VIRGINIA EMERSON HOPKINS, District Judge.
This declaratory judgment action was filed by the plaintiff, Auto Owners Insurance Company ("Auto Owners"), against the defendants, Guardian Builders, Inc. ("Guardian"), Randall and Melissa Uselton ("the Useltons"), and Edgar Wayne Tackett. (Docs. 1, 11). Guardian was the general contractor which built the Useltons' home. Tackett was the sole owner/officer of Guardian. (Doc. 40-9 at 7). Auto Owners issued Commercial General Liability (CGL) policy number 054617-duty 38561274 ("the policy") to Guardian.
On October 15, 2012, the plaintiff filed a motion for summary judgment. (Doc. 40). On November 5, 2012, the Useltons filed a response to the motion. (Doc. 45). Guardian and Tackett did not respond to the motion. On November 13, 2012, the plaintiff filed a reply. (Doc. 47). On September 16, 2013, the magistrate recommended that the motion be granted in part and denied in part. (Doc. 51). The case is before the court on the plaintiff's objections to the recommendation, filed September 30, 2013. (Doc. 52). The defendants have not responded to the objections.
For the reasons stated herein, the magistrate's recommendation is
The Eleventh Circuit has summarized the summary judgment burden, including when a defendant seeks judgment as a matter of law on the basis of an affirmative defense, as follows.
International Stamp Art, Inc. v. U.S. Postal Service, 456 F.3d 1270, 1273-74 (11th Cir. 2006).
After conducting a "careful and complete" review of the findings and recommendations, a district judge may accept, reject, or modify the magistrate judge's report and recommendation. See 28 U.S.C. § 636(b)(1) ("A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge."); Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982) (quoting Nettles v. Wainwright, 677 F.2d 404, 408 (5th Cir. 1982), overruled on other grounds by Douglass v. United Services Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996)).
A district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). This requires that the district judge "give fresh consideration to those issues to which specific objection has been made by a party." Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 512 (11th Cir. 1990) (citing H.R. Rep. No. 94-1609, 94th Cong., 2nd Sess., reprinted in 1976 U.S. Code Cong. & Admin. News 6162, 6163). In contrast, those portions of the R&R to which no objection is made need only be reviewed for clear error. Macort v. Prem, Inc., 208 Fed. App'x. 781, 784 (11th Cir. 2006).
"Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct." United States v. Woodard, 387 F.3d 1329, 1334 (11th Cir. 2004) (internal quotation marks omitted) (quoting United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)). It is incumbent upon the parties to timely raise any objections that they may have regarding a magistrate judge's findings contained in a report and recommendation, as the failure to do so subsequently waives or abandons the issue, even if such matter was presented at the magistrate judge level. See, e.g., United States v. Pilati, 627 F.3d 1360 at 1365 (11th Cir. 2010) ("While Pilati raised the issue of not being convicted of a qualifying offense before the magistrate judge, he did not raise this issue in his appeal to the district court. Thus, this argument has been waived or abandoned by his failure to raise it on appeal to the district court."). However, the district judge has discretion to consider
"Parties filing objections must specifically identify those findings objected to. Frivolous, conclusive or general objections need not be considered by the district court." Nettles, 677 F.2d at 410 n.8. "This rule facilitates the opportunity for district judges to spend more time on matters actually contested and produces a result compatible with the purposes of the Magistrates Act." Id. at 410. Indeed, a contrary rule "would effectively nullify the magistrate judge's consideration of the matter and would not help to relieve the workload of the district court." Williams, 557 F.3d at 1292 (internal quotation marks omitted) (quoting United States v. Howell, 231 F.3d 615, 622 (9th Cir. 2000)).
There is no objection to the magistrate's findings of fact. The court has reviewed them for clear error and found none. Accordingly, the magistrate's findings of fact are
This insurance does not apply to:
(See Doc. 40-3 through 40-9).
The policy defines "occurrence" as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." (Doc. 40-6 at 18). It defines "property damage" as "[p]hysical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it." (Id. at 19).
