BROOM v. WILSON PAVING & EXCAVATING, INC.
Case Number: 109813
THE SUPREME COURT OF THE STATE OF OKLAHOMA
Decided: 04/07/2015
2015 OK 19
Cite as: 2015 OK 19, __ P.3d __
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
STEVEN L. BROOM, Plaintiff-Appellant,
v.
WILSON PAVING & EXCAVATING, INC., an Oklahoma Corporation, Defendant-Appellant,
and
MID-CONTINENT CASUALTY COMPANY, an Oklahoma Corporation, Garnishee-Appellee.
CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV, ON APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, STATE OF OKLAHOMA, HONORABLE JEFFERSON D. SELLERS
¶0 In May of 2007, Steven Broom went to the offices of Labor Ready, an employment agency, to secure employment. Broom accepted employment with Labor Ready and was directed to begin work that day for Wilson Paving & Excavating Inc., laying pipe inside a trench. That same afternoon, approximately four hours later, the trench in which Broom was working collapsed, and he suffered serious injuries. Broom pursued and received workers’ compensation benefits from his employer, Labor Ready, for the injuries he sustained in the accident. Broom also sued Wilson Paving for his injuries in a third-party action in the District Court of Tulsa County. The trial court found in favor of Broom and entered judgment against Wilson Paving for $1,150,000.00. Broom then sought post-judgment garnishment of Wilson Paving‘s Commercial General Liability Policy issued by Mid-Continent Casualty Company. The trial court entered summary judgment in favor of Mid-Continent, finding that coverage for Broom‘s injuries was precluded under the “earth movement” exclusion clause in Mid-Continent‘s policy. The Court of Civil Appeals found that the earth movement exclusion clause did not prevent coverage for Broom‘s injuries, but affirmed summary judgment on different grounds. Upon review, we hold Mid-Continent‘s Commercial General Liability Policy provides coverage for Broom‘s injuries.
COCA OPINION VACATED; TRIAL COURT‘S ORDER GRANTING SUMMARY JUDGMENT TO GARNISHEE-APPELLEE MID-CONTINENT CASUALTY COMPANY AFFIRMED IN PART AND REVERSED IN PART; CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH TODAY‘S PRONOUNCEMENT
Paula J. Quillin, Feldman, Franden, Woodard & Farris, Tulsa, OK, for Defendant-Appellant Wilson Paving & Excavating, Inc.
Dean Foote, Law Offices of Dean Foote, PLC, Tulsa, OK, for Defendant-Appellant Wilson Paving & Excavating, Inc.
James K. Secrest, II, Edward J. Main, Benjamin J. Oxford, Secrest, Hill, Butler & Secrest, Tulsa, OK, for Garnishee-Appellee Mid-Continent Casualty Company
GURICH, J.
Facts & Procedural History
¶1 Wilson Paving & Excavating, Inc. was one of several subcontractors retained to perform services in connection with a renovation project at Sand Springs Memorial Stadium at Charles Page High School. Specifically, Wilson Paving contracted to dig trenches and lay pipe for a storm drainage system being installed under the school‘s athletic field. Wilson Paving utilized a local staffing agency, Labor Ready, to secure temporary workers to assist on the project. On or about May 30, 2007, Steven Broom went to the offices of Labor Ready to obtain employment. Broom was directed by Labor Ready to work with Wilson Paving at Sand Springs High School. He reported to the high school and, at the instruction of Wilson Paving, began work laying pipe inside a trench that was approximately five to six feet deep, four to five feet wide, and fifty feet long.1
¶2 At approximately 2:30 p.m. that same day, the trench in which Broom was working collapsed twice--the first time covering him in dirt to his waist and the second time covering him in dirt to his neck.2 Persons on the job site freed Broom from the neck to the waist while waiting on emergency personnel to arrive.3 Once on the scene, emergency personnel could not enter the trench to rescue Broom until the trench was safely reinforced. During this time, Broom remained buried from the waist down. Emergency personnel eventually removed Broom from the trench, and he was transported to the hospital where he was treated for serious injuries, including rib fractures, collapsed lungs, pulmonary contusions, blood within
¶3 The record reflects that before the trench collapsed, one of Wilson Paving‘s employees, Jack Bailey, was using a backhoe to dig the trench and to retrieve pipe from an area adjacent to the trench.5 Mr. Bailey would dig a twenty-foot section of trench, then Mr. Bailey, Broom, and another employee of Wilson Paving, Harley Nipper, would place the pipe in the trench. Mr. Bailey would then use the backhoe to put a few feet of dirt on top of the pipe to secure it, while Broom and Mr. Nipper did “the hand work” inside the trench, “leveling it and walking it in.”6 After completing a twenty-foot section, they would repeat the process.7 At some point, either while Mr. Bailey was in the process of digging another twenty-foot section or while he was retrieving pipe, the trench collapsed on Broom while he was working therein.8
¶4 Wilson Paving believed the trench collapse was due to the work of another contractor who had allegedly removed a monument and flag pole near the area of the collapse but failed to alert Mr. Bailey of such before he began digging the trench.9 Wilson Paving believed the removal of such increased the moisture in the soil, causing a latent hazard in the area.10 Upon investigation of the trench collapse, OSHA cited Wilson Paving with five violations including failure to instruct employees in the recognition and avoidance of unsafe conditions, failure to protect employees with protective helmets, lack of safe means of egress out of the trench, failure to place and keep excavated materials at least two feet from the edge of the excavation, and failure to provide an adequate protective system to protect employees in the excavation.11
¶5 Broom pursued and received workers’ compensation benefits from Labor Ready for the injuries he sustained in the accident. Labor Ready was identified as Broom‘s employer in the workers’ compensation action. Wilson Paving was not a party to the action and paid no workers’ compensation benefits to Broom. Broom also sued Wilson Paving for his injuries in a third-party action12 in the District Court of Tulsa County.
