Evanston Insurance Company v. Lett et al

Filing 48

Order granting 35 MOTION for Judgment on the Pleadings against Damon Lett d/b/a Damon Lett Roofing & granting 37 MOTION for Summary Judgment against Kiker Corporation filed by Evanston Insurance Company. Evanston & St. Catherine are ordered by 10/26/2012 to file a joint report concerning the status of this action as between them. Signed by Chief Judge William H. Steele on 10/15/2012. Copy mailed to Damon Lett. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
EVANSTON INSURANCE COMPANY,
Plaintiff,
v.
DAMON LETT d/b/a DAMON LETT
ROOFING, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

CIVIL ACTION 11-0383-WS-C

ORDER
This declaratory judgment action comes before the Court on plaintiff’s Motion for
Judgment on the Pleadings (doc. 35) as to defendant Damon Lett, and on plaintiff’s Motion for
Summary Judgment (doc. 37) as to defendant Kiker Corporation. No defendant filed responses
to either of these Motions, and the court-ordered deadlines for doing so have long since expired.
(See docs. 39, 40.) Accordingly, both Motions are ripe for disposition.
I.

Relevant Background.
A.

The Underlying Lawsuit.

On March 19, 2010, St. Catherine of Siena Parish (“St. Catherine”) filed suit against
Kiker Corporation (“Kiker”) and other defendants in the Circuit Court of Mobile County,
Alabama. In its state-court complaint (doc. 1, Exh. C), St. Catherine alleged that it had entered
into an agreement in May 2003 for Kiker to install a new roof on St. Catherine Church; that
Kiker performed the roofing job by using specialty nails to affix the new shingles to the church’s
existing roof decking, which was made of gypsum rather than wood; that Kiker did so even
though previous research and analysis indicated that plywood sheets should be attached to the
existing roof deck before new shingles were installed; that Kiker specifically represented to St.
Catherine that the specialty nails would suffice without the new plywood; and that Kiker
completed the job in March 2004. St. Catherine’s pleading further alleged that the church’s roof
experienced leakage in April 2008, and on more than a dozen occasions since. According to St.
Catherine, Kiker inspected the roof many times but never successfully diagnosed or corrected the

roof leak problems that plagued St. Catherine Church. In reliance on these factual allegations,
St. Catherine sued Kiker on theories of negligence, wantonness, breach of contract, and
misrepresentation/suppression, seeking damages for diagnosis and repair of roof leaks, clean-up
of the church following the repeated roof leaks, loss of use of the church, installation of a leakfree roof, and correction of moisture intrusion and staining problems throughout the church.
Kiker proceeded to file a third party complaint (doc. 1, Exh. D) against Damon Lett
Roofing (“Lett Roofing”) in the state-court action. In that pleading, Kiker alleged that it had
entered into a subcontract with Lett Roofing, pursuant to which Lett Roofing agreed to construct
and install the new roof for St. Catherine Church, and further agreed to defend, indemnify, and
hold Kiker harmless for claims or damages arising out of Lett Roofing’s acts or omissions in that
endeavor. Kiker maintained that Lett Roofing had breached its duties under contract and tort law
by failing to perform the St. Catherine roofing work in a good and workmanlike manner and
failing to defend and indemnify Kiker from St. Catherine’s suit. On that basis, Kiker asserted a
host of claims against Lett Roofing sounding in breach of contract, negligence, breach of
warranty (implied and express), common law indemnity, and the like.
With the state-court action in full swing, Evanston Insurance Company (“Evanston”)
filed the instant declaratory judgment action in this District Court against Lett Roofing, Kiker
and St. Catherine, predicating federal jurisdiction on diversity of citizenship pursuant to 28
U.S.C. § 1332. In its Complaint (doc. 1), Evanston alleged that Lett Roofing was the named
insured on a pair of commercial lines policies issued by Evanston, one for the policy period May
21, 2007 through May 21, 2008, and the other for the policy period May 21, 2008 through May
21, 2009. Evanston seeks a declaration that it owes no duty to defend or indemnify its named
insured or any other party for claims asserted in the underlying action.
B.