Upon receiving notice from the Useltons that there were problems with the home, Guardian Builders returned to the home numerous times in an unsuccessful effort to remedy the problems. Guardian Builders expended $10,000 before April 8, 2008, in connection with digging up the front yard to re-waterproof the front exterior wall of the home. The builder, Wayne Tackett, believed that this had stopped the water intrusion into the home. (Tackett Depo. at 54, 59-64, 68-69). Tackett did not notify Auto-Owners about these expenditures. (Id. at 64). Although Tackett testified that he believed he had taken care of the problems, the Useltons testified that he had not.
On April 4, 2008, Tackett wrote a letter to the Useltons advising them that he would discontinue any further warranty work in their home unless he was paid $18,628.53 he claimed that he was still owed for the construction of the residence. (Melissa Uselton Depo. at Ex. 7). At the time he wrote the letter to the Useltons in April 2008, Tackett stated that he did not believe the relationship had "gone sour," but he had not been paid all of the money he believed he was owed for building the residence. (Tackett Depo. at 50-51). In the letter, he noted that "we have been very patient, but now we are getting concerned." (Id. at 51). He also states that he had left numerous messages on Randall Uselton's cell phone but had not received any return calls. (Id. at 52).
The Useltons paid Tackett another $15,000 thinking this would cause Tackett to take care of the problems with the home which they had outlined for him in a list of problems that needed to be addressed. (Randall Uselton Depo. at 13-14; Melissa Uselton Depo. at 62-63). Tackett is not sure how many trips he made to the Uselton residence to try to repair the problems; however, he testified that he made more than ten trips. (Tackett Depo. at 46-49). However, the Useltons saw very little work being done on these problems. The water continued to enter their home. (Melissa Uselton Depo. at 74). It damaged the flooring and some of the furniture in the residence. (Id. at 75). However, according to Tackett, the leakage was caused by water running up against the house due to improper grading of the yard, which was work performed by someone hired by the Useltons and not by Tackett or one of his subcontractors.
Tackett testified that had this other contractor hired by the Useltons done the grading correctly, the water would have been diverted away from the house. (Tackett Depo. at 60). Tackett testified that, even though he thought he had finished everything by April 2008, he admits that he did some work after that time. (Tackett Depo. at 53-54). According to Tackett, Guardian Builders dug up the Useltons' front yard again after his April 4, 2008, letter because there was still water leaking into the house. This cost him an additional $20,000. (Id. at 69). According to Tackett, he was never paid for the work he did attempting to fix the Useltons' house. He testified that the only money he received from them, including the $15,000 he received in April 2008, was money he was owed under his contract with the Useltons for construction of the home. (Id. at 95-96, 112-13). In October 2008, Tackett sent a crew out to repair concrete at the Uselton residence, but Mr. Uselton refused to allow them to work and sent them away. (Id. at 71).
In addition to water leaking into the home, the Useltons noticed that there were places in the home where water poured off the porches and settled on all the sidewalks around the house. This washed out plants and shrubs in the front of the house. It also came in through the back windows of the house. (Melissa Uselton Depo. at 57). Water leaking into the house damaged sheetrock and molding in the garage. It also resulted in mold. (Id. at 50-51). Water also has damaged a balcony in the home. (Tackett Depo. at 109-10).
Subsequently, the Useltons hired a home inspector. (Randall Uselton Depo. at 14-15). As a result of the inspection, the Useltons sought out an attorney. (Id. at 15). When the problems with their property were not fixed by Tackett and Guardian Builders, counsel for the Useltons sent Tackett a letter dated December 8, 2008, advising them of the problems, seeking mediation through the North Alabama Better Business Bureau and seeking to have Guardian Builders voluntarily agree to repair the defects cited in the letter. (Melissa Uselton Depo. at Ex. 9).
After receiving the letter, Mr. Tackett notified his insurance company, on December 18, 2008. (Tackett Depo. at 65). He testified that he had not notified Auto-Owners before that time because he "didn't see a need to." (Tackett Depo. at 66). According to Tackett, he believed the work that he was doing on the Uselton residence was "warranty work" that he was responsible for completing. (Id.). He only decided to contact Auto-Owners after he received a letter from the Useltons' attorney. (Id.). According to Tackett, he was not aware that the problems had caused any damage to the Uselton house prior to contacting his insurance company. (Id. at 93). In his statement to the insurance adjuster, Tackett advised that, as far as he knew at that time, the only damage to the Uselton residence was that some sheetrock in one room may have gotten wet. (Doc. 40-9 at 11).
