Essex Insurance Company v. J&J Cable Construction, LLC et al

Filing 125

MEMORANDUM OPINION AND ORDER: it is hereby ORDERED as follows: 1. The Motion for Partial Summary Judgment filed by J&J Cable (Doc. # 80 ) is GRANTED as to the pollution exclusion and DENIED in all other respects. 2. The Motion for Summary Judgment by Evanston Insurance (Doc. # 81 ) is DENIED. 3. The Motion for Summary Judgment filed by Dixie Electric (Doc. # 83 ) is GRANTED as to the pollution exclusion and DENIED in all other respects. 4. The Motion for Hearing filed by Evanston Insurance (Doc. # 101 ) is DENIED. 5. The Motion to Strike filed by Evanston Insurance (Doc. # 107 ) is DENIED. Signed by Honorable Judge W. Harold Albritton, III on 9/22/2016. (kh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION

EVANSTON INSURANCE COMPANY,

)
)
Plaintiff,
)
)
v.
)
)
J&J CABLE CONSTRUCTION, LLC;
)
DIXIE ELECTRIC COOPERATIVE;
)
MARRELL A. CRITTENDEN, Jr.;
)
Individually and as next friend of M.C. and
)
A.C.; COURTNEY BYNUM CRITTENDEN, )
Individually and as Next Friend of M.C. and )
A.C.; CAROLINE TORRENCE,
)
)
Defendants.
)
_____________________________________ )
)
J&J CABLE CONSTRUCTION, LLC;
)
DIXIE ELECTRIC COOPERATIVE;
)
MARRELL A. CRITTENDEN, Jr.;
)
Individually and as next friend of M.C. and
)
A.C.; COURTNEY BYNUM CRITTENDEN, )
Individually and as Next Friend of M.C. and )
A.C.; CAROLINE TORRENCE,
)
)
Counterclaimants,
)
v.
)
)
EVANSTON INSURANCE COMPANY,
)
)
Counterclaim Defendant. )

CIVIL ACTION NO. 3:15cv-506-WHA
(wo)

MEMORANDUM OPINION AND ORDER
I.

INTRODUCTION

This case is before the court on a Motion for Partial Summary Judgment filed by
Defendant J&J Cable Construction, LLC (“J&J Cable”)(Doc. #80), a Motion for Summary
Judgment filed by Evanston Insurance Company (Doc. #81), a Motion for Summary Judgment

filed by Dixie Electric Cooperative LLC (“Dixie Electric”) (Doc. #83), a Motion for Hearing
(Doc. #101),1 and a Motion to Strike the Crittenden and Torrence Response to the Dixie Electric
and J&J Cable Motions for Summary Judgment (Doc. #107).2
The Plaintiff, Evanston Insurance Company (“Evanston”),3 filed a Complaint for
Declaratory Judgment in this case on July 15, 2015. Evanston filed an Amended Complaint on
January 12, 2016 (Doc. #61). Evanston seeks a declaration of its rights and obligations to
defend and/or indemnify J&J Cable or Dixie Electric under a commercial general liability
insurance policy in connection with two lawsuits pending in state court, seeking damages for the
alleged bodily injury and property damage of Marrell A. Crittenden, Jr.; Courtney Bynum
Crittenden; and the two minor children of the Crittendens (collectively “the Crittendens”) and
Caroline Torrence (“Torrence”). Dixie Electric filed crossclaims against J&J Cable in the
underlying state court actions. Evanston is defending J&J Cable under a reservation of rights in
the underlying actions.
For the reasons to be discussed, the Motion for Summary Judgment by Evanston is due to
be DENIED, and the other pending Motions for Summary Judgment are due to be GRANTED in
part and DENIED in part.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is proper "if there is no genuine issue as to any material fact and

..

Evanston Insurance Company requested oral argument on pending motions, but did not identify
any particular issues to present at oral argument. The court having been presented with multiple,
voluminous briefs on the pending motion, the court does not find oral argument necessary in this
case.
2
The court has considered the Crittenden and Torrence brief not as an untimely Motion for
Summary Judgment as Evanston asserts, but just as a brief in support of properly-filed motions,
and the Motion to Strike is due to be DENIED.
3
The Complaint was filed by Essex Insurance Company, but Evanston Insurance Company has
been substituted in the place of Essex Insurance Company. (Doc. #121, 122).
1

. the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986).
The party asking for summary judgment "always bears the initial responsibility of
informing the district court of the basis for its motion,@ relying on submissions Awhich it believes
demonstrate the absence of a genuine issue of material fact." Id. at 323. Once the moving party
has met its burden, the nonmoving party must Ago beyond the pleadings@ and show that there is a
genuine issue for trial. Id. at 324.
Both the party Aasserting that a fact cannot be,@ and a party asserting that a fact is
genuinely disputed, must support their assertions by Aciting to particular parts of materials in the
record,@ or by Ashowing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to support the
fact.@ Fed. R. Civ. P. 56 (c)(1)(A),(B). Acceptable materials under Rule 56(c)(1)(A) include
Adepositions, documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory answers, or
other materials.@
To avoid summary judgment, the nonmoving party "must do more than show that there is
some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). On the other hand, the evidence of the nonmovant must be
believed and all justifiable inferences must be drawn in its favor. See Anderson v. Liberty Lobby,
477 U.S. 242, 255 (1986).
After the nonmoving party has responded to the motion for summary judgment, the court
shall 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).

