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Federal Insurance Co. v. Olawuni

March 6, 2008

FEDERAL INSURANCE CO., PLAINTIFF,
v.
TIMOTHY OLAWUNI, ET AL., DEFENDANTS,
TIMOTHY OLAWUNI, ET AL., THIRD PARTY PLAINTIFFS,
v.
ALEA LONDON LIMITED, THIRD PARTY DEFENDANT.



The opinion of the court was delivered by: Paul L. Friedman United States District Judge

OPINION

This matter is before the Court on the motion of third party defendant Alea London Limited ("defendant" or "Alea") for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.*fn1 Third party plaintiffs Tim & Flo Realty/Construction Firm LLC, Timothy Olawuni and Florence Olajide ("plaintiffs") cross claimed against Alea London Limited, their insurance company, when Alea disclaimed coverage under an earth movement exclusion clause in an insurance policy. For the reasons explained below, the Court will grant Alea's motion for summary judgment.

I. BACKGROUND

Plaintiff Tim & Flo Realty/Construction Firm LLC had commercial general liability insurance from defendant Alea London Limited. See Commercial General Liability Insurance Policy ALTE 003493, Exh.1 to Def.'s Mot. ("Policy"). The policy describes the business as "Carpentry Construction of Residential Property." Id. The policy was effective from August 23, 2004 through August 23, 2005. See id. It includes an earth movement exclusion, which provides:

This insurance does not apply to . . . [damages] . . . arising from, attributable or contributed to or aggravated by the movement of land whether caused by or resulting from natural forces or contributed to, in any way, by any work or operations performed by you or any contractor or subcontractor. "Movement of land" includes but is not limited to any movement of earth or land, whether at the surface or below the surface and includes any movement of earth to a higher or lower level, landslide, mud flow, mud slide, shearing, rising, settling, shifting or shrinking.

Policy, Additional Exclusions ("Earth Movement Exclusion").

On August 9, 2005, Tim & Flo Realty was performing excavation work during the course of renovation of residential property located at 1427 5th Street, N.W. in Washington, D.C. On that date a party wall, located between the house they were working on and the house next door at 1425 5th Street N.W., collapsed. See Def.'s Mem. at 5; Pls.' Mem. at 6-7. Alea, in its Local Civil Rule 7(h) Statement of Undisputed Facts, states:

The damage to 1425 5th Street, NW, Washington D.C. was "caused by" or "contributed to" by earth movement within the broad meaning of the exclusion. See Exh. 2, att. A.; Exh. 3.

Def.'s Statement of Undisputed Facts ¶ 3.

As a result of the collapse of the party wall, Federal Insurance Company, the insurer of the house at 1425 5th Street N.W., filed a complaint for negligence and nuisance against, among others, Tim & Flo Realty/Construction Firm LLC, Timothy Olawuni and Florence Olajide.*fn2 Tim & Flo Realty/Construction Firm LLC, Timothy Olawuni and Florence Olajide moved to join Alea London Limited as a party defendant on December 29, 2006, and Alea was added as a necessary defendant. Plaintiffs then brought a cross-claim against Alea for indemnification and contribution. Alea responded with an answer and later moved for summary judgment.

II. SUMMARY JUDGMENT STANDARD

Summary judgment may be granted only if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits [or declarations], if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). "A fact is 'material' if a dispute over it might affect the outcome of a suit under the governing law; factual disputes that are 'irrelevant or unnecessary' do not affect the summary judgment determination." Holcomb v. Powell, 433 F.3d at 895 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 248). An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; Holcomb v. Powell, 433 F.3d at 895.

When a motion for summary judgment is under consideration, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255; see also Mastro v.Potomac Elec. Power Co., 447 F.3d 843, 849-50 (D.C. Cir. 2006); Aka v. Washington Hosp. Center, 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc); Washington Post Co. v. Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989). On a motion for summary judgment, the Court must "eschew making credibility determinations or weighing the evidence." Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007). The non-moving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits, declarations or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. See FED.R.CIV.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

The non-moving party is required to provide evidence that would permit a reasonable jury to find in its favor. See Laningham v. U.S.Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the non-movant's evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50; see also Scott v. Harris, 127 S.Ct. 1769, 1776 (2007) ("where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is 'no genuine issue for trial.'") (quoting Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). To defeat a motion for ...


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