After receiving notice of the demand letter from Tackett, Auto-Owners conducted an insurance coverage analysis and, on February 8, 2009, issued a letter to Guardian Builders stating that it had made an initial determination that no coverage was available. After Guardian Builders went out of business, Guardian Builders' policy with Auto-Owners was cancelled effective October 2, 2009. (Tackett Depo. at 13-14, 32-33, and Ex. 19).
On April 13, 2010, the Useltons sued Guardian Builders and Wayne Tackett in the Circuit Court of Madison County regarding the construction of their house and the resulting damage. The Circuit Court ordered the dispute to arbitration pursuant to an arbitration agreement. In November 2011, after arbitration, the Useltons were awarded $307,111.05. In December 2011, a supplemental award of attorney fees was made, bringing the total award to $452,275.20. The damages awarded by the arbitrator were set out as follows:
(Doc. 1 at Ex. A, Decision of Arbitrator, at 11).
For the most part, the damages awarded by the arbitrator were for defects resulting from the negligent construction of the residence. However, some of the damages were a subsequent consequence of the negligent construction. For instance, the report cites the incorrect and/or negligent installation of the Seal-O-Flex deck surface as the cause of water leaking and resulting damage to adjacent materials. It noted, with regard to Item D above, that in addition to replacing the deck surface material with the proper flashing and caulking, the underlayment must be inspected for damage and replaced as needed. (Id. at 9, ¶ 4). Likewise, the report also states, with regard to Item J above, that it is necessary to
(Id. at 10, ¶ 10). However, nearly all of the property damage resulting from the negligent construction appears to have been to items installed by Guardian Builders during the construction of the home. The only evidence submitted to reflect that there was any damage to property or items installed by the Useltons or anyone not employed by Guardian Builders was damage to the Useltons' furniture and to hardwood floors which were installed through Melissa Uselton's father who owns Carpet One. (Melissa Uselton Depo. at 29-30). The arbitrator's report does not state at what point in time after the construction of the house that these damages occurred.
(Doc. 51 at 1-11) (bold in original).
The plaintiff objects that the magistrate's recommendation: 1) identified the wrong issues before the court; 2) improperly determined that the issue of timely notice of the claim was for the trier of fact to decide; 3) improperly found that the issue of coverage was for the trier of fact to decide; and 4) failed to find that the "your work" exclusion applied to exclude coverage. The court will address each objection in turn.
The plaintiff first objects to the way the magistrate framed the issue in this case. The magistrate's report states:
(Doc. 51 at 1). The plaintiff argues:
Doc. 52 at 1-2) (citations omitted).
The court finds no error in the magistrate's statement. The issue in this case
Auto Owners next objects to the magistrate's determination that a factual question exists on the issue of whether Guardian gave timely notice to Auto Owners, as required under the policy.
Section IV.2.a. of the policy provides, as a condition to coverage, that the insured "must see to it that [Auto Owners is] notified as soon as practicable of an `occurrence' or an offense which may result in a claim." (Doc. 40-4 at 2). The plaintiff's motion for summary judgment argued that the ten month delay from the time the Useltons notified Tackett and Guardian
"`[T]he failure of an insured to comply within a reasonable time with such conditions precedent in an insurance policy requiring the insureds to give notice of an accident or occurrence releases the insurer from obligations imposed by the insurance contract.'" Travelers Indemnity Co. of Connecticut v. Miller, 86 So.3d 338, 342 (Ala. 2011) (quoting Reeves v. State Farm Fire & Cas. Co., 539 So.2d 252, 254 (Ala.1989)). In this case, the policy requires notice "as soon as practicable." "The term `as soon as practicable' has been interpreted `to mean that notice must be given within a reasonable time in view of the facts and circumstances of the case.'" Travelers Indemnity, 86 So. 3d at 342 (quoting Haston v. Transamerica Ins. Servs., 662 So.2d 1138, 1141 (Ala.1995) (internal quotations omitted)). The Alabama Supreme Court has stated:
Id. (citing U.S. Fidelity & Guar. Co. v. Baldwin County Home Builders Ass'n, 770 So.2d 72, 75 (Ala.2000)) (internal citations omitted). The court continued:
However, where an insured fails to show a reasonable excuse or the existence of circumstances which would justify a protracted delay, the Court should as a matter of law hold that there has been a breach of the condition as to notice.....