III. FACTS
The submissions of the parties establish the following facts, construed in a light most
favorable to the non-movants:
Dixie Electric hired J&J Cable to install underground electrical conduit in a subdivision
in November of 2013. J&J Cable was performing underground boring work to install the
electrical conduit for Dixie Electric. J&J’s primary business was underground boring for cable
and utility services. There is evidence before the court that the underground boring work was
completed by Friday, November 8, 2013. All of the work on the job was completed on
November 11, 2013. (Doc. #85-2).
It is undisputed that during the performance of this work, J&J struck and broke the sewer
laterals to two houses owned by Dr. and Mrs. Jack Anderson. Sewer laterals are sewer pipes that
run from a house to the city sewer main. The sewer laterals were damaged between November 8
and November 11, 2013. As a result, sewage backed up into a home occupied by tenants Marrell
Crittenden, Courtney Crittenden, and their two children, M.C., and A.C. and another home
occupied by tenant Caroline Torrence. A Crittenden child was taken to the hospital in connection
with sewage exposure. The tenants of the two homes have claimed property damage and
personal injuries in state court as a result of the backed-up sewage. The Defendants take the
position that the Crittendens first began experiencing water issues while J&J Cable was still
working at the site, on November 11, 2013, and that Torrence began experiencing issues in the
beginning of November.
Marrell Crittenden stated in his deposition that he remembers “water irregularities and
4

discoloration starting around when the men were outside working.” (Doc. #85-7 at p.25: 13-15).4
He said he remembered speaking to the workers when he took his daughter to school and they
started having issues with the water. (Doc. #85-7 at p.8:16-20). Marrell Crittenden also testified
in his deposition that a toilet backed up and flowed out the Monday before November 16, 2013.
(Doc. #85-7 at p.46:10-16). November 16, 2013 was a Saturday.
In an earlier deposition, taken in the state court cases, Marrell Crittenden stated that
before his wife told him about a problem with the plumbing on November 16, he remembered
cleaning the bathroom floor and toilet because of overflowing issues. (Doc. #80-6 at p. 45:846:12).
Evanston contends that the “great weight of the evidence” points to November 15-16,
2013 as the date that sewage backed up into the houses. Evanston points to deposition testimony
as well as the Crittenden’s expert’s opinion which is based on a November 16, 2013 to
November 25, 2013 timeframe. (Doc. #81 at p.15). Evanston takes the position that Courtney
Crittenden and her children first experienced sewage back-up on November 16, 2013, and
Caroline Torrence does not know when she experienced the sewage back-up.
As noted above, two lawsuits have been filed in the Circuit Court of Montgomery County
Alabama, against J&J Cable and Dixie Electric, claiming damages for the property damage and
personal injuries. The Crittendens’s original Complaint was filed on January 15, 2014, and stated
that sewage seeped inside the home on or about November 15, 2013 until November 24, 2013.
Subsequent state law complaints alleged that on or about November 3, 2013 until November 11,

The court has referred to the filing document number and internal page numbers from the
deposition.
5
4

2013, the sewage line was breached and thereafter raw sewage seeped into the home. The same
language and dates appear in the Torrence complaint.
The owners of the two houses, Dr. and Mrs. Jack Anderson, made a claim with Dixie
Electric, demanding that Dixie Electric pay for the costs they incurred related to the sewage
issues. Dixie Electric filed claims against J&J Cable seeking indemnity for those costs. J&J
Cable sought coverage under its Commercial General Liability Policy, issued by Evanston.
Evanston initially denied the claim, contending that the damage occurred outside of the
one-year period for which the policy was effective, and claiming that a pollution exclusion of the
policy applied. Evanston later agreed to defend J&J Cable in the underlying lawsuits under a
reservation of rights.
The policy issued to J&J Cable provides coverage for “bodily injury” and “property
damage” to which the insurance applies. (Doc. #85-13 at p.18). The insurance policy states that it
applies to “bodily injury” and “property damage” only if they are caused by an “occurrence” and
the “’bodily injury’ or ‘property damage’ occurs during the policy period.” (Doc. #85-13 at
p.18). The policy also provides that “’bodily injury’ or ‘property damage’ which occurs during
the policy period and was not prior to the policy period, known to have occurred by any Insured .
. . includes any continuation, change or resumption of that ‘bodily injury’ or the ‘property
damage’ after the end of the policy period.” (Doc. #85-13 at p.18).
The policy lists as an exclusion from coverage:
f. Pollution
(1) “Bodily injury” or “property damage” arising out of the actual, alleged or
threatened discharge, dispersal, seepage, migration, release or escape of “pollutants.”
(Doc. #82-3 at p.24). The word “pollutants” is defined as follows:
6

any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor,
soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be
recycled, reconditioned, or reclaimed.
(Doc. #85-13 at p. 20).

