NOT RECOMMENDED FOR PUBLICATION File Name: 20a0236n.06
Case No. 19-3635
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED Apr 30, 2020 COMMERCE & INDUSTRY INSURANCE ) DEBORAH S. HUNT, Clerk COMPANY, ) ) Plaintiff-Appellant, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE SOUTHERN ) DISTRICT OF OHIO CENTURY SURETY COMPANY, ) Defendant-Appellee. ) OPINION
BEFORE: MOORE, McKEAGUE, and READLER, Circuit Judges.
McKEAGUE, Circuit Judge. An ATV accident on the Alaska Peninsula over ten years
ago spawned this insurance dispute; today, a federal court based in Ohio resolves it with the help
of Pennsylvania law. What takes us all over the map are dueling policies issued to contractors at
the accident site by jurisdictionally diverse insurers—the plaintiff, Commerce & Industry, and the
defendant, Century Surety. Commerce argues that its insurance coverage took a backseat to
Century’s, so Century must pay for all the legal defense costs associated with the ATV accident.
Century responds that the district court got it right in splitting costs between the two of them. The
district court got it mostly right, but not all right. We accordingly AFFIRM in part, VACATE in
part, and REMAND. Case No. 19-3635, Commerce & Indus. Ins. Co. v. Century Sur. Co.
I.
A.
Weston Solutions was a contractor working on a decontamination project in the remote
town of Port Heiden, Alaska. It subcontracted for transportation services with Aniakchak, a local
company presumably named after the nearby ancient volcano, Mount Aniakchak. In remote
Alaska, though, “transportation services” is a euphemism for ATV rides, which have their risks.
So Weston and Aniakchak agreed in their subcontract that Aniakchak would “indemnify, defend
and hold harmless” Weston and its employees in the event of an accident resulting from
Aniakchak’s work. Aniakchak further agreed that it would maintain a commercial general liability
insurance policy (a “CGL” policy) that named Weston as an “additional insured,” covering Weston
for such an accident. Weston already had its own CGL policy issued by Commerce; Aniakchak’s
CGL policy was issued by Century, and Weston was named as an additional insured through an
“endorsement” to the policy (an amendment, basically) after the subcontract was executed.
What does that all mean? It means that in the event of an accident involving Aniakchak,
Weston was doubly insured—through the policy Commerce directly issued it, and through the
additional insured provision in the policy Century issued Aniakchak.
That’s how these subcontracts normally work, by the way. A contractor hires a
subcontractor to perform some work. Pursuant to the subcontract, the subcontractor maintains a
CGL policy that, in addition to covering the subcontractor, covers the contractor as an additional
insured. The idea is that if a third party gets hurt because of the subcontractor’s work, and that
third party sues the contractor, the subcontractor’s insurer will take care of everything. But
contractors already have CGL policies of their own which cover them in the event of such an
accident. So to avoid overlapping coverage, a contractor’s insurer will include a provision in its
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policy saying that if the contractor is covered as an additional insured in a subcontractor’s policy,
the contractor’s policy is “excess.” This is called an “other insurance” provision. Usually, it
operates such that the contractor will first rely on its coverage as an additional insured (the
contractor’s “other insurance”), then turn to its own insurer. See, e.g., First Mercury Ins. Co. v.
Cincinnati Ins. Co., 882 F.3d 1289, 1301–04 (10th Cir. 2018); Wright-Ryan Constr., Inc. v. AIG
Ins. Co. of Canada, 647 F.3d 411, 414–17 (1st Cir. 2011).
That’s what the subcontract between Weston and Aniakchak contemplated. The
subcontract mandates that Weston’s additional insured coverage through Aniakchak’s insurance
be “primary” to Weston’s own CGL coverage. Accordingly, Aniakchak’s policy with Century
contains a standard additional insured provision for Weston: Century covers Weston as an
additional insured “but only with respect to ‘bodily injury,’ ‘property damage,’ or ‘personal and
advertising injury’ caused, in whole or in part, by” Aniakchak or those working on its behalf “in
the performance of [its] ongoing operations for [Weston.]” Century Policy, R. 37-6, PageID 1454.
And sure enough, the Century policy provides that its coverage is “primary and non-contributory”
with respect to its additional insureds. Id. These provisions operate seamlessly with Weston’s
CGL policy with Commerce: Commerce’s coverage is excess when other insurance is available to
Weston as an additional insured. Commerce Policy, R. 37-13, PageID 1510.
Simple enough (for insurers, at least). There’s just one problem. Century’s policy also
includes an other-insurance provision, but it’s broader. It says that if an “insured” under the
Century policy has any other insurance available to it, then Century’s coverage is excess—even if
the other insurance is itself excess. Century Policy, R. 37-6, PageID 1436. We’ll see how that
complicates things later on.
