Owners Insurance Company v. The Remodeling Depot, Inc. et al

Filing 69

ORDER dismissing without Prejudice 34 and 43 Motions for Summary Judgment, with direction to refile each Motion within 30 days from the date of this order. The parties are FURTHER DIRECTED to address the damages awarded and inform this Court of the factual basis for such an award. Signed by Judge William T. Moore, Jr. on 6/1/20. (jrb)

Case 4:17-cv-00021-WTM-CLR Document 69 Filed 06/01/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

OWNERS INSURANCE COMPANY,

Plaintiff,
CASE NO. CV417-021

V.

THE REMODELING DEPOT, INC.,
KENNETH WAYNE HOSTI, JOANN
LYON, and MICHAEL E. LINDSEY,
Defendants.

ORDER

Before

the

Court

is

Plaintiff

Owners

Insurance

Company's

Notice of Filing and Resolution of the Underlying Lawsuit. {Doc.
68.) Plaintiff represents that a Consent Judgment has been entered
in

favor

of

Defendants

Joann

Lyon

and

Michael

E.

Lindsay

(^'Defendant Homeowners") against Defendant The Remodeling Depot,

Inc. and

Kenneth

Wayne

Hosti

Defendant Remodelers") in the

underlying lawsuit. (Id. at 1.) Because this resolution ripens
Plaintiff's request for a declaratory judgment regarding its duty
to indemnify Defendant Remodelers and moots any request for a
declaratory

judgment

regarding

its

duty

to

defend.

Plaintiff

requests that this Court issue a supplemental briefing schedule on
the remaining issue of its duty to indemnify. (Id. at 2.)

Case 4:17-cv-00021-WTM-CLR Document 69 Filed 06/01/20 Page 2 of 3

After careful consideration, Plaintiff's request is GRANTED.

"The duty to indemnify is determined by the facts as they are
established in the underlying action." Nat 1—Tr_;—Ins_;—Co_;—
Finishing Dynamics, LLC, No. 1;18-CV-0351-AT, 2018 WL 8949791, at

*5 (N.D. Ga. Sept. 18, 2018) (citing ALEA London Ltd. v. Woodcock,

286 Ga. App. 572, 580 649 S.E.2d 740, 746 (Ga. Ct. App. 2007)).
Because the underlying lawsuit has concluded, this Court must know
what Defendant Remodelers have been found liable for in determining

whether Plaintiff must indemnify Defendant Remodelers. The Court

notes that the consent judgment entered is less than the amount of

damages prayed for the in the complaint. (Compare Doc. 1, Attach.
2 at 6 with Doc. 68, Attach. 1 at 2.) Moreover, the Court notes
that a large portion of the parties' cross-motions for summary

judgment concern Plaintiff's duty to defend which is, by
Plaintiff's own representation, now moot. The Court believes the
best course of action is for the parties to prepare new, concise

motions for summary judgment on the now ripe issue of Plaintiff's
duty to indemnify.

Accordingly, Plaintiff's Motion for Summary Judgment (Doc.
34) and Defendant Remodelers' Motion for Summary Judgment (Doc.
43) are DISMISSED WITHOUT PREJUDICE with specific direction to
refile. Plaintiff and Defendant Remodelers are DIRECTED to each

refile their respective Motions for Summary Judgment within thirty

(30) days of the date of this Order on the issue of Plaintiff's

Case 4:17-cv-00021-WTM-CLR Document 69 Filed 06/01/20 Page 3 of 3

duty to indemnify Defendant Remodelers in light of the consent
judgment. The parties are FURTHER DIRECTED to address the damages
awarded

and inform this Court of the factual basis for such an

award.

/ST
SO ORDERED this' day of Jtey 2020.
^

WILLIAM T. MOORE,
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA