Northfield Insurance Company v. Browning Timber & Saw Mill, LLC et al
MEMORANDUM OPINION, AND ORDER the court GRANTS Northfields motion for summary judgment. (Doc. 56) The court ENTERS JUDGMENT in favor of Northfield and against Defendants Browning Timber, Mr. Browning, and Mr. Wilson. Within seven days of entry of this order, Northfield shall renew its motion for default judgment against Mr. Darnell or voluntarily dismiss its claim against Mr. Darnell.. Signed by Judge Annemarie Carney Axon on 1/8/2019. (TLM, )
2019 Jan-08 PM 03:28
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
BROWNING TIMBER & SAW }
MILL, LLC, et al.,
Case No.: 4:17-cv-01236-ACA
MEMORANDUM OPINION AND ORDER
Plaintiff Northfield Insurance Company (“Northfield”) asks the court to
declare that under the terms of a commercial general liability insurance policy
issued to Defendant Browning Timber & Saw Mill, LLC (“Browning Timber”),
Northfield does not have a duty to defend or indemnify Browning Timber or
Defendants Colin Browning and Jonathan “Bo” Darnell in an underlying state
court action filed by Defendant Brad Wilson.
Currently before the court is
Northfield’s motion for summary judgment. (Doc. 56). For the reasons explained
below, the court GRANTS the motion.
STANDARD OF REVIEW
“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). “The moving party bears the initial burden
of demonstrating the absence of a genuine dispute of material fact.” FindWhat
Inv’r Grp. v. FindWhat.com, 658 F.3d 1282, 1307 (11th Cir. 2011) (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986)). A “material fact” is one that “might
affect the outcome of the suit under the governing law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
In the light most favorable to the Defendants, the facts are set forth below.
Underlying Incident and Complaint
In the spring of 2016, Mr. Browning hired Mr. Wilson and his company,
Pier One Pile Driving, LLC, to build a pier on Mr. Browning’s property. (Doc. 572 at 8, 18; Doc. 57-3 at 21-22). While Mr. Wilson was building the pier, Mr.
Wilson and Mr. Browning discussed Mr. Browning’s sawmill business, Browning
Timber. (Doc. 57-2 at 19). Mr. Wilson mentioned that he and his wife were
clearing some land they owned in order to build a house, and he asked Mr.
Browning if he would be interested in cutting and hauling off trees from Mr.
Wilson’s property. (Doc. 57-2 at 19; Doc. 57-3 at 22, 25). In exchange for his
work, Mr. Wilson agreed that Mr. Browning could take any pine trees from the
Wilson property that Mr. Browning wanted for his sawmill business. (Doc. 57-2 at
21; Doc. 57-3 at 22, 25, 58).
Mr. Wilson and Mr. Browning disagree about the scope of the work that Mr.
Browning was to perform. Mr. Wilson intended that Mr. Browning would take the
pine trees off the property and prune the oak trees on the property. (Doc. 57-2 at
65). Mr. Browning disputes that he was going to prune or trim any trees. (Doc.
57-3 at 21, 31; Doc. 57-4 at 12). Mr. Browning understood that Mr. Wilson would
let him cut down and take any pine tree logs that interested him. (Doc. 57-3 at 22,
31; Doc. 57-4 at 12).
Mr. Browning went to Mr. Wilson’s property on April 3, 2016. (Doc. 57-4
at 12). On the way there, Mr. Browning ran into a friend, Mr. Darnell, who asked
if he could accompany Mr. Browning and help him remove the trees and load the
logs. (Doc. 57-3 at 48; Doc. 57-4 at 14; Doc. 57-5 at 13-14). Mr. Darnell was not
an employee of Mr. Browning or Browning Timber. (Doc. 57-3 at 48-50; Doc. 575 at 14).
