Goudy v. Waste Management of Louisiana, Inc. et al

Filing 71

ORDER denying 67 Motion for Summary Judgment; denying as moot 68 Motion to Strike. Signed by Judge Jay C. Zainey on 9/2/14. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ERICKA GOUDY, JACOB ALEXANDER
EDWARDS, AND THE SUCCESSION
OF ALEX'SAUNDER EDWARDS

CIVIL ACTION

VERSUS

NO: 13-576

WASTE MANAGEMENT OF
LOUISIANA, ET AL..

SECTION: "A" (4)

ORDER AND REASONS
Before the Court is a Second Motion for Summary Judgment (Rec. Doc. 67)
filed by Certain Underwriters at Lloyd's, London ("Underwriters"). Plaintiff, Ericka Goudy
on behalf her minor son Jacob Alexander Edwards ("Plaintiff") has responded by filing a
Motion to Strike Second Affidavit (Rec. Doc. 68). The motions, noticed for
submission on August 13, 2014 and August 27, 2014, respectively, are before the Court on
the briefs without oral argument.
I.

Background
This wrongful death and survival action arises out of the tragic death of Alex'saunder

Edwards. On November 16, 2011, Edwards was working at the Jefferson Parish Landfill
operating a Kubota utility vehicle. (Rec. Doc. 1-1, Pet. ¶ 2). The vehicle "mysteriously"
overturned while Edwards was working beside an unguarded drainage canal. Edwards was
pinned under the vehicle, trapped under the water, and he drowned. (Id. ¶¶ 2-3). Plaintiff
filed suit in state court against Kubota for manufacturing defects in the vehicle, and against
Waste Management of Louisiana, LLC, the operator of the landfill,1 for the hazards
Plaintiff actually sued an entity named Waste Management of Louisiana, Inc. because
Plaintiff believed that this entity operated the landfill. Waste Management of Louisiana, LLC,
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associated with the drainage canal. Plaintiff also filed suit against Associated Marine &
Industrial Staffing ("AMI"), Edwards' employer.2 Kubota Tractor Corp. removed the action
to this Court.
Movant Underwriters issued a liability policy to AMI and this policy was in effect at
the time of Edwards' accident. Plaintiff joined Underwriters asserting that Underwriters
provides coverage to AMI and Waste Management for the claims at issue in this case.
(Amended Comp, Rec. Doc. 29 ¶ 7).
On May 13, 2014, Underwriters filed a motion for summary judgment on the issue of
coverage contending that its policy contains a Staffing Services Liability endorsement, and
that this case falls squarely within the ambit of that coverage exclusion. (Rec. Doc. 57). The
Court denied the motion based on the showing made at the time. (Rec. Doc. 66).
Via the instant motion for summary judgment Underwriters once again seeks
judgment as a matter of law on the issue of coverage and has supplemented the record in
support of its position.
A trial by jury is scheduled to commence on March 2, 2015. (Rec. Doc. 65).
II.

Discussion
Summary judgment is appropriate only if "the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any," when viewed in
the light most favorable to the non-movant, "show that there is no genuine issue as to any
material fact." TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (5th Cir. 2002) (citing