The Insurance Policies.

Evanston’s coverage position hinges on several provisions from the applicable insurance
policies. For starters, both the 2007-2008 policy (“Policy #1”) and the 2008-2009 policy
(“Policy #2”) included a “Classification Limitation Endorsement,” which provided as follows:
“The coverage provided by this policy applies only to those operations described under the
‘description’ and/or ‘classification’ on the declarations of the policy.” And the declaration pages
listed under the heading “Description of Hazards / Insured Classification(s)” the phrase “Roofing

-2-

– Residential,” and no other categories of operations. (Doc. 1, Exh. A, at 2, 10; doc. 1, Exh. B,
at 2, 10.)
Several other provisions of the policies are potentially relevant. First, neither Policy #1
nor Policy #2 contains an “additional insured” endorsement, and the sole named insured on the
two policies is Damon Lett d/b/a Damon Lett Roofing. Second, both policies contain a breach of
contract exclusion that reads, “This insurance does not apply to liability for breach of contract.”
(Doc. 1, Exh. A, at 5 ¶ 9; doc. 1, Exh. B, at 5 ¶ 9.) Third, both policies exclude from the scope
of covered “property damage” any such damage to “That particular part of real property on
which you or any contractors or subcontractors working directly or indirectly on your behalf are
performing operations, if the ‘property damage’ arises out of those operations,” or “That
particular part of any property that must be restored, repaired or replaced because ‘your work’
was incorrectly performed on it.” (Doc. 1, Exh. B, at 29 ¶ 2(j)(5) & (6).)
C.

Procedural History.

After Evanston filed the Complaint in this declaratory judgment action and served
process on all three defendants, this case took an unusual turn. Defendant Damon Lett d/b/a
Damon Lett Roofing filed a very short pro se Answer on September 23, 2011, wherein he wrote,
“I will not be contesting the complaint filed against me, and I will be representing myself in this
case.” (Doc. 11, at 1.) Lett Roofing has never made any other filings in this case, and has not
undertaken in any way to defend itself against Evanston’s claims. The other two defendants,
Kiker and St. Catherine, filed Rule 12(b) Motions (with St. Catherine simply adopting Kiker’s
motion wholesale) arguing that this action should be dismissed for want of a case or controversy;
however, Kiker later acknowledged that its Rule 12(b) Motion should be denied, and it was. St.
Catherine made no such concession, even though its Motion to Dismiss was simply a “me too”
tagalong iteration of Kiker’s motion. On January 24, 2012, the undersigned entered an Order
(doc. 32) denying St. Catherine’s motion on the merits.1
1

Also, both St. Catherine and Kiker have denied Evanston’s allegation that it owes
no coverage or duty to defend Lett Roofing. For its part, St. Catherine “denies the averment that
Evanston does not have coverage for or a duty to defend Damon Lett d/b/a Damon Lett
Roofing.” (Doc. 8, ¶ 12.) And Kiker likewise “denies the allegations that Evanston does not
have coverage for or a duty to defend Damon Lett d/b/a Damon Lett Roofing.” (Doc. 18, ¶ 12.)
That said, these defendants have never undertaken to articulate why coverage exists, or what
policy provisions they contend give rise to such an obligation for Evanston. To this day, then,
(Continued)
-3-