Mid-Continent Casualty Company‘s Declaratory Action in Tulsa County in February 2008, CJ-2008-1532
¶6 Wilson Paving purchased a Commercial General Liability Policy from Mid-Continent Casualty Company for the period of April 1, 2007, to April 1, 2008. The policy was in effect at the time of Broom‘s injuries.13 In
¶7 On January 5, 2011, Wilson Paving filed a Motion for Partial Summary Judgment. The trial court, on November 10, 2011, again found Mid-Continent had a duty to defend under the policy but did not make any determination as to coverage under Mid-Continent‘s policy. Upon motion by Mid-Continent, the trial court again certified the order for interlocutory appeal on January 17, 2012. Mid-Continent again filed a Petition for Certiorari to review the certified interlocutory order, which was denied by this Court by Order on March 12, 2012, in Case No. 110,364. The last docket entry in CJ-2008-1532, filed on April 19, 2012, was this Court‘s mandate dismissing the appeal in Case No. 110,364.
American Interstate Insurance Company‘s Declaratory Action in Federal Court in June 2009
¶8 In addition to Mid-Continent‘s Commercial General Liability Policy, Wilson Paving also purchased a Workers’ Compensation and Employers Liability Insurance Policy from American Interstate Insurance Company for the period of October 1, 2006, to October 1, 2007. That policy was also in effect at the time of Broom‘s injuries. On June 3, 2009, AIIC filed a declaratory judgment action in the U.S. District Court for the Northern District of Oklahoma, seeking a declaration regarding its rights and responsibilities under the AIIC policy. Both Wilson Paving and Broom were parties to the action. Mid-Continent was not a party to the action and coverage under the Mid-Continent policy was not at issue. AIIC, Wilson Paving, and Broom agreed that the workers’ compensation insurance
¶9 AIIC moved for summary judgment, arguing that although the AIIC policy provided coverage for bodily injury to an employee caused by accident or disease, the AIIC policy specifically excluded from coverage “bodily injury intentionally caused or aggravated by you [the insured].”15 The Honorable James H. Payne found Broom had only alleged intentional conduct in the state court litigation, and as such, Broom‘s injuries were excluded from coverage under AIIC‘s policy because the policy did not cover bodily injury intentionally caused or aggravated by the insured and the “allegations against Wilson Paving, if true [were] clearly not for bodily injury caused by accident or ‘an unknown cause,‘” as required for coverage under the policy.16 The ruling by Judge Payne was not appealed.17
TAYLOR, J., dissenting (joined by Winchester, J.):
¶1 I respectfully dissent from the Court‘s decision. The trial court‘s precise determination of the meaning of the earth-movement exclusion was correct. I write separately to emphasize two serious missteps in the Court‘s construction of this exclusion. To construe the exclusion as ambiguous and interpret it to apply only to naturally occurring earth movement is a torturous reading of its words. The entire case should turn on the purpose of the insurance policy and the plain language of the exclusion. The Court confuses this liability policy with that of a homeowner‘s or all-risk policy and then gives only a passing analysis to the actual language at issue. The judgment entered against Wilson Paving in the trial court may be due and owing, but it is simply not covered by this commercial general liability (CGL) policy.