Id. at 343-44 (internal quotations and citations omitted). Finally, the court noted:
Id. at 344.
In his opinion, the magistrate noted the cases cited in the preceding paragraph, then wrote: "Thus, it is necessary to determine whether Tackett has established a reasonable excuse for this delay." (Doc. 51 at 14). The magistrate then wrote:
(Doc. 51 at 14-16).
The plaintiff argues in its objection that the facts cited by the magistrate go only to Tackett's subjective belief, and that "reasonableness of the delay" should be judged according to an objective standard. Indeed, the Alabama Supreme Court has stated that the standard is an objective one. In Pan Am. Fire & Cas. Co. v. DeKalb-Cherokee Counties Gas Dist., 289 Ala. 206, 266 So.2d 763 (1972), the court, citing 45 C.J.S. Insurance § 1056, stated:
Pan Am., 266 So. 2d at 771; see also, CIE Serv. Corp. v. Smith, 460 So.2d 1244, 1247 (Ala. 1984) (The reasonable and prudent man test "is not a subjective one measured merely by the good faith of the insured, but an objective one."); Progressive Specialty Ins. Co. v. Steele ex rel. Steele, 985 So.2d 932, 945 (Ala. Civ. App. 2007) (Thomas, J.) (concurring and dissenting) ("Thus, it is not a party's subjective opinion as to the reasonableness of the delay in providing notice to his insurance company that is determinative; rather, it is an objective reasonableness test that our courts apply in such circumstances."); Phoenix Assur. Co., 303 F. Supp. at 869-70) (quoting Young v. Travelers Ins. Co., 119 F.2d 877, 879 (5th Cir. 1941) ("[I]t was held that a subjective test should not be applied as to the insured's duty to give notice `as soon as practicable,' so as to excuse the insured from reporting on the ground that he was not at fault and no claim would be made against him. `The duty of giving notice is not measured in terms of good faith.'"). That being said, when the insured gives a reason for the delay, Alabama courts still seem to focus on subjective belief.
For example, in U.S. Fidelity & Guarantee Co. v. Bonitz Insulation Co. of Alabama (Bonitz), 424 So.2d 569 (Ala. 1982), a case cited by the magistrate, Bonitz, on June 9, 1972, entered into a contract with the City of Midfield, Alabama, for the construction of the roofing and insulation on a gymnasium as part of a larger school construction project. It subcontracted part of the roofing job to Vulcan Roofing Company. When the roof began to leak, Bonitz was informed of the problem by two letters, one in November of 1972, and another in July of 1973. It referred the issue to Vulcan, who attempted, unsuccessfully, to repair the roof. The problem continued "over the next several years," and the roof eventually had to be completely replaced in 1978. On August 18, 1977, the City of Midfield filed suit against Bonitz and others. Only then did Bonitz provide notice of the claim by forwarding the lawsuit to its insurers. Noting that the applicable policy required notice "as soon as practicable," the Alabama Supreme Court wrote:
Bonitz, 424 So. 2d at 573.
The plaintiff argues that the facts of Bonitz are "like night and day from those in the instant case." (Doc. 52 at 3). It points out that, in Bonitz, there was testimony that the insured was unaware of the extent of the problem and thought that it was being taken care of by another entity. It then notes that, in the instant case Guardian Builders admittedly not only knew the extent of the problems, it spent $30,000 (without Auto-Owners' consent) in multiple unsuccessful efforts to fix them, including two excavation projects in the front yard of the home in an effort to re-waterproof the front exterior wall of the home. Moreover, as many times as Guardian Builders was at the Uselton home ("more than ten times"), it could not have failed to see all of the other problems later noted by the arbitrator, or recognized the mental distress being caused to the Useltons.
(Doc. 52 at 3-4).
The plaintiff is correct that the facts of the instant case do show that Guardian was more involved in the attempts to fix the problem, and had a greater knowledge of the extent thereof, that the insured in Bonitz. However, these facts alone do not mean that the insured's duty to notify the insurer had been triggered.