Some months later, Evanston moved for judgment on the pleadings as to defendant Lett
Roofing, and for summary judgment as to defendant Kiker, on overlapping and largely identical
grounds. Evanston filed no dispositive motion as to defendant St. Catherine, which appears to
remain a live, viable defendant in this case.2 No defendant (Lett Roofing, Kiker, or St.
Catherine) filed any brief in opposition to either of Evanston’s dispositive motions concerning
insurance coverage issues.3 The only defendant to file anything in acknowledgment of these
motions was Kiker, which filed a simple one-sentence document confirming “that it will not be
filing a response in opposition to the Motion for Summary Judgment filed by Evanston Insurance
Company.” (Doc. 43.)4 The resulting cloak of silence covering all defendants leaves the Court
in the dark as to how, why or even if defendants still maintain that the Evanston policies provide

the Court has no information as to why any defendants believe that coverage under the Evanston
policies exists for Lett Roofing or anyone else in connection with the underlying state-court
proceeding.
2

This is so, despite the fact that the legal arguments against coverage in the
underlying litigation appear identical for St. Catherine as they are for Kiker and Lett Roofing.
Be that as it may, given that Evanston elected to omit filing a dispositive motion against St.
Catherine, this Court cannot and will not impute a request for summary judgment against that
defendant.
3

In deference to Damon Lett’s pro se status, the Court took pains to caution him
that “failure to respond to the Motion for Judgment on the Pleadings in a timely manner may
result in judgment being entered against him on all claims and causes of action herein, including
particularly Evanston’s claims that it owes no duty to provide coverage, defense or indemnity to
Lett Roofing in the underlying litigation.” (Doc. 40, at 1 (emphasis omitted).) Despite this
admonition, Lett Roofing chose not to respond or to be heard in any way on Evanston’s
dispositive motion.
4

Even this filing was curiously worded, inasmuch as Kiker did not state that it did
not oppose the Rule 56 Motion, only that it was declining to file a response. This distinction is
important because it means that, rather than entering summary judgment against Kiker on a
consent basis, this Court is constrained to write to Evanston’s Motion on the merits, resulting in
an expenditure of judicial resources for an activity that Kiker itself evidently decided not to
undertake.

-4-

coverage in the underlying litigation. Certainly, no defendant has articulated any legal argument
favoring coverage by reference to any policy language or case law.5
II.

Legal Standards.
A.

Motion for Summary Judgment.

Summary judgment should be granted only “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.” Rule
56(a), Fed.R.Civ.P. The party seeking summary judgment bears “the initial burden to show the
district court, by reference to materials on file, that there are no genuine issues of material fact
that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).
Once the moving party has satisfied its responsibility, the burden shifts to the non-movant to
show the existence of a genuine issue of material fact. Id. “If the nonmoving party fails to make
'a sufficient showing on an essential element of her case with respect to which she has the burden
of proof,' the moving party is entitled to summary judgment.” Id. (quoting Celotex Corp. v.
Catrett, 477 U.S. 317 (1986)) (footnote omitted). “In reviewing whether the nonmoving party
has met its burden, the court must stop short of weighing the evidence and making credibility
determinations of the truth of the matter. Instead, the evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBHSiegen, 965 F.2d 994, 999 (11th Cir. 1992) (internal citations and quotations omitted).
“Summary judgment is justified only for those cases devoid of any need for factual
determinations.” Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11th Cir. 1987)
(citation omitted).

5

To add one additional layer of intrigue to the situation, one might expect that if
defendants could not be troubled to respond to Evanston’s Rule 56 and Rule 12(c) arguments
that coverage is foreclosed as to the underlying case, that they would also be amenable to
resolving this declaratory judgment action amicably with Evanston and walking away. Such a
thought would be inaccurate in this case. Despite prodding by the Magistrate Judge, the parties
filed a “Statement Regarding Settlement” (doc. 44) reflecting their inability to resolve any issue
joined herein. The upshot of these circumstances is that Evanston seeks a declaratory judgment
that it owes no coverage to defendants in the underlying case, that defendants have refused to
consent or agree to such a coverage determination, and that defendants have likewise declined to
offer any explanation in these proceedings as to why they feel that Evanston does or may owe
defense or indemnity obligations to anyone in the underlying action.

