JNJ FOUND. SPECIALISTS v. DR Horton, Inc.

717 S.E.2d 219, 311 Ga. App. 269
CourtCourt of Appeals of Georgia
DecidedJuly 28, 2011
DocketA11A0542, A11A0543, A11A0544, A11A0545
StatusPublished

This text of 717 S.E.2d 219 (JNJ FOUND. SPECIALISTS v. DR Horton, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
JNJ FOUND. SPECIALISTS v. DR Horton, Inc., 717 S.E.2d 219, 311 Ga. App. 269 (Ga. Ct. App. 2011).

Opinion

717 S.E.2d 219 (2011)
311 Ga. App. 269

JNJ FOUNDATION SPECIALISTS, INC.
v.
D.R. HORTON, INC.
Columbia National Insurance Company
v.
Hall et al.
Brent Scarbrough & Company, Inc. et al.
v.
D.R. Horton, Inc. et al.
D.R. Horton, Inc.
v.
Brent Scarbrough & Company, Inc. et al.

Nos. A11A0542, A11A0543, A11A0544, A11A0545.

Court of Appeals of Georgia.

July 28, 2011.

*221 Temple, Strickland, Dinges & Schwartz, Jason Bryan Schwartz, Decatur, Hicks, Casey & Foster, Richard Crawford Foster, Marietta, Andrea A. Guariglia, Penna & Mendicino, Christopher E. Penna, Conyers, for appellants.

Hobgood & Rutherford, Thomas Tucker Hobgood, David Arthur Rutherford, Atlanta, Julia Nicole Haesemeyer, Mark E. Layng, Lynn D. Betz, for appellees.

PHIPPS, Presiding Judge.

These appeals are from the trial court's rulings on summary judgment in an action for personal injuries arising out of an automobile collision. D.R. Horton, Inc. was a subdivision developer. In December 2006, Gary Hall was driving on Pleasant Hill Road near the front of the subdivision when he saw construction barrels in the middle of his travel *222 lane. Hall brought his vehicle to a stop and waited to change lanes. As he waited, his vehicle was rear-ended by another vehicle. After his vehicle was struck, he noticed a cement truck in the roadway, beyond the subdivision entrance, apparently being used in the construction of a sidewalk.

Hall filed an action against the driver of the second vehicle, against D.R. Horton, and against John Doe, alleging inter alia that D.R. Horton was negligent in entrusting operation of the construction site to John Doe, in failing to properly train and supervise John Doe when D.R. Horton knew or should have known that the failure to adequately mark the lane closure created a hazard, in failing to properly place warning signs, and in failing to take other steps to reduce the hazard and danger to others on the roadway. D.R. Horton answered the complaint and filed a third-party complaint against several contractors and their insurance carriers, including JNJ Foundation Specialists, Inc. and its insurance carrier Columbia National Insurance Company, and Brent Scarbrough & Company, Inc. and its insurance carrier Westfield Insurance Company. D.R. Horton moved for summary judgment as to each of these third-party defendants, and they filed cross-motions for summary judgment. These appeals are from the court's order granting D.R. Horton's motion for summary judgment as to JNJ and denying the remaining motions for summary judgment. We affirm the judgment in Case Nos. A11A0542, A11A0543 and A11A0544. We reverse the judgment in Case No. A11A0545.

Summary judgment is proper only when no issue of material fact exists and the moving party is entitled to judgment as a matter of law.[1] When reviewing the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence.[2]

Case No. A11A0542

1. JNJ contracted with D.R. Horton to pour entry sidewalks for the subdivision. In its third-party complaint, D.R. Horton alleged that JNJ was liable for refusing to provide a defense and indemnification for JNJ's negligent conduct, when the parties' construction contract required JNJ to do so. The court granted D.R. Horton's motion for summary judgment and denied JNJ's motion for summary judgment, finding that JNJ was liable for failing to provide a defense and indemnification. JNJ asserts that these findings were made in error.

JNJ contends that the trial court erred in holding that it was required to defend and indemnify D.R. Horton because: (a) there was no evidence that JNJ placed the construction barrels in the roadway; (b) there was no evidence that the barrel placement was the direct and proximate cause of Hall's injury; (c) the complaint did not allege facts that came within the scope of JNJ's work; (d) JNJ offered a defense and indemnification, which D.R. Horton rejected; and (e) JNJ had no duty to indemnify D.R. Horton because the latter was not legally obligated to pay Hall. The arguments are without merit.

The construction contract between D.R. Horton and JNJ required JNJ to carry commercial general liability insurance, and provided that JNJ had a duty to defend and indemnify D.R. Horton for any claims "in any way occurring, incident to, arising out of, or in connection with ... the work performed or to be performed by contractor or contractor's personnel, agents, suppliers, or permitted subcontractors." Under Georgia law pertaining to indemnity provisions, "`arising out of' [means] `had its origins in,' `grew out of,' or `flowed from.'"[3] Importantly, "the term `arising out of' does not mean proximate cause in the strict legal sense, nor [does it] require a finding that the injury was directly and proximately caused by the insured's actions. Almost any causal connection or relationship will do."[4]

*223 (a) There was evidence that JNJ placed the construction barrels in the roadway. Specifically, there was evidence that, on the date of the collision, JNJ poured a sidewalk at the subdivision, along Pleasant Hill Road; that the sidewalk was being poured at the time the traffic lane on Pleasant Hill Road was blocked; that JNJ's supplier delivered concrete to the entrance of the subdivision so that JNJ could construct sidewalks; that a JNJ employee who was working with the sidewalk contractors told a Brent Scarbrough employee that she needed him to close a lane for concrete that was on the way;[5] that the Brent Scarbrough employee replied that he could not close a lane without a permit and that it would take days to obtain one, to which the JNJ employee replied that she had concrete "on the way"; that the JNJ employee asked if she could use Brent Scarbrough's barrels to close the lane, but was told she could not; and that when the collision occurred, construction barrels were in the roadway, as was a cement truck that appeared to be pouring sidewalks.

In his complaint, Hall alleged that D.R. Horton and an unknown defendant created a hazard in closing the lane without proper signage or warnings. Hall's claim arose out of or was connected in some way to JNJ's work.[6] Thus, the trial court properly denied JNJ's motion for summary judgment and granted D.R. Horton's motion for summary judgment on the indemnification issue.

As for the duty to defend, an insurer can refuse to defend only when the allegations "unambiguously exclude coverage under the policy."[7]

If the facts as alleged in the complaint even arguably bring the occurrence within the policy's coverage, the insurer has a duty to defend the action. Indeed, to excuse the duty to defend the petition must unambiguously exclude coverage under the policy, and thus, the duty to defend exists if the claim potentially comes within the policy. Where the claim is one of potential coverage, doubt as to liability and [the] insurer's duty to defend should be resolved in favor of the insured.[8]

Given the nature of the allegations in Hall's complaint, the trial court properly denied JNJ's motion for summary judgment and granted D.R. Horton's motion for summary judgment regarding the duty to defend.

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JNJ Foundation Specialists, Inc. v. D. R. Horton, Inc.
717 S.E.2d 219 (Court of Appeals of Georgia, 2011)

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Bluebook (online)
717 S.E.2d 219, 311 Ga. App. 269, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jnj-found-specialists-v-dr-horton-inc-gactapp-2011.