Date: 01-02-2024

Case Style:

Elisha Miracle Hamm v. Allstate Insurance Company

Case Number: 2:23-cv-00280

Judge: Margaret I. Strickland

Court: United States District Court for the District of New Mexico (Dona Ana County)

Plaintiff's Attorney: Jessica Mendez

Defendant's Attorney: Jay Joseph Athey and Robert Shawn Oller

Description: Las Cruces, New Mexico civil rights lawyer represented the Plaintiff who sued on an Americans with Disabilities - employment violation theory.

This case was filed in the Third Judicial District Court, D-307-CV-23-00315, and was removed to federal court by Allstate Insurance Company.

The ADA only prohibits discrimination on the basis of disability. It makes it unlawful to refuse to hire a qualified applicant with a disability because he is disabled or because a reasonable accommodation is required to make it possible for this person to perform essential job functions.

Plaintiff's are owners of an office building in Arlington, Texas. Intervenors sued Plaintiff's in state court alleging that certain of the Intervenors suffered physical injuries due to their exposure to chemical fumes while moving into and working in an office on the fifth floor of Plaintiff's' office building. Specifically, Intervenors' amended petition in the state-court lawsuit alleges as follows:

During the time that [Intervenors] Deborah Cantwell, Michelle Calvert and Barbara Jo Deckard were moving into said office, contractor Perma Dek, Inc. d/b/a Amazing Surfaces . . . was applying chemicals in the bathroom on the fifth floor of the building. The bathroom was just a few feet from the doorway to said offices. The chemicals applied in said bathroom included toluene and other volatile organic compounds. . . . Despite actual or constructive knowledge of the danger of letting said fumes accumulate, defendants failed to discharge, disperse or release same, permitting them to concentrate in the building. Fumes became trapped in the building, including the office that Plaintiff's were occupying. Plaintiff's were thereby exposed to said fumes. Over the next month, Plaintiff's worked in this office space. During the entire time that Plaintiff's worked in said office space, they were exposed to fumes from the chemicals that had been applied by . . . Amazing Surfaces.

(Def.'s App. at 121-22.)

Plaintiff's are insured by Allstate under two policies, one primary and the other excess. Plaintiff's demanded that Allstate defend and indemnify them in the Intervenors' state-court suit. Allstate refused, contending that the pollution exclusions in the insurance policies exclude coverage for Intervenors' claims. The policies exclude coverage for bodily injury or property damage "arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants . . . at or from any premises, site, or location which is or was at any time owned, occupied by, or rented or loaned to any persons insured." (Def.'s App. at 38, 96.) The term "pollutants" is defined in the policies as "any solid, liquid, gaseous, or thermal irritant or contaminant, including smoke, vapor, soot, fumes, chemicals, and waste." (Def.'s App. at 54, 96.)

The excess policy excludes "[b]odily injury or property damage arising out of [the discharge of pollutants]." (Def.'s App. at 96.) The primary policy, however, excludes "any accidental event, personal injury or advertising injury arising out of [the discharge of pollutants]." (Def.'s App. at 38.) "Personal injury" is defined under the primary policy to exclude "bodily injury." (Def.'s App. at 53.) Nevertheless, "accidental event" is defined under the policy as "an accident, including continuous or repeated exposure to the same conditions, resulting in bodily injury or property damage." (Def.'s App. at 51.) The parties apparently do not dispute that Intervenors' injuries are the result of an "accidental event," as that term is defined under the primary policy.

Plaintiff's brought suit against Allstate in state court for breach of contract, contending that Allstate breached the policies by failing to defend Plaintiff's in Intervenors' state-court suit. Allstate removed Plaintiff's suit to this Court on the basis of diversity jurisdiction. Intervenors subsequently intervened, contending that Allstate has a duty to indemnify Plaintiff's for any liability incurred by Plaintiff's in Intervenors' state-court action. All parties now seek summary judgment.

Outcome: 12/14/2023 26 Joint MOTION for Extension of Time to File Closing Documents by Allstate Insurance Company. (Athey, Jay) (Entered: 12/14/2023)
12/15/2023 27 ORDER GRANTING JOINT MOTION FOR EXTENSION OF TIME by Chief Magistrate Judge Gregory B. Wormuth granting 26 Motion for Extension of Time to File. Plaintiff shall file closing documents no later than 12/29/2023. (es) (Entered: 12/15/2023)
12/28/2023 28 STIPULATION of Dismissal With Prejudice by Elisha Miracle Hamm (Mendez, Jessica) (Entered: 12/28/2023)
01/02/2024 29 ORDER CLOSING CASE by District Judge Margaret I. Strickland.

THIS MATTER is before the Court on the Parties' Joint Stipulation of Dismissal With Prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii). ECF No. 28 . "Under Rule 41(a)(1)(A)(ii), a plaintiff can voluntarily dismiss a case 'by filing... a stipulation of dismissal signed by all parties who have appeared.' A stipulation of dismissal filed under Rule 41(a)(1)(A)(i) or (ii) is self-executing and immediately strips the district court of jurisdiction over the merits." De Leon v. Marcos, 659 F.3d 1276, 1283 (10th Cir. 2011) (citing Janssen v. Harris, 321 F.3d 998, 1000 (10th Cir. 2003); Smith v. Phillips, 881 F.2d 902, 904 (10th Cir. 1989)).

Accordingly, it is HEREBY ORDERED that this case is CLOSED effective December 28, 2023, the date the Parties filed the Joint Stipulation of Dismissal With Prejudice. ECF No. 28 . All pending motions are DENIED AS MOOT.

[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (gri) (Entered: 01/02/2024)
01/03/2024 30 FINAL JUDGMENT by District Judge Margaret I. Strickland. (gri) (Entered: 01/03/2024)

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Defendant's Experts:

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