-5-

As noted, Kiker notified the Court of its decision not to file a response in opposition to
the Motion for Summary Judgment. “Summary judgment is not automatically granted by virtue
of a non-movant’s silence.” Williams v. Aircraft Workers Worldwide, Inc., 832 F. Supp.2d 1347,
1352 (S.D. Ala. 2011). “Even in an unopposed motion [for summary judgment], … the movant
is not absolve[d] … of the burden of showing that it is entitled to judgment as a matter of law.”
Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1303 (11th Cir. 2009) (citations and internal quotation
marks omitted); see also United States v. One Piece of Real Property Located at 5800 SW 74th
Ave., Miami, Fla., 363 F.3d 1099, 1101 (11th Cir. 2004) (“[T]he district court cannot base the
entry of summary judgment on the mere fact that the motion was unopposed, but, rather, must
consider the merits of the motion … [and] ensure that the motion itself is supported by
evidentiary materials.”); Commentary to 2010 Amendments to Fed.R.Civ.P. 56(e) (“summary
judgment cannot be granted by default even when there is a complete failure to respond to the
motion”). That said, a court is not obligated to read minds and ordinarily cannot construct
arguments or theories that a party has failed to raise.6 As such, Kiker’s election not to proffer
argument, evidence or authority in response to plaintiff’s Rule 56 Motion is at its peril. And
Kiker’s failure to identify any insurance policy provisions that it contends give rise to coverage
duties on Evanston’s part or rebut facially applicable exclusions from coverage will not be
remedied by this Court unilaterally “filling in the blanks” on its behalf.7
6

See, e.g., Fils v. City of Aventura, 647 F.3d 1272, 1284 (11th Cir. 2011)
(“[D]istrict courts cannot concoct or resurrect arguments neither made nor advanced by the
parties.”); Case v. Eslinger, 555 F.3d 1317, 1329 (11th Cir. 2009) (noting that a litigant “cannot
readily complain about the entry of a summary judgment order that did not consider an argument
they chose not to develop for the district court at the time of the summary judgment motions”)
(citation omitted).
7

See, e.g., Day v. McDonough, 547 U.S. 198, 205, 126 S.Ct. 1675, 164 L.Ed.2d
376 (2006) (recognizing that district courts are under no obligation to raise non-jurisdictional
defenses sua sponte); Vision Bank v. Merritt, 2010 WL 5474161, *4 (S.D. Ala. Dec. 8, 2010) (“If
Merritt wishes to pursue such a legal theory, it is incumbent on him to perform the necessary
research and develop that argument, rather than stating it in the vaguest of outlines and expecting
this Court to fill in the gaps.”); Minemyer v. B-Roc Representatives, Inc., 695 F. Supp.2d 797,
809 (N.D. Ill. 2009) (“[T]his is an adversarial system. It is not a court’s task to research legal
arguments on a party’s behalf.”); Federal Ins. Co. v. County of Westchester, 921 F. Supp. 1136,
1139 (S.D.N.Y. 1996) (“Under the adversary system, it is counsel’s responsibility to explain why
these points have legal merit; the Court does not serve as counsel’s law clerk.”).

-6-

B.

Motion for Judgment on the Pleadings.

