the insured to indemnify another because of damages arising out of such injury; but this exclusion does not apply to any such injury arising out of and in the course of domestic employment by the insured unless benefits therefore are in whole or in part, either payable or required to be provided under any workmen's compensation law; ..." Defendant Earnshaw argues that he is the named insured under the policy and that the domestic employment exclusion does not relieve plaintiff from its obligations because such exclusion is ambiguous and should be construed against the plaintiff. The rules for construction of insurance contracts are well established. "Language in a contract of insurance is ambiguous if the words used to express the meaning and intention of the parties are insufficient in a sense that the contract may be understood to reach two or more possible meanings...." Western Casualty & Surety Co. v. Budig, 213 Kan. 517, 519, 516 P.2d 939, 941 (1973). "If the language when given its everyday commonly accepted meaning is clear and specific in presenting the subject matter at hand, the objective to be accomplished, the burdens assumed, and the benefits to be enjoyed or received, then the terms of the insurance policy cannot be said to be doubtful of meaning or conflicting in terms...." Casey v. Aetna Casualty & Surety Co., 205 Kan. 495, 499, 470 P.2d 821, 826 (1970). When the terms of an insurance policy are ambiguous, the construction most favorable to the insured must prevail. Goforth v. Franklin Life Ins. Co., 202 Kan. 413, 449 P.2d 477 (1969). The general rule is that exceptions, limitations and exclusions to insurance agreements are to be narrowly construed. Upland Mutual Ins., Inc. v. Noel, 214 Kan. 145, 519 P.2d 737 (1974). The insuror has a duty to define any limitations on coverage in clear and explicit terms. Id.

Defendant Earnshaw argues that the term "domestic employment" can be reasonably interpreted to mean a person hired primarily for the performance of household duties or a person performing work within the territorial boundaries of the United States, therefore said term is ambiguous. In Marshall v. Cordero, 508 F.Supp. 324 (D.P.R.1981), the court considered the phrase "domestic service" in relation to the Fair Labor Standards Act and found that the generally accepted meaning refers to services of a household nature performed by an employee in or about a private home. The Fifth Edition of Black's Law Dictionary, at 434, defines "domestic" as pertaining, belonging or relating to a home or to the place of birth, origin, creation or transaction. Cases listed in 13 Words & Phrases under "domestic employment" refer to the nature of the work performed rather than the location of where the work is performed.

Plaintiff cites cases discussing the term "domestic" in relation to insurance coverage, and these cases also view the term as referring to the nature of the employment. See State Farm Mutual Auto. Ins. Co. v. Shelton, 368 S.W.2d 734 (Ky.App.1963); and State Farm Mutual Auto Ins. Co. v. Vails, 278 Ala. 266, 177...