Mr. Browning testified that upon arriving at Mr. Wilson’s property, he
discovered that there were only five or six trees that he could use for his sawmill
business, and those trees were surrounded by trees that Mr. Wilson had already
pushed down with a bulldozer. (Doc. 57-3 at 58-59; Doc. 57-4 at 12-13; Doc. 573
5 at 16-17 Doc. 57-6 at 11). To reach the trees that Mr. Browning wanted for his
sawmill business, Mr. Darnell testified that he needed to cut down a standing oak
tree. (Doc. 57-5 at 22).
Mr. Darnell used a chainsaw to “notch” the tree at the base of the trunk so
that he could control the direction in which it would fall. (Doc. 57-5, pp. 23-27;
Doc. 57-6 at 7-8). As Mr. Darnell was cutting the trunk of the tree, the chainsaw
became stuck. (Doc. 57-5 at 20-21, 27-28; Doc. 57-6 at 7). Mr. Darnell planned to
use Mr. Browning’s skid steer to push the tree over and free the chainsaw, but the
skid steer had mechanical problems and would not crank. (Doc. 57-3 at 70-73;
Doc. 57-4 at 13; Doc. 57-5 at 29-30).
Mr. Browning and Mr. Darnell left Mr. Wilson’s property so that Mr.
Browning could pick up a mechanic to repair the skid steer. (Doc. 57-3 at 72-73;
Doc. 57-4 at 14; Doc. 57-5 at 32; Doc. 57-6 at 8). Mr. Browning dropped off Mr.
Darnell at his car and went to meet the mechanic at Browning Timber’s business
location. (Doc. 57-3 at 74). Mr. Darnell then returned to Mr. Wilson’s property to
try to get the chainsaw out of the tree. (Doc. 57-5 at 33). When Mr. Darnell
arrived, he learned that the tree had fallen on Mr. Wilson. (Doc. 57-5 at 33). Mr.
Darnell called Mr. Browning to tell him what happened. (Doc. 57-4 at 14; Doc.
57-5 at 37; Doc. 57-6 at 8).
Mr. Browning, as the sole member of Browning Timber, did not report the
incident to Northfield or report a claim to Northfield at that time. (Doc. 57-4, p.
17; see Doc. 57-4 at 20, 59). Mr. Darnell never reported the incident to Northfield.
(Doc. 57-6 at 6).
On June 29, 2016, Mr. Wilson filed a lawsuit in state court against Browning
Timber. (Doc. 57-6 at 19-22; Doc. 57-8 at 33-34). The complaint alleged that
Browning Timber negligently and wantonly “cut and remove[d] trees off of the
property owned” by Mr. Wilson. (Doc. 57-8 at 33). On July 7, 2016, Browning
Timber was served with the state court complaint. (Doc. 57-4 at 10, 59; Doc. 57-7
On August 22, 2016, at the recommendation of his attorney, Mr. Browning
delivered a copy of the state court complaint to his insurance agent, Hodges Ford
Insurance Agency, Inc. (“Hodges Ford”).
(Doc. 57-4 at 7). However, Mr.
Browning did not notify Northfield of the state court complaint at that time. (Doc.
57-4 at 20, 59; see Doc. 57-8 at 7, 22). On February 23, 2017, at Mr. Browning’s
request, Hodges Ford submitted an Accord Notice of Occurrence/Claim form to
McClelland & Hine, Inc., Northfield’s general agent. (Doc. 57-8 at 7; Doc. 57-9 at
2). On March 15, 2017, Northfield advised Browning Timber that it would defend
Browning Timber in the state court action, subject to a full reservation of rights.
(Doc. 57-14 at 2-6).
On October 24, 2017, Mr. Wilson amended his state court complaint to
include Mr. Browning and Mr. Darnell as defendants in the underlying action.
(Doc. 57-11 at 2). On January 19, 2018, Northfield advised Mr. Browning and Mr.
Darnell that it would defend them in the state court action, subject to a full
reservation of rights. (Doc. 57-12 at 2-7). On June 5, 2018, Mr. Wilson filed a
second amended complaint in the state court action. (Doc. 62-4 at 2-6). The
second amended complaint alleges that Browning Timber, Mr. Browning, and Mr.