Evanston’s Motion against defendant Lett Roofing is not framed as a motion for
summary judgment, but is instead styled as a Motion for Judgment on the Pleadings pursuant to
Rule 12(c), Fed.R.Civ.P. The legal standard is similar, albeit with a more circumscribed scope
of materials reviewed. In this Circuit, “[j]udgment on the pleadings is proper when no issues of
material fact exist, and the moving party is entitled to judgment as a matter of law based on the
substance of the pleadings and any judicially noticed facts.” Cunningham v. District Attorney’s
Office for Escambia County, 592 F.3d 1237, 1255 (11th Cir. 2010) (citation omitted); see also
Palmer & Cay, Inc. v. Marsh & McLennan Companies, Inc., 404 F.3d 1297, 1303 (11th Cir.
2005) (“Judgment on the pleadings is appropriate where there are no material facts in dispute and
the moving party is entitled to judgment as a matter of law.”) (citations omitted). As a general
rule, courts “will not consider matters outside the pleadings when passing on a Rule 12(c)
motion.” Horsley v. Feldt, 304 F.3d 1125, 1136 n.6 (11th Cir. 2002).
As noted supra, Lett Roofing was given a full and fair opportunity to be heard in
response to Evanston’s Rule 12(c) Motion, and was cautioned that failure to do so could result in
judgment being entered against it on all claims and causes of action. Yet Lett Roofing elected
not to respond. What’s more, Lett Roofing has denied none of the allegations in the Complaint.
Defendant proceeds in this manner at its own risk, and for the reasons stated supra, this Court
will not endeavor to research or formulate arguments for Lett Roofing that it failed to raise and
litigate itself.
III.

Analysis.
In this action, Evanston seeks a judicial declaration that it owes neither a duty to defend

nor a duty to indemnify Lett Roofing (its named insured) or Kiker in connection with the statecourt action brought by St. Catherine. Under Alabama law, the duty to defend is more expansive
than the duty to indemnify.8 Where a court determines that an insurer owes no duty to defend its
8

See, e.g., Universal Underwriters Ins. Co. v. Stokes Chevrolet, Inc., 990 F.2d 598,
605 (11 Cir. 1993) (“Alabama holds that an insurer’s duty to defend may be broader than its
duty to indemnify.”); Hartford Cas. Ins. Co. v. Merchants & Farmers Bank, 928 So.2d 1006,
1011 (Ala. 2005) (“This broad duty on the part of an insurer to defend an insured arises out of
the principle that an ambiguous insurance policy is to be construed liberally in favor of the
insured and strictly against the insurer.”).
th

-7-

insured in a particular matter, that determination is necessarily dispositive of the narrower duty
to indemnify, as well. See Trailer Bridge, Inc. v. Illinois Nat’l Ins. Co., 657 F.3d 1135, 1146
(11th Cir. 2011) (“[A] court’s determination that the insurer has no duty to defend requires a
finding that there is no duty to indemnify.”); Essex Ins. Co. v. Foley, 827 F. Supp.2d 1326, 1331
(S.D. Ala. 2011) (“as recent Eleventh Circuit precedent confirms, a judicial determination of no
duty to defend compels a finding of no duty to indemnify”).9 Therefore, the Court’s initial focus
is on the duty to defend. If that duty should be found lacking here, then such a determination
requires a finding that Evanston owes no duty to indemnify, either.
In evaluating whether a duty to defend exists, Alabama courts have held that “[t]he
insurer owes no duty to defend only if neither does the complaint against the insured allege a
covered accident or occurrence nor does the evidence in the litigation between insurer and
insured prove a covered accident or occurrence.” Tanner v. State Farm Fire & Cas. Co., 874
So.2d 1058, 1065 (Ala. 2003); see also Acceptance Ins. Co. v. Brown, 832 So.2d 1, 14 (Ala.
2001) (“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.”).
The most glaring problem with any claim that Evanston owes Lett Roofing or Kiker any
indemnity or defense obligations under the subject insurance policies lies in the Classification
Limitation Endorsement. As mentioned previously, that endorsement limited coverage to “those
operations described under the ‘description’ and/or ‘classification’ on the declarations of the

9

See also National Cas. Co. v. McFatridge, 604 F.3d 335, 338 (7th Cir. 2010) (“If
an insurer has no duty to defend, it has no duty to indemnify.”); Nationwide Mut. Ins. Co. v. CPB
Int’l, Inc., 562 F.3d 591, 595 n.3 (3rd Cir. 2009) (“A finding that the duty to defend is not present
will preclude a duty to indemnify.”); Nautilus Ins. Co. v. Structure Builders & Riggers
Machinery Moving Div., LLC, 784 F.Supp.2d 767, 771 (E.D. Ky. 2011) (“If there is no duty to
defend, then there is no duty to indemnify because the duty to defend is broader.”); Murphy v.
Acceptance Indem. Ins. Co., 788 F.Supp.2d 332 (D. Vt. 2011) (“[B]ecause the duty to defend is
broader than an insurer's duty to indemnify, if a court determines that there is no duty to defend,
the insurer will not have a duty to indemnify.”) (citations omitted); Kenneth Cole Productions,
Inc. v. Mid–Continent Cas. Co., 763 F.Supp.2d 1331, 1334 (S.D. Fla. 2010) (“the duty to
indemnify is narrower than the duty to defend and thus cannot exist if there is no duty to
defend”) (citations omitted).

-8-

policy.” And the policy declarations specified a single type of operations under the heading
“Description of Hazards / Insured Classification(s),” to wit: “Roofing – Residential.”
This type of coverage-narrowing endorsement is entirely proper and enforceable under
Alabama law. See generally St. Paul Mercury Ins. Co. v. Chilton-Shelby Mental Health Center,
595 So.2d 1375, 1377 (Ala. 1992) (“in the absence of statutory provisions to the contrary,
insurers have the right to limit their liability by writing policies with narrow coverage”).
However, because the Classification Limitation Endorsement is a narrowing clause that limits
the policies’ otherwise-broad coverage, it is in the nature of an exclusion. Under Alabama law,
an insurer bears the burden of proving applicability of a policy exclusion. See, e.g., Twin City
Fire Ins. Co. v. Alfa Mut. Ins. Co., 817 So.2d 687, 697 (Ala. 2001) (“Twin City has the burden of
proof in asserting that a claim is excluded under its policy of insurance.”); Brown, 832 So.2d at
12 (“In general, the insurer bears the burden of proving the applicability of any policy
exclusion.”).
Evanston has met its burden. On its face, the Classification Limitation Endorsement
restricts coverage to Lett Roofing’s operations consisting of “Roofing – Residential.” As the
term “residential” is not defined in the policies, it must be construed in accordance with its usual
and ordinary meaning. See State Farm Mut. Auto. Ins. Co. v. Brown, 26 So.3d 1167, 1169 (Ala.
2009) (“When analyzing an insurance policy, a court gives words used in the policy their
common, everyday meaning and interprets them as a reasonable person in the insured’s position
would have understood them.”) (citations omitted); Lambert v. Coregis Ins. Co., 950 So.2d 1156,
1161 (Ala. 2006) (“If a word or phrase is not defined in the policy, then the court should construe
the word or phrase according to the meaning a person of ordinary intelligence would reasonably
give it.”) (citations omitted). Notably, in ascertaining a term’s plain, ordinary meaning, “[t]he
court should not define words it is construing based on technical or legal terms.” Lambert, 950
So.2d at 1161-62 (citations omitted).
The common, everyday meaning of the phrase “Roofing – Residential” would exclude
operations involving roofing jobs performed at a church. The dictionary definition of
“residential” is “of, relating to, or having residence” or “of or appropriate for residences.”
Webster’s New College Dictionary (Third Ed., 2008). The same source defines “residence” as
“the place in which one lives.” So, in its common, ordinary meaning, the Classification
Limitation Endorsement restricts coverage to the insured’s roofing operations at places where

