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Nationwide Mutual Insurance Co. v. Allen6/29/2004
The defendants, James Allen, doing business as Allen Landscaping, and William Shaw, appeal from the declaratory judgment rendered by the trial court in favor of the plaintiff, Nationwide Mutual Insurance Company. The defendants claim on appeal that the court improperly concluded that the plaintiff was not obligated to defend or to indemnify Allen in a lawsuit initiated against him by Shaw. The plaintiff, having issued to Allen a commercial general liability insurance coverage policy that specifically excluded from coverage Allen's employees, sought a declaratory judgment to determine whether it had the duty to defend or to indemnify Allen in the underlying negligence action brought against Allen by Shaw. The court concluded that the plaintiff did not have a duty to defend or to indemnify Allen because Shaw was an employee and not an independent contractor or a temporary worker. We affirm the judgment of the trial court.
The court's memorandum of decision describes the underlying facts, which are undisputed. Allen is a sole proprietor doing business as Allen Landscaping, which, for a fee, provides landscaping services to customers. Shaw performed landscaping work for Allen in exchange for pay. The plaintiff provided commercial general liability coverage to Allen for a policy period of June 1, 1998, to June 1, 1999. Allen's policy excluded coverage for bodily injury to his employees arising out of and in the course of their employment with Allen or performing duties related to the conduct of Allen's business. Shaw was injured in an accident that occurred on May 25, 1999, while he operated a commercial riding mower that had been purchased by Allen. On June 16, 1999, Shaw filed a claim for workers' compensation benefits for his injuries. In a notice of claim signed by Shaw's attorney, those injuries were described as having arisen from an accident that occurred in the course of Shaw's employment by Allen.
On November 18, 1999, Shaw initiated a negligence action against Allen, alleging that the injuries sustained while operating Allen's commercial riding mower were due to Allen's negligence. In connection with that underlying action, the plaintiff brought a declaratory judgment action, which forms the basis of the present appeal, seeking a determination as to the extent of its obligation to defend or to indemnify Allen. Shaw seeks to have the plaintiff defend Allen and pay any damages awarded to Shaw in the underlying action. The plaintiff was defending the underlying tort action under a reservation of rights at the time it commenced this declaratory judgment action. The plaintiff filed a motion for summary judgment in this declaratory judgment action. The court denied the plaintiff's motion, finding that there was a genuine issue of material fact as to whether the "employer" retained the right to control not merely the result, but the means and methods used by the worker to obtain the desired result. After a trial, the court rendered a declaratory judgment in favor of the plaintiff, determining that the plaintiff was not obligated to defend or to indemnify Allen in the underlying tort action. The defendants now appeal.
The defendants claim that the court improperly rendered the plaintiff's declaratory judgment. In support of their claim, the defendants argue that the court lacked subject matter jurisdiction to determine whether Shaw was Allen's employee while that same question was simultaneously before the workers' compensation commissioner, that the court improperly determined that Shaw was an employee and not an independent contractor, that the court improperly determined that Shaw was not a temporary worker within the meaning of the insurance contract, and that the court imp
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