Cincinnati Insurance v. Bargain Supply Co.

63 F. Supp. 3d 728, 2014 U.S. Dist. LEXIS 151329, 2014 WL 5437351
CourtDistrict Court, W.D. Kentucky
DecidedOctober 23, 2014
DocketCivil Action No. 3:12-CV-0733-H
StatusPublished

This text of 63 F. Supp. 3d 728 (Cincinnati Insurance v. Bargain Supply Co.) is published on Counsel Stack Legal Research, covering District Court, W.D. Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cincinnati Insurance v. Bargain Supply Co., 63 F. Supp. 3d 728, 2014 U.S. Dist. LEXIS 151329, 2014 WL 5437351 (W.D. Ky. 2014).

Opinion

MEMORANDUM OPINION AND ORDER

JOHN G. HEYBURN II, Senior District Judge.

Bargain Supply Company, Inc. (“Bargain Supply”) purchased a commercial liability insurance policy from The Cincinnati Insurance Company (“Cincinnati”). That policy includes provisions obligating Cincinnati to provide legal defense and indemnification for Bargain Supply in certain lawsuits. There are, however, significant coverage exclusions. The issue here is whether one of those exclusions is applica-' ble in these circumstances.

In 2010 Raphael Nunez, a California citizen, was injured while using an industrial saw at work. He believed that Bargain Supply was responsible for selling, manufacturing, or distributing the saw. So he brought suit against Bargain Supply in [729]*729California state court. Initially, Cincinnati agreed to defend Bargain Supply. However, it believed Bargain Supply’s insurance did not cover the lawsuit. Now that the California suit is at an impasse 1 Cincinnati would have this Court grant summary judgment and declare that it is not obligated to provide legal defense or indemnification.

I.

The facts in the light most favorable to Bargain Supply are as follows. Bargain Supply entered into an insurance agreement, Common Policy, Policy No. CPP 087 99 35, effective April 1, 2009 to April 1, 2012, that included Commercial General Liability (the “Policy”) and Commercial Umbrella Liability Coverage (“Umbrella Coverage”) provisions. The Policy states that “[Cincinnati] will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’2 or ‘property damage’ to which this insurance applies. [Cincinnati] will have the right and duty to defend the insured against any ‘suit’ seeking those damages.” DN 1, Page ID # 54. It goes on to state, “[h]owever, [Cincinnati] will have no duty to defend the insured against any ‘suit’ seeking damages for ‘bodily injury’ or ‘property damage’ to which the insurance does not apply.” Id. Among other things, the Policy excludes “directly imported power tools” from coverage. DN 1, Page ID # 66. The. Umbrella Coverage provision also specifies that Cincinnati “will have no duty to defend the insured against any ‘suit’ seeking damages for ‘bodily injury’... for which this insurance does not apply.” DN 1, Page ID # 79. Included amongst the Umbrella Coverage’s exclusions are suits for bodily injury by directly imported power tools. DN 1, Page ID #97.

Raphael Nunez worked with power tools. One day at work, while using a Northtech CS 18-10 saw, Nunez was injured. He later brought suit, Nunez v. Bargain Supply Company, Inc., et. al., Sup.Ct. CA, Orange County, Case No. 30-2012-00545536, against Northtech Industrial Machinery, LCC (“Northtech”) “and/ or” Bargain Supply. Nunez alleged that the Taiwanese company Yuh Farn Machinery Co., Ltd. (‘Yuh Farn”) manufactured the saw in Taiwan then sold it to North-tech “and/or” Bargain Supply. In his complaint, Nunez referred to the tool as “the Northtech Machine.” He further alleged that either Northtech or Bargain Supply sold the saw to California Woodworking Machinery Company “and/or” Cal Wood Machinery, Inc., which, finally, sold the saw to his employer, Custom Coolers, in 2006.

In its answer, Bargain Supply contended that Northtech, not Bargain Supply, was the U.S. retailer of the Northtech Machine. It has maintained during all proceedings that it never designed, manufactured, distributed, or marketed the saw. Bargain Supply moved for summary judgment in state court, arguing that it could not be liable for a machine it had no role in [730]*730producing, selling, or marketing. Interestingly, Nunez admitted that Bargain Supply did not manufacture the Northtech Machine. Rather, he contended that Bargain Supply was legally responsible for the sale of Northtech goods because it renewed the Northtech trademark in 2001. He further alleged that Bargain Supply had taken credit for Northtech’s products—that Bargain Supply had talked of them as if they were Bargain Supply’s products—and that Bargain Supply and Northtech shared office space in Louisville, Kentucky.

The California court decided that Nunez’s trademark and office-sharing evidence was insufficient to controvert Bargain Supply’s evidence that it had no involvement in marketing or distribution. Therefore, -the trial court granted summary judgment on the rationale that Bargain Supply could not be liable for a product it was not responsible for.

Meanwhile, when Nunez filed his suit against Bargain Supply, Bargain Supply sent notice to Cincinnati requesting Cincinnati to provide a defense. During their correspondence, Cincinnati made clear that it had reservations about defending Bargain Supply. First, Cincinnati felt Bargain Supply’s notice might not have been timely under the terms of the Policy. More importantly, Cincinnati doubted that the Policy covered the Nunez claim. Cincinnati notified Bargain Supply that it would provide a defense for the time being, that it reserved its rights to challenge its obligation to defend or indemnify Bargain Supply on the Nunez claim, and that it would continue to investigate the matter to determine if the Policy covered the claim.

Cincinnati filed suit with this Court in November 2012 seeking a declaration that it did not have to defend or indemnify Bargain Supply for the Nunez claim. Bargain Supply counterclaimed for a declaration that Cincinnati was required to pay. Cincinnati held its suit in abeyance while the California trial court worked its way through the matter, but it filed for summary judgment once the California court granted Bargain Supply’s summary judgment, which removed Bargain Supply from liability under the Nunez claim. With the California proceeding awaiting Nunez’s possible appeal, Cincinnati has filed for summary judgment in this Court asking the Court to declare that Cincinnati is not obligated under the terms of the Policy to defend or indemnify Bargain Supply for the Nunez claim.

■ II.

Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a). The interpretation of an insurance contract may be properly resolved as a matter of law. See Bituminous Ca. Corp. v. Kenway Contracting, Inc., 240 S.W.3d 633, 638 (Ky.2007). When deciding a motion for summary judgment, this Court must consider the evidence in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The Court must determine whether “the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Patton v. Bearden, 8 F.3d 343, 346 (6th Cir.1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

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63 F. Supp. 3d 728, 2014 U.S. Dist. LEXIS 151329, 2014 WL 5437351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cincinnati-insurance-v-bargain-supply-co-kywd-2014.