There is apparently no dispute that the policy expired on November 12, 2013.
IV. DISCUSSION
In seeking a Declaratory Judgment that there is no coverage for the claimed losses under
J&J Cable’s commercial general liability policy, Evanston relies on two grounds: one, that the
occurrences which are the subject of the underlying state court suits occurred outside of the
policy period and two, that the pollution exclusion applies to preclude all claims. Evanston also
contends that even if there is a question of fact as to whether one claim falls within the policy
period, various separate claims occurred after the policy expired on November 12, 2013, and
summary judgment is due to be granted as to those claims.
The court begins with the pollution exclusion arguments, then the date of the injuries
arguments, and finally will address the grounds for relief stated in the separate motions by J&J
Cable and Dixie Electric.
A. Pollution Exclusion
The pollution exclusion clause at issue appears to be standard in the insurance industry
and commonly contained in commercial general liability insurance policies. The Supreme Court
of Alabama previously has considered whether sewage is pollution under a qualified pollutionexclusion clause, and concluded, under the facts of that case, that it was not, see United States
Fidelity and Guar. Co. v. Armstrong, 479 So. 2d 1164 (Ala. 1985), but has not considered
whether sewage is pollution under an absolute pollution-exclusion clause.
7

Evanston’s position in this case is that the injuries claimed in the two underlying suits fit
within the policy exclusion for property damage or bodily injury caused by pollutants, which by
policy definition includes “waste,” which is further qualified as including materials to be
recycled, reconditioned, or reclaimed. (Doc. #82-4 at p.13). The issue, therefore, is whether
under Alabama law this exclusion language unambiguously includes sewage as a pollutant.
When doubt exists over whether coverage is provided, the language of the insurer must
be construed for the benefit of the insured. Guar. Nat’l Ins. Co. v. Marshall Cty Bd. of Educ.,
540 So. 2d 745, 748 (Ala. 1989). Whether a provision of an insurance policy is ambiguous is a
question of law for the court. Hutchinson v. Attorneys Ins. Mut., 631 So. 2d 975, 976 (Ala.
1994). The test to be applied by a court in determining whether there is ambiguity is not what
the insurer intended its words to mean, but what a reasonably prudent person applying for
insurance would have understood them to mean. State Farm Fire & Cas. Co. v. Slade, 747 So.
2d 293, 308 (Ala. 1999).
Dixie Electric relies on Armstrong, 479 So. 2d at 1166, to argue the pollution policy
exclusion at issue in this case is limited to industrial waste, and does not include residential
sewage. In Armstrong the insured destroyed sewer lines while installing new lines. Id. at 1166.
The destruction caused an overflow of raw sewage onto adjacent land. Id. The defendant
insurance company argued that its qualified pollution exclusion clause in the policy excluded the
damage. The exclusion at issue there stated:
This insurance does not apply to bodily injury or property damage
arising out of the discharge, dispersal, release or escape of smoke,
vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste
materials or other irritants, contaminants or pollutants into or upon land, the
atmosphere or any water course or body of water; but this exclusion does not apply if
such discharge, dispersal, release or escape is sudden and accidental.
8

Id. The Court held that to deny coverage under the clause would distort the purpose of the
pollution exclusion, which was to protect the environment by eliminating coverage for industryrelated pollution damages. Id. at 1168. The Court pointed out that it had previously ruled that
the same pollution exclusion clause had been ruled ambiguous, and that it was intended to cover
only industrial pollution and contamination. Id. (citing Molton, Allen & Williams, Inc. v. St. Paul
Fire & Marine Ins. Co., 347 So. 2d 95 (Ala. 1977)). However, the Court went on to state, “[w]e
should not be understood to hold that raw sewage could never be such a ‘pollutant,’ or that the
insurance company could not write an exclusion clause which would cover the activity here
involved. We hold only that this policy clause, under the facts of this case, does not eliminate
coverage.” Id.
Evanston points to Shalimar Contractors, Inc. v. Am. States Ins. Co., 975 F. Supp. 1450
(M.D. Ala. 1997) (Albritton, J.), which addressed the application of a pollution exclusion to lead
paint. In Shalimar, decided by this court, the insured was contracted to perform lead abatement
work at a housing project. 975 F. Supp. at 1453. A mother and her two sons sued the insured
alleging the contractor left debris containing lead on the porch and as a result they suffered from
lead poisoning. Id. The court noted the clause “makes no reference to whether the release was
into or upon land, the atmosphere, or water, or whether the release was sudden, accidental, or
gradual in nature,” distinguishing it from the qualified clause in Armstrong. In other words, the
clause involved in Armstrong was a qualified pollution-exclusion, while the clause involved in
Shalimar was an absolute pollution-exclusion. This court concluded that the lead was a
pollutant within the language of the policy because it was a solid contaminant and a pollutant.
Id. at 1458.
9

