Lafayette Ins. Co. v. Roberts
| Decision Date | 31 July 2013 |
| Docket Number | No. W2012-02038-COA-R3-CV,W2012-02038-COA-R3-CV |
| Parties | LAFAYETTE INSURANCE COMPANY v. JERRY S. ROBERTS, ET AL. |
| Court | Tennessee Court of Appeals |
Direct Appeal from the Circuit Court for Dyer County
In this appeal we must determine whether an injured worker was an "employee" or a "temporary worker" within the meaning of a commercial general liability insurance policy. The policy excludes coverage for injuries to the insureds' employees, but it covers injuries to "temporary workers" who are not employees, as that term is defined in the policy. The trial court granted summary judgment to the worker upon concluding that he was a "temporary worker," and therefore covered under the policy, and it denied the insurer's motion for summary judgment. We find that the worker was not a "temporary worker" as that term is defined by the insurance policy. Therefore, the trial court erred in granting the worker's motion for summary judgment and denying the insurer's motion. We reverse and remand for entry of an order granting summary judgment to the insurer.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Reversed and
Remanded
Christopher H. Crain, Memphis, Tennessee, for the appellant, Lafayette Insurance Company
Dean P. Dedmon, W. Lewis Jenkins, Jr., Sean P. Day, Dyersburg, Tennessee, for the appellee, Bobby Burns
John M. Lannom, James S. Wilder, III, Dyersburg, TN, for the appellees, Jerry Roberts, Diane G. Roberts, and James P. Roberts, Jr.
Jerry Roberts and his wife Diane Roberts, along with Jerry's brother James Roberts, Jr. (collectively, "the Roberts") own a commercial building in Dyersburg that is operated as a Family Dollar store. The Roberts engaged Bobby Burns to assist with recoating the roof of the building in April 2009. Mr. Burns fell from the roof on April 26, 2009, and suffered devastating injuries. On April 23, 2010, Mr. Burns filed a lawsuit against the Roberts seeking to recover for his personal injuries.1 Mr. Burns' complaint alleged that he was an employee of the Roberts defendants, working at the direction of Jerry Roberts, and paid by the hour. Mr. Burns asserted that he was not in the business of roofing or roofing repair and that he was not an independent contractor. Mr. Burns alleged that he sustained his injuries during the course of his employment, and he alleged that the Roberts failed to provide him with a safe working environment and failed to provide safety equipment or other devices to prevent his fall. He sought $7 million in compensatory damages.
Lafayette Insurance Company ("Insurer") had provided a commercial general liability ("CGL") insurance policy to the Roberts defendants that was in effect on the date of the injury. The Roberts requested a defense and indemnification under the CGL policy of insurance concerning the underlying lawsuit filed by Mr. Burns. Insurer provided a defense to the Roberts defendants under a reservation of rights and filed the instant lawsuit seeking a declaratory judgment that it had no duty to defend the lawsuit filed by Mr. Burns and that the CGL policy did not afford coverage for the claims asserted. The insuring agreement of the Roberts' CGL policy provided, in relevant part:
We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which the 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. . . .
The policy contained the following "Exclusions," as relevant here:
This insurance does not apply to:
The policy contained the following relevant definitions:
In sum, the policy did not provide coverage for injuries to "employees" or "leased workers," but it did provide coverage for injuries to "temporary workers," as that term was defined in the policy.
Insurer's complaint for declaratory judgment alleged that because the underlying lawsuit filed by Mr. Burns sought damages arising out of his employment, then Mr. Burns' claims and damages were specifically excluded from coverage under the policy's employerliability exclusion. Insurer filed a motion for summary judgment contending that Mr. Burns was an employee of the Roberts, and not a temporary worker, and therefore the policy provided no coverage for his bodily injuries as an employee of the insured. For purposes of summary judgment, Insurer conceded that Mr. Burns was hired for one project only - repairing the roof. Nevertheless, Insurer argued that Mr. Burns did not meet the policy's definition of a covered "temporary worker" as "a person who is furnished to you to substitute for a permanent 'employee' on leave or to meet seasonal or short-term workload conditions." (emphasis added). Insurer argued that "[t]he majority of the courts that have considered the very same definition of 'temporary worker' hold that the phrase 'furnish to' unambiguously requires the involvement of a third party, such as a temporary staffing agency, that supplies the worker to the insured employer." Insurer submitted the deposition testimony of Mr. Burns in which he stated that he was not hired "through any third party staffing agency, leasing agency, [or] anything like that, in connection with this work [he] performed on the roof at Family Dollar."2 Because Mr. Burns was not "furnished to" the Roberts by any third party, Insurer argued, he was not a "temporary worker" within the meaning of the CGL policy.
In response to the motion for summary judgment, Mr. Burns argued that the policy either did not require the involvement of a third party, or at the very least, was ambiguous as to whether a third party must have furnished the worker. Mr. Burns insisted that the simple use of the word "furnish" did not necessarily imply the involvement of a third party, and, he claimed, it was possible for the Roberts to "furnish" themselves with a worker. Mr. Burns pointed out that the policy's definition of "leased worker" specifically stated, "a person leased to you by a labor leasing firm," while the definition of "temporary worker" simply said, "a person who is furnished to you," without specifying who was to "furnish" the temporary worker. Mr. Burns acknowledged that "conflicting authority exists," but he claimed that "some courts have held that the 'temporary worker' [definition] either contains an ambiguity that represents a question of fact or permits coverage for short-term employees who respond directly to an employer's solicitation of employment" without being furnished by a third party. Thus, Mr. Burns argued that the "better reasoned" approach was to hold that the definition of temporary worker was ambiguous and to be construed against Insurer. Mr. Burns also filed his own motion for summary judgment, claiming that "summary judgment should be granted in favor of coverage in this matter," either because he clearly met the definition of a temporary worker, or because the policy was ambiguous as to whether he was a temporary worker.
On August 9, 2012, the trial court entered an order granting summary judgment to Mr. Burns and denying the motion for summary judgment filed by Insurer. The court explained its findings, in pertinent part, as follows:
To continue reading
Request your trial