Colony Ins. Co. v. Wallace
| Decision Date | 28 June 2011 |
| Docket Number | Case No.: 09-60863-CIV-COOKE/TURNOFF |
| Parties | COLONY INSURANCE COMPANY, Plaintiff v. DEBRA WALLACE, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
THIS CASE is before me on Plaintiff Colony Insurance Company's ("Colony") Motion for Summary Final Judgment on its Amended Petition for Declaratory Relief. (ECF No. 52). I have reviewed the arguments, the record and the relevant legal authorities. For the reasons stated below, Colony's Motion for Summary Final Judgment is granted.
Colony's request for declaratory judgment is a derivative of an underlying state court action in which approximately ninety plaintiffs sued Defendants Lauris Boulanger, Inc., Dania Distribution Centre, Ltd., Dania Distribution Centre, Inc., and Dania Distribution Centre Condominium Association, Inc. (the "Dania Defendants"). The underlying action, Lueron Dixon, et al. v. Lauris Boulanger et al., Case No.: 06-05393 CA 09 (the "Dixon lawsuit") has settled. Dixon plaintiff Debra Wallace ("Wallace"), however, did not join in the settlement and continues in this action pro se as the sole defendant.
In or about March of 2001, the Dania Defendants purchased approximately 15.5 acres of land adjacent to residential neighborhoods in Dania Beach, Florida (the "Dania Property"). 1 Prior to purchase, the Dania Property was used as a landfill for medical waste, petroleum products and various poisonous chemicals. Groundwater assessments conducted in 2000 and 2001 revealed the presence of contaminants such as phenols, benzene, naphthalene, methane, hydrogen-sulfide, ammonia, lead, diesel fuel and chlorinated solvents. Soil samples collected in late November of 2002 revealed that the property had elevated levels of copper, arsenic, barium, chromium, nickel and lead. The levels of arsenic were fifty percent of the allowable levels for a commercial property but twice the allowable levels for residential property. Large quantities of asbestos were also found on the Dania Property.
On June 30, 2003, Scott & Son Engineering, Inc. ("Scott & Son") entered into a subcontract agreement with terminated defendant Lauris Boulanger, Inc., whereby Scott & Son agreed to perform certain groundwork on the Dania Property. Actual construction on the Dania property began sometime after September of 2003. Despite the known presence of toxic chemicals on the property, the Dania Defendants failed to take any steps to protect the residents of surrounding properties from contact with the hazardous pollutants. On January 13, 2004, Colony issued a Commercial General Liability Policy ("Policy") to Scott & Son for the coverage period of January 13, 2004 through January 13, 2005. The Policy was renewed on January 13, 2005 for the coverage period of January 13, 2005 through January 13, 2006. The Policy included certain conditions and/or exclusions that operated to preclude coverage for injuriessustained outside of the Policy coverage period or from injuries caused from exposure to hazardous material. In the underlying Dixon lawsuit, each of the Dixon plaintiffs alleged, individually, that they suffered some form of bodily injury, property damage and/or the loss of use and enjoyment of their real property due to the dispersal of pollutants from the Dania Property. Wallace and her four children account for 10 of the 222 counts enumerated in the Dixon Complaint.
On April 14, 2010, Colony filed an amended complaint seeking a declaration that it had no obligation to provide insurance coverage for Wallace's injuries because they occurred outside of the Policy's coverage period and are exempt under the Policy's hazardous material exclusion clause. (Amended Complaint, ECF No. 14). Wallace did not respond to the amended complaint. On May 11, 2010, Colony moved for entry of a Clerk's default. (Motion for Entry of Clerk's Default, ECF No. 15). On May 12, 2010 the Clerk denied Colony's motion for entry of default due to Colony's failure to verify service of process. (Order by Clerk of Non-Entry of Default, ECF No. 16). On May 25, 2010, Colony filed a Motion for Entry of Court's Default. (Motion for Entry of Court's Default, ECF No. 17). The very next day, counsel for the Dania Defendants and the Dixon Plaintiffs, including Wallace, filed a Motion to Withdraw as Attorney (Motion to Withdraw, ECF No. 18), which was granted on June 4, 2010 (Order Granting Motion to Withdraw, ECF No. 19). In light of the withdrawal of defense counsel, I denied Colony's motion for entry of default as it was "unlikely that [Wallace] received a copy of [Colony's] complaint." (Order Denying Motion for Entry of Clerk's Default, ECF No. 20). Colony was further instructed to properly serve Wallace with the amended complaint. (Id.). On August 5, 2010, Colony filed a Return of Service, noting that it served Wallace with the amended complaint onJuly 17, 2010. (Summons Returned Executed, ECF No. 28). Pursuant to Federal Rule of Civil Procedure 15(a)(3), Wallace's response was due on or before August 2, 2010.
On September 17, 2010, Colony again moved for entry of Clerk's default (Motion for Entry of Clerk's Default, ECF No. 29), which was granted on September 21, 2010. (Order by Clerk of Entry of Default, ECF No. 30). Colony appropriately moved for entry of default judgment on September 27, 2010. (Motion for Default Judgment, ECF No. 31). On September 28, 2010, Wallace moved to set aside the Clerk's entry of default claiming that she never received a copy of the amended complaint. (Motion to Set Aside Default, ECF No. 36). On September 30, 2010, the parties were ordered to show cause why default judgment against Wallace should, or should not, be entered. (Order to Show Cause, ECF No. 42). Colony and Wallace filed their responses to the Order to Show Cause on October 7, 2010 and November 3, 2010, respectively. (Responses to Order to Show Cause, ECF Nos. 46, 47). On December 2, 2010, I vacated the entry of default and ordered Wallace to answer the amended complaint by December 23, 2010. (Order Granting Motion to Set Aside Default, ECF No. 51).
On January 4, 2011, Wallace moved for an extension of time in which to answer the amended complaint. (Motion for Extension of Time to File, ECF No. 54). That same day, Wallace also filed a Response to Order to Show Cause expressing her desire to remain an active litigant in this case. (Response to Order to Show Cause, ECF No. 55). On January 12, 2011, Magistrate Judge Ted E. Bandstra granted the extension of time, but cautioned Wallace that no further extensions would be granted. (Order Granting Motion for Extention of Time, ECF No. 56). Pursuant to Judge Bandstra's order, Wallace's answer to the amended complaint was due by January 19, 2011. (Id.) On January 20, 2011, Wallace filed a letter with the Court noting her continuous effort to respond to prior Court orders. (Response to Order to Show Cause, ECF No.57). Wallace expressed concern regarding the related settlement and dismissal of Essex Ins. Co. v. Dixon Case, No. 0961755-MGC, and requested that the Court "not allow this case to be dismiss[ed]." (Id.). Wallace did not file a response to the amended complaint.
A status conference was held on April 6, 2011. At the conference, the Court instructed Wallace of the requirements of the Federal2 Rules of Civil Procedure, the substantive content of Colony's amended complaint, and the legal significance of a response to Colony's claims or lack thereof. Wallace was provided with all relevant case filings - amended complaint, motion for entry of default judgment, motion for summary judgment - and was instructed to file an answer by May 6, 2011. Wallace was cautioned that her failure to file a response would result in an entry of default. On May 5, 2011, Wallace filed copies of several documents, all of which were previously filed with the Court. At best, Wallace's filing can be construed as a response to the motion for default judgment and a response to the motion for summary judgment. Wallace did not file a response to the amended complaint.
Pursuant to the Policy's terms and conditions, Colony is required to "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." . Bodily injury is defined as "sickness or disease sustained by a person, including death." (Id.) The Policy includes an 'occurrence exclusion clause' under which Colony is only liable for bodily injury that "occurs during the policy period." (Id.) In addition, the Policy contains a clause that excludes liability for damages resulting from hazardous materials. (Id.)Colony has no duty to defend claims that are not covered under the policy including claims specifically omitted by exclusionary clauses. (Id.) Colony now asks this Court to declare that it has no duty to provide insurance coverage to Wallace in the underlying action due to the Policy's occurrence exclusion clause and hazardous materials exclusion clause.
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed R. Civ. P. 56(a). A fact is 'material' when it relates to substantive law at issue in the case and may affect the outcome of the nonmoving party's claim. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986). "The moving party bears the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). Rule 56(c) "requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and...
To continue reading
Request your trial