Subsequent to these two cases, the Alabama Supreme Court thoroughly examined the
evolution of pollution exclusion clauses in commercial general liability insurance policies. See
Porterfield v. Audubon Indem. Co., 856 So. 2d 789 (2002).5 Porterfield was decided in response
to a certified question from another judge of this court. Porterfield, 856 So. 2d at 798 (question
certified in Janice Denise Porterfield, etc. et al. v. Audubon Indemnity Co., Civil Action No. 00D-1291-N (DeMent, J)). The Porterfield court explained that in analyzing the applicability of
an absolute pollution-exclusion clause, a court looks at three elements of those exclusions: (1)
bodily injury or property damage caused by a pollutant, (2) exposure arising out of a discharge,
dispersal, release or escape of the pollutant, (3) which occurred at or from certain locations or
constituted waste. Id. at 801.
The substance at issue in Porterfield was lead in paint, not sewage. However, the analysis
is still instructive in this case. The court agreed with Shalimar that lead is a pollutant within the
language of the policy. Id. at 805. The court held as a matter of law that a “reasonable insured
would have understood that lead would qualify as a pollutant by virtue of its being an irritant or
contaminant and a chemical.” Id. at 805. The court went on to hold, however, that a reasonably
prudent insured might have concluded that lead-paint flakes would not qualify as a “discharge,
dispersal, release, or escape” of a pollutant within the language of the policy exclusion. Id. The
court explained that because of the Alabama Supreme Court’s characterization in previous cases
of “’discharge’ and ‘dispersal’ as terms commonly associated with environmental law, an insurer

The Eleventh Circuit has applied Alabama law regarding the pollution exclusion in an
unpublished opinion and found the exclusion to be unambiguous. See Maxine Furs, Inc. v. AutoOwners Ins. Co., 426 F. App’x 687 (11th Cir. 2011). That case involved a curry aroma omitted
by an Indian restaurant, not residential sewage and, therefore, is not instructive in this case.
5

10

subsequently employing those terms can be presumed to have intended the same construction as
used by the Court.” Id. at 806. The Court explained that “discharge,” “dispersal,” “release,” or
“escape,” are reasonably susceptible to two or more meanings and are to be construed against the
insurer. Id.
Applying the same analysis in this case points to a conclusion that sewage is not a
pollutant within the terms of the policy exclusion, based on the previous ruling in Armstrong that
sewage is not a “pollutant” under the qualified exclusion which the court found covered
industrial pollution and contamination. See Armstrong, 479 So.2d at 1168. Under Porterfield, an
insurer after Armstrong employing the term “pollutant” can be presumed to have intended the
same construction as used by the Alabama Supreme Court. 856 So. 2d at 806. In other words,
because Porterfield directs courts to look at previous Alabama Supreme Court interpretations of
the pollution exclusion, and because Armstrong found as a matter of law that sewage is not a
pollutant under the qualified pollution-exclusion, a reasonably prudent person would understand
“pollutant” not to include sewage under the facts of this case. Based on the current state of the
law in Alabama regarding sewage and the pollution-exclusion, therefore, which this court is
bound by Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) to apply in this diversity case,6 this
court finds that the absolute pollution-exclusion contained in Evanston’s comprehensive general
liability insurance policy does not preclude coverage to its insured for liability for injuries caused
by sewage, and summary judgment cannot be granted on that basis.

