United States District Court, N.D. Alabama, Middle Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE.
matter comes before the court on “Plaintiff's
Motion for Summary Judgment, ” in which Plaintiff
Nationwide Mutual Insurance Company moves for summary
judgment against Defendants David and Judy Frost. (Doc. 39).
More specifically, Nationwide asks this court to enter a
declaratory judgment that Nationwide has no legal obligation
to defend or indemnify either of the Frosts for claims
related to an incident that took place on the Frosts'
property. (See Doc. 1 at ¶ 34). For the reasons
stated below, the court WILL GRANT Nationwide's motion
and WILL ENTER JUDGMENT for Nationwide and against the
Frost purchased a Premier Businessowners Policy from
Nationwide for the period of July 15, 2015 to July 15, 2016.
(Doc. 1 at ¶ 11). David Frost is the only Named Insured
in the policy. (Doc. 1-1 at 6-7). The policy defines
“you” and “your” as referring
“to the Named Insureds shown in the
Declarations.” (Doc. 1-1 at 14).
policy provides, in relevant part, that Nationwide would
defend and indemnify an insured against claims for
“‘bodily injury' . . . caused by an
‘occurrence' that takes place in the
‘coverage territory.'” (Doc. 1-1 at 56). But,
to trigger this obligation, the insured must notify
Nationwide “as soon as practicable of an
‘occurrence' . . . that may result in a
claim.” (Doc. 1-1 at 72). The policy defines
“insured” to include David Frost and his spouse,
“but only with respect to the conduct of a business of
which [Mr. Frost, the named insured, was] the sole
owner.” (Doc. 1-1 at 69).
Frosts jointly own commercial property in Leesburg, Alabama,
where several businesses lease space. (Doc. 42-2; Doc. 42-3
at 19:18-20:20). Neither of the Frosts incorporated a
business to own the property and both Mr. and Mrs. Frost are
parties to the commercial leases. (Doc. 42-3 at 14:6-14,
15:9-12). Mrs. Frost also owns Daymaker Salon, which operates
without a lease on the same property. (Doc. 42-3 at
9, 2016, Mrs. Frost, in her individual capacity, had a
“yard sale” at the Leesburg property, selling
“clothes, shoes, [and] stuff [she] was trying to get
rid of.” (Doc. 42-3 at 30:5- 14). For this yard sale,
Mrs. Frost set up tables on the sidewalk in front of Daymaker
Salon, but the salon was not otherwise involved with the yard
sale. (Doc. 42-3 at 30:21-23, 32:17-19).
Norma Jean Sartin attended the yard sale and fell in the
parking lot, suffering a severe cut to her arm and a broken
shoulder. Mrs. Frost witnessed the fall, saw Ms. Sartin's
cut, and offered to call 911. (Doc. 42-3 at 40:19-41:3). Ms.
Sartin declined the offer, and no one called 911. (Doc. 42-3
at 29:21-22). Mrs. Frost did not learn of the severity of Ms.
Sartin's injuries until almost two weeks later, when Ms.
Sartin's daughter came in for a salon appointment and
told Mrs. Frost that Ms. Sartin had broken her shoulder.
(Doc. 42-3 at 39:17- 40:1). The Frosts did not notify
Nationwide of the accident when it occurred, nor two weeks
later when they learned how severe the injury was.
September 12, 2017, about fifteen months after the incident,
Ms. Sartin filed suit against Daymaker Salon, the Frosts, and
multiple fictitious defendants responsible for the property
in the Cherokee County Circuit Court, alleging premises
liability based on the conditions that caused her fall. (Doc.
1 at ¶ 27; Doc. 1-2 at 2, ¶ 9). Upon receiving
notice of the complaint, Mr. Frost immediately notified
Nationwide, marking the first notice of the incident
Nationwide received. (Doc. 1 at ¶ 29).
subsequently filed this lawsuit seeking declaratory judgment
that it has no obligation to indemnify the Frosts under the
policy. The complaint raises three arguments: first, the
Frosts breached the policy by failing to provide Nationwide
notice as required under the policy's terms; second,
Nationwide is not required to indemnify Mrs. Frost with
respect to any business not solely owned by Mr. Frost; and,
third, Ms. Sartin's claims fall within the exclusions to
the policy. (Doc. 1 at ¶¶ 31-33). Plaintiff
Nationwide now moves for summary judgment, arguing that no
genuine issue of material fact exists as to its theories.
Nationwide asserts, among other things, that the policy was
not triggered because the Frosts do not qualify as covered
insureds for the incident at issue, as Ms. Sartin's fall
did not occur as part of the conduct of a business of which
Mr. Frost is the sole owner. (Doc. 42 at 8-9; Doc. 44 at
Standard of Review
judgment allows a trial court to decide cases when no genuine
issues of material fact are present and the moving party is
entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56. When a district court reviews a motion for
summary judgment, it must determine two things: whether any
genuine issues of material fact exist, and whether the moving
party is entitled to judgment as a matter of law.
moving party “always bears the initial responsibility
of informing the district court of the basis for its motion,
and identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any,' which it
believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56).
the moving party meets its burden of showing the district
court that no genuine issues of material fact exist, the
burden then shifts to the non-moving party “to
demonstrate that there is indeed a material issue of fact
that precludes summary judgment.” Clark v. Coats
& Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).
Disagreement between the parties is not significant unless
the disagreement presents a “genuine issue of material
fact.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251-52 (1986). ...