Opinion
No. ED88258
June 12, 2007
Appeal from Circuit Court of St. Louis County, Hon. Barbara Ann Crancer.
Matthew J. Padberg, Counsel for Appellant.
Joseph L. Leritz, Counsel for Respondent.
Opinion
Introduction
Bryan Gavan ("Plaintiff") appeals from the judgment of the Circuit Court of St. Louis County granting summary judgment in favor of Bituminous Casualty Corporation and Bituminous Fire Marine Insurance Company ("Defendants") and denying Plaintiff's cross-motion for summary judgment on Plaintiff's action for declaratory judgment and equitable garnishment. We reverse and remand.
Statement of Facts and Proceedings Below
Plaintiff was working as a bricklayer for Ste. Genevieve Building Stone Company ("Ste. Genevieve") and was injured when a ladder collapsed. Plaintiff filed suit against Zachary Brace and Joe Gotsch, laborers employed by Ste. Genevieve at the time Plaintiff was injured. Plaintiff entered into settlement agreements with Mr. Brace and Mr. Gotsch, which provided that a judgment against them would be satisfied only from the proceeds of any applicable insurance policies. The trial court entered judgment in favor of Plaintiff in the amount of $2,300,000.
Thereafter, Plaintiff filed an action against Defendants, alleging that they had a duty to defend and to satisfy any judgments rendered against Mr. Brace and Mr. Gotsch. At the time of the accident, Defendants provided insurance to Ste. Genevieve under a commercial general liability policy and a commercial umbrella policy.
Mr. Brace and Mr. Gotsch were also each named as defendants.
In his first amended petition, Plaintiff requested the court to determine the rights of the parties and to determine whether the insurance policies issued by Defendants provided coverage to Mr. Brace and Mr. Gotsch in connection with the underlying action and equitable garnishment. Defendants then filed a motion for summary judgment stating that neither Mr. Brace nor Mr. Gotsch was an "insured" under the policies, because an "employee" is not insured for "bodily injury" to a "co-employee." Plaintiff filed a cross-motion for summary judgment, claiming that he was a "temporary worker" not an "employee," and thus, not excluded by the policies' "co-employee" exclusion. The parties filed additional briefs and affidavits. The trial court entered judgment granting Defendants' motion for summary judgment and denying Plaintiff's cross-motion for summary judgment. Plaintiff appealed.
Standard of Review
Our review of summary judgment is de novo. ITT Comm'l Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We will uphold the grant of summary judgment on appeal if no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. Id. at 377. "[A] `genuine issue' exists where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts." Id. at 382. We view the record in the light most favorable to the party against whom judgment was entered, according that party all reasonable inferences that may be drawn from the record. Id. at 376. We accept as true facts contained in affidavits or otherwise in support of a party's motion unless contradicted by the non-moving party's response to the summary judgment motion. Id.
Discussion
In both points on appeal, Plaintiff argues that the trial court erred in granting summary judgment in favor of Defendants because Mr. Brace and Mr. Gotsch were insured for the injuries they caused to him. Plaintiff contends that, under the policies, he was a "temporary worker" and not a "co-employee" of Mr. Brace and Mr. Gotsch and therefore the "co-employee" exclusion did not apply.
Plaintiff argues in his first point that the uncontroverted evidence established that he was a "temporary worker" and in his second point that there was an issue of material fact regarding whether he was a "temporary worker."
Both policies state that "employees" are not insured for bodily injury "to a co-employee while that co-employee is either in the course of his or her employment or performing duties related to the conduct of [the] business. . . ." The policies define "employee," to include leased workers but not temporary workers. Under the policies, a "[l]eased worker means a person leased to you by a labor leasing firm under an agreement between you and the labor leasing firm, to perform duties related to the conduct of your business. Leased worker does not include temporary worker." Finally, the policies define temporary worker as "a person who is furnished to you to substitute for a permanent employee on leave or to meet seasonal or short-term workload conditions."
Plaintiff argues that he meets the policies' definition of "temporary worker" because he was "furnished . . . to meet . . . short-term workload conditions." The parties, however, disagree as to the interpretation of the term "furnished." When interpreting an insurance policy's language, we give a term its ordinary meaning unless it plainly appears that a technical meaning was intended. Farmland Indus., Inc. v. Republic Ins. Co., 941 S.W.2d 505, 508 (Mo. banc 1997). To determine the ordinary meaning of a term, we consult standard English language dictionaries. Id. We do not defer to the trial court's interpretation of the policy but rather engage in de novo review. National Union v. City of St. Louis, 947 S.W.2d 505, 506 (Mo.App.E.D. 1997).
