United States District Court, D. South Carolina, Charleston Division
PATRICK MICHAEL DUFFY DISTRICT JUDGE.
matter is before the Court on Plaintiff American Safety
Insurance Co.’s motion for summary judgment (ECF No.
16), Defendant Page’s Thieves Market, Inc.’s
motion to exclude American Safety’s expert witness (ECF
No. 18), Defendant James Parker’s motion for leave to
file a sur-reply (ECF No. 37), and American Safety’s
motion to exclude the defense’s expert witness (ECF No.
39). For the reasons stated herein, the Court grants summary
judgment for American Safety, finds the two expert witness
motions moot, and denies Parker’s motion.
a declaratory judgment action arising out of injuries that
Parker suffered while working for Page’s in 2013.
Parker has sued Page’s in state court for his injuries.
American Safety asks this Court to rule it has no duty to
defend or indemnify Page’s, its insured, in that
is auction business in Mount Pleasant, South Carolina. For
several years, Page’s purchased liability insurance
from American Safety. The policy it bought for 2013 provides
that American Safety “will pay those sums that
[Page’s] becomes legally obligated to pay as damages
because of ‘bodily injury’ . . . to which
this insurance applies.” (Compl., Ex. C, Ins.
Policy, ECF No. 1-3, at 4 (emphasis added)). The insurance
“does not apply to” several types of bodily
injury, including injuries sustained by “[a]n
‘employee’ of [Page’s] arising out of and
in the course of: (a) Employment by [Page’s]; or (b)
Performing duties related to the conduct of [Page’s]
business.” (Id. at 5.)
sole issue presented in this case is whether the
policy’s employee exclusion applies. The policy states
that the term “‘[e]mployee’ . . . does not
include a ‘temporary worker.’” (Compl., Ex.
C, Ins. Policy, ECF No. 1-3, at 16.) It then defines
“temporary worker” as “a person who is
furnished to [Page’s] to substitute for a permanent
‘employee’ on leave or to meet seasonal or
short-term workload conditions.” (Id. at 18.)
The parties dispute whether Parker was a temporary worker or
worked for Page’s from 2010 to 2013. He performed a
variety of tasks, including yard work, merchandise delivery
and pickup, and communication with customers. Parker did not,
however, work scheduled hours or a set number of hours per
week or month. Rather, in 2012 and 2013, and possibly in
other years, Page’s paid him a monthly retainer and
called him in to work when it needed his “extra
assistance.” (E.g., Pl.’s Mot. Summ. J.,
Ex. 7, Parker’s Answers Pl.’s Interrogs., ECF No.
16-8, at 5.) When he worked, Page’s paid him by the
hour. The hours he worked on a given day varied
“depending on the nature and difficulty of the job
requested of him.” (Id.) The record indicates
Parker worked at least 1, 243 hours in 2012 and 1, 080 hours
in the first nine months of 2013.
work arrangement with Page’s continued until September
26, 2013, when Page’s instructed Parker to cut down a
tree on its property. As he was performing that task, the
tree fell onto him, crushing his back and paralyzing him.
2015, Parker filed a lawsuit in state court alleging
Page’s negligence caused his injuries. American Safety
retained counsel to defend Page’s, but it also reserved
its right to later deny coverage based on the policy’s
Safety filed this action in August 2015. As mentioned above,
it seeks a declaratory judgment that it has no duty to defend
or indemnify Page’s for Parker’s injuries because
Parker was Page’s employee. Page’s and Parker
both filed answers, and Parker also asserted a counterclaim
seeking a declaratory judgment that Page’s has coverage
because he was merely a temporary worker when he was injured.
discovery, American Safety moved for summary judgment.
Page’s and Parker each filed two responses in
opposition. Additionally, Page’s moved to exclude
expert evidence on which American Safety relied in its
summary judgment motion. American Safety filed a response to
Page’s motion, as well as replies to the
defendants’ briefs opposing summary judgment. Finally,
Parker moved for leave to file a sur-reply to American
Safety’s summary judgment reply brief. The motions are
therefore ripe for consideration.