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Canopius Us Insurance, Inc v. Frank Than D/B/A

March 12, 2013

CANOPIUS US INSURANCE, INC.,
PLAINTIFF,
v.
FRANK THAN D/B/A FRANK'S HARDWOOD FLOORS, PHUONG NGUYEN, TRANG NGO, AND TONA NGUYEN, DEFENDANTS.



The opinion of the court was delivered by: DuBois, J.

MEMORANDUM

I.INTRODUCTION

This case arises out of an insurance dispute between plaintiff Canopius US Insurance, Inc. ("Canopius") and defendant Frank Than d/b/a Frank's Hardwood Floors. Canopius filed a Complaint seeking a Declaratory Judgment that it has no duty to defend or indemnify its insured Frank's Hardwood Floor in a consolidated lawsuit filed in the Philadelphia County Court of Common Pleas filed by Phuong Nguyen, Trang Ngo, and Tona Nguyen against Frank's Hardwood Floors for personal injuries sustained at a construction site.

Canopius now moves for summary judgment and seeks a declaration that it has no obligation under the insurance policy to defend or indemnify Frank's Hardwood Floors in the state court case. Tona Nguyen filed a response to the motion, but Frank's Hardwood Floors, Phuong Nguyen, and Trang Ngo did not. For the reasons set forth below, the Court grants Canopius' Motion for Summary Judgment, and enters judgment in favor of Canopius and against Frank Than d/b/a Frank's Hardwood Floor, Phuong Nguyen, Trang Ngo, and Tona Nguyen.

II.BACKGROUND

A. Factual Background*fn1

Canopius issued Commercial General Liability Policy No. ACE0000215 to Frank's Hardwood Floors on July 19, 2010. (Plaintiff's Statement of Undisputed Facts ("Pl. SOUF") at ¶ 5.) The policy covers bodily injury, but it has two relevant exclusions. First, it does not cover bodily injury to "an employee of the insured arising out of and in the course of (1) employment by the insured or (2) performing duties related to the conduct of the insured's business" and it does not cover such injuries to the "spouse" of such an employee. (Pl. Ex. D at 22-23.) "Employee" is defined as including a "leased worker, temporary worker, casual labor or volunteer worker." (Id. at 13.) Second, the insurance policy does not cover, inter alia, bodily injury to "independent contractors," who are defined as "(1) any contractor, self-employed contractor, subcontractor or any employee, leased worker, temporary worker, casual labor or volunteer help of same [or] (2) the spouse" of such a person. (Id. at 18.)

On July 20, 2010, an explosion occurred at 3130 North 16th Street Philadelphia, Pennsylvania, where Frank's Hardwood Floors was performing floor restoration. (Pl. SOUF at ¶¶ 1, 12, 19.) Defendants Phuong Nguyen and Tona Nguyen were performing work for Frank's Hardwood Floors at that site and were injured in the explosion. (Id. at ¶¶ 1, 12, 19.) Phuong Nguyen and his wife Trang Ngo filed a negligence action against Frank's Hardwood Floors in the Philadelphia County Court of Common Pleas for injuries sustained in the explosion. (Id. at ¶¶ 1, 3.) In their Amended Complaint, they allege that Phuong Nguyen was an "independent contractor" hired by Frank's Hardwood Floors to perform work on the floor at the time of the explosion. (Id. at ¶ 12.) Tona Nguyen filed a separate suit in the Philadelphia County Court of Common Pleas for injuries sustained in the explosion. (Id. at ¶ 17, 19.) In his Complaint, he alleges that he was "performing duties on behalf of, at the instruction or and as an agent of" Frank's Hardwood Floors. (Pl. Ex. J at ¶ 7.) Tona Nguyen also alleges that Frank's Hardwood Floors had entered into a contract with the property owners to do, inter alia, floor refinishing and that he was performing a "floor refinishing project" at the time of the explosion. (Id. at ¶ 6, 8.) The two cases were consolidated on August 7, 2012 in the Philadelphia County Court of Common Pleas.

After a review of the factual allegations in the two lawsuits, Canopius informed Frank's Hardwood Floors that it would not provide a defense or indemnification in the two state court lawsuits. (Pl. SOUF at ¶¶ 14, 22.) Canopius based the decision on its determination that, at the time of the explosion, Phuong Nguyen and Tona Nguyen were either employees or independent contractors, as defined in the policy, and as such were excluded from coverage. (Id.) Frank's Hardwood Floors disputed that determination and requested that Canopius file a Declaratory Judgment action in this court to resolve the dispute. (Id. at ¶ 15.)

B. Procedural Background

On November 7, 2011, Canopius filed a Complaint with this Court. On June 8, 2012, Canopius filed an Amended Complaint. Both Frank's Hardwood Floors and Tona Nguyen filed Answers, but Phuong Nguyen and Trang Ngo failed to do so, and defaults were entered as to each of them on August 13, 2012. On October 9, 2012, Canopius filed a Motion for Summary Judgment. On October 23, 2012, Tona Nguyen filed a response to the motion. Frank's Hardwood Floors did not file a response to the motion for summary judgment.

III.LEGAL STANDARD

In considering a motion for summary judgment, "the court is required to examine the evidence of record in the light most favorable to the party opposing summary judgment, and resolve all reasonable inferences in that party's favor." Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). The party opposing the motion, however, cannot "rely merely upon bare assertions, conclusory allegations or suspicions" to support its claim. Fireman's Ins. Co. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). After examining the evidence of record, a court should grant summary judgment if "the movant shows that 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); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

A factual dispute is material when it "might affect the outcome of the suit under the governing law" and genuine when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for ...


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