Appeals from Limestone Circuit Court. (CV-93-155). George T. Craig, TRIAL JUDGE.
Released for Publication June 27, 1995.
Houston, Almon, Shores, Ingram, and Butts, JJ., concur.
The opinion of the court was delivered by: Houston
Dale Siniard; Amanda Siniard; Roger Dale Bailey, both individually and d/b/a Roger Bailey Construction Company; and Susan Bailey appeal from the trial court's summary judgment for Allstate Insurance Company in its declaratory judgment action. The trial court held that, as a matter of law, Allstate was not required to defend or provide liability coverage for the Baileys as a result of an incident in which Dale Siniard claimed to have been injured.
Bailey Construction is licensed to construct single-family dwellings. Dale Siniard was employed by Bailey Construction for approximately 4-5 weeks to work on a project referred to as the "Fletcher house" project; while he worked on that project he was paid on an hourly basis and taxes were withheld from his paycheck. On August 20, 1992, Siniard had worked approximately 5 hours (until around lunchtime), when the Fletcher house project was completed. Thereafter, Roger Bailey asked Siniard if he wanted to help build a deck on a "spec" house (i.e., apparently a house built on "speculation" that it could be sold at a profit), located at Lot 11, Cambridge Hill Estates, in Limestone County, which Roger Bailey and his wife, Susan, owned and had listed for sale and in which they were residing. It was customary for Roger Bailey and his wife to reside in "spec" houses that he had constructed to sell, until the houses were sold. Siniard was to be paid by Bailey Construction for his work on this "spec" house at the same hourly rate as he had received working on the Fletcher house project. In constructing the deck, Siniard used a nail gun that he had used on the Fletcher house project. This gun was provided to Siniard by Roger Bailey, who admits having removed a safety device designed to prevent accidental discharge of a nail from the nail gun. As Siniard began using the nail gun, it discharged and shot a nail through his arm. The nail entered Siniard's arm, went through the bone, and came out the other side, causing Siniard severe injury and continuous pain. Siniard was never paid any money for working on the deck. At the time of the accident, Allstate had insured the Baileys' residence with a "Deluxe homeowners policy."
Dale Siniard and his wife, Amanda, sued the Baileys and Bailey Construction for workers' compensation benefits and also, pursuant to Ala. Code 1975, § 25-5-11, claimed damages based on the removal of a safety device. The Baileys and Bailey Construction made demand on Allstate to defend them in the action filed by the Siniards and to pay any judgment obtained against them, up to the limits of the policy. Subsequently, Allstate filed this action, seeking a judgment declaring that under the terms of the homeowner's policy issued to the Baileys, Allstate owed no obligation to defend the claims arising from this incident or to pay any portion of any judgment or judgments that might be rendered against the Baileys or against Bailey Construction in the Siniards' action.
The policy contains "Coverage X," entitled "Family Liability Protection," which reads as follows:
"Allstate will pay damages which an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an occurrence to which this policy applies, and is covered by this part of the policy."
An "occurrence" is defined in the policy as:
"An accident, including continuous or repeated exposure to substantially the same general harmful conditions during the policy period, resulting in bodily injury or property damage."
Coverage X lists the following exclusions:
"Losses We Do Not Cover Under ...