United States District Court, Southern District of Georgia, Augusta Division
J. RANDAL HALL UNITED
STATES DISTRICT JUDGE
This matter is before the Court on Plaintiff Great American Alliance Insurance Company's ("Great American") and Defendant Ulysses Rodney Anderson's cross-motions for summary judgment. (Docs. 37, 40.) On June 10, 2012, Mr. Anderson sustained "catastrophically permanent injuries" after a vehicle owned by Looper Cabinet Company, Inc. ("Looper Cabinet") and driven by Defendant Brian Preston Hensley struck Mr. Anderson's motorcycle. (Underlying Compl., Doc'. 40-3, ¶ 23.) Mr. Hensley was under the influence of alcohol and allegedly fled the scene. (Id. ¶¶ 8, 13, 17.) Great American seeks to avoid coverage under Looper Cabinet's policies of insurance because Mr. Hensley did not have permission to operate Looper Cabinet's truck while intoxicated and therefore was not an "insured." Alternatively, Great American claims Mr. Hensley subjectively intended to cause the wreck, thereby invoking the "Expected or Intended Injury" exclusion. Mr. Anderson moves for judgment in his favor on the same grounds. As the Court finds Mr. Hensley was not an "insured" under either policy of insurance, the Court GRANTS Great American's Motion for Summary Judgment (Doc. 37) and declines to address the parties' alternative grounds for relief. Mr. Anderson's Motion for Summary Judgment, accordingly, is DENIED. (Doc. 40.)
Mr. Hensley began working for Looper Cabinet in 1996. (Hensley Dep. II, Doc. 37-7, at 8.) When he assumed his current role at the company, which requires him to take measurements in the field, Looper Cabinet permitted him to drive one of their trucks between home, work, and job sites. (C. Looper Dep. II, Doc. 37-9, at 29-30, 43-44; Hensley Dep. I, Doc. 37-6, at 6-7; Hensley Dep. II at 6, 9.) Looper Cabinet also allowed him to use the truck on occasion for personal reasons. (C. Looper Dep. II at 29-30, 43-44; Hensley Dep. at 8 ("I have been told by Chuck Looper that if needed to use the truck could use it.”); Hensley Dep. II at 7, 26-28; M. Looper Dep., Doc. 40-6, at 44.) At the time of the accident, Mr. Hensley's only vehicle was the company-provided truck. (Hensley Dep. at 9.)
On June 10, 2012, while driving home from his father's lake house in a Looper Cabinet truck, Mr. Hensley collided with Mr. Anderson's motorcycle. (Anderson St. of Material Facts ("DSMF"), Doc. 40-2, ¶ 1; PL's Resp. DSMF, Doc. 43-1, ¶ 1; PL's St. of Material Facts ("PSMF"), Doc. 37-2, ¶ 15; Anderson Resp. PSMF, Doc. 44-1, f 15.) Mr. Hensley was not performing any services for Looper Cabinet that day (C. Looper Dep. at 30; C. Looper Dep. II at 10-11, 43; Hensley Dep. II at 7) and had permission to make the personal trip (C. Looper Dep. at 43-44, 70; C. Looper Dep. II at 31; Hensley Dep. at 12, 15; Hensley Dep. II at 28; M. Looper Dep. at 40) . Mr. Hensley, however, consumed at least four beers prior to driving. (C. Looper Dep. at 71; Hensley Dep. II at 7, 29.)
To take advantage of certain insurance discounts, Looper Cabinet promulgated and posted a substance abuse policy in 1995 that stated "NO ONE UNDER THE INFLUENCE OF ALCOHOL OR ILLEGAL DRUGS CAN WORK IN THE SHOP ON OR OFF THE CLOCK.,, (Doc. 40-7 ("1995 Policy"); C. Looper Dep. II at 22-23, 40-43; M. Looper Dep. at 27-28.) Mr. Hensley acknowledged receipt of and signed the 1995 Policy upon hire. (See Doc. 40-7; Hensley Dep. at 16-17; Hensley Dep. II at 10-11.) In 2000, Looper Cabinet updated its rules and policies to state "NO ONE UNDER THE INFLUENCE OF ALCOHOL OR NON-PRESCRIPTION DRUGS CAN WORK IN THE SHOP OR ON THE TRUCK, ON OR OFF THE CLOCK." (Doc. 37-10 at 1 ("2000 Policy").) The 2000 Policy included eight additional pages outlining the substance abuse policy generally, setting forth definitions, and enacting procedures for investigating substance abuse and drug testing. (See id. at 2-9.) Of note,
[a] n employee reporting to work visibly impaired will be deemed unable to properly perform required duties and will not be allowed to work. ... If, in the opinion of the supervisor, the employee is considered impaired, the employee will be sent home or to a medical facility by taxi or other safe transportation alternative - depending on the determination of the observed impairment - and accompanied by the supervisor or another employee if necessary. A drug and/or alcohol test may be in order. An impaired employee will not be allowed to drive.