Illustrative of this point is U.S. Fidelity & Guarantee Co. v. Baldwin Cnty. Home Builders Ass'n, Inc. (Baldwin County Home Builders), 770 So.2d 72 (Ala. 2000). In Baldwin County Home Builders, the Crowes, on or about January 10, 1994, purchased a new house from the Baldwin County Home Builders Association ("BCHBA"). The house had been constructed by L.M. Smith Construction Company, Inc., of which L.M. Smith was the president. Soon after the Crowes moved in to the house, they began experiencing drainage problems in the yard, which the court described as follows:
Baldwin County Home Builders, 770 So. 2d at 72. In the early part of 1994, Robert Crowe informed Smith of this problem. Smith then referred Crowe to John Barr of Heaton Septic Tank Services. That company was the subcontractor which had installed the Crowes' septic tank.
After Barr visited and inspected the property, Crowe wrote him a letter proposing various ways to fix the water problem. However, Barr took no action. On January 13, 1995, about a year after first informing Smith of the problem, Crowe sent Smith a letter "stating that something had to be done to correct the seepage from the septic-tank field lines and that the Crowes expected the homebuilder's warranty to cover any necessary repairs." Id. at 73. The letter stated:
Id. at 73. On January 16, 1995, Smith responded to Crowe's letter and stated that he had informed Heaton Septic Tank Services about Crowe's proposed corrections. In the same letter, Smith also offered to contact the designer of the septic-tank system, Seth Moore, of Moore Engineering Company. The Crowes heard nothing further from Smith, Heaton Septic Tank Services, or Moore Engineering Company.
On March 18, 1995, Crowe sent Smith another letter requesting correction of the septic-tank seepage problem. In this letter, Crow wrote: "Please understand that for months I have sought an amicable solution because I am not a litigious individual. Nevertheless, I have the resolve to find the end of this matter." Id. at 73. In a May 29, 1995, letter, Crowe advised Smith that he had taken corrective action and requested reimbursement for $498.31 which he said he had spent on the project. On June 6, 1995, Smith responded to Crowe with a letter stating that the problem had been misdiagnosed as a septic-tank problem when it was actually related to the underground water table. The court noted:
Id. at 73-74.
The policy in Baldwin County Home Builders, like that in this case, required notice of an "`occurrence' or offense" "as soon as practicable." Id. at 74. In deciding the issue, the court first referred to Bonitz, saying, "this Court held that an insured's five-year delay in notifying its insurer of an `occurrence,' a delay based on the insured's believing that the subcontractor was repairing the leaking roof, was reasonable." Id. at 75-76. However, the court then seemed to draw a distinction between Bonitz and the conduct before it by saying:
Id. at 76. The court found that the issue of reasonableness of notice was for the trier of fact where:
Id. at 76. The Alabama Supreme Court noted that in making these arguments
Id. at 76.
Like the instant case, the circumstances present in Baldwin County Home Builders put the insureds on notice of a problem immediately after the owners moved into the home. Unlike the instant case, the contractor in Baldwin County Home Builders referred the homeowners to a subcontractor. However, this court feels that the referral to a subcontractor was not the determinative fact in Baldwin County Home Builders. As noted by the court, "Smith remained in constant contact with the subcontractors, and Smith was probably aware that the subcontractors were not correcting the seepage problem at the Crowe residence. In Crowe's letter to Smith dated January 13, 1995, Smith was told that Heaton Septic Tank Services had taken no action." Id. at 76. Thus, the court distinguished the facts before it from the case where a contractor merely refers to the issue to a subcontractor and forgets all about it. Instead, the court focused on what the insureds subjectively believed. See, id. at 76 (noting that Smith and BCHBA "believed . . . that the problem could be `worked out,'" "considered the issue resolved," and thought they were not liable "because the drainage problem was not covered under the homebuilder's warranty."). This is comparable to the facts of the instant case, where Tackett considered this "warranty Builders, 770 So. 2d at 75. Even though there was no opinion by the trial court, the decision effectively found as a matter of law that late notice was reasonable under these circumstances. Even though it reversed the trial court, the Alabama Supreme Court found that these circumstances still created a fact question. If the court had thought otherwise, it could have so stated and rendered judgment for USF&G. It did not. work" instead of an "occurrence" under the policy, and thought that the problem was the result of poor grading of the property performed by another company hired by the Useltons.
It is true that, in the instant case, Guardian, through Tackett, performed work on the home in an attempt to repair the problem, a fact not present in Baldwin County Home Builders. The plaintiff argues, inter alia, that his failure to give notice was less reasonable for that reason. Of course, Baldwin County Home Builders had one additional fact not present in the instant case-a letter sent to the insured that at least implied the possibility of litigation. Each respective fact is only relevant to the extent that it goes to what the insured should have known. If the Alabama Supreme Court found a fact issue under the circumstances in Baldwin County Home Builders, this court cannot say, as a matter of law, that there is no fact question in the instant case, which deals with similar facts, a much short period of time, and no express or implied threat of litigation by the homeowners.
In its motion for summary judgment, the plaintiff argued:
(Doc. 40 at 15). The magistrate judge wrote:
(Doc. 51 at 18) (emphasis added). The plaintiff objects to this conclusion.
The subject policy provides that the plaintiff must "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." It also provides that
(Doc. 40-3 at 40). Further, under the type of CGL policy at issue in the instant case,
Town & Country Prop., L.L.C. v. Amerisure Ins. Co., 111 So.3d 699, 706 (Ala. 2011); see also, Shane Traylor Cabinetmaker, L.L.C. v. Am. Res. Ins. Co., Inc., 126 So.3d 163, 168 (Ala. 2013) (same). The Alabama Supreme Court has since clarified further that "faulty workmanship performed as part of a construction or repair project may lead to an occurrence if that faulty workmanship subjects personal property or other parts of the structure outside the scope of that construction or repair project to continuous or repeated exposure to some other general harmful condition and if, as a result of that exposure, that personal property or other unrelated parts of the structure are damaged." Owners Ins. Co. v. Jim Carr Homebuilder, LLC, No. 1120764, 2013 WL 5298575 at *5 (Ala. Sept. 20, 2013) (emphasis in original) (internal quotation marks omitted).
This fact issue can be decided on summary judgment. As in this case, where the movant does not bear the burden of proof at trial, it can satisfy its initial burden on summary judgment in either of two ways. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-16 (11th Cir. 1993). First, the movant may simply show that there is an absence of evidence to support the non-movant's case on the particular issue at hand. Id. at 1116. In such an instance, the non-movant must rebut by either (1) showing that the record in fact contains supporting evidence sufficient to withstand a directed verdict motion, or (2) proffering evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. Id. at 1116-17. When responding, the non-movant may no longer rest on mere allegations; instead, it must set forth evidence of specific facts. Lewis v. Casey, 518 U.S. 343, 358 (1996). The second method a movant in this position may use to discharge its burden is to provide affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial. Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering evidence sufficient to withstand a directed verdict at trial on the material fact sought to be negated. Id.
In its motion for summary judgment, the plaintiff argued both that the defendants can provide no evidence of coverage, and also provided evidence tending to negate coverage. It stated:
(Doc. 40 at 15-16). This showing was sufficient to shift the burden to the defendants.
In response, the defendants wrote:
(Doc. 45 at 15). As the magistrate judge correctly noted, "the arbitration award and the judgment rendered on that award do not reveal what portion fits within [the] coverage provisions." (Doc. 51 at 180.)
The magistrate judge also wrote:
(Doc. 51 at 19). The plaintiff objects as follows:
(Doc. 52 at 9-10).
"[T]he ultimate burden of proof as to the applicability of the exclusionary clause rests with the []insurer." Fleming v. Alabama Farm Bureau Mut. Cas. Ins. Co., 293 Ala. 719, 722, 310 So.2d 200, 202 (1975). The plaintiff states that "[t]he Useltons testified that their only complaints were about . . . "faulty workmanship." (Doc. 40 at 17). It argues that the exclusion applies to damage to the work of Guardian and Tackett, as well as to that of their subcontractors. (Doc. 47 at 9). But the plaintiff provides no evidence as to what portion of the award falls under the exclusion.
The general nature of the arbitration award cuts both ways. Just as the defendants have the "impossible burden" of proving coverage, the plaintiff has a similar problem proving that any portion of the award falls under an exclusion. In the absence of evidence proving the application of the exclusion, the magistrate judge's opinion was not in error.
Based on the foregoing, the objections will be
(Doc. 1 at 9). Thereafter follows a list of 18 separate categories of problems with the home/elements of damage to the Useltons, explaining the work which needed to be done (and why) where appropriate. The arbitrator then set out the award for each category as follows:
