Zurich Am. Ins. Co. v. Indian Harbor Ins. Co.

235 F.Supp.3d 690

ZURICH AMERICAN INSURANCE COMPANY, Individually and as Subrogee of Rittenhouse Claridge, LP

v.INDIAN HARBOR INSURANCE COMPANY, et al.

CIVIL ACTION NO. 15–2344

United States District Court, E.D. Pennsylvania.

Filed February 21, 2017

Louis A. Bove, Marc J. Syken, Bodell Bove LLC., Philadelphia, PA, for Zurich American Insurance Company.

Louis H. Kozloff, Goldberg Segalla LLP, Eric G. Zajac, Zajac Arias & Trichon PC, Philadelphia, PA, David P. Bateman, Bateman, Caliendo LLC, Horsham, PA, for Indian Harbor Insurance Company, et al.

MEMORANDUM

SURRICK, DISTRICT JUDGE

Presently before the Court are cross-motions for summary judgment involving an insurance coverage dispute. Plaintiff Zurich American Insurance Company ("Zurich") provides general insurance coverage for Rittenhouse Claridge, LP ("Rittenhouse"). Plaintiff alleges that Defendant Indian Harbor Insurance Company ("Indian Harbor") has a duty to defend and a duty to indemnify Rittenhouse in an underlying personal injury lawsuit.

I. BACKGROUND

The underlying lawsuit involves a tort liability claim brought by Milton Corado ("Corado") against Rittenhouse. Corado was an employee of LWC City, Inc. ("LWC"), a company that had contracted with Rittenhouse to provide window washing services for the Rittenhouse apartment building (the "building"). While performing window-washing services for the building, Corado fell and sustained serious injuries. (Corado Second Am. Compl. 2, Pl.'s Mot. SJ Ex. A, ECF No. 20.) Corado filed the underlying complaint for the injuries he sustained while washing windows for Rittenhouse. (Id. ) As a part of the contract between LWC and Rittenhouse, LWC was required to add Rittenhouse as an additional insured to its own insurance policy with Indian Harbor. This dispute centers on whether, by adding Rittenhouse as an additional insured, Indian Harbor has a duty to defend Rittenhouse in the underlying Corado litigation.

A. Underlying Complaint

On August 22, 2013, as an employee for LWC, Corado was washing windows at the Rittenhouse building. (Corado First Am. Compl. 3, Pl.'s Supp. Br. Ex. B, ECF No. 28.) LWC entered into a contract with Rittenhouse to perform window-washing services for the building. (Id. at 2.) Corado alleges that while at the work site, Rittenhouse directed him to set up his equipment against the metal flashing off of the building's eighteenth floor balcony. (Id. at 3.) Corado alleges that the metal flashing was sharp, and therefore severed his rope, causing him to fall and incur serious injuries. (Id. ) The "rope grab" that Corado attempted to use was manufactured and designed by Mio Mechanical Corporation ("Mio"). (Id. ) In addition to filing a negligence action against Rittenhouse, Corado also filed a negligence and product liability action against Mio. Corado argues that the rope grab was unsafe, and the unsafe design contributed to his injuries. (Id. ) On February 17, 2016, Corado filed a First Amended Complaint naming Mio and Rittenhouse as defendants in the underlying lawsuit. (Corado First Am. Compl. 1.)

Corado brings a negligence claim of premises liability against Rittenhouse. (Id. at 6.) Corado alleges that his injuries were caused by the negligence of Rittenhouse and Rittenhouse's agents, servants, workers, or employees. (Id. at 7.) Corado contends that Rittenhouse and Rittenhouse's agents, workers, etc., were negligent in the following ways: by failing to maintain the premises and safeguard persons lawfully on the premises, by failing to inspect and supervise the dangerous condition (the metal edge of the flashing), by failing to maintain the proper barrier and equipment around the dangerous area, and by failing to warn Corado of the danger. (Id. at 6–7.) Corado also contends that Rittenhouse failed to properly supervise the work site and failed to provide proper safety management at the site. (Id. at 6.)

B. Additional Insured Provision

LWC entered into a contract with Rittenhouse, wherein LWC was to perform window washing services for the building. As part of the contract, LWC was required to add Rittenhouse as an additional insured to its own insurance policy with Indian Harbor for comprehensive bodily injury and property damage insurance. (Purchase Order, Pl.'s Mot. SJ Ex. B; Def.'s Mot. SJ 2, ECF No. 24.) The additional insured policy provides that Rittenhouse is an additional insured:

[O]nly with respect to liability for ‘bodily injury,’ ‘property damage,’ or ‘personal and advertising injury’ caused, in whole or in part, by:

1. [LWC's] acts or omissions; or

2. The acts or omissions of those acting on [LWC's] behalf; In the performance of [LWC's] ongoing operations for [Rittenhouse].

(Additional Insured, Pl.'s Mot. SJ Ex E.)

Further, the Indian Harbor policy contains a "Primary and Non–Contributory Wording Endorsement" (the "Endorsement") which provides that:

The following additional provisions apply to any person or entity added as an additional insured by endorsement to this policy:

...

3. Notwithstanding any other provision of this policy or any endorsement attached hereto, no coverage shall be afforded under this policy for any loss, cost or expense arising out of the sole negligence of any additional insured or any person or organization on behalf of any additional insured.

(The Endorsement, Def.'s Mot. SJ Ex. A. 39.)

LWC and Rittenhouse signed Purchase Order 56758, requiring that Rittenhouse be added as an additional insured to LWC's insurance policy with Indian Harbor. (Purchase Order.) Purchase Order 56758 contained additional terms, which provided that LWC was required to "at all times and at its own cost, maintain comprehensive bodily injury and property damage Insurance (naming Rittenhouse Claridge, L.P., as additional insured), including bodily injury and property damage arising out of or resulting from Work provided by this Agreement." (Additional Terms, Pl.'s Mot. SJ Ex. B.) Further, the Additional Terms stated that LWC was to "take all necessary precautions and erect safeguards for the safety of its employees, Owner, Owner's employees and tenants, and any invitees of Owner and/or Tenants."¹ (Id. )

C. Procedural History

On April 28, 2015, Plaintiff filed a Complaint in this Court. (Compl., ECF No. 1.) Plaintiff filed the Complaint against Defendants Indian Harbor and LWC, as well as against Milton Corado, as a Nominal Defendant. (Id. ) On June 29, 2015, LWC filed an Answer. (ECF No. 9.) On June 30, 2015, Indian Harbor filed an Answer. (ECF No. 10.) On August 4, 2015, Corado filed an Answer. (ECF No. 20.) On September 30, 2015, Plaintiff filed the instant Partial Motion for Summary Judgment against Indian Harbor. (Pl.'s Mot. SJ, ECF No. 20.) On October 30, 2015, LWC filed a Reply in Opposition to Plaintiff's Motion for Partial Summary Judgment against Indian Harbor. On October 30, 2015, Indian Harbor filed the instant Cross–Motion for Summary Judgment. (Def.'s Mot. SJ.) On December 1, 2015, Plaintiff filed a Response in Opposition to Indian Harbor's Motion for Summary Judgment. (Pl.'s Resp., ECF No. 25.) On February 23, 2016, Plaintiff filed a Supplemental Brief in Support of its Motion for Partial Summary Judgment. On March 8, 2016, Indian Harbor filed a Supplemental Brief in Support of its Cross–Motion for Summary Judgment. (Def.'s Supp. Br., ECF No. 29.) On March 15, 2016, Plaintiff filed a Brief in Response to Indian Harbor's Supplemental Brief. (Pl.'s Resp. Br., ECF No. 30.) On October 21, 2016, Plaintiff filed a Brief to Advise this Court of Recent Authority. (Pl.'s Auth., ECF No. 31.) On October 25, 2016, Indian Harbor filed a Response to Plaintiff's Notice of Recent Authority. (Def.'s Resp. Br., ECF No. 32.)

II. LEGAL STANDARD

A party is entitled to summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted."). Where the nonmoving party bears the burden of proof at trial, the moving party may identify an absence of a genuine issue of material fact by showing the court that there is no evidence in the record supporting the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; UPMC Health Sys. v. Metro. Life Ins. Co. , 391 F.3d 497, 502 (3d Cir. 2004). If the moving party carries this initial burden, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(c)(1) ("A party asserting that a fact is genuinely ... disputed must support the assertion by ... citing to particular parts of materials in the record."); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (noting that the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts").

"Where the record taken as a whole could not lead a reasonable trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ " Matsushita , 475 U.S. at 587, 106 S.Ct. 1348 (citations omitted). When deciding a motion for summary judgment, courts must view facts and inferences in the light most favorable to the nonmoving party. Anderson , 477 U.S. at 255, 106 S.Ct. 2505. Courts must not resolve factual disputes or make credibility determinations. Siegel v. Transfer, Inc. v. Carrier Express, Inc. , 54 F.3d 1125, 1127 (3d Cir. 1995). "[A] mere ‘scintilla of evidence’ in the nonmovant's favor does not create a genuine issue of fact and the non-movant may not rest on speculation and conjecture in opposing a motion for summary judgment." Ramara, Inc. v. Westfield Ins. Co. , 814...