Darnell “negligently/wantonly pruned [the tree] and left it in a condition which
was dangerous” to Mr. Wilson and caused his injuries. (Doc. 62-4 at 3-4, ¶ 14,
Relevant Policy Language
Northfield issued a Commercial General Liability policy to Browning
Timber & Saw Mill, LLC for the policy period of March 17, 2016 to March 17,
2017 (the “Policy”). (Doc. 57-1 at 2).
An endorsement to the Policy states that “[t]his insurance applies to ‘bodily
injury’ and ‘property damage’ caused by only those operations which are classified
and shown on the Commercial General Liability Coverage Declarations, its
endorsements, and supplements.” (Doc. 57-1 at 32). The Declarations identify the
following classifications for coverage under the Policy: “Tree Pruning, Dusting,
Spraying, Repairing, Trimming or Fumigating.”
(Doc. 57-1 at 15).
insureds include an LLC and its members along with any “volunteer workers” who
perform “duties related to the conduct of [the] business.” (Doc. 57-1 at 25). A
volunteer is defined by the Policy as
a person who is not your “employee” and who donates his or her work
and acts at the direction of and within the scope of duties determined
by you, and is not paid a fee, salary or other compensation by you or
anyone else for their work performed for you.
(Doc. 57-1 at 31).
The Policy also contains notice requirements. The insured is required to
notify Northfield “as soon as practicable of an ‘occurrence’ or an offense which
may result in a claim.” (Doc. 57-1 at 26). The insured must also notify Northfield
if a claim or suit is brought. (Doc. 57-1 at 26). And, copies of any legal papers
must be sent to Northfield “immediately.” (Doc. 57-1 at 26).
On July 24, 2017, Northfield filed this declaratory judgment action against
Browning Timber and Mr. Wilson. (Doc. 1). Based on the allegations contained
in Mr. Wilson’s original state court complaint, Northfield asked the court to
declare that it did not owe a duty to defend or indemnify Browning Timber against
Mr. Wilson’s claims. (Doc. 1 at 8-9). After Mr. Wilson amended his state court
complaint to add Mr. Browning and Mr. Darnell as defendants, Northfield filed an
amended declaratory judgment petition to add Mr. Browning and Mr. Darnell as
defendants in this case. (Doc. 22).
Mr. Wilson, Browning Timber, and Mr. Browning have appeared and
defended this lawsuit. (Doc. 8; Doc. 9; Doc. 10; Doc. 26; Doc. 29). Mr. Darnell
has not answered Northfield’s complaint or otherwise appeared in this action. The
Clerk entered default against Mr. Darnell, but the court denied Northfield’s motion
for default judgment against Mr. Darnell pending resolution of the merits of
Northfield’s claims against the remaining defendants. (Doc. 35; Doc. 37).
Northfield filed its motion for summary judgment on September 17, 2018.
(Doc. 56). Only Mr. Wilson filed a response in opposition to the motion. (Doc.
Northfield moves for summary judgment on two separate grounds. First,
Northfield argues that it is released from coverage because Browning Timber, Mr.
Browning, and Mr. Darnell breached the notice provisions of the Policy. Second,
Northfield contends that no coverage exists because Mr. Wilson’s injuries were not
caused by one of the specific operations identified in the Policy Declarations.
(Doc. 60 at 22-36). The court does not consider Northfield’s notice argument
because, as explained below, the court finds that Northfield has no duty to defend
or indemnify the underlying defendants because the insuring agreement is not
Under Alabama law, 1 an insurer’s duty to defend is broader than its duty to
indemnify. Ladner & Co., Inc. v. So. Guar. Ins. Co., 347 So. 2d 100, 102 (Ala.
1977). “[W]hether an insurance company owes its insured a duty to provide a
defense is determined primarily by the allegations contained in the complaint.” St.
