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American Safety Insurance Co. v. Page's Thieves Market Inc.

United States District Court, D. South Carolina, Charleston Division

August 22, 2016

American Safety Insurance Co., Plaintiff,
v.
Page’s Thieves Market, Inc., and James A. Parker, Defendants.

          ORDER

          PATRICK MICHAEL DUFFY DISTRICT JUDGE.

         This 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.

         BACKGROUND

         This is 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 lawsuit.

         Page’s 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.)

         The 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 an employee.

         Parker 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.

         Parker’s 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.

         In June 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 employee exclusion.

         PROCEDURAL HISTORY

         American 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.

         Following 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.

         ANALYSIS

         I. ...


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