Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Selective Way Insurance Co. v. Leonard

United States District Court, W.D. Michigan, Southern Division

March 8, 2017

SELECTIVE WAY INSURANCE COMPANY, Plaintiff,
v.
GARY LEONARD et al., Defendants.

          OPINION

          JANET T. NEFF, United States District Judge

         Pending before the Court in this insurance declaratory judgment action is Defendant Gary Leonard's (“Leonard”) Motion for Dismissal, based on the Court's discretion to decline jurisdiction, or in the alternative, on principles of res judicata (Dkt 24). Responses have been filed by Plaintiff Selective Way Insurance Company (“Selective” or “Plaintiff”) (Dkts 26, 27) and Defendants Pamela Leonard; Vineyard Inn on Suttons Bay, LLC; and Wine Country Weddings & Events, LLC (the “Vineyard Inn Defendants”) (Dkt 28). Defendant Gary Leonard has filed a Reply (Dkt 30), and the Vineyard Inn Defendants have filed a further Reply (Dkt 29). The Court also granted Leonard's request to file a supplemental brief (Dkt 33): (1) apprising the Court of a recent jury trial and verdict in a related state court negligence action, Gary Leonard v. The Vineyard Inn on Suttons Bay LLC, et al., Leelanau County Circuit Court, case no. 17-9864-NO; and (2) withdrawing his motion for alternative relief based on res judicata.

         Having fully considered the parties' submissions, the Court concludes that oral argument would not assist in the disposition of the issues presented. See W.D. Mich. LCivR 7.2(d). The Court declines to exercise jurisdiction over this declaratory judgment action. Defendant Leonard's motion to dismiss without prejudice is granted.

         I. Facts[1]

         Pamela Leonard is the owner and day to day operations manager of The Vineyard Inn, which has two associated business entities: a d/b/a Corky's Winebar & Beach Bistro, and Wine Country Weddings & Events LLC (hereinafter collectively referred to as The Vineyard Inn) (JSSF, Dkt 25 at PageID.225, ¶¶ B, C). Selective issued to The Vineyard Inn and Pamela Leonard a commercial policy of insurance, policy number S1943012, that afforded commercial property coverage; commercial general liability coverage; commercial automobile coverage; commercial inland marine coverage; and commercial umbrella coverage (id., ¶ F). As of June 8, 2013, the Selective policy was in effect (id., ¶ G).

         In 2010, Gary Leonard, age 61, separated from his job at Wells Fargo and for the statutory period drew unemployment benefits. Thereafter, he considered himself retired and commenced receiving his Social Security (id., ¶ H). As of June 8, 2013, The Vineyard Inn was insured by Accident Fund Insurance Company of America for workers' compensation and employer's liability (id., ¶ I).

         On June 8, 2013, Pamela Leonard provided catering services as part of the Leelanau Peninsula Wine, Food and Music Festival (id., ¶ J). Pamela Leonard asked her brother, Gary Leonard, if he could assist by loading the food truck with equipment/supplies and be available at the festival to act as her go-for (id., ¶ K). On the morning of June 8, 2013, Gary Leonard loaded the food truck with prepared food, equipment, and supplies (id., ¶ L). That morning, while Gary Leonard was in the galley kitchen of the truck, an explosion occurred when propane gas ignited-presumably when he attempted to light the stove's pilot (id., ¶ M).

         On July 17, 2013, Accident Fund, on behalf of The Vineyard Inn, filed a “Notice of Dispute” regarding Gary Leonard's claim for workers' compensation benefits with Michigan's Workers' Compensation Agency (id., ¶ R). On October 10, 2013, Selective sent a letter of denial of claim to Gary Leonard (id., ¶ U).

         On May 2, 2014, the Grand Traverse County Circuit Court case of Gary Leonard v. Selective Insurance Company of America, case no. 14-30329-CK, was filed (id., ¶ AA). In the Circuit Court case, the parties engaged in and completed discovery, which included Selective's production of a 1, 795 page claims file regarding Gary Leonard's PIP claim and Pamela Leonard's fire/property claim (id., ¶ CC(1)). The claims file disclosed that on July 17, 2013, Accident Fund informed Selective that it was denying the workers' compensation claim; Selective's claim log summarized Accident Fund's basis for denial as: “he is not an employee, he was just helping his sister out, he was not being paid for his help, and volunteers are not listed under the w/c policy for having coverage” (id., ¶ CC(1)(ix)).

         On February 9, 2015, Grand Traverse County Circuit Court Judge Philip Rodgers conducted a hearing on Selective's Motion for Summary Disposition (in the Leonard v. Selective Insurance case) and issued an oral opinion from the bench granting the motion (id., ¶ GG). Judge Rodgers ruled that Selective's insurance contract did not afford coverage to Gary Leonard because his bodily injury did not result from the ownership, maintenance, or use of an auto as an auto (id., ¶ HH).

         On May 6, 2015, Plaintiff Gary Leonard filed a personal injury action against The Vineyard Inn on Suttons Bay LLC, Wine Country Weddings & Events LLC, and Pamela Leonard in Grand Traverse County Circuit Court, Gary Leonard v. The Vineyard Inn on Suttons Bay LLC, Wine Country Weddings & Events LLC, and Pamela Leonard, case no. 15-30965-NO (id., ¶ II).

         On October 9, 2015, Selective filed this Declaratory Judgment Action (id., ¶ PP), seeking a declaration pertaining to Selective's defense in the above personal injury action, that there is no insurance coverage available under the insurance policies for the injuries to Gary Leonard because: (1) Gary Leonard was performing services under an expectation of pay at the time of the incident, and (2) Gary Leonard is considered an employee for purposes of the Employers Liability Exclusions under these policies (Compl. Dkt 1 at PageID.1-3).

         The state court personal injury action was subsequently dismissed by stipulation (JSSF, ¶ NN). However, on March 30, 2016, Gary Leonard refiled the personal injury action against the Vineyard Inn Defendants in Grand Traverse County Circuit Court, case no. 16-31520-NO (id., ¶ OO).

         In his supplemental brief (Dkt 33), Leonard states that the Vineyard Defendants' first asserted affirmative defense in the state court negligence action, Gary Leonard v. The Vineyard Inn on Suttons Bay LLC, et al., in Leelanau County Circuit Court, case no. 17-9864-NO, [2] was that Leonard's claims are barred by the exclusive-remedy provision of the Michigan Worker's Disability Compensation Act (id. at PageID.561). On February 14, 2017, a four day trial of the state court negligence action commenced, in which the parties stipulated that on June 8, 2013, Gary Leonard was not an employee of The Vineyard Inn; he was not an employee of Wine Country Weddings & Events, LLC; and he was not an employee of Pamela Leonard (id.). Further, Pamela Leonard, Gary Leonard's sister, testified that he was volunteering to help her on that day (id. at PageID.562). The state trial court, Circuit Judge Thomas G. Power, directed a verdict in favor of Gary Leonard on the affirmative defense of the exclusive-remedy provision of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.