Canal Indemnity Co. v. Regency Club Owners Ass'n

924 F. Supp. 2d 1304, 2013 WL 68933, 2013 U.S. Dist. LEXIS 1976
CourtDistrict Court, M.D. Alabama
DecidedJanuary 7, 2013
DocketNo. 3:11-CV-400-MEF
StatusPublished

This text of 924 F. Supp. 2d 1304 (Canal Indemnity Co. v. Regency Club Owners Ass'n) is published on Counsel Stack Legal Research, covering District Court, M.D. Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Canal Indemnity Co. v. Regency Club Owners Ass'n, 924 F. Supp. 2d 1304, 2013 WL 68933, 2013 U.S. Dist. LEXIS 1976 (M.D. Ala. 2013).

Opinion

Memorandum Opinion and Order

MARK E. FULLER, District Judge.

I. Introduction

Before the Court are cross-motions for summary judgment in an insurance coverage dispute arising out of a state court lawsuit brought by a homeowners’ association against the real estate developer, the general contractor, and various subcontractors involved in a construction project of condominiums located in Baldwin County, Alabama. Plaintiff Canal Indemnity Company (“Canal”) filed a Complaint in federal court on May 26, 2011, seeking a declaratory judgment that it does not owe the defendants in the state court litigation any obligations or insurance benefits under a general commercial liability policy it issued. Since filing its federal action, Canal has resolved its coverage disputes with all defendants except three: (1) Defendant Park Lane Construction (“Park Lane”), the general contractor for the condominiums; (2) G & G Roofing, Inc. (“G & G Roofing”), the subcontractor for the roofing work on the condominiums; and (3) Defendant Paul Nicholson d/b/a GG Roofing (“GG Roofing” or “Nicholson”), the named insured under the liability insurance policy issued by Canal that is at issue in this case. G & G Roofing and Nicholson have failed to answer or otherwise appear in this case, and the Clerk of Court has entered default against them upon proper [1306]*1306application from Canal. (See Docs. ## 103 & 104.)1

This cause is now before the Court on Canal’s Second Motion for Summary Judgment (Doc. # 78)2 and Park Lane’s Motion for Summary Judgment (Doc. # 82). For the reasons set forth below, the Court finds that Canal’s Second Motion for Summary Judgment is due to be GRANTED, and that Park Lane’s Motion for Summary Judgment is due to be DENIED.

II. Jurisdiction and Venue

The Court has diversity jurisdiction over Canal’s claims under 28 U.S.C. § 1332. The parties do not claim that the Court lacks personal jurisdiction over them, nor do they dispute that venue is proper under 28 U.S.C. § 1391(b), and the Court finds adequate allegations supporting both.

III. Relevant Facts

A. Underlying Action in State Court

This case arises out of a state court suit (hereinafter referred to as the “underlying action”) brought. by the Regency Club Condominiums Owners Association (the “Association”) against the developer, Regency Club Condominiums, LLC (“Regency”), the general contractor, Park Lane, and various subcontractors, including G & G Roofing. Park Lane was hired by Regency to be the general contractor for the construction of the condominiums. Park Lane then subcontracted the roofing work for the condominiums to G & G Roofing.3

The Association’s state complaint included negligence, wantonness, breach of warranty, breach of contract, and misrepresentation claims for the purported faulty construction of the condominiums against Park Lane, Regency, and the various subcontractors; the Association also alleged that Regency breached express warranties in violation of the Alabama Uniform Condominium Act, Alabama Code § 35-8A-413, and its fiduciary duties in violation of Alabama Code § 35-8A-303(a). (State Compl., Pl.’s Ex. 8, Doc. # 79-8.)

Park Lane filed a cross-claim against G & G Roofing in the underlying action on July 28, 2010, asserting breach of contract, breach" of warranty, negligence, and indemnity claims. (PL’s Ex. 9, Doc. # 79-9.) The Association obtained a default judgment against G & G Roofing in the underlying action on November 16, 2010, in the amount of $251,383.00, plus interest and costs. (PL’s Ex. 12, Doc. #79-12.) On March 31, 2011, Regency filed a cross-claim against G & G Roofing, asserting claims of negligent and/or wanton performance of their duties and for indemnity. (PL’s Ex. 10, Dot. # 79-10.)

The Association, Park Lane, and Regency informed the state court on May 22, 2012, that they had resolved their disputes and moved the state court to dismiss with prejudice any and all claims among and between them in the underlying action. (PL’s Ex. 16, Doc. # 79-16.) On May 24, [1307]*13072012, the state court dismissed those claims with prejudice. (Pl.’s Ex. 17, Doc. # 79-17.)

B. Summary Judgment Facts

The facts of this federal action are largely undisputed. On October 5, 2005, G & G Roofing, an Alabama roofing corporation owned and operated by Mohammed Gwandu (“Gwandu”), contracted with Park Lane to perform the roofing work on the construction of the Regency Club Condominiums. (Pl.’s Ex. 13, Doc. # 79-13, at 2.) When G & G Roofing entered into this subcontract with Park Lane, Paul Nicholson — a friend and sometimes business partner of Gwandu and the sole proprietor of another roofing business, GG Roofing— was the named insured under a commercial general liability policy (the “Policy”) issued to Nicholson by Canal. (Pl.’s Ex. 1, Doc. # 79-1, at 2.) Nicholson had purchased the Policy from Canal on August 20, 2004, under the name Paul Nicholson d/b/a GG Roofing.4 (Pl.’s Ex. 1, Doc. #79-1, at 2.)

When Nicholson purchased the Policy, and while G & G Roofing was performing the roofing work for Park Lane on the condominiums, the two businesses — GG Roofing and G & G Roofing — were operating from the same mailing address. Gwandu gave Nicholson some money to help purchase the Policy with Canal, but Nicholson never purchased insurance for Gwandu’s company, G & G Roofing, and he never listed G & G Roofing in the Policy as a named insured or as an additional insured. (Sworn Testimony of Paul Nicholson (“Nicholson Testimony”), Doc. # 87, at 15:17-16:3.)

Although Nicholson is not an officer, director, or shareholder of G & G Roofing, he and Gwandu had performed at least two roofing jobs together under the following arrangement: Nicholson would add Gwandu’s contractors as additional insureds to the Policy that he procured through Canal (and which named GG Roofing as the insured), provided that Gwandu would hire Nicholson to be the supervisor on the particular roofing job covered by the insurance and would pay him a percentage of the fees collected from the job.5 (Nicholson Testimony, Doc. #87, at 8:2-9:12; 10:13-11:23.) This arrangement allowed Nicholson to work on larger-scale commercial jobs for which Gwandu had the proper license but Nicholson did not, and at. the same time', allowed Gwandu to avoid purchasing liability insurance of his own. Gwandu has never been an employee, officer, of director of GG Roofing, and Nicholson has never been Gwandu’s employee.6 [1308]*1308(Nicholson Testimony, Doc. # 87, at 17:20-18:3.)

Nicholson testified that when Gwandu told him about the possibility of the roofing job with Park Lane, Nicholson told Gwandu that Park Lane could be added as an additional insured on the Policy in order to secure the bid on the Regency job provided that Nicholson would be the supervisor on the job. (Nicholson Testimony, Doc.

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Bluebook (online)
924 F. Supp. 2d 1304, 2013 WL 68933, 2013 U.S. Dist. LEXIS 1976, Counsel Stack Legal Research, https://law.counselstack.com/opinion/canal-indemnity-co-v-regency-club-owners-assn-almd-2013.