Because this court is directed to refrain from making an unnecessary “Erie guess,” see Mosher
v. Speedstar Div. of AMCA Int’l, Inc., 52 F.3d 913, 916 (11th Cir. 1995), the court certified a
question to the Supreme Court of Alabama and stayed this case pending a response (Doc. #117).
Unfortunately, on July 1, 2016, the court declined to answer the certified question (Doc. #120).
6

11

B. Date of Injury
Evanston argues that, because under Alabama law a covered loss only occurs when the
complaining party was actually damaged, the claimed injuries of Marrell Crittenden, Courtney
Crittenden, M.C., A.C., and Caroline Torrence must have all separately occurred within the
policy period, and none of the injuries did so. Evanston states that there is no admissible
evidence that prior to the expiration of the policy, anyone was exposed to raw sewage and human
waste.
Relying on American States Ins. Co. v. Martin, 662 So. 2d 245, 247 (Ala. 1995), and
other cases, including U.S. Fid. & Guar. Co. v. Warwick Dev. Co., 446 So. 2d 1021, 1024 (Ala.
1984), which interpret whether injury occurs within the policy period, Evanston argues that the
breach of the sewer laterals occurred within the policy period, but the Crittendens and Torrence
did not suffer any injury at that time, and their injuries were not manifest until after the policy
lapsed, so there is no coverage. See Warwick Development 446 So.2d at 1024 (holding that there
was no property damage as a result of the alleged occurrence because the “time of the
‘occurrence’ of an accident . . . is not the time the wrongful act was committed but the time the
complaining party was actually damaged.”).
The Defendants contend that the breach of the sewer laterals was indisputably within the
policy period, so all of the damage which occurred as a result of that breach was part of the same
occurrence. Initially, Dixie Electric cited the court to American States Ins. Co. (Doc. #92), but in
subsequent briefing, Dixie Electric cited the court to Home Indemnity Co. v. City of Mobile, 749
F.2d 659 (11th Cir. 1984) and argued that, pursuant to that case, all injuries which are

12

proximately caused by the same occurrence are part of one occurrence, and so in this case, all of
the injuries were caused by the breach of the sewer laterals. Various Defendants also cite the
court to Moss v. Champion Ins. Co., 442 So.2d 26 (Ala. 1983), to support an argument that
coverage applies in this case because the property damage and bodily injury suffered by the
Crittendens and Torrence was part of the same occurrence.
As Evanston points out, the Home Indemnity Co. case relied on by Defendants in this
case was an interpretation of “occurrence” within the policy. Similarly, in Moss, also relied on by
the Defendants, the court was interpreting the definition of “occurrence” in a commercial general
liability policy. Moss, 442 So. 2d at 29. In Moss, the court distinguished Warwick Development,
stating that in Warwick Development, where the damage did not arise during the policy period,
“there was no ‘property damage’ within the definition of the policy provisions.” 442 So.2d at
29.7
It appears to the court that there are two separate lines of precedent relied on by the
parties in this case which, while involving seemingly similar issues, are to be applied depending
upon the policy provision being examined. In one line of precedent, relied on by the Defendants,
courts have examined injuries to see whether they fall within the scope of an “occurrence” as
defined by a policy. In the other, courts have examined the timing of loss relative to the
coverage period and have held that “injury, and not an occurrence that causes injury, must fall

7

Interestingly, Warwick Development distinguishes Moss. Warwick Development, 446 So. 2d at
1023, stating “[f]or a contrary holding under circumstances amounting to “an occurrence,” see
Moss v. Champion Ins., Co., 442 So. 2d 26 (Ala. 1983).This anomaly apparently exists because a
later opinion was substituted for the original opinion in Warwick Development. 446 So. 2d at
1022. In any event, the Moss and Warwick Development courts are drawing a distinction between
cases analyzing whether damage occurred within the policy period and “occurrence” cases.
13

within the policy period for it to be covered.” American States Ins. Co., 662 So.2d at 250; see
also Penn. Nat. Mut. Ins. Co. v. St. Catherine of Siena Parish, 790 F.3d 1173, 1179 (11th Cir.
2015)(stating that American States is a case concerning whether the property damage definition
was met, not a case defining “occurrence”).
The issue before the court in this case is whether, under the policy language, the “bodily
injury” and “property damage” suffered by the Crittendens and Torrence occurred during the
policy period. That inquiry is governed by the cases analyzing timing of the injury, such as
American States Ins. Co., not the scope of “occurrence” cases.
In American States Insurance Co., a commercial general liability policy provided for
coverage for bodily injury during the policy period. Representations were made before the policy
terminated, and the victims argued that their mental anguish stemmed from incidents which
occurred during the policy period. The Supreme Court of Alabama explained that under the
policy the “injury, and not an occurrence that causes injury, must fall within the policy period for
it to be covered.” 662 So.2d at 250. The Court concluded that for the mental anguish, which
occurred after the policies had lapsed, there was no coverage for bodily injury. Id. In reaching
that conclusion, in addition to Warwick Development, the court also relied on State Farm Fire &
Cas. Co. v. Gwin, 658 So.2d 426 (Ala. 1995).
In Gwin, homeowners sold their house and the insurance coverage on the property ended
at the time of the closing. The buyers subsequently noticed termites in the home and sued
Terminix, a company which had treated the property for termite damage when it was owned by
the sellers, and also sued the sellers, alleging fraud. The sellers’ insurance company filed a
declaratory judgment action. The policy at issue stated that it covered bodily injury caused by an

