VIRGINIA EMERSON HOPKINS, United States District Judge.
This action is a removed garnishment
The case is now before the Court on the Cross-Motions for Summary Judgment filed by the parties. (Docs. 21, 22). For the reasons stated herein, summary judgment will be
Under Federal Rule of Civil Procedure 56, summary judgment is proper if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) ("[S]ummary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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.") (internal quotation marks omitted). The party requesting summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. Once the moving party has met its burden, Rule 56(c) requires the non-moving party to go beyond the pleadings in answering the movant.
The underlying substantive law identifies which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000). Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. If the evidence presented by the non-movant to rebut the moving party's evidence is merely colorable, or is not significantly probative, summary judgment may still be granted. Id. at 249, 106 S.Ct. at 2511.
How the movant may satisfy its initial evidentiary burden depends on
For issues on which 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. Id. at 1115-16. 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, 116 S.Ct. 2174, 2183, 135 L.Ed.2d 606 (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.
"The standard of review for cross-motions for summary judgment does not differ from the standard applied when only one party files a motion, but simply requires a determination of whether either of the parties deserves judgment as a matter of law on the facts that are not disputed." S. Pilot Ins. Co. v. CECS, Inc., 52 F.Supp.3d 1240, 1242-43 (N.D. Ga. 2014) (citing Am. Bankers Ins. Group v. United States, 408 F.3d 1328, 1331 (11th Cir. 2005)). "The Court must consider each motion on its own merits, resolving all reasonable inferences against the party whose motion is under consideration." Id. "The Eleventh Circuit has explained that `[c]ross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed.'" Id. (quoting United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir. 1984)). "Cross-motions may, however, be probative of the absence of a factual dispute where they reflect general agreement by the parties as to the controlling legal theories and material facts. Id. (quoting Oakley, 744 F.2d at 1555-56).
The parties have stipulated as follows:
1. On November 9, 2015, the City of Pell City, Alabama ("the City") and Phoenix Services of Alabama, LLC ("Phoenix") entered into a contract ("the Contract") wherein Phoenix agreed "to remove or demolish [a] smokestack from [the City's] property" and to "remove all debris, trash, and other materials resulting from the demolition of the smokestack." A copy of the Contract
2. Timothy Manley Phifer ("Phifer"), as "Member/Manager" of the "Timothy Manley Phifer Trust," signed the Contract on behalf of Phoenix.
3. On November 24, 2015, Phifer was performing the work under the Contract.
4. The City loaned Phifer a 2014 Komatsu tractor ("the tractor") for use in performing the work.
5. The work that Phifer performed included using explosives in an effort to demolish the smokestack.
6. After using explosives, most of the smokestack was still standing. Phifer then used the tractor to perform work on the smokestack. While Phifer was in the cab of the tractor and operating the tractor, the smokestack collapsed onto and damaged the tractor. Phifer was unhurt.
7. The accident described in ¶ 6 was filmed and can be seen in the YouTube videos titled "Pell City implodes historic Avondale Mills smokestack" (
8. The City's insurer, AMIC, paid $123,750 for the damage to the tractor.
9. On May 18, 2016, AMIC, as subrogee of the City, filed suit against Phifer, the Timothy Manley Phifer Trust ("Phifer Trust"), and Phoenix in the Circuit Court of St. Clair County, Alabama (hereafter "the state court"), alleging that AMIC paid the City for the damage to the City's tractor and that AMIC was entitled to recover against Phifer, Phifer Trust, and Phoenix for their negligence or wantonness in causing the damage and/or for their failure to indemnify the City for the damage. A copy of AMIC's complaint appears in the record as document 10-2.
10. On February 23, 2017, the state court entered a default judgment in favor of AMIC against Phifer, Phifer Trust, and Phoenix for $123,750 in compensatory damages and $1,320.62 in costs. A copy of the state court's order rendering the default judgment appears in the record as document 10-3.
11. Scottsdale issued a policy of commercial general liability insurance (policy no. CPS2362764) to "Timothy Phifer d/b/a Phoenix Services of Alabama," effective November 13, 2015, until it was canceled on December 28, 2015 ("the Policy"). The Policy was in effect at the time of the accident described in ¶ 6 above and shown in the videos referenced in ¶ 7 above. A copy of the Policy appears in the record as document (doc. 10-4).
12. At the time of the accident described in ¶ 6 above and shown in the videos referenced in ¶ 7 above, the tractor was loaned by the City to Phifer.
13. At the time of the accident described in ¶ 6 above and shown in the videos referenced in ¶ 7 above, the tractor was in Phifer's care, custody, or control.
14. At the time of the accident described in ¶ 6 above and shown in the videos referenced in ¶ 7 above, the tractor was "mobile equipment" as defined in the Policy.
The Policy states that Scottsdale agrees 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." (Doc. 10-4 at 8, ¶ 1.a.). The "insured" in this case is "Timothy Phifer d/b/a Phoenix
The policy also contains these relevant exclusions:
This insurance does not apply to:
(Doc. 10-4 at 9, 11-12, ¶¶ 2.b., 2.h., 2.j).
As noted previously, this is a garnishment action in which AMICO claims that, under the Policy, Scottsdale must indemnify Phifer, the Phifer Trust, and Phoenix in connection with the default judgment entered against them in the state court case. This is the only basis for AMICO's claim that Scottsdale is indebted to Phifer, the Phifer Trust, and Phoenix, and thus, subject to garnishment. Scottsdale argues that either the Policy's "Mobile Equipment" exclusion, or its "Damage to Property" exclusion, or both, exclude coverage in this case, and, therefore, it is not indebted to Phifer, the Phifer Trust, and Phoenix. Accordingly, as with a typical declaratory judgment action, the Court must determine whether there is coverage. If there is not, there is nothing to garnish. The Court will examine each of the cited exclusions in turn.
