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Auto-Owners Insurance Co. v. Cribb

United States District Court, N.D. Georgia, Gainesville Division

February 5, 2019

AUTO-OWNERS INSURANCE COMPANY, Plaintiff,
v.
JIMMY E. CRIBB, et al., Defendants.

          ORDER

          RICHARD W. STORY, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Plaintiff's Motion for Summary Judgment [Doc. No. 34], the BR Mountain Homes Defendants' Motion for Summary Judgment [Doc. No. 35], and Plaintiff's Motion to Withdraw Admissions [Doc. No. 45].

         As an initial matter, Defendants did not respond to Plaintiff's Motion to Withdraw Admissions [Doc. No. 45]. Pursuant to Local Rule 7.1B, failure to file a response indicates there is no opposition to a motion. For good cause shown, Plaintiff's Motion [Doc. No. 45] is GRANTED. The Court will now address the Motions for Summary Judgment [Doc. Nos. 34 and 35].

         I. Factual Background

         This is a declaratory judgment action brought by Plaintiff Auto-Owners Insurance Company. Plaintiff issued a commercial general liability policy to Defendant B.R. Mountain Homes that was in effect on the date on which Defendant Jimmy E. Cribb suffered injuries on a construction site.

         A. Underlying Action

         The following facts are taken from the Court's order on summary judgment in the underlying action:

Richard Dean Nielson (“Nielson”) owns a piece of property in Blairsville, Georgia [Doc. No. 87, ¶ 1, admitted]. On November 26, 2014');">14');">14');">14, Nielson entered into a contract with Appalachian Log Homes of Georgia for the installation of a log home package on his property [Id., ¶ 2, admitted]. Appalachian Log Homes of Georgia then entered into a contract with Appalachian Log Homes, Inc. (“Appalachian Log Homes”) for the installation [Id., ¶ 3, admitted].
Appalachian Log Homes informed Nielson that he would need a foundation and sub-floor to be built on the property before the log cabin could be erected [Doc. No. 87, ¶ 7, admitted]. Nielson subsequently entered into a contract with Defendants for the construction of the foundation and sub-floor, as well as for grading, septic, internal framing, electrical, plumbing, HVAC, metal roofing, fireplace, and rock work on the property [Id., ¶ 10, admitted]. Prior to beginning construction on the property, Defendants obtained permits for the entire project [Id., ¶ 13, admitted].
In late February or early March 2015, Defendants began work on the property [Doc. No. 87, ¶ 20, admitted]. In May 2015, Defendants had completed the work that would allow for assembly of the log kit; they left and planned to return to the property after Appalachian Log Homes finished with the assembly to complete the project [Id., ¶ 21, admitted]. Appalachian Log Homes hired Jerry Taylor Construction to install the log kit [Id., ¶ 31, admitted]. Jerry Taylor Construction had several employees working on the project, including Plaintiff Jimmy Cribb [Id., ¶ 32, admitted].
Plaintiff arrived at the jobsite on May 18, 2015 [Doc. No. 87, ¶ 48, admitted]. He and the other employees of Jerry Taylor Construction then built up from the foundation and sub-floor, including building a second floor where they were working on May 20, the date of the incident at issue [Id., ¶¶ 54 and 59, admitted]. Plaintiff and several coworkers were placing a wall panel on the second floor of the home, and the wall panel started to slide toward Plaintiff and his coworker Jerry Smith [Id., ¶¶ 59 and 60, admitted]. Plaintiff then jumped from the second floor down to the floor below [Id., ¶ 64, admitted]. Plaintiff broke through a portion of unsupported sub-floor, and he sustained significant injuries [Id., ¶ 68, admitted].

         [Civil Action No. 2:17-CV-61-RWS, Doc. No. 103].

         On March 30, 2017, Cribb sued BR Mountain Homes in this Court [Civil Action No. 2:17-CV-61-RWS, Doc. No. 1]. In the original Complaint, BR Mountain Homes was the sole defendant. On April 28, 2017, Cribb then amended his Complaint to add claims against James Brian Thurman and Richard Scott Davis, officers and employees of BR Mountain Homes [Id., Doc. No. 6]. On May 11, 2017, Cribb filed another suit in this Court against Thurman and Davis with the same factual allegations [Civil Action No. 2:17-CV-93-RWS, Doc. No. 1]. On June 19, 2017, the Court ordered that these two civil cases be consolidated and closed the later-filed action [Civil Action No. 2:17-CV-93-RWS, Doc. No. 9]. Thus, the Court will treat the Amended Complaint in the first-filed action as the operative Complaint [Civil Action No. 2:17-CV-61-RWS, Doc. No. 6].

         In the Amended Complaint in the underlying action, Cribb alleges that BR Mountain Homes, Thurman, and Davis (“the BR Mountain Homes Defendants”) constructed the plywood subfloor for the first floor of the home, through which they partially cut a portion for a future stairway opening [Civil Action No. 2:17-CV-61, Doc. No. 6, ¶¶ 75-87]. Cribb further alleges that the BR Mountain Homes Defendants failed either to place supports under this partially-cut portion of the subfloor or to place warning signs to alert others of the subfloor's weakened condition [Id.] Cribb alleges that when he jumped and landed on this section of the subfloor, he fell through the floor to the basement below and was rendered a paraplegic [Id., ¶¶ 89-93]. Cribb asserts a negligence claim against the BR Mountain Homes Defendants for, inter alia, failure to maintain and inspect the job site in a reasonably safe manner, failure to train their employees regarding proper safety precautions, and failure to adequately warn those reasonably anticipated to come in contact with the premises of the hidden and concealed danger of which it knew or should have known [Id., ¶¶ 96-103]. Cribb also asserts a gross negligence claim [Id., ¶¶ 104-112].

         On the date of the incident, the BR Mountain Homes Defendants were covered by a general liability insurance policy, Policy 152318-03213705-15, issued by Plaintiff Auto-Owners Insurance [Doc. No. 14');">14');">14');">14, pp. 69-129]. On May 31, 2017, Plaintiff Auto-Owners Insurance filed this action against Cribb and BR Mountain Homes, seeking a declaratory judgment as to four matters:

(1) By failing to notify Auto-Owners as soon as practicable of an occurrence or an offense which may result in a claim, BR Mountain Homes breached a condition precedent set forth in the policy, and as a result, Auto-Owners has no duty to defend or indemnify in the underlying action (Count One);
(2) At the time of the incident, Cribb was an employee of BR Mountain Homes, and as a result, Auto-Owners has no duty to defend or indemnify because of the policy's “Workers Compensation and Similar Laws exclusion” (Count Two);
(3) At the time of the incident, Cribb was an employee of BR Mountain Homes, and as a result, Auto-Owners has no duty to indemnify or defend because the policy does not apply to ...

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