During his deposition, Plaintiff explained the history and circumstances of his employment for Ste. Genevieve. Plaintiff testified that he worked for Ste. Genevieve from 1996 to 1998. He then worked for other companies from 1998 until January 2000. In January 2000, Plaintiff saw a Ste. Genevieve project from the highway and he "just pulled in there." Plaintiff testified that he just showed up at the job site rather than going to the Bricklayers' Local Union No. 1 (Union) hall. Plaintiff further stated that in March or April 2000, a Ste. Genevieve supervisor "loaned [him] out" to another contractor for approximately three weeks after which he returned to work for Ste. Genevieve and was injured on May 15, 2000.
Plaintiff's deposition testimony reflects that he began working for Ste. Genevieve in January 2000 through his own efforts and not those of a third party or entity. Plaintiff effectively furnished himself to Ste. Genevieve. The issue, therefore, is whether a person can furnish himself or herself — or must a third party or entity or party furnish the person — to the employer for purposes of the policies' "temporary worker" definition.
Plaintiff contends that the Union furnished him to Ste. Genevieve. Plaintiff emphasizes his deposition testimony that he began working for Ste. Genevieve in 1996 after a Union business agent "referred" him to the company because it had work available. Plaintiff also relies on evidence that he is a Union member, the Union trained him, Ste. Genevieve is a signatory to the collective bargaining agreement with the Union and Ste. Genevieve only hires Union members as bricklayers. But Plaintiff testified that when he went to work in January 2000 he did not go through the Union hall. Contrary to Plaintiff's contention, the evidence does not establish that a genuine issue of material fact exists regarding whether the Union "furnished" Plaintiff to Ste. Genevieve.
The Southern District considered a similar issue in American Family Mutual Insurance Co. v. As One, Inc., 189 S.W.3d 194 (Mo.App.S.D. 2006). In that case, a business automobile insurance policy provided liability insurance for a "bucket truck" on which a man was working; however, the policy excluded coverage for bodily injury to any employee of the insured. As One, 189 S.W.3d at 196. The policy also provided that the term "employee" did not include a temporary worker. Id. The policy defined a "temporary worker" as a "person who is furnished to you for a finite time period to support or supplement your workforce in special work situations such as employee absences, temporary skill shortages and seasonal workloads." Id. (internal citations omitted). On appeal, the insurance company argued that the word "furnished contains a requirement as a matter of law that a third [party or] entity furnish the worker to the insured." Id. at 197 (internal citations omitted).
In rejecting this argument, the Southern District considered a standard English dictionary definition of the term "furnish." "Furnish" means "`[t]o provide or supply with what is needed, useful or desirable.'" Id. at 198 (quoting Webster's Third New International Dictionary 923 (1986)). The Southern District stated that in the context of a worker, there was no requirement in "providing or supplying or furnishing, which mandates that the worker must be supplied, provided, or furnished to you by someone else." A worker may furnish himself or herself to work. Id. (internal citations omitted). Accordingly, the Southern District held that a plain reading of the policy did not warrant requiring the worker to be furnished by a third party or entity.Id. at 198-99.
The Court also analyzed the policy's definition of a leased worker as "a person leased to you by a labor[-]leasing firm under an agreement between you and the labor [-]leasing firm, to perform duties related to the conduct of your business." Id. at 199. Because the policies' definition requires that a labor leasing firm provide a "leased worker," the "implication is that a temporary worker may be a person who is not supplied by an employment agency since the definition of temporary worker in the policy does not contain a similar phrase such as furnished to you by an employment agency." Id. (internal citations omitted). The Southern District concluded, "[i]n layman's terms, the policy in this case means a temporary worker is a person who works for a finite time period to support or supplement the workforce in special work situations." Id.
The policies in effect in the case at hand have a similar definition of "temporary worker" as that in As One. Both policies use the term "furnished," and have identical definitions of "leased worker," namely "a person leased to you by a labor leasing firm under an agreement between you and the labor leasing firm, to perform duties related to the conduct of your business. Leased worker does not include a temporary worker." Id. (internal citations omitted). The policies here and the policy in As One specifically provide that a "temporary worker" is not an "employee." Therefore, we hold that the analysis set forth by the Southern District applies to this case.
