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R. M. Personnel, Inc. v. Liberty Mutual Fire Insurance Co.

United States District Court, W.D. Texas

February 16, 2018

R.M. PERSONNEL, INC., Plaintiff,



         BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and specifically Plaintiff RM. Personnel, Inc. (RMP)'s Motion for Partial Summary Judgment [#11] and Defendant Liberty Mutual Fire Insurance Company (Liberty) 's Response [#20] in opposition as well as Liberty's Unopposed Motion for Leave to File Cross Motion for Summary [#21].[1] Having considered the case file and the applicable law, the Court enters the following opinion and orders.


          This case concerns a dispute over insurance coverage in the aftermath of an accident at a commercial construction site in El Paso, Texas. On September 17, 2007, Luis Alberto Rodriguez fell fifty feet down an elevator shaft resulting in severe personal injuries. Mr. Rodriguez filed suit against RMP and others in County Court at Law Number Three in El Paso, Texas (the Rodriguez Lawsuit). RMP Mot. [#11-1] Ex. 1 (Third Am. Pet.). On May 19, 2015, Mr. Rodriguez obtained a judgment against RMP in the amount of $3, 485, 000 plus pre-judgment and post-judgment interest and costs. An appeal of the judgment in the Rodriguez Lawsuit is still pending.[2]

         The lawsuit before this Court concerns whether Liberty had a duty to defend RMP in the Rodriguez Lawsuit and whether Liberty has a duty to indemnify RMP in the event of a final adverse judgment. See Compl. [#1].

         At the time of Mr. Rodriguez's accident, RMP was insured under a workers' compensation and employer's liability policy issued by Liberty and effective January 1, 2007 to January 1, 2008. RMP Mot. Ex. 3 [#16] (the Policy). Under the Policy, Liberty is required to provide defense and indemnity coverage for "bodily injury by accident" if "[t]he bodily injury.. . arise[s] out of and in the course of the injured employee's employment by [RMP]." Id. at LM 2796.

         After being served in the Rodriguez Lawsuit, RMP sought coverage from Liberty, requesting Liberty provide RMP's defense. Compl. [#1] ¶ 6; Answer [#2] ¶ 6. Liberty denied coverage, claiming Mr. Rodriguez's petition alleged no employment relationship between RMP and Mr. Rodriguez as required by the Policy. See Compl. [#1] ¶ 11; Answer [#2] ¶ 11.

         On diversity jurisdiction grounds, RMP filed this lawsuit seeking a declaratory judgment regarding Liberty's duty to defend and indemnify RMP in the Rodriguez Lawsuit. See Compl. [#1] ¶¶ 14-16. RMP also claims Liberty breached the Policy and is liable under the Prompt Payment Act, Tex. Ins. Code § 542.051 et seq., because it refused to defend RMP in the Rodriguez Lawsuit. Id. ¶¶ 17-20:

         RMP filed a timely motion for partial summary judgment, is ripe for review.


         I. Legal Standard-Summary Judgment

         Summary judgment shall be rendered when the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir. 2007). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Washburn, 504 F.3d at 508. Further, a court "may not make credibility determinations or weigh the evidence" in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.

         Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Turner v. Baylor Richardson Med. Ctr, 476 F.3d 337, 343 (5th Cir. 2007). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. Id. The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Adams v. Travelers Indent. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006). Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id.

         "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues that are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which ...

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