14

occurrence during the policy period. Id. at 427. The Court found that the coverage did not apply
to the buyers’ bodily injury in the form of emotional distress because any “emotional distress
related to the alleged misrepresentations would have occurred after the termination of the
policy.” Id. at 428; see also Essex Ins. Co. v. J & J Masonry LLC, No. 2:14-CV-2138-VEH,
2015 WL 1499120, at *2 (N.D. Ala. Apr. 1, 2015) (stating that Alabama courts apply a
manifestation of damages rule which means “the insurance that is in force at the time of the
property damage ... is applicable rather than insurance that was in force when the work was
performed.”).
While the parties have discussed in their briefs whether plumbing is the responsibility of
the homeowner or the tenant of the homes, the underlying state court suits do not claim damage
to the sewer laterals as being an injury to the Crittendens or Torrence, but instead identify bodily
injury and damage to household possessions. (Doc. #82-1 at p.9, 25). Therefore, for there to be
“bodily injury” or “property damage” within the policy period, the claimed property damage or
personal injury occurring after the sewer lateral breach had to commence before the policy
lapsed. See Pennsylvania Nat. Mut. Cas. Ins. Co., 790 F.3d at 1178 (“stating “[w]hen an insured
causes multiple injuries, coverage is determined on an injury-by-injury basis, and the insurer is
obligated only to indemnify for damages arising out of the covered injuries.”).
Evidence has been presented that damage occurred before the policy expired, in the form
of Marrell Crittenden’s deposition testimony. In his January 7, 2016 deposition in this case,
Marrell Crittenden testified that he did not remember exact dates, but he does remember that they
were experiencing problems with water in bathroom areas while men were outside working at
their house. (Doc. #85-7 at p.25: 13-15; 46). In an earlier, June 27, 2014 deposition, taken in the

15

underlying state court case, Marrell Crittenden was asked whether he was aware that his wife
noticed a problem on Saturday, the sixteenth, and he said that he was aware of his wife’s
complaint, but he also remembered “before that date” having to clean the bathroom floor and
toilet because of issues of flooding. (Doc. #80-6 at p.45:8-46:12).
Evanston argues that Marrell Crittenden’s deposition in 2016 contradicted his 2014
deposition and therefore cannot bar summary judgment because it should not be considered as
evidence by the court.
In the Eleventh Circuit, “[w]hen a party has given clear answers to unambiguous
questions which negate the existence of any genuine issue of material fact, that party cannot
thereafter create such an issue with an affidavit that merely contradicts, without explanation,
previously given clear testimony.” Van T. Junkins & Associates, Inc. v. U.S. Indus., Inc., 736
F.2d 656, 657 (11th Cir. 1984). Where testimony is not “inherently inconsistent” with prior
deposition testimony, however, it should be “considered with everything in the record resolving
all doubts in favor of the nonmoving party.” Akins v. Fulton Cty., Ga., 278 F. App'x 964, 969
(11th Cir. 2008).
In his 2014 deposition, as noted, Marrell Crittenden stated that before November 16 he
noticed a problem and had to clean the bathroom floor and toilet. The court concludes, therefore,
that because Marrell Crittenden testified consistently in 2014 and 2016 that he noticed issues
with the plumbing before November 16, 2013, his later testimony does not merely contradict the
earlier testimony, and the court cannot discount his more specific testimony in 2016 as to the
circumstances under which he first noticed a plumbing issue. This question of fact, therefore,

16

means that Marrell Crittenden’s injuries were within the policy period.8
Evanston further argues that even if Marrell Crittenden’s deposition testimony is
sufficient to create a question of fact as to the timeliness of a claim based on his injuries, that
testimony is not sufficient to support the claims based on any other individuals’ injuries.
Dixie Electric cites to Marrell Crittenden’s deposition testimony to show that his
daughter, M.C., was also present during this first exposure to the sewage. (Doc. #85-7 at p.8,
citing p. 25:13-20; #85-10 at p.13 citing p.47:3-20).
Courtney Crittenden offered deposition testimony, to which Evanston has objected as
hearsay and inadmissible, that her husband had mentioned a sewage issue on the Monday or
Tuesday before November sixteenth. (Crittenden Dep. at p. 63:8-64:11).
Courtney Bynum, the sister of Courtney Crittenden, stated in her 2016 deposition that she
witnessed two incidents of sewage back-up in the house and the second incident occurred on
November 16. (Doc. #85-9 at p.34:9-11). She testified that the previous incident was
approximately two weeks before that incident. (Doc. #85-39:14-19). Evanston argues that this
testimony should not be considered because it contradicts her earlier testimony. In 2014
Courtney Bynum testified to seeing sewage backing up on November 16 when she was present at
the house, and then was asked as a follow up question: “Now was this the first time anything
happened, on the 16th?” (Doc. #82-2 at p.43:-3-4). Her “yes” response could be read to say it was