Defendants argue that the Southern District's interpretation renders the term "furnished" useless and inexplicable. But we do not consider the term in isolation. Eagle Boats, Ltd. v. Cont'l Ins. Co., 968 S.W.2d 734, 736 (Mo.App.E.D. 1998). When we construe the term "furnish" in the context of the entire applicable phrase, it is obvious that the appropriate focus is on the reason the person is going to work for the employer, and not who, if anyone, provides the person. That is, a worker is considered temporary because he or she is substituting "for a permanent employee on leave or to meet seasonal or short-term workload conditions." Clearly, in the context of the policy language at issue here, a worker is not deemed temporary simply because a third party or entity furnished the worker to the employer.
Defendants further assert that the Southern District improperly disregarded this Court's analysis in American Family Mutual Insurance Co. v. Tickle, 99 S.W.3d 25, 29 (Mo.App.E.D. 2003). Defendants argue that Tickle, rather than As One, applies to the case at hand. We disagree.
The issue in Tickle differed from the issue presented in As One. InTickle, an employee challenged a trial court finding that a worker was not a "temporary worker." On appeal, the employee in Tickle contended that the definition of "temporary worker" was ambiguous because it was unclear whether "furnished" applied to "seasonal or short-term workload conditions." Notably, however, in Tickle, we did not consider whether the word "furnished" applied both to persons who "substitute for a permanent employee" and "to those who meet seasonal or short-term workload conditions." As One, 189 S.W.3d at 198. Indeed, inTickle we never reached the issue addressed by the Southern District inAs One and the case at hand because the employee in Tickle conceded that he was not "furnished." Tickle, 99 S.W.3d at 28. In light of the fact that As One specifically and persuasively addressed the issue presented here, and Tickle did not, we disagree with Defendants thatTickle applies to resolve the meaning of the term "furnished."
Even if we did not find the Southern District's analysis in As One persuasive, Defendants' assertion that the term "furnished" requires that a third party or entity provide the worker would not prevail. Rather, the term "furnished" is ambiguous. An ambiguity in an insurance policy exists when there is duplicity, indistinctness, or uncertainty in the meaning of the words used in the policy. Watters v. Travel Guard Int'l, 136 S.W.3d 100, 108 (Mo.App.E.D. 2004). If a policy's language is ambiguous, it is construed against the insurer. Id. at 107.
Plaintiff also argues that the trial court's erred in finding that no genuine issue of material fact existed regarding whether he was a "temporary worker." Plaintiff contends that he presented sufficient evidence to establish that Ste. Genevieve hired him to meet "short-term workload conditions," a necessary component of the policies' "temporary worker" definition. The determination of whether Ste. Genevieve hired Plaintiff to meet "short-term workload conditions" is a question of fact. Because two plausible but contradictory accounts exist, we agree that summary judgment is improper. See ITT Comm'l Fin. Corp., 854 S.W.2d at 382.
In his cross-motion for summary judgment, Plaintiff testified via affidavit and deposition that when he was hired to help the company, he was told that he might work as long as two to three months. The record indicates that Plaintiff understood that he was being hired to fill an immediate, temporary need and that there was no promise of long-term or permanent employment. Timothy Udding, a Vice President of Ste. Genevieve, also testified that the company's hiring of bricklayers depends on the "volume of work." Mr. Udding explained that the company has some individuals he considers "permanent employees," such as family members who work as administrators or foremen, or laborers who have been with the company for years. As a result, Mr. Udding's testimony supported a determination that the bricklayers hired due to increased volume of work are essentially those hired when needed because of short-term workload conditions.
Plaintiff likewise presented an affidavit from Tim Brown, Business Manager of Bricklayers Local Union No. 1. In the affidavit, Mr. Brown asserted that a bricklayer's employment with a contractor is considered temporary employment, which ends when a project is complete or when there is no longer enough work to keep the bricklayer occupied. The testimony of each of these witnesses is sufficient to raise a genuine issue of material fact regarding whether Plaintiff was "furnished" to meet "short-term workload conditions."
Conclusion
The judgment of the trial court is reversed and the cause remanded for further proceedings.
REVERSED AND REMANDED. Shaw, C.J., and Hoff, J., concur.