BROOM v. WILSON PAVING & EXCAVATING, INC.
2015 OK 19
| Okla. | 2015Background
- On May 30, 2007 Steven Broom, a temporary Labor Ready worker, was instructed to lay pipe inside a trench dug by Wilson Paving; the trench collapsed and Broom suffered serious injuries.
- Broom received workers’ compensation from Labor Ready and separately sued Wilson Paving in state court; the trial judge found Wilson Paving liable and entered judgment for $1,150,000 (no appeal by parties).
- Wilson Paving carried (1) a workers’ compensation/employers liability policy with American Interstate (AIIC) and (2) a Commercial General Liability (CGL) policy with Mid‑Continent; Mid‑Continent filed a declaratory action but earlier proceedings left its duty to indemnify unresolved.
- Mid‑Continent resisted post‑judgment garnishment of the CGL policy, arguing exclusions barred coverage: the “expected or intended injury” exclusion and the “earth movement” exclusion; AIIC’s favorable federal declaratory judgment was invoked by Mid‑Continent but the policies differ.
- The Oklahoma Supreme Court held Broom was a covered temporary worker under Mid‑Continent’s CGL, negligence (not intentional acts) was the basis of the state judgment, the AIIC federal judgment was not dispositive for Mid‑Continent coverage, and the earth‑movement exclusion was ambiguous and limited to natural events; thus Mid‑Continent’s exclusion did not bar coverage.
Issues
| Issue | Plaintiff's Argument (Broom / Wilson Paving) | Defendant's Argument (Mid‑Continent) | Held |
|---|---|---|---|
| Whether AIIC federal declaratory judgment precludes coverage under Mid‑Continent policy | AIIC ruling does not adjudicate Mid‑Continent policy; different policies; not binding | Federal judgment should preclude relitigation (issue/claim preclusion) | Not binding; Mid‑Continent lacked full opportunity to litigate Mid‑Continent coverage in federal case; policies differ |
| Whether Broom was an insured (temporary worker) under Mid‑Continent CGL | Broom was furnished as a short‑term worker and fits policy definition of "temporary worker" | Broom was an employee (or not covered by any insuring agreement for temporary workers) | Broom was a temporary worker and falls within coverage; insurer must use clear language to limit coverage |
| Whether the expected/intended‑injury exclusion bars coverage | Broom’s recovery rested on negligence, not intentional conduct; exclusion shouldn’t apply | The state judgment finding Wilson knew injury was substantially certain triggers exclusion | Exclusion does not bar coverage: negligence is inconsistent with "expected or intended" injury language |
| Whether the earth‑movement exclusion bars coverage for trench collapse | Exclusion applies only to naturally occurring earth movement; man‑made trench collapse not excluded | Trench cave‑in is "earth movement" and exclusion applies | Exclusion ambiguous; construed in insured’s favor and limited to natural phenomena, so does not bar coverage |
Key Cases Cited
- Max True Plastering Co. v. U.S. Fidelity & Guar. Co., 912 P.2d 861 (Okla. 1996) (insurer must use clear, distinct language to limit liability under a policy)
- Spears v. Shelter Mut. Ins. Co., 73 P.3d 865 (Okla. 2003) (ambiguous or hidden exclusions are construed against insurer; reasonable expectations doctrine applies)
- Fayad v. Clarendon Nat’l Ins. Co., 899 So. 2d 1082 (Fla. 2005) (earth‑movement exclusions without contrary language typically limited to natural events)
- Henning Nelson Constr. Co. v. Fireman’s Fund Am. Life Ins. Co., 383 N.W.2d 645 (Minn. 1986) (earth‑movement exclusion construed to apply to natural disasters, not earth movement caused by human forces)
- Peters Twp. Sch. Dist. v. Hartford Accident & Indem. Co., 833 F.2d 32 (3d Cir. 1987) (earth‑movement exclusion meant to deny coverage for spontaneous, natural catastrophic earth movement)
- Kile v. Kile, 63 P.2d 753 (Okla. 1936) (definition of negligence excludes willful intent; negligence lacks element of willfulness)