¶2 Wilson Paving purchased a CGL policy from Mid-Continent as protection from all types of liability claims for bodily injury and/or property damage that may arise from the business‘s premises, products, operations, and other enterprises of the business. Wilson Paving‘s workers’ compensation insurance policy covered its employees while on the job; its CGL policy was to be its public liability policy. Steven Broom was an employee of the temporary agency on the Wilson Paving job site, and he was injured while working inside a trench that caved in. The accident and subsequent injury were fully covered by the temporary agency‘s workers’ compensation coverage, and Broom collected the full measure of what he was entitled for this on-the-job injury.
¶3 The parties added the earth-movement exclusion to the CGL policy as an endorsement which modified the CGL policy coverage. The language of this exclusion is straightforward, but unfortunately misconstrued by the Court:
This insurance does not apply to “bodily injury“, “property damage“, “personal and advertising injury” arising out of, caused by, resulting from, contributed to, aggravated by, or related to earthquake, landslide, mud flow, subsidence, settling, slipping, falling away, shrinking, expansion, caving in, shifting, eroding, rising, tilting
or any other movement of land, earth or mud.
The Court disregards its rules of construction and interprets the exclusion as ambiguous because it excludes all earth movement, natural and man-made. The basis for this puzzling conclusion on ambiguity comes from the Court‘s reliance on cases from other jurisdictions, and multiple errors in logic lead the Court to this point.
¶4 First, the cases relied upon by the Court all involve all-risk or homeowner‘s insurance--an entirely different basis for insurance than the CGL policy. Second,
¶5 The Court next errs by misapplying the doctrine of reasonable expectations. See Max True Plastering Co. v. U.S. Fid. & Guar. Co., 1996 OK 28, ¶ 1, 912 P.2d 861, 863. The Court relies on the self-serving subjective statements of the insured despite this Court‘s restrictive application of the doctrine of reasonable expectations to only the “objectively reasonable expectations” of a like insured. Id. In hindsight, the insured is always going to allege the existence of coverage when in dispute. Yet Wilson Paving was in the excavating and trenching business, it was a sophisticated company, and it agreed to the endorsement to the CGL policy that added the exclusion. It is perhaps even more telling of the parties’ intent that the exclusion was added as an endorsement, separate and apart from the list of exclusions in the main body of the CGL policy. The Court adopts the insured‘s subjective complaints as reasonable expectations; it then further errs when it agrees that the entire CGL policy is worthless because it does not cover trench cave-ins. This conclusion is unfair and inaccurate as the CGL policy covers a wide range of Wilson Paving‘s possible liabilities. What it specifically does not cover is this cave-in. The Court should refrain from indulging in the subjective complaints of the insured when the language is easily construed and understood and the doctrine of reasonable expectations looks at the objectively reasonable expectations of a like insured.
¶6 If the Court were to devote even a cursory moment to construing the language, the need for the Court‘s tortuous path to its conclusion would be irrelevant. Our rules of contract construction forgo the need to rely on other courts’ decisions. Our “cardinal rule” when examining insurance contracts “is to determine and give effect to the intent of the parties.” In re Kaufman, 2001 OK 88, ¶ 13, 37 P.3d 845, 853. When policy provisions are clear, consistent, and unambiguous, we look to the plain and ordinary meaning of the policy language to determine and give effect to the parties’ intent. Dodson v. St. Paul Ins. Co., 1991 OK 24, ¶ 12, 812 P.2d 372, 376-77;
¶7 The policy‘s plain language excludes coverage for any movement of land, earth, or mud. The endorsement applies to events related to earth movement. The cause of those events is not limited by the policy; this Court cannot in turn choose to limit those causes. The plain language establishes that the parties intended to extend this endorsement to earth movement whether natural or man-made. Yet the Court chooses to rewrite the exclusion and to ignore the intent of the parties apparent from the endorsement‘s plain language. The Court must refuse to rewrite policies to create distinctions where no language in the policy exists to support such a distinction. See Max True Plastering, 1996 OK 28, ¶ 20, 912 P.2d at 869 (“In interpreting an insurance contract, this Court will not make a better contract by altering a term for a party‘s benefit.“). By refusing to read the policy language as written, the Court violates this governing tenant for construction of insurance contracts. See id. The Court indulges in a forced and constrained interpretation to reach a result that is repugnant to the plain language of the provision.