which is a citizen of Texas, answered the suit and admits that it was the operator and therefore
the appropriate defendant. (Rec. Doc. 1-1 at p. 17 of 25). Plaintiff has not disputed this
contention.
On May 22, 2014, the Court denied AMI's motion for summary judgment so that
Plaintiff could explore the possibility of whether intentional acts might affect AMI's immunity as
an employer. (Rec. Doc. 56).
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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). A dispute about a material
fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the
non-moving party. Id. (citing Anderson, 477 U.S. at 248). The court must draw all justifiable
inferences in favor of the non-moving party. Id. (citing Anderson, 477 U.S. at 255). Once the
moving party has initially shown "that there is an absence of evidence to support the nonmoving party's cause," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant
must come forward with "specific facts" showing a genuine factual issue for trial. Id. (citing
Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)).
Conclusional allegations and denials, speculation, improbable inferences, unsubstantiated
assertions, and legalistic argumentation do not adequately substitute for specific facts
showing a genuine issue for trial. Id. (citing SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir.
1993)).
Coverage A of the Underwriters' Commercial General Liability policy pertains to
"bodily injury," which specifically includes death.3 (Rec. Doc. 57-4 at U-000018, U000059).
The policy includes an endorsement for staffing services liability such that coverage does not
apply to any damage, injury, or loss arising out of an injury sustained by an "employee" or by
a "staffing services worker."4 (Id. at U-000036). A "staffing services worker" is a person who
is furnished at any time by or on behalf of the insured to a client of the insured to meet the
workload conditions of the client. (Id. at U-000038).
Plaintiff has never disputed—nor could she—that Edwards meets the definition of a
"staffing services worker" for purposes of the exclusion. Rather, the basis of Plaintiff's

Plaintiff's argument that the policy does not exclude losses from death is contrary to the
clear language of the policy.
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As the Court explained in its prior ruling, Edwards was not an "employee" as that term
is defined in Underwriters' policy. (Rec. Doc. 66, Order and Reasons at 4).

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opposition to Underwriter's first motion for summary judgment on coverage was that the
record did not establish that the endorsement was actually in effect when the accident
occurred. The Court agreed and pointed out that "examination of Underwriters' submission
reveals no objective proof of when the staffing services endorsement was added to the
policy." (Rec. Doc. 66, Order and Reasons at 3). In particular, the Court pointed out that
contrary to Underwriters' assertion, the affidavit from Peter W. Stanislaw did nothing to
support the contention that the staffing services worker endorsement was included with the
original policy, and therefore was in effect at the time that Edwards was killed.5 (Rec. Doc.
57-4, 4/7/14 Affidavit).
Underwriters has now re-urged summary judgment and supplemented the record
with a second affidavit from Peter W. Stanislaw (Rec. Doc. 67-4, 7/28/14 Affidavit), which
Underwriters asserts establishes that the staffing services worker endorsement was "part of
the original policy at inception on October 10, 2011, and that it was in full force and effect at
the time of the accident on November 16, 2011." (Rec. Doc. 67, Second MSJ at 2 ¶V). In
response, Plaintiff has moved to strike the affidavit on the basis that it is not based on
personal knowledge. (Rec. Doc. 68). In response to Plaintiff's motion to strike, Underwriters
has submitted a third affidavit to further detail personal knowledge aspect of Stanislaw's
assertions. (Rec. Doc. 70-1, 8/18/14 Affidavit).
The Court agrees that the affidavit is objectionable and cannot support judgment as a
matter of law in favor of Underwriters but not because of the personal knowledge aspect of

Underwriters points out that even though the endorsement itself contains no date, it
has a notation on it that confirms that it was in effect from the date of inception. (Rec. Dc. 67-1,
Memo in Support at 2). Underwriters' reliance on this point fails to appreciate that an
exclusionary endorsement added after coverage has attached, i.e., after Edwards was killed,
cannot retroactively alter the policy. Thus, the boilerplate retroactivity notation on the
endorsement is of little use in determining whether the endorsement was in effect when the
accident occurred.
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the affidavit. The two important dates in Stanislaw's affidavit are the policy's effective date
and the date that Edwards was killed, both of which are incorrect. The policy at issue became
effective on 10/10/2011 and the accident occurred on 11/16/2011. (Rec. Doc. 57-4,
Declaration Page). The affidavit carries no weight because it erroneously cites two dates in
2010 that are irrelevant to the coverage question.
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Second Motion for Summary Judgment (Rec.
Doc. 67) filed by Certain Underwriters at Lloyd's, London is DENIED;
IT IS FURTHER ORDERED that the Motion to Strike Second Affidavit
(Rec. Doc. 68) is DENIED AS MOOT.
September 2, 2014
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

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