United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
McBayde States District Judge
for consideration the motion of plaintiff, Atlantic Casualty
Insurance Company, for partial summary judgment. The court,
having considered the motion, the response of defendants N
& A Properties, Inc. ("N & A"), and Mustafa
Nadal ("Nadal"), the response of defendant Filomeno
Grande Mata ("Mata"), the replies to each of the
responses, the record, and applicable authorities, finds that
the motion should be denied.
Claims The operative pleading is plaintiff's first
amended complaint filed January 18, 2018. Doc. 74. In it,
A is a Texas corporation formed in January 2 014. Doc. 74 at
3, ¶ 11. Nadaf is its registered agent and sole officer
and director. Id. On October 26, 2016, Nadaf, as
"applicant, " applied to plaintiff for insurance on
"Commercial Property Held For Lease" at 10501
Jacksboro Highway (the "property") owned by N &
A. Id. at ¶ 12. The application classed the
premises as "Buildings or premises bank, office,
mercantile, mfg. (Lessor's Risk only) Other than
Not-For-Profit." Id. Nadaf responded
"No" to the question whether he had any other
business ventures for which coverage was not requested.
Id. at ¶ 13. Nadaf stated that N & A had
one employee with an "employee annual payroll of 10 00 0
[sic]" not including the "owner." Id.
Nadaf further represented that N & A did not subcontract
any work and did not have any subsidiaries. Id. at
4. Based on Nadafs representations, plaintiff issued
commercial property and commercial general liability
insurance policy number M188000452 to N & A with a policy
period of October 31, 2016, to October 31, 2017 (the
"policy"). Id. at ¶ 14. Unbeknownst
to plaintiff, Nadaf in fact leased the property to his own
scrap metal yard and/or recycling business, 199 Recycling,
Inc. ("199 Recycling"), of which Nadaf is
registered agent and sole officer. Id. at 15.
about December 1, 2016, Mata was working for Nadaf at the
property. At the end of the work day, Mata went to close the
gate when it fell on top of him, causing severe bodily
injury. Id. at ¶ 17. On December 18, 2017, Mata
filed a lawsuit against Nadaf, 199 Recycling, and N & A
in state court.
seeks a declaratory judgment that it has no duty to defend or
indemnify N & A or Nadaf or 199 Recycling for Mata's
claims. It further seeks a declaratory judgment that the
policy was properly voided and rescinded for material
misrepresentations and that the voidance is binding on Nadaf
of the Motion
seeks judgment that the policy does not cover the
"bodily injury" to Mata because: (1) N & A and
Nadaf are insureds; (2} the policy excludes all on-the-job
injuries; and (3) that Mata recently filed a state court
lawsuit does not change the outcome.
56(a) of the Federal Rules of Civil Procedure provides that
the court shall grant summary judgment on a claim or defense
if 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); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247 (1986) . The movant bears the initial
burden of pointing out to the court that there is no genuine
dispute as to any material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 325 (1986). The movant can
discharge this burden by pointing out the absence of evidence
supporting one or more essential elements of the nonmoving
party's claim, "since a complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial."
Id. at 323. Once the movant has carried its burden
under Rule 56(a), the nonmoving party must identify evidence
in the record that creates a genuine dispute as to each of
the challenged elements of its case. Id. at 324;
see also Fed.R.Civ.P. 56(c) ("A party asserting
that a fact . . .is genuinely disputed must support the
assertion by . . . citing to particular parts of materials in
the record ...."). If the evidence identified could not
lead a rational trier of fact to find in favor of the
nonmoving party as to each essential element of the nohmoving
party's case, there is no genuine dispute for trial and
summary judgment is appropriate. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 597
(1986). In Mississippi Prot. & Advocacy
Sys., Inc. v. Cotten, the Fifth Circuit explained:
Where the record, including affidavits, interrogatories,
admissions, and depositions could not, as a whole, lead a
rational trier of fact to find for the nonmoving ...