Westfield Ins. Co. v. Davis
Decision Date | 07 February 2017 |
Docket Number | CIVIL ACTION NO. 2:16–cv–00822 |
Citation | 232 F.Supp.3d 918 |
Court | U.S. District Court — Southern District of West Virginia |
Parties | WESTFIELD INSURANCE COMPANY, Plaintiff, v. Richard DAVIS, et al., Defendants. |
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.
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 stated herein, the Court GRANTS the Motion for Summary Judgment and DENIES the Motion to Dismiss.
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.
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.)
The Davis Defendants' Homeowners Policy provides, in relevant part:
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.
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 determining whether there is an issue for trial, the Court must view all evidence in the light most favorable to the nonmoving party. Mellen v. Bunting , 327 F.3d 355, 363 (4th Cir. 2003). The nonmoving party may not rest on the pleadings alone and must show that specific material facts exist by offering more than a mere "scintilla of evidence" in support of his position. Anderson , 477 U.S. at 252, 106 S.Ct. 2505.
Westfield's Motion for Summary Judgment offers two grounds on which it could be granted: (1) the timbering incidents alleged by Roy and Blankenship in the underlying state court litigation are not "occurrences" as defined in the Davis Defendants' policy, so coverage is unavailable; and (2) even if the timbering incidents are "occurrences" under the policy, these occurrences would be excluded from coverage under with the "intentional acts" exclusion or the "business" exclusion. Roy and Blankenship's Response opposes both grounds, and also argues that Westfield has waived its right to deny coverage.
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