The Alabama Supreme Court has stated:
Mid-Continent Cas. Co. v. Advantage Med. Elecs., LLC, 196 So.3d 238, 244 (Ala. 2015). Very recently, the Alabama Court of Civil Appeals wrote:
Geico Indem. Co. v. Bell, 232 So.3d 873, 875-77, 2017 WL 942598, at *2-3 (Ala. Civ. App. 2017).
As noted above, the Policy excludes coverage for property damage arising from the use of "mobile equipment ... in, or while in practice for, or while being prepared for, any prearranged racing, speed, demolition, or stunting activity." (Doc. 10-4 at 11, ¶ h.(2)). The parties agree that the tractor in this case was "mobile equipment." Scottsdale argues that "Phifer was using the tractor in
In Alabama, "noscitur a sociis, has been embraced ... as an aid in construing ambiguous ... language." State Superintendent of Educ. v. Alabama Educ. Ass'n, 144 So.3d 265, 284 (Ala. 2013). That doctrine holds that where general and specific words which are capable of an analogous meaning are associated one with the other, they take color from each other, so that the general words are restricted to a sense analogous to that of the less general. Ex parte Capstone Bldg. Corp., 96 So.3d 77, 85 (Ala. 2012) (internal quotations and citations omitted). AMIC argues that, using this doctrine, the Court must consider the word "demolition" in the context of the terms surrounding it in the Policy (i.e. "prearranged racing, speed ... or stunting activity"). If considered in light of these other terms, AMIC argues, "demolition" means something closer to an activity "involving cars and racing and speed and stunting activity. It is no stretch to harken back to the classic amusement park ride of bumper cars to understand the extent the word `demolition' plays in this exclusion." (Doc. 21 at 4).
Scottsdale cites to the following definition of "demolition" and "demolish" from Merriam-Webster: "tear down, raze ... to break to pieces: smash ... to do away with: destroy."
As noted above, the Policy excludes coverage for "Property damage" to "[p]roperty loaned to [the insured]," and/or "[p]ersonal property in the care, custody or control of the insured." (Doc. 10-4 at 11-12, ¶¶ 2.j). In the instant case, there is no dispute that the tractor was loaned to Phifer and was in his care, custody, and control when it was damaged. (Doc. 10 at 3, ¶¶ 12, 13). However, the terms "property," and "personal property" are not defined in the Policy. AMIC argues that, under these circumstances, and since it is undisputed that the tractor was "mobile equipment," it cannot also be "property" or "personal property."
Regardless, the Court does not agree that the failure to define "property" and "personal property" is dispositive. In Alabama,
Safeway Ins. Co. of Alabama v. Herrera, 912 So.2d 1140, 1143 (Ala. 2005). Giving the Policy its plain and ordinary meaning, the tractor in the instant case is clearly "property" and "personal property."
This approach is consistent with that of several cases which the Court finds persuasive on this issue. For example, in Progressive Paloverde Ins. Co. v. Bishop, No. 1:11-CV-00290-TWP-DK, 2012 WL 2399607, at *3 (S.D. Ind. June 25, 2012) (Pratt, J.), the policy excluded coverage for "bodily injury or property damage arising out of the ... use of any vehicle ... while being used to carry persons or property for compensation or a fee, including, but not limited to ... pickup or delivery of ... food[.]" Bishop, 2012 WL 2399607, at *1 (internal quotations and citations omitted).
Similarly, in S. Farm Bureau Cas. Ins. Co. v. Hammond, No. 2:15-CV-02107, 2016 WL 1178796 at *2 (W.D. Ark. Mar. 24, 2016) (Holmes, J.), Southern Farm Bureau argued that a four-wheeler was not "self-propelled farm machinery," a phrase not defined by the policy in that case, because it also fit the definition of an "automobile," which
Id. at *2.
Finally, in Dauthier v. Pointe Coupee Wood Treating Inc., 560 So.2d 556, 557 (La. Ct. App. 1990), a forklift being used to unload a truck "became unbalanced, and "[t]hree men ... attempted to balance the forklift by climbing onto its rear." Dauthier, 560 So.2d at 557. Thereafter, the forklift tilted, throwing the men to the ground and killing one of them. The policy in question excluded coverage for "[b]odily injury or property damage resulting from the movement of property by a mechanical device (other than a hand truck) not attached to the truck." Id. (internal quotations omitted). Elsewhere, the policy defined "mobile equipment" to include forklifts. The Court held that the exclusion applied, writing:
Id. at 558.
It is true that "[e]xceptions to coverage must be interpreted as narrowly as possible in order to provide maximum coverage for the insured, and must be construed most strongly against the company that drew the policy and issued it." Porterfield, 856 So.2d at 806 (internal quotations and citations omitted). However, when, as in this case, "there is no ambiguity in the terms of an insurance contract, the language must be enforced as written, and courts cannot defeat express provisions in a policy, including exclusions from coverage, by making a new contract for the parties." Id. at 806. Here, because the tractor was "property" and/or "personal property" that was loaned to Phifer, and was in his care, custody, and control when it was damaged, paragraphs 2.j.(3) and 2.j.(4) of the Policy apply to exclude coverage.
Based on the foregoing, summary judgment is due to be granted in favor of Scottsdale, and against AMICO, on the issue of coverage. A Final Order will be entered.
(Doc. 25 at 6-7). The court does not understand this argument. Regardless, it does not seem to address whether the tractor is "property" so as to provide coverage.
Bishop, 2012 WL 2399607, at *3.