Evanston has also argued that Dixie Electric is estopped to revise the occurrence date because
the settlement agreement between Dixie Electric and Dr. Jack Anderson in the underlying
lawsuit adopted a date of November 19, 2013 as the date of the occurrence. Dixie Electric
argues, however, that the document referred to by Evanston is not a settlement agreement, but
merely a release signed by Anderson, and that Evanston has not detrimentally relied on that date
in any way. For purposes of the coverage issue, the court agrees that this argument does not
remove the question of fact created by deposition testimony.
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the first time anything happened on that day, and, in that case, would not be contradicted by her
later testimony as to a previous date on which there was sewage back-up.
Torrence was asked in her deposition about the date of sewage back-up and she answered
that she did not know an exact date, but that it was “in the beginning of November of 2013.”
(Doc. #86-6 at p. 40:16-41:11).
The court recognizes that there is evidence in this case which points to the November 16,
2013 date as the date injuries were suffered by the Crittendens and Torrence. The court’s role in
ruling on Evanston’s Motion for Summary Judgment, however, is not to weigh evidence, but to
accept the evidence of the nonmovant and draw justifiable inferences in favor of the nonmovant.
See Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). Even without considering Courtney
Crittenden’s statement as to her husband’s experience which has been objected to as hearsay,
when all of the deposition testimony on the question of when sewage back-up was experienced
in the two houses is taken together and viewed in the light most favorable to the non-movants for
purposes of Evanston’s motion, there is evidence from the Crittenden household and from
Torrence that there was sewage back-up and exposure to sewage before the insurance policy
expired. The court concludes, therefore, that there is sufficient evidence from which a reasonable
finder-of-fact could conclude that damage from sewage back-up in the form of either bodily
injury or property damage, or both, were suffered by all of the Crittendens and Torrence prior to
the expiration of the policy on November 12, 2013.
Evanston also contends that Torrence’s claims are barred by the statute of limitations if
her injuries occurred prior to November 18, 2013 because she filed her suit on November 18,
2015. (Doc. #95 at p.3). However, Torrence’s underlying state court complaint was filed on

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November 1, 2015, not November 18, 2015. (Doc. #50-1 at p.91). Her claims are timely.
Evanston’s Motion for Summary Judgment is, therefore, due to be DENIED.
C. Dixie Electric’s Motion for Summary Judgment
Dixie Electric moves for summary judgment against Evanston as to the claims it has
asserted in its First Amended and Supplemented Counterclaim and for summary judgment as to
all of Evanston’s claims for Declaratory Judgment. The First Amended and Supplemented
Counterclaim seeks coverage under the policy. Dixie Electric alleges that it has asserted an
indemnity claim against J&J Cable in the underlying state court litigation and it seeks a
declaration in this court that Evanston owes coverage to J&J Cable for Dixie Electric’s claims
against it. (Doc. #50).
Evanston has argued that Dixie Electric does not have a justiciable controversy
concerning coverage because Dixie Electric is not an insured under the policy. J&J Cable is the
insured under the policy, not Dixie Electric. Evanston contends that if Dixie Electric intends to
assert its claim as a direct action, it is premature, because a claim against the insurer must be
brought only if the injured party has recovered a final judgment against the insured, citing Knox
v. W. World Ins. Co., 893 So. 2d 321, 324 (Ala. 2004).
Dixie Electric responds that Evanston admitted in its Answer the following allegation in
its First Amended and Supplemented Counterclaim: a real justiciable dispute exists between
Dixie and Evanston as to the defense, indemnity, and coverage obligations of Evanston under the
2012-2013 CGL Policy. (Doc. #50, p.11, ¶40; Doc #51; p.5, ¶40). Dixie Electric argues that
Evanston cannot name it as a Defendant and move for summary judgment as to it on coverage
issues, and then argue that Dixie Electric does not have standing to make arguments regarding