Paul Fire & Marine Ins. Co. v. ERA Oxford Realty Co. Greystone, LLC, 572 F.3d
893, 894-95 (11th Cir. 2009) (citing United States Fid. & Guar. Co. v. Armstrong,
479 So. 2d 1164, 1168 (Ala. 1985)). “If the allegations of the injured party’s
complaint show an accident or occurrence within the coverage of the policy, then
the insurer is obligated to defend, regardless of the ultimate liability of the
insured.” Ladner, 347 So. 2d at 102. However, to determine an insurer’s duty to
defend, “the court is not limited to the bare allegations of the complaint in the
action against [an] insured,” and “may also look to facts which may be proved by
admissible evidence.” Acceptance Ins. Co. v. Brown, 832 So. 2d 1, 14 (Ala. 2001)
(internal quotation marks and citation omitted).
The court has diversity of citizenship jurisdiction over this action. (Doc. 1 at ¶¶ 2-7; Doc. 22 at
¶¶ 2-9). Therefore, the court applies choice of law principles of Alabama, the forum state. St.
Paul Fire & Marine Ins. Co. v. ERA Oxford Realty Co. Greystone, LLC, 572 F.3d 893, 894 n.1.
For insurance policies, the state in which the policy was issued and delivered is the state in which
the contract was formed. Id.; see also Cherokee Ins. Co., Inc. v. Sanches, 975 So. 2d 287, 292
(Ala. 2007). Because Browning Timber applied for and received the Policy in Alabama,
Alabama substantive law applies. (See Doc. 57-1 at 2; Doc. 57-4 at 43-53).
The Policy applies to bodily injury 2 caused only by “Tree Pruning, Dusting,
Spraying, Repairing, Trimming or Fumigating.” (Doc. 57-1 at 15). Mr. Wilson
argues that coverage exists under the Policy because his injuries were caused by
tree pruning or trimming. (See Doc. 61 at 12, 17). Northfield argues that no
coverage exists under the Policy because Mr. Wilson’s injuries were caused by a
failed attempt to cut down the tree, not tree pruning or trimming. (Doc. 60 at 3136).
Mr. Wilson does not claim that the classification limitation language is
ambiguous. (See Doc. 61 at 11, 16). And “insurers have the right to limit their
liability by writing policies with narrow coverage.” ERA Oxford Realty Co., 572
F.3d at 898. Therefore, the court must “enforce the insurance policy as written,”
Safeway Ins. Co. of Ala., Inc. v. Herrera, 912 So. 2d 1140, 1143 (Ala. 2005), and
determine whether the allegations in Mr. Wilson’s state court complaint and other
evidence show that his injuries were caused by one of the classified operations
identified on the Declarations, see ERA Oxford Realty Co., 572 F.3d at 895.
In his second amended complaint, Mr. Wilson alleges that Browning
Timber, Mr. Browning, and Mr. Darnell “negligently/wantonly pruned [the tree]
and left it in a condition which was dangerous” to Mr. Wilson and caused his
The parties have not argued that Mr. Wilson’s injuries do not constitute “bodily injury” under
the Policy, and for purposes of summary judgment, the court assumes that Mr. Wilson’s injuries
meet the Policy’s definition of “bodily injury.”
injuries. (Doc. 62-4 at 3-4, ¶¶ 14, 17). At first blush, because Mr. Wilson’s
complaint alleges injuries due to tree pruning, it appears that Mr. Wilson’s
complaint shows an occurrence for which the Policy provides coverage. But that is
not the end of the story. In this case, facts that may be proved by admissible
evidence demonstrate that cutting a notch in the tree caused Mr. Wilson’s injuries,
and you do not cut a notch in a tree that you are merely pruning or trimming.
Mr. Wilson testified that Mr. Browning and Mr. Darnell “cut the tree in two”
and “cut big notches” out of the tree. (Doc. 57-2 at 65). Mr. Darnell cut the
“notch” in the tree with a chainsaw, and the chainsaw became stuck. (Doc. 57-6 at
7). Mr. Wilson admits these acts caused the tree to fall on him. (Doc. 57-2 at 34).