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B.
With that groundwork, we turn to the accident. Just before the project in Port Heiden
finished, an Aniakchak ATV crashed en route from a Weston barbecue, injuring the passenger, an
engineer named Kathryn Daniel. Daniel sued three parties in Alaska state court for her injuries:
Weston, Aniakchak, and Konan Lind, the ATV driver. In her first complaint, filed in 2011, she
alleged that (1) Weston itself was negligent, (2) Aniakchak was negligent and vicariously liable
for Lind’s negligence as Lind’s employer, and (3) Lind was negligent. Two years later, in 2013,
Daniel filed a second, amended complaint. In the second complaint, she added allegations that
Lind was also employed by Weston, and that Weston was vicariously liable for Lind’s negligence.
The litigation in Alaska has since resolved. Its outcome is irrelevant here because the
insurers are fighting over who has to pay defense costs—an obligation that arises from an insurer’s
broad contractual “duty to defend” its insureds in litigation. The parties agree that their policies
provide a duty to defend only when their coverage is primary. And generally, an insurer’s duty to
defend kicks in when a complaint alleges there was an injury that potentially falls within the scope
of the defendant’s insurance coverage.
You might see where things are headed now. Weston might have been doubly covered—
through normal CGL insurance with Commerce, and as an additional insured in Century’s policy.
If so, which coverage was primary (that is, which insurer had to pay Weston’s defense costs)?
What about Lind—was there an issue of primacy there, too? And did it matter when Daniel alleged
Lind was a Weston employee? Commerce sued Century for a declaratory judgment to figure this
all out.
With respect to Weston’s defense, Commerce argued that Weston was possibly covered as
an additional insured under Century’s policy because Daniel’s injuries were allegedly caused “in
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part” by Aniakchak. And additional insured coverage is “primary and non-contributory,”
according to the Century policy. Thus, Commerce said, its coverage was excess per its own other-
insurance provision, vitiating its duty to defend Weston. Century responded that even if that’s so,
the broad other-insurance provision in Century’s policy also deems Century’s coverage excess,
because other insurance was available to Weston through Commerce. And if both policies are
excess, they conflict, making both insurers responsible for defense costs.
As for Lind’s defense, Commerce reiterated its Weston-based arguments: Lind was an
additional insured, so Century’s coverage was primary. Commerce alternatively argued that if its
own coverage was primary, then it couldn’t be responsible for defense costs incurred by Lind
before he was alleged to be Weston’s employee. Commerce’s policy only covered Weston and its
employees, not Aniakchak employees. For its part, Century countered that only Weston is an
additional insured under its policy, not Weston employees. On top of that, Commerce’s other-
insurance provision applies only when Weston is additionally insured, not Lind. And, according
to Century, Commerce was obligated to pay all defense costs once Commerce’s policy became
primary, even costs incurred before that point.
The district court held in Century’s favor on both points. See Commerce & Indus. Ins. Co.
v. Century Sur. Co., 313 F. Supp. 3d 877 (S.D. Ohio 2018). Century’s policy, governed by Alaska
law, and Commerce’s policy, governed by Pennsylvania law, conflicted with respect to Weston’s
defense. Both policies claimed they were excess. So both insurers had to pay. Id. at 883–84. As
for Lind, while both policies provided primary coverage, Commerce’s other-insurance provision
was inapplicable. Commerce alone thus had to pay for Lind’s defense. Moreover, as the primary
insurer, Commerce was in for a penny, in for a pound—all defense costs, even those incurred
before Daniel alleged Weston employed Lind, were Commerce’s responsibility. Id. at 884–85.
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II.
Commerce appeals, and both sides renew their arguments from below. We review the
district court’s grant of summary judgment de novo. K.V.G. Props., Inc. v. Westfield Ins. Co., 900
F.3d 818, 821 (6th Cir. 2018).
We deal with Weston first. To start, we don’t doubt that given Daniel’s allegations, Weston
potentially qualified as an additional insured, engendering Century’s duty to defend under that
provision. Under Alaska law, which applies to the Century policy, the duty to defend arises where
“a complaint states a cause of action within, or potentially within, the policy coverage.” Afcan v.
Mut. Fire, Marine & Inland Ins. Co., 595 P.2d 638, 645 (Alaska 1979). Here, the additional
insured provision—specifically its coverage of Weston for injury “caused, in whole or in part, by”
Aniakchak—“plainly extends coverage beyond underlying lawsuits in which a plaintiff expressly
raises claims against [Aniakchak], requiring only that [Aniakchak’s] acts or omissions have some
causal relationship to the injury.” First Mercury Ins. Co., 882 F.3d at 1302. Thus, even though
Daniel initially alleged Weston was itself negligent rather than vicariously liable, her allegations
against Aniakchak meant Aniakchak could be a cause in part of her injuries, triggering potential
coverage for Weston. See id.; Ramara, Inc. v. Westfield Ins. Co., 814 F.3d 660, 673–76 (3d Cir.
2016); see also Pro Con, Inc. v. Interstate Fire & Cas. Co., 794 F. Supp. 2d 242, 256–57 (D. Me.
2011) (“[B]y including the language ‘in whole or in part’ in its [additional insured provision], [the
insurer] specifically intended coverage for additional insureds to extend to occurrences attributable
in part to acts or omissions by both the named insured and the additional insured.”). And because
Daniel’s complaint triggered the additional insured provision, in a normal case, Commerce’s
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coverage of Weston would be excess to Century’s: Commerce’s policy is excess over additional
insured coverage available to Weston. Commerce Policy, R. 37-13, PageID 1510.
But this is not a normal case. The Century policy includes a broad other-insurance
provision: coverage is excess to any other insurance “the insured” has, even if that other insurance
is excess. Century Policy, R. 37-6, PageID 1436. And “the insured” means not just Aniakchak
(defined in the policy as “you” or the “named insured”) but anyone insured under the policy,
including additional insureds like Weston. Id., PageID 1404. In other words, even if Weston is
covered as an additional insured under the Century policy—thus deeming Weston’s normally
primary CGL coverage with Commerce excess—the Century policy’s coverage is also excess.
This is strange because one would expect to see a qualifying clause in Century’s policy keeping
its additional insured coverage primary, to honor the subcontract between Weston and Aniakchak.
See, e.g., Westfield Ins. Co. v. Weaver Cooke Constr., LLC, 383 F. Supp. 3d 566, 579 (E.D.N.C.
2019) (“This coverage shall be excess with respect to [an additional insured]; any other insurance
[an additional insured] has shall be primary with respect to this insurance, unless this coverage is
required to be primary and not contributory in the contract [between the additional insured and the
named insured].”). But that clause, or one like it, is absent here.
This doesn’t read the phrase “primary and non-contributory” out of Century’s additional
insured provision, as Commerce suggests. We must give effect to every provision of an insurance
policy when possible. Stordahl v. Gov’t Emps. Ins. Co., 564 P.2d 63, 66 n.7 (Alaska 1977). And
here, in order to give effect to both the additional insured provision and the other-insurance
provision, the additional insured provision must provide primary and non-contributory coverage
except when the other-insurance provision applies. That’s how it works with Century’s coverage
of Aniakchak, too: coverage is primary, unless the other-insurance provision applies.
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Granted, the phrase “primary and non-contributory” assumes that additional insureds will
have excess coverage lurking elsewhere. And they typically do. So the way the other-insurance
provision is written, it will nearly always apply to an additional insured. But not always. If for
some reason an additional insured has no other coverage, or its other coverage isn’t “valid” or
“collectible,” the other-insurance provision won’t apply. Century Policy, R. 37-6, PageID 1436.
Moreover, we know that Century intended the other-insurance provision to apply to additional
insureds because the provision applies to “the insured,” rather than simply “you” or the “named
insured.” Nowhere are additional insureds carved out—even though the named insured is, under
certain circumstances. Id. And again, noticeably absent from the policy is standard qualifying
language deeming an additional insured’s coverage excess unless a subcontract requires it to be
primary and non-contributory. We can’t read an “additional insured exception” into Century’s
other-insurance provision where there is none.
Nor can the terms of the subcontract between Weston and Aniakchak change what the
Century policy says. We recognize that the other-insurance provision of the Century policy
seemingly means that the policy didn’t comply with Aniakchak’s obligations under its subcontract
with Weston. That’s an issue between Aniakchak and Weston, however, and not relevant to this
dispute between Commerce and Century.
Century’s other-insurance provision was therefore triggered in addition to Commerce’s.
Both policies, however, can’t be excess. That would leave Weston without any primary coverage
and, in turn, no defense. So the law provides that if other-insurance provisions conflict, both
insurers are on the hook for defense costs. Am. Cas. Co. of Reading v. PHICO Ins. Co., 702 A.2d
1050, 1056 (Pa. 1997); Werley v. United Servs. Auto. Ass’n, 498 P.2d 112, 117–19 (Alaska 1972).
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We thus agree with the district court’s bottom-line conclusion that Commerce and Century are
each responsible for Weston’s defense.
We also agree with the district court that Commerce’s coverage of Lind was primary to
Century’s. Once Daniel alleged Lind was an employee of Weston and Aniakchak, all agree there
was a potential for coverage for Lind under each policy’s normal CGL coverage. The only
question is whether both policies’ other-insurance provisions were triggered, too, creating a
conflict.