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coverage issues.
Assuming without deciding that Dixie Electric’s requested relief has been appropriately
asserted at this point in the proceedings, other than the court’s determination as to the
inapplicability of the pollution exclusion in this case under Alabama case law, the questions of
fact discussed above preclude summary judgment as to either party on coverage issues at this
time.
D. J&J Cable’s Motion for Partial Summary Judgment
J&J Cable moves for summary judgment as to its counterclaims and in opposition to
Evanston’s motion. J&J Cable is the insured under the subject CGL policy. J&J Cable states that
Evanston received notice on January 15, 2014 that the Crittendens claimed in state court that J&J
Cable had caused property damage. J&J Cable argues that Evanston breached a duty to defend
from January 2014, when notice of suit was received, until November 2014, when Evanston
began to defend J&J Cable. J&J Cable states that prior to November 2014, Evanston was aware
that injuries and damages suffered by the Crittendens and the Andersons occurred within the
policy period. J&J Cable concedes that it struck the sewer line and states that this resulted in
property damage to the owners of the rental property, Dr. and Mrs. Anderson, and to the tenants.
In support of its motion, J&J Cable states that Evanston reviewed the discovery in the
state court case and was aware that the Amended Complaint states, and a response to an
interrogatory in state court states, that the sewer line was breached until November 11, 2013. J&J
Cable also points to the deposition of Marrell Crittenden on June 27, 2014 and Courtney
Crittenden, taken on June 27, 2014, which shows that damage occurred during the policy period.
In its Reply brief, J&J Cable cites to the deposition testimony of Stephanie Doyle, Evanston’s

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claims handler, and the Evanston claims diary. The claims diary entry states that the insured did
the work on “11/6/13 which was within the policy period” but the damage manifested after the
policy period. (Doc. #97-1).
Evanston responds that there was nothing to show that injury occurred within the policy
period until Dixie Electric made a claim against J&J Cable for damages due to repairs of the
homeowners, the Andersons’, sewer line. Evanston points out that the original lawsuit filed by
the Crittendens stated that on or about November 15, 2013 until November 24, 2013, sewage
invaded the Crittenden home. The first Amended Complaint filed on October 10, 2014, states
that on November 3, 2014 until approximately November 11, 2013, the sewage line was
breached and thereafter sewage seeped into the home. Evanston states even the Amended
Complaint does not allege that sewage was present in the home until after November 11, 2013.
Evanston states that in November of 2014, Dixie Electric filed a cross-claim against J&J Cable
seeking reimbursement for damages to the cost to repair the Andersons’ broken sewer laterals. It
was pursuant to that cross-claim that Evanston provided a defense under a reservation of rights.
Evanston points to deposition testimony for the proposition that the November 6, 2013 date in
the claim diary was made by a clerical person in the operations department, and that it is
Stephanie Doyle’s job to determine the correct date of loss. (Doc. #105 at p.26-27).9
Under Alabama law, in examining the duty to provide a defense, courts first determine

Evanston states that this court should not consider various aspects of J&J Cable’s
evidence for failing to follow the court’s order regarding citation of deposition testimony, and
because Marrell Crittenden’s testimony is contradictory and Courtney Crittenden’s testimony is
based on hearsay. The court has considered the deposition testimony as cited by various parties,
and has found questions of fact as discussed above.
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whether the facts alleged in a complaint state an “occurrence” within the meaning of the policy.
Hartford Cas. Ins. Co. v. Merchants & Farmers Bank, 928 So. 2d 1006, 1011 (Ala. 2005). Then,
“presupposing a negative answer to the first inquiry, we must determine whether the “facts
which may be proved by admissible evidence state an ‘occurrence.’” Id.
The initial pleading in state court alleged that the tenants claimed damage which occurred
after the policy period. Even after the dates were adjusted in the state court Amended Complaint
as to when the work occurred, it was not clear when the claimed damage from exposure to
sewage was alleged to have occurred, and it was unclear even at the time of Marrell Crittenden’s
initial deposition in 2014. And, the question of fact which has been created exists only when the
facts are viewed in a light most favorable to the non-movants for purposes of Evanston’s motion.
Accordingly, the court concludes that the motion by J&J Cable on the duty to provide a defense
from January 2014 to November 2014 is due to be DENIED.10
Evanston also states that J&J Cable did not support its bad faith claim. Evanston further
argues that J&J Cable does not have a claim for failure to defend based on Torrence’s lawsuit
because she filed her suit in November 2015, after Evanston began providing a defense to J&J in
November 2014. The Motion for Partial Summary Judgment by J&J Cable, however, does not
seek judgment on these issues.
V. CONCLUSION
For the reasons discussed, it is hereby ORDERED as follows:

Evanston’s Motion for Summary Judgment is based on the coverage issue, and its
contention, as to which there are questions of fact, that damage occurred on November 16, 2013,
rather than specifically on the issue of when it had a duty to defend J&J Cable.
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1. The Motion for Partial Summary Judgment filed by J& Cable (Doc. #80) is
GRANTED as to the pollution exclusion and DENIED in all other respects.
2. The Motion for Summary Judgment by Evanston Insurance (Doc. #81) is DENIED.
3. The Motion for Summary Judgment filed by Dixie Electric (Doc. #83) is GRANTED
as to the pollution exclusion and DENIED in all other respects.
4. The Motion for Hearing filed by Evanston Insurance (Doc. #101) is DENIED.
5. The Motion to Strike filed by Evanston Insurance (Doc. #107) is DENIED.
Done this 22nd day of September, 2016.
/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE

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