(Id. at 4 (§ III.A) (emphasis added).) Looper Cabinet did not have a record that showed Mr. Hensley signed the 2000 Policy nor did Looper Cabinet post it on its premises, but Mr. Hensley was "sure" that he had seen it before. (See C. Looper Dep. II at 33-34, 40; Hensley Dep. II at 12; M. Looper Dep. at 49-50.) According to Mr. Hensley, Looper Cabinet employees had "been given documentation like [it] several times." (Hensley Dep. II at 12; see also M. Looper Dep. at 4 8 ("I am not aware that he did not sign . . ., but we give him every policy."), 60.)
As a result of the accident, Mr. Hensley was arrested for and subsequently pled guilty to driving under the influence, but later moved to withdraw his plea. (C. Looper Dep. at 35; Hensley Dep. at 21-25.) Indeed, Mr. Hensley has maintained that Mr. Anderson caused the wreck when he lost control of the motorcycle in damp conditions and went into a skid. (Hensley j Dep. at 33-39, 66, 85-86; Hensley Dep. II at 14-15.)
At the time of the accident, Great American insured Looper Cabinet under Businesspro Policy # 250-34-88-00, a commercial auto policy that provided coverage for "[a]nyone else while using with your permission a covered 'auto' you own, hire or borrow/' subject to certain exceptions. (Auto Policy, Doc, 37-3, at 44 (§ II.A), at 45 (§ II.A.1.b) (emphasis added).) In addition, Great American insured Looper Cabinet under Umbrella Policy # UMB-2-50-34-89-00, which covered "[a]ny person or organization (other than your partners, 'executive officers, ' directors, stockholders or 'employees') with respect to any 'auto' owned by you . . . and used by that person or organization with your permission.'' (Umbrella Policy, Doc. 37-4, at 19 (§ V.J.10) (emphasis added).) According to Charles Looper and Michelle Looper, Looper Cabinet expressly requested and received coverage for Mr. Hensley as a named insured. (C. Looper Dep. at 69; C. Looper Dep. II at 28-29; Hensley Dep. II at 27; M. Looper Dep. at 20-21, 24.) Mr. Hensley's name, however, does not appear anywhere within the Auto Policy or Umbrella Policy.
II, PROCEDURAL HISTORY
Mr. Anderson filed suit against Mr. Hensley and Looper Cabinet in the Superior Court of Columbia County on January 15, 2013 (the "Underlying Action"). (Underlying Compl. at 1, 10.) In the Underlying Action, Mr. Anderson alleges that as a result of the collision with Mr. Hensley, he sustained "catastrophically permanent injuries to his lower right leg and ankle, and numerous other injuries to his body, including scrapes, bruises, contusions, scars, and the like." (Id. ¶ 23.) Mr. Anderson voluntarily dismissed Looper Cabinet from the Underlying Action after Looper Cabinet moved for summary judgment, and following Looper Cabinet's dismissal, the parties consented to transfer venue to the Superior Court of McDuffie County, Georgia. (PSMF §§ 21, 22; Anderson Resp. PSMF §§ 21, 22.) Trial in the Underlying Action commenced on January 12, 2015, but concluded in a mistrial two days later. (PSMF § 23; Anderson Resp. PSMF § 23.)
Prior to trial, Great American filed the instant case against Mr. Anderson and Mr. Hensley seeking a declaration of the parties' rights and obligations under both insurance policies issued to Looper Cabinet. (Doc. 1, ¶ 2.) Approximately two weeks after answering the complaint and prior to the beginning of discovery in this case, Mr. Anderson filed a motion for summary judgment in which he contended that all issues as to coverage of Mr. Hensley were "undisputed" based on evidence produced during the course of litigating the Underlying Action. (Doc. 14 at 3, 9.) Great American opposed the motion, requesting in its response (Doc. 16) and subsequently in an independent motion (Doc. 18) that the Court deny Mr. Anderson's motion or defer its consideration until after Great American conducted its own discovery. The Court agreed, finding Mr. Anderson's motion to be premature. (Doc. 25.) Meanwhile, Great American moved for and received a default judgment against Mr. Hensley, who failed to file an answer or responsive pleading after waiving service of process, (See Docs. 23, 24.)
The parties' motions for summary judgment are now ripe for consideration. Upon timely filing of their respective motions, the Clerk gave notice and informed Great American and Mr. Anderson of the summary judgment rules, the right to file affidavits or other materials in opposition, and the consequences of default. (Docs. 38, 41.) The notice requirements of Griff ...