Westfield Ins. Co. v. Davis, CIVIL ACTION NO. 2:16–cv–00822

CourtUnited States District Courts. 4th Circuit. Southern District of West Virginia
Writing for the CourtTHOMAS E. JOHNSTON, UNITED STATES DISTRICT JUDGE
Citation232 F.Supp.3d 918
Parties WESTFIELD INSURANCE COMPANY, Plaintiff, v. Richard DAVIS, et al., Defendants.
Decision Date07 February 2017
Docket NumberCIVIL ACTION NO. 2:16–cv–00822

232 F.Supp.3d 918

WESTFIELD INSURANCE COMPANY, Plaintiff,
v.
Richard DAVIS, et al., Defendants.

CIVIL ACTION NO. 2:16–cv–00822

United States District Court, S.D. West Virginia, Charleston Division.

Signed February 7, 2017


232 F.Supp.3d 919

Brent K. Kesner, Tanya M. Kesner, Kesner & Kesner, Charleston, WV, for Plaintiff.

Jeffrey Scott Bowen, Bowen Law Office, West Hamlin, WV, for Defendants.

Richard Davis, Branchland, WV, pro se.

Sandra Davis, Branchland, WV, pro se.

MEMORANDUM OPINION AND ORDER

THOMAS E. JOHNSTON, UNITED STATES DISTRICT JUDGE

Pending before the Court is Plaintiff Westfield Insurance Company's ("Westfield") Motion for Summary Judgment (ECF No. 33) and Richard and Sandra Davis's ("Davis Defendants") Motion to Dismiss (ECF No. 13).1 For the reasons

232 F.Supp.3d 920

stated herein, the Court GRANTS the Motion for Summary Judgment and DENIES the Motion to Dismiss.

I. BACKGROUND

Westfield brings this Declaratory action against the Davis Defendants, and Joey A. Roy and Jacqueline Blankenship ("Roy and Blankenship"), seeking to establish that it has no obligation to defend or indemnify the Davis Defendants pursuant to their Homeowners Policy with Westfield.

A. Factual Background

Many of the operative facts in this case are derived from state court pleadings and are thus undisputed. This action arises out of a complaint brought by Roy and Blankenship in the Circuit Court of Lincoln County, West Virginia. (Exhibit A, ECF No. 33–1 at 1–6.) According to the complaint, in July and August of 2012, the Davis Defendants harvested timber, without permission, from land co-owned by Roy and Blankenship. (Id. at 2, ¶¶ 5–6.) The Davis Defendants' timbering was performed by Dale Parsons d/b/a Parsons Logging, pursuant to a business agreement whereby the Davis Defendants and Parsons would split the proceeds from the sale of the timber. (Exhibit B, ECF No. 33–1 at 12–13.) The complaint alleges that the Davis Defendants continued timbering on Roy and Blankenship's land after being warned to stop. (Exhibit A, ECF No. 33–1 at 2, ¶¶ 7–8.) Roy and Blankenship filed a Petition for a temporary restraining order against the Davis Defendants, which was granted on August 13, 2012. (Id. at 2, ¶¶ 9–10.) On April 25, 2014, Roy and Blankenship filed their state court complaint, seeking a declaratory judgment separating their property from that of the Davis Defendants, damages for violations of W. Va. Code § 61–3–48(a), negligence, and trespass, and punitive damages based on the allegation that the Davis Defendants' conduct was purposeful. (Id. at 3–6.)

At the time of the Davis Defendants' timbering, they were insured under a Homeowners Policy with Westfield Insurance, with a coverage period of September 10, 2011 to September 10, 2012. (Exhibit C, ECF No. 33–1 at 14.) The Davis Defendants requested that, pursuant to that policy, Westfield defend and indemnify them in the suit Roy and Blankenship filed against them. (ECF No. 1, ¶ 23.)

B. Insurance Policy

The Davis Defendants' Homeowners Policy provides, in relevant part:

DEFINITIONS

B. In addition, certain words and phrases are defined as follows:

***

3. Business means:

a. A trade, profession or occupation in which a person is engaged in on a full-time, part time or occasional basis with or without compensation, except volunteer activities for which that person receives no compensation other than payment for expenses incurred; or

b. Any other activity in which a person is engaged in for money or other compensation, except the following:

(1) One or more activities, not described in (2) through (4) below, for which that person receives no more than $2,000 in total gross compensation for
232 F.Supp.3d 921
the 12 months before the inception date of the policy;

(2) Volunteer activities for which that person receives no compensation other than payment for expenses incurred to perform the activity;

(3) Providing home day care services for which that person receives no compensation other than the mutual exchange of services; or

(4) The rendering of home day care services to a relative of the insured.

***

5. Insured means:

a. You and residents of your household who are:

(1) Your relatives; or

(2) Other persons under the age of 21 and in the care of any person named above.

***

8. Occurrence means an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in:

a. Bodily injury; or

b. Property damage.

9. Property damage means physical injury to, destruction of, or loss of use of tangible property.

***

SECTION II—LIABILITY COVERAGES

A. Coverage E—Personal Liability

If a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage caused by an occurrence to which this coverage applies, we will:

1. Pay up to our limit of liability for the damages for which an insured is legally liable. Damages include prejudgment interest awarded against an insured; and

2. Provide a defense at our expense by counsel of our choice, even if the suit is groundless, false, or fraudulent. We may investigate and settle any claim or suit that we decide is appropriate. Our duty to settle or defend ends when our limit of liability for the occurrence has been exhausted by payment of a judgment or settlement.