Mr. Darnell testified he cut the notch in the tree for the purpose of cutting
the tree down. (Doc. 57-6 at 7). According to Mr. Darnell, the only reason to cut a
notch in a tree is to “actually fell the tree,” not to prune or trim the tree. (Doc. 57-6
at 7). During Mr. Darnell’s deposition, no party objected to counsel’s questions
about the reasons why someone would cut a notch in a tree. And, Mr. Darnell
explained that his testimony was based on his experience working for a tree service
company for two years and being around his father’s tree service business. (Doc.
57-6 at 7). Thus, Mr. Darnell’s testimony on this point is an admissible lay
opinion under Rule 701 of the Federal Rules of Evidence.
Mr. Wilson argues that “it does not matter whether the felling of the tree
injured Wilson or whether the pruning of the tree injured Wilson. Both of these
services are regularly provided by ‘tree service’ companies.” (Doc. 61 at 12). Mr.
Wilson’s argument misses the mark. Even if tree felling and tree pruning both
might fall within services that a tree service company provides, the court is not at
liberty to rewrite the unambiguous policy language “so as to include or exclude
coverage that was not intended.” Travelers Cas. & Sur. Co. v. Ala. Gas Corp., 117
So. 3d 695, 699 (Ala. 2012) (internal quotation marks and citation omitted). And
the Policy covers bodily injury caused only by the specific classified operations
identified in the Declarations, not “tree services” generally.
undisputed facts establish that cutting a notch in the tree is the reason it fell, the
question is whether cutting a notch in a tree comes within the classification
limitations of trimming or pruning.
Mr. Wilson offers no evidence creating a dispute of fact with respect to Mr.
Darnell’s testimony that cutting a notch is done only to fell a tree. Instead, Mr.
Wilson notes that he asked Mr. Browning to prune the oak trees on the property
and that Mr. Browning and Mr. Darnell in fact pruned the tree that fell earlier in
the day on April 3, 2016. (Doc. 57-2 at 31, 65). Mr. Wilson also argues that Mr.
Browning and Mr. Darnell “attempted to prune trees or limbs . . . and, in doing so,
made mistakes which proximately injured Wilson.” (Doc. 61 at 12; see also Doc.
57-2 at 65). Even if Mr. Browning and Mr. Darnell pruned some trees, including
the one that fell, and even if Mr. Browning and Mr. Darnell improperly pruned the
tree that fell because they cut a notch in the tree, as Mr. Wilson suggests, the
undisputed facts remain that Mr. Darnell cut the notch in the tree, which caused the
tree to fall and resulted in injuries to Mr. Wilson. (Doc. 57-2 at 35; Doc. 57-6 at
7). And the undisputed facts remain that the only reason one would cut a notch in
the tree is to fell the tree, not prune or trim it. (Doc. 57-6 at 7).
Mr. Wilson also argues that coverage should exist under the Policy because
when Mr. Browning applied for insurance for the tree service portion of his
business, Mr. Browning told his insurance agent that removal of trees would
constitute some portion of his business and because Northfield’s agent who made
the initial coverage determination did not have proper training or conduct a proper
investigation. (Doc. 61 at 12-13, 16-17). This argument asks the court to overlook
the plain, unambiguous language of the classification operations for which the
Policy provides coverage. And as stated, see supra pp. 14-17, Mr. Wilson has not
presented evidence creating a dispute of fact regarding whether his injuries were
caused by one of those operations. Therefore, Northfield is entitled to judgment as
a matter of law.
For the reasons outlined above, the court GRANTS Northfield’s motion for
summary judgment. (Doc. 56) The court ENTERS JUDGMENT in favor of
Northfield and against Defendants Browning Timber, Mr. Browning, and Mr.
Within seven days of entry of this order, Northfield shall renew its motion
for default judgment against Mr. Darnell or voluntarily dismiss its claim against
DONE and ORDERED this January 8, 2019.
ANNEMARIE CARNEY AXON
UNITED STATES DISTRICT JUDGE
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