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Atlantic Casualty Insurance Co. v. N & A Properties, Inc.

United States District Court, N.D. Texas, Fort Worth Division

February 22, 2018

ATLANTIC CASUALTY INSURANCE COMPANY, Plaintiff,
v.
N & A PROPERTIES, INC., ET AL., Defendants.
v.
LISA DUCOTE AND WORRELL & WORRELL INSURANCE AGENCY, INC., Third-Party Defendants.

          MEMORANDUM OPINION AND ORDER

          John McBayde States District Judge

         Came on 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.

         I.

         Plaintiff's Claims The operative pleading is plaintiff's first amended complaint filed January 18, 2018. Doc.[1] 74. In it, plaintiff alleges:

         N & 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.

         On or 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.

         Plaintiff 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 and Mata.

         II.

         Grounds of the Motion

         Plaintiff 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.

         III.

         Summary Judgment Principles

         Rule 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 ...

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