United States District Court, W.D. Oklahoma
MLLES-LAGRANGE UNITED STATES DISTRICT JUDGE.
the Court is plaintiff's Motion for Summary Judgment,
filed September 1, 2017. On September 22, 2017, defendants
filed their response, and on October 13, 2017, plaintiff
filed its reply. Based upon the parties' submissions, the
Court makes its determination.
is a specialty insurance company. Plaintiff issued a General
Liability Policy to defendant 5 Star Integrity Roofing &
Exteriors, LLC d/b/a Rhema Roofing & Exteriors (“5
Star”) which covered the period February 7, 2013 to
February 7, 2014 (“Policy I”). Plaintiff also
issued a General Liability Policy to defendant Integrity Home
Improvements, LLC d/b/a Rhema Roofing & Exteriors
(“Integrity”) which covered the period of March
6, 2014 through March 6, 2015 (“Policy II”).
30, 2013, an entity identified as Rhema Roofing &
Exteriors entered into a “Residential Contractors
Contract” with David and Teresa Cook for the
construction of a “dwelling house and appurtenant
structures” on property located in Shawnee, Oklahoma.
An action was filed in the District Court of Pottawatomie
County, Oklahoma, which includes a counterclaim by David and
Teresa Cook alleging breach of contract, violation of the
Oklahoma Consumer Protection Act, unjust enrichment, slander
of title, and negligent injury to property against Integrity
(“Cook Counterclaim”). 5 Star and Integrity made
a demand on plaintiff to provide a defense to Integrity and
indemnify it for all claims and damages alleged in the Cook
Counterclaim. On December 10, 2015, plaintiff denied
August 19, 2016, plaintiff filed the instant action seeking a
declaratory judgment that there is no coverage under both
Policy I and Policy II for the matters asserted in the Cook
Counterclaim, that plaintiff has no duty or contractual
obligation to defend defendants in the Cook Counterclaim, and
that plaintiff has no duty or contractual obligation to pay
for or indemnify defendants for any judgment which might be
entered against them in the Cook Counterclaim. Indemnity has
asserted counterclaims against plaintiff for breach of
contract, breach of the duty to indemnify/breach of the duty
of good faith and fair dealing, and breach of the duty to
defend. Plaintiff now moves for summary judgment as to all
matters in this litigation.
Summary Judgment Standard
judgment is appropriate if the record shows that there is no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. The moving
party is entitled to summary judgment where the record taken
as a whole could not lead a rational trier of fact to find
for the non-moving party. When applying this standard, [the
Court] examines the record and reasonable inferences drawn
therefrom in the light most favorable to the non-moving
party.” 19 Solid Waste Dep't Mechs. v. City of
Albuquerque, 156 F.3d 1068, 1071-72 (10th Cir. 1998)
(internal citations and quotations omitted).
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment. Furthermore, the non-movant has a burden of
doing more than simply showing there is some metaphysical
doubt as to the material facts. Rather, the relevant inquiry
is whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided
that one party must prevail as a matter of law.”
Neustrom v. Union Pac. R.R. Co., 156 F.3d 1057, 1066
(10th Cir. 1998) (internal citations and quotations omitted).
asserts that neither Policy I nor Policy II covers the events
which occurred in connection with the construction of the
home for David and Teresa Cook. Plaintiff further asserts
that it had a good faith belief when it denied coverage.
contends that it intended to provide coverage for 5
Star's activities as a roofer and not as a home builder.
Plaintiff further contends that the defense and indemnity
sought by 5 Star for the Cook Counterclaim was not for
activities as a roofer but was for activities as a home
builder and consequently there was no coverage under Policy I
for the activities of 5 Star for the matters alleged in the
Cook Counterclaim. Additionally, plaintiff contends the
contractual liability exclusion precludes any coverage.
interpretation of an insurance contract is governed by state
law and, sitting in diversity, we look to the law of the
forum state.” Houston Gen. Ins. Co. v. Am. Fence
Co., Inc., 115 ...