¶8 The case before the Court should turn on a simple construction of the endorsement. The earth-movement exclusion bars coverage for bodily injury “arising out of . . . caving in . . . of land, earth or mud.” The endorsement‘s construction is dependent on the definition of the phrase “caving in.” We define words in their ordinary meaning if the policy does not define them. Id. ¶ 19, 912 P.2d at 869. Merriam Webster‘s defines cave as “to fall in or down” or “to cause to fall or collapse.” Merriam Webster, Cave, http://www.merriam-webster.com /dictionary/cave (last visited Mar. 4, 2015). Any injury caused by a cave-in or collapse of land, earth, or mud is excluded here. To quote the Court‘s recitation of facts: “At approximately 2:30 p.m. that same day, the trench in which Broom was working collapsed twice . . . .” The cause of Broom‘s injuries is excluded from coverage under the endorsement to the Mid-Continent
Citationizer Summary of Documents Citing This Document
| Cite | Name | Level |
|---|---|---|
| None Found. | ||
Citationizer: Table of Authority
| Cite | Name | Level | |
|---|---|---|---|
| Oklahoma Supreme Court Cases | |||
| Cite | Name | Level | |
| 1991 OK 24, 812 P.2d 372, 62 OBJ 802 | Dodson v. St. Paul Ins. Co. | Discussed at Length | |
| 1936 OK 748, 63 P.2d 753, 178 Okla. 576 | KILE v. KILE | Discussed | |
| 2001 OK 88, 37 P.3d 845, 72 OBJ 3061 | IN RE: KAUFMAN | Discussed | |
| 1918 OK 367, 174 P. 1036, 68 Okla. 301 | ST. LOUIS & S. F. R. CO. v. BOUSH | Discussed | |
| 2002 OK 26, 49 P.3d 703 | CRANFILL v. AETNA LIFE INS. CO. | Discussed | |
| 2003 OK 66, 73 P.3d 865 | SPEARS v. SHELTER MUTUAL INSURANCE COMPANY | Discussed at Length | |
| 2003 OK 77, 78 P.3d 93 | HAMMOCK v. UNITED STATES | Discussed | |
| 2005 OK 54, 127 P.3d 572 | PARRET v. UNICCO SERVICE COMPANY | Discussed at Length | |
| 1996 OK 28, 912 P.2d 861, 67 OBJ 806 | Max True Plastering Co. v. U.S. Fidelity and Guar. Co. | Discussed at Length | |
| 2006 OK 35, 172 P.3d 193 | HAWORTH v. JANTZEN | Discussed at Length | |
| 2010 OK 31, 232 P.3d 458 | STATE ex rel. OKLAHOMA CORPORATION COMMISSION v. McPHERSON | Discussed | |
| 2013 OK 48, 306 P.3d 544 | SHEFFER v. CAROLINA FORGE COMPANY, L.L.C. | Discussed | |
| 2014 OK 42, 328 P.3d 1192 | SMITH v. CITY OF STILLWATER | Discussed | |
| 1998 OK 24, 956 P.2d 887, 69 OBJ 1172 | MILLER v. MILLER | Discussed at Length | |
| 1998 OK 75, 963 P.2d 572, 69 OBJ 2620 | Wynn v. Avemco Insurance Co. | Discussed | |
| 1999 OK 21, 977 P.2d 1086, 70 OBJ 1004 | ENI Producing Properties Program Limited Partnership 1982-I v. Sampson Investment Co. | Discussed | |
| Title 12. Civil Procedure | |||
| Cite | Name | Level | |
| District Court, Power to Vacate or Modify its Judgments, When | Cited | ||
| Proceedings to Vacate or Modify Judgment or Order - Grounds - by Petition - Verification - Summons | Cited | ||
| Proceedings to Vacate or Modify a Judgment, Decree or Order | Cited | ||
| Title 15. Contracts | |||
| Cite | Name | Level | |
| Interpreted to Give Effect to Mutual Intention of Parties | Cited | ||
| Title 85. Workers’ Compensation | |||
| Cite | Name | Level | |
| Repealed by Laws 2011, SB 878, c. 318, § 87 | Cited | ||
| Repealed by Laws 2011, SB 878, c. 318, § 87 | Cited | ||
| Repealed by Laws 2011, SB 878, c. 318, § 87 | Cited | ||
Notes
The Court: Let me ask you this: And I‘m going to let you make whatever record you want. Do you claim that there‘s any--well, what is your theory of why I should allow you to attack a judgment that‘s been final in this Court? What is your theory in that regard? As a garnishee who has chosen--who probably has the capability--in fact, I‘ve seen it in a least one case, where the Supreme Court allowed an insurance company garnishee to seek to vacate a judgment. You‘ve chosen not to vacate the judgment here. You‘ve chosen really, to make your stand on the--policy, and I --itself--
Mr. Main: Yes.
The Court: [B]ut do you claim that there‘s some case that would--that would allow you to attack a judgment that‘s final?
Mr. Main: Well, the case would--would be the ones which would allow us to attack a judgment which is not--which is not fair or which is unreasonable, and the reason we contend that this judgment is unreasonable is that we contend it is internally inconsistent and contrary to law.
Record on Accelerated Appeal, Ex. 24 (Transcript of Proceedings at 15-16 (April 5, 2011)).