United States District Court, N.D. Indiana, Fort Wayne Division
OPINION and ORDER
ROBERT L. MILLER, Jr., District Judge.
This cause is before the court on the motion of State Farm Fire & Casualty Company for summary judgment on its claims against John Holderman and the Estate of Timothy Robrock. State Farm seeks a declaration from the court that the insurance policy State Farm issued to John Holderman doesn't cover the claims against Mr. Holderman pending in the Allen County Superior Court as Sandra Robrock, Personal Representative of the Estate of Timothy Robrock v. John Holderman, et al. (Cause No. 02D01-1012-CT-547). State Farm also has moved to strike a portion of Mr. Holderman's response brief pursuant to Federal Rule of Civil Procedure 12(f) and Rule 56-1(e) of the Local Rules of the United States District Court for the Northern District of Indiana. The court heard the parties' oral arguments on February 24, 2014. Based on a review of the parties' submissions and arguments, the court concludes that the motions must be granted.
The parties don't dispute the basic facts. Mr. Holderman is a journeyman electrician: he's worked as an electrician since 1983, he's held a Journeyman Electrical License since 1987, he owned his own electrical business in Fort Wayne from 1990 to 1998, and before and after that time he worked as a journeyman electrician for other companies. In 2009, Mr. Holderman became employed as a journeyman electrician with Henry Electric: the company provided him with the tools he needed (although Mr. Holderman also owns many of his own electrician's tools), he drives a van displaying a "Henry Electric" insignia, and he can purchase supplies on a Henry Electric account at supply stores in the Fort Wayne area. Mr. Holderman says that most, if not all, of his work at Henry Electric has been performed for commercial clients.
In March 2009, Mr. Holderman agreed, at the request of his friend Andrew Glancy, to perform electrical work for Andrew's father, Perry Glancy, at a rental house the elder Mr. Glancy owned. Mr. Holderman quoted a price of $300 for the materials and labor, and Perry Glancy agreed. The next month, Mr. Holderman picked up the necessary materials and installed electrical wiring at the rental house so the tenants could use an air compressor in the garage. When the electrical work was done, Mr. Glancy gave Mr. Holderman a check for $300. Mr. Holderman says the work he did for Perry Glancy amounted to a side job that he did as a favor to the Glancys under an informal, unwritten agreement between the parties.
In June 2010, Timothy Robrock was a guest of the Glancy tenants; Mr. Robrock was fatally electrocuted while working in the garage at that residence. Sandra Robrock, personal representative of Timothy Robrock's estate, sued Mr. Holderman and the Glancy tenants in the Allen County Superior Court, alleging that Mr. Holderman negligently installed the faulty electrical wiring that caused or contributed to Mr. Robrock's death, and that the Glancy tenants negligently failed to warn Mr. Robrock of the faulty wiring.
Mr. Holderman sought a defense from State Farm Fire & Casualty Company under a homeowner's policy State Farm issued to him with effective dates of January 21, 2010 through January 21, 2011. State Farm is defending Mr. Holderman in the state court action under a reservation of rights through defense counsel.
In October 2012, State Farm filed this suit seeking a declaration that the homeowner's policy issued to Mr. Holderman doesn't provide liability or medical payment coverage for Sandra Robrock's claims against him. State Farm has moved for summary judgment based on its argument that the claims in the Allen County action arose out of Mr. Holderman's business pursuits, so State Farm has no duty to defend or indemnify him in that action. Mr. Holderman maintains material questions of fact exist as to whether "doing a favor for a friend is  transformed into a business pursuit' simply because the work might otherwise fall within an area in which the insured is otherwise technically proficient." Resp., at 4. Mr. Holderman answers that question in the negative, and State Farm disagrees. The motions are ripe for review.
MOTION TO STRIKE
State Farm has moved to strike paragraph 1 of Mr. Holderman's Statement of Genuine Disputes contained in his summary judgment response. In that paragraph, Mr. Holderman disputes State Farm's claim that neither Andrew Glancy nor Perry Glancy received any bids or estimates for the work Perry Glancy wanted done at his rental property. State Farm says Mr. Holderman's statement that Andrew Glancy received two bids before Mr. Holderman agreed to do the work is inadmissible hearsay: Mr. Holderman was only repeating what Andrew Glancy allegedly told him, and Mr. Holderman had no personal knowledge of whether the Glancys did, in fact, receive any bid(s) or estimate(s) for the electrical work. Thus, State Farm says, Mr. Holderman's assertion in paragraph 1 is inadmissible under Rule 802 of the Federal Rules of Evidence. Mr. Holderman hasn't responded to State Farm's argument.
The record contains Mr. Holderman's deposition testimony that Andrew Glancy told him that he (Andrew Glancy) got a couple of quotes for the work to be done at his father's rental property and those charges were more than the Glancys wanted to pay. Pltf. Exh. 1 (Holderman Dep.), pp. 39, 52. The record also contains Andrew Glancy's affidavit statement that he didn't receive any bids or estimates for the work to be done at his father's rental property, Pltf. Exh. 5, ¶ 5, and Perry Glancy's deposition statement that he didn't remember getting any estimates for that work, other than a quote of $300 from John Holderman. Pltf. Exh. 4 (P. Glancy Dep.), pp. 9, 12.
If offered to prove the truth of what Andrew Glancy is said to have stated - that bids were obtained - it is hearsay within the meaning of Federal Rule of Evidence 801 and presumptively barred by Rule 802. It might be admissible at trial as a prior inconsistent statement, but impeachment rarely finds a seat at the summary judgment table. Still, whether Andrew or Perry Glancy sought or received other estimates before Andrew asked Mr. Holderman to do the work at his father's rental property isn't material to the issue before the court - whether State Farm has a duty to defend or indemnify Mr. Holderman in the state court action. Therefore, the motion will be denied as unnecessary.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when "the pleadings, depositions, answers to the interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). A genuine issue of material fact exists whenever "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249 (1986). In deciding whether a genuine issue of material fact exists, "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 , 477 U.S. at 255. The existence of an alleged factual dispute, by itself, will not defeat a summary judgment motion; "instead, the nonmovant must present definite, competent evidence in rebuttal, " Butts v. Aurora Health Care, Inc. , 387 F.3d 921, 924 (7th Cir. 2004), and "must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial." Hemsworth v. Quotesmith.com, Inc. , 476 F.3d 487, 490 (7th Cir. 2007); see also FED. R. CIV. P. 56(e)(2). "It is not the duty of the court to scour the record in search of evidence to defeat a motion for summary judgment; rather, the nonmoving party bears the responsibility of identifying the evidence upon which he relies." Hastings Mut. Ins. Co. v. LaFollette, No. 1:07-cv-1085 , 2009 WL 348769, at *2 (S.D. ...