-9-

people live (i.e., roofing jobs on homes or dwellings), and excludes coverage for roofing
operations at commercial buildings or other facilities open to the public (such as museums,
libraries, courthouses, or churches). The pleadings in the underlying case, and all other facts
before the undersigned, show that Kiker and Lett Roofing seek coverage under the Evanston
policies for Lett Roofing’s operations in installing a roof on St. Catherine Church in Mobile,
Alabama. This is not a roofing job for a home or a dwelling, and cannot reasonably be
characterized as a residential roofing operation within the narrowing scope of the Classification
Limitation Endorsement. Defendants have articulated no argument under which the “Roofing –
Residential” limitation on covered operations could plausibly, or even colorably, be viewed as
allowing coverage for the insured’s operations of installing a roof on a church. And the Court
perceives no such argument that could have been made. The underlying lawsuit is confined to
operations by Lett Roofing and/or Kiker that plainly fall outside the coverage restriction
prescribed by the Classification Limitation Endorsement in both of Evanston’s policies. Stated
differently, the pleadings in the underlying action clearly concern an act or occurrence that is
outside the limited coverage provided by Evanston’s insurance policies to Lett Roofing. As
such, Evanston owes no duty to defend (and hence, no duty to indemnify) Lett Roofing or Kiker
in connection with the claims brought against them in the underlying lawsuit.10
IV.

Conclusion.
For all of the foregoing reasons, the Court concludes that there are no genuine issues of

material fact and that plaintiff, Evanston Insurance Company, has met its burden of showing as a
matter of law that it owes no duty to defend (and, consequently, no duty to indemnify)
10

Because the Classification Limitation Endorsement unequivocally bars coverage
for Kiker or Lett Roofing in the underlying action, the Court need not reach Evanston’s
alternative arguments that other policy provisions foreclose any duty to defend or indemnify
Kiker or Lett Roofing, in whole or in part, as to various aspects of the underlying lawsuit. That
said, many of those arguments appear meritorious as well. For example, any claims by Kiker
that Evanston owes it a duty to defend or indemnify under the subject policies fail because Kiker
is neither a named insured nor an additional insured under those policies. The only “named
insured” listed on the declarations of those policies is “Damon Lett d/b/a Damon Lett Roofing.”
Moreover, neither policy contains an “additional insured” endorsement. And no allegations in
the pleadings of the underlying action, or facts in the record herein would reasonably support a
conclusion that Kiker qualifies as an insured under the “Who is an Insured” section of the
policies. Kiker’s non-insured status is, therefore, an additional, independent reason why
Evanston would owe it neither defense nor indemnity obligations in the underlying action.

-10-

defendants Damon Lett d/b/a Damon Lett Roofing or Kiker Corporation in connection with the
lawsuit brought by St. Catherine of Siena Parish in state court concerning alleged defects in
roofing work performed by Kiker and/or Lett Roofing on the church premises. Accordingly,
plaintiff’s Motion for Judgment on the Pleadings (doc. 35) as to defendant Damon Lett d/b/a
Damon Lett Roofing, and its Motion for Summary Judgment (doc. 37) as to defendant Kiker
Corporation are both granted. A separate declaratory judgment will be entered.
The remaining question concerns the status of Evanston’s claims against defendant St.
Catherine of Siena Parish. As noted, plaintiff never filed a dispositive motion as to its claims
against that entity. Moreover, despite the obvious implications for the underlying litigation, St.
Catherine never responded to Evanston’s dispositive motions as to the other defendants. The
undersigned’s legal conclusions that Evanston owes no coverage to Kiker or Lett Roofing would
appear to apply with equal force to any argument by defendant St. Catherine that such coverage
does exist. Yet this action remains pending as between Evanston and St. Catherine, even though
it is doubtful that there are any bona fide legal issues remaining for resolution between them in
the wake of this Order. To prevent this action from languishing indefinitely in this unusual
procedural posture, counsel for Evanston and St. Catherine are ordered to meet and confer in
good faith about the status of this action as between them, and to file a joint report concerning
same by no later than October 26, 2012. If any triable issues remain joined between these
parties that cannot be resolved in summary fashion, the Court will promptly refer the matter to
Magistrate Judge Cassady for a Rule 16(b) Scheduling Conference.
DONE and ORDERED this 15th day of October, 2012.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

-11-