***

SECTION II—EXCLUSIONS

***

E. Coverage E—Personal Liability and Coverage F—Medical Payments to Others

Coverage E and F do not apply to the following:

1. Expected or Intended Injury

Bodily injury or property damage which is expected or intended by an insured even if the resulting bodily injury or property damage :

a. Is of a different kind, quality or degree than initially expected or intended; or

b. Is sustained by a different person, entity, real or personal property, than initially expected or intended.

However, this exclusion E.1. does not apply to bodily injury resulting from the use of reasonable force by an insured to protect persons or property.

2. "Business"
232 F.Supp.3d 922
a. Bodily injury or property damage arising out of or in connection with a business conducted from an insured location or engaged in by an insured, whether or not the business is owned or operated by an insured or employs an insured.

This exclusion E.2. applies but is not limited to an act or omission, regardless of its nature or circumstance, involving a service or duty rendered, promised, owed or implied to be provided because of the nature of the business.

(Exhibit C, ECF No. 33–1 at 29–30, 45–48).

C. Procedural Background

Westfield filed the instant action on January 26, 2016, seeking a declaratory judgment that the Davis Defendants' policy does not provide coverage for the claims asserted by Roy and Blankenship, and thus that Westfield has no duty to defend or indemnify the Davis Defendants in connection with those claims. (ECF No. 1 at 8, a-b.) Westfield, an Ohio corporation with its principal place of business in Ohio, cited complete diversity and an amount in controversy over $75,000 as the basis for jurisdiction. (Id. ¶ 6.) Given that the Davis Defendants and Roy are citizens of West Virginia and Blankenship is a citizen of Florida, and that the amount in controversy appears to be claimed in good faith, the requirements of 28 U.S.C. § 1332 are satisfied. Westfield filed this motion for summary judgment and memorandum in support on August 11, 2016. Though the Davis Defendants did not file a response, Defendants Roy and Blankenship responded on August 25, 2016, and Westfield filed its reply memorandum on September 1, 2016. The motion is fully briefed and ripe for adjudication.

II. STANDARD OF REVIEW

Summary judgment is proper where the pleadings, depositions, and affidavits in the record show that there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c) ; Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If there exist factual issues that properly can be resolved only by a trier of fact because they may reasonably be determined in favor of either party, summary judgment is inappropriate. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; see also Pulliam Inv. Co., Inc. v. Cameo Props. , 810 F.2d 1282, 1286 (4th Cir. 1987). The moving party bears the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Celotex Corp. , 477 U.S. at 322–23, 106 S.Ct. 2548. Summary judgment is appropriate when the nonmoving party has the burden of proof on an essential element of her case and does not make, after adequate time for discovery, a showing sufficient to establish that element. Id. The nonmoving party may not avoid summary judgment "by submitting an affidavit that conflicts with earlier deposition testimony." Alba v. Merrill Lynch & Co. , 198 Fed.Appx. 288, 300 (4th Cir. 2006) (citing Barwick v. Celotex Corp. , 736 F.2d 946, 960 (4th Cir. 1984) ). When...

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2 practice notes
  • Nautilus Ins. Co. v. GC&P Dev., LLC, CIVIL ACTION NO. 5:17CV60
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • 27 Agosto 2018
    ...'alter the essence of the claim for purposes of determining the availability of insurance coverage.'" Westfield Ins. Co. v. Davis, 232 F. Supp.3d 918, 925 (S.D.W.Va. 2017) (quoting Smith v. Animal Urgent Care, Inc., 542 S.E.2d 827, 832 (W. Va. 2000)); see also Stanley, 602 S.E.2d at 497 (co......
  • Nautilus Ins. Co. v. GC&P Dev., LLC, CIVIL ACTION NO. 5:17CV60
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • 25 Julio 2018
    ...'alter the essence of the claim for purposes of determining the availability of insurance coverage.'" Westfield Ins. Co. v. Davis, 232 F. Supp.3d 918, 925 (S.D.W.Va. 2017) (quoting Smith v. Animal Urgent Care, Inc., 542 S.E.2d 827, 832 (W. Va. 2000)); see also Stanley, 602 S.E.2d at 497 (co......
2 cases
  • Nautilus Ins. Co. v. GC&P Dev., LLC, CIVIL ACTION NO. 5:17CV60
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • 27 Agosto 2018
    ...'alter the essence of the claim for purposes of determining the availability of insurance coverage.'" Westfield Ins. Co. v. Davis, 232 F. Supp.3d 918, 925 (S.D.W.Va. 2017) (quoting Smith v. Animal Urgent Care, Inc., 542 S.E.2d 827, 832 (W. Va. 2000)); see also Stanley, 602 S.E.2d at 497 (co......
  • Nautilus Ins. Co. v. GC&P Dev., LLC, CIVIL ACTION NO. 5:17CV60
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • 25 Julio 2018
    ...'alter the essence of the claim for purposes of determining the availability of insurance coverage.'" Westfield Ins. Co. v. Davis, 232 F. Supp.3d 918, 925 (S.D.W.Va. 2017) (quoting Smith v. Animal Urgent Care, Inc., 542 S.E.2d 827, 832 (W. Va. 2000)); see also Stanley, 602 S.E.2d at 497 (co......

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