Waikar v. Royal Insurance Co. of America

765 So. 2d 11, 1999 Ala. Civ. App. LEXIS 721, 1999 WL 778518
CourtCourt of Civil Appeals of Alabama
DecidedOctober 1, 1999
Docket2971314
StatusPublished
Cited by3 cases

This text of 765 So. 2d 11 (Waikar v. Royal Insurance Co. of America) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Waikar v. Royal Insurance Co. of America, 765 So. 2d 11, 1999 Ala. Civ. App. LEXIS 721, 1999 WL 778518 (Ala. Ct. App. 1999).

Opinions

On Application for Rehearing

THOMPSON, Judge.

The opinion of April 30, 1999, is withdrawn and the following is substituted therefor.

The plaintiff appeals from a summary judgment entered in favor of the defendant Royal Insurance Company of America, Inc. (“Royal”). On December 13, 1993, while Ravindra J. Waikar was working at his employment with Tulip Corporation, his arm was caught and severed in a plastic-molding machine. Waikar sued Tulip Corporation, several co-employees, and the manufacturer and re-manufacturer of the machine that had caused the injury. The workers’ compensation claim against Tulip Corporation was severed from the action by the trial court’s order dated January 21,1994.

At the time of Waikar’s accident, Tulip Corporation was covered under a general liability insurance policy issued by Royal. The insurance agent, acting on behalf of Tulip Corporation, forwarded the summons and complaint to Royal, requesting defense and indemnity. Mr. George Ma-hon, a claims specialist for Royal, subsequently contacted Tulip Corporation to inform it that Royal was declining coverage for the co-employees named in the complaint. Thereafter, in January 1994, Royal sent letters to each co-employee listed in the complaint informing them that no coverage existed under the general liability policy issued to Tulip Corporation for the claims Waikar had filed against them.

Corporate counsel for Tulip subsequently contacted Royal, challenging Royal’s refusal to provide defense and indemnity to Gary Whitcher, named as a defendant in the action; he was vice president of manufacturing for Tulip. Royal requested and obtained additional information pertaining to Whitcher’s status as an executive officer at Royal and reconsidered its coverage position pertaining to Whitcher in light of this additional information.

The insuring agreement in the policy provided as follows:

“We will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.... This insurance applies only to ‘bodily injury’ and ‘property damage’ which occurs dining the policy period. The ‘bodily injury’ and ‘property damage’ must be caused by an ‘occur[13]*13rence.’ The ‘occurrence’ must take place in the ‘coverage territory.’ ”

Section II of the policy defined who qualified as an “insured” under the policy as follows:

“1. If you are designated in the Declarations as:
".....
“c. An organization other than a partnership or joint venture, you are an insured. Your executive officers and directors are insureds, but only with respect to their duties as your officers or directors. Your stockholders are also insureds, ‘but only with respect to their liability as stockholders.
“2. Each of the following is also an insured:
“a. Your employees, other than your executive officers, but only for acts within the scope of their employment by you. However, none of these employees is an insured for:
“(1). ‘Bodily injury’ or ‘personal injury’ to you or to a co-employee while in the course of his or her employment....”

The insuring agreement to the policy at issue provided coverage to executive officers, and an endorsement to the policy defined an “executive officer” as “a person holding any of the officer positions created by your charter, constitution or bylaws.” Whitcher was an executive officer under Tulip’s corporate charter, and thus Royal assumed Whitcher’s defense.

The manufacturer of the machine that caused the injury, Lombard Industries, Inc., was dismissed for want of prosecution, on June 29,1994.

On October 30, 1995, Waikar amended his complaint to substitute Paul Babcock, Charles Wilson, and Hal Gragg for defendants named fictitiously in the original complaint. Royal agreed to defend and indemnify Babcock because of his status as Tulip’s director of human resources.

Two named defendants, Alando McMur-try and Charles Wilson, co-employees of Waikar, were dismissed. The remaining “co-employee” defendants entered into a settlement agreement that provided for those defendants to consent to a judgment against them in the amount of $550,000. The agreement further provided that Tulip would pay $50,000 as partial satisfaction of the consent judgment. The agreement also guaranteed that Waikar would not execute the judgment against the remaining defendants, in exchange for assignment of any rights they had under their policy with Royal. The consent judgment in the amount of $550,000 was entered on February 25,1997.

On March 5, 1997, Waikar filed an ancillary proceeding against Royal, seeking a judgment declaring that Royal was liable for paying the $550,000 consent judgment. Royal and Waikar each moved for a summary judgment. The trial court held a hearing on their motions on June 12, 1998.

Waikar settled his claims against the remanufacturer, Emhart Corporation, for $80,000, and Emhart was dismissed by consent on April 24, 1997. The claims against Whitcher and Babcock were settled for $60,000, and these defendants, the sole defendants remaining in the original action, were dismissed on May 29, 1997.

After hearing oral argument on the summary judgment motions in the ancillary proceeding, the trial court requested additional Information regarding whether a typographical error in a number that designated an endorsement on the declarations page of the policy constituted an ambiguity in the policy. Royal submitted affidavits of its underwriting representative and a representative of the insurance services office in response to the trial court’s request for supplemental information. The representatives stated in their affidavits that at the time the policy was issued Royal had no policy form or endorsement designation number in existence that corresponded to the number mistakenly typed on the declarations page. The trial court [14]*14entered a summary judgment in favor of Royal in the ancillary declaratory-judgment action. Because no further claims against any defendants remained pending after the entry of the summary judgment, that summary judgment was a final judgment. See, e. g., Schiffman v. City of Irondale, 669 So.2d 136 (Ala.1995). Waikar filed a timely notice of appeal to the supreme court. That court transferred the appeal to this court, pursuant to Ala. Code 1975, § 12-2-7.

“In reviewing the disposition of a motion for summary judgment, we utilize the same standard as that of the trial court in determining whether the evidence before [it] made out a genuine issue of material fact.” Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); Rule 56(c), Ala. R. Civ. P. When the movant makes a pri-ma facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is “substantial” if it is of “such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

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765 So. 2d 11, 1999 Ala. Civ. App. LEXIS 721, 1999 WL 778518, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waikar-v-royal-insurance-co-of-america-alacivapp-1999.