They weren’t. Commerce’s other-insurance provision says that its coverage is excess over
“[a]ny other primary insurance available to you covering liability for damages arising out of the
. . . operations . . . for which you have been added as an additional insured . . . .” Commerce Policy,
R. 37-13, PageID 1510 (emphasis added). “You” means only the “named insured”—Weston. Id.,
PageID 1501. It does not mean anyone who is an “insured” under Commerce’s policy, a category
which includes Weston’s employees. Id., PageID 1501, 1508. Thus, even if Lind potentially
qualified as an additional insured under the Century policy, that would be other insurance available
to him, not to Weston, which fails to trigger Commerce’s other-insurance provision. Compare this
with Century’s policy. Its other-insurance provision more broadly applies whenever “the insured”
has any other insurance coverage. Century Policy, R. 37-6, PageID 1436. “The insured” includes
Aniakchak employees like Lind. Id., PageID 1404, 1412. Century’s other-insurance provision
was thus triggered, but not Commerce’s, rendering Century’s coverage excess and Commerce’s
primary.
The district court therefore correctly held that, once Lind was alleged to be a Weston
employee, Commerce’s coverage was primary and Commerce alone had a duty to defend.
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C.
Our agreement with the district court ends there, though. The district court concluded that
because Commerce’s coverage was primary and Century’s excess, Commerce was responsible for
all of Lind’s defense costs—even those that arose before Daniel alleged Lind was a Weston
employee.
We see it differently. Under Pennsylvania law, which governs Commerce’s policy, “[a]n
insurer is obligated to defend its insured if the factual allegations of the complaint on its face
encompass an injury that is actually or potentially within the scope of the policy.” Am. & Foreign
Ins. Co. v. Jerry’s Sport Ctr., Inc., 2 A.3d 526, 541 (Pa. 2010). Put another way, “[a]s long as a
complaint alleges an injury which may be within the scope of the policy, the insurer must defend
its insured until the claim is confined to a recovery the policy does not cover.” State Farm Fire &
Cas. Co. v. DeCoster, 67 A.3d 40, 46 (Pa. Super. Ct. 2013) (quotation and emphasis omitted).
Here, no duty to defend could have existed on Commerce’s part until Lind was arguably
its insured. And that wasn’t the case until Daniel’s second complaint alleged Weston employed
Lind. The first complaint, in comparison, stated that Lind was Aniakchak’s employee. Nor were
there any factual allegations in the first complaint suggesting Weston employed Lind. The
allegations that Century points to—that Weston hosted the barbecue from which Lind drove
Daniel, and that Lind failed to comply with the “transportation safety plan” Aniakchak and Weston
adopted—don’t come close to suggesting Weston had the control over Lind necessary to create an
employer–employee relationship. See Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730,
751–52 (1989); Powell v. Tanner, 59 P.3d 246, 249 (Alaska 2002). The fact that Daniel filed a
second complaint illustrates that point. If the first complaint actually stated Weston’s control over
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Lind, she wouldn’t have needed to file a second complaint alleging Weston “retained control over
[Lind’s] work, and directed his work during the contract.”
Accordingly, from the beginning of Daniel’s suit in 2011 up to the filing of her second
complaint in 2013, her claim was “confined to a recovery” that Commerce’s policy didn’t cover
with respect to Lind; any injury caused by Lind was definitively outside the scope of the policy.
Jerry’s Sport Ctr., Inc., 2 A.3d at 542; DeCoster, 67 A.3d at 46 (quotation and emphasis omitted).
No potential coverage, no duty to defend, and no responsibility for defense costs—at least until
the filing of the second complaint. See Seaboard Indus., Inc. v. Monaco, 392 A.2d 738, 744 (Pa.
Super. Ct. 1978); cf. Allan D. Windt, Insurance Claims and Disputes, § 4.44 (6th ed.) (noting that,
in the context of pre-tender defense costs, most courts hold that “an insurer is not liable for [such]
costs” in part because “until the policy coverage is triggered, defense costs are not covered”).
True, it seems that Weston and Commerce were tipped off to the possibility of Lind’s
employment with Weston earlier. Lind’s counsel tendered defense on Commerce and Weston in
2012, mentioning the issue. There was also summary-judgment briefing in Daniel’s case just
before the filing of her second complaint arguing Weston employed Lind. But “[t]he question of
whether a claim against an insured is potentially covered is answered by comparing the four
corners of the insurance contract to the four corners of the complaint.” Jerry’s Sport Ctr., Inc., 2
A.3d at 541. This evidence breaches all eight corners. And the one published Pennsylvania case
that says a court can look outside the complaint in circumstances like this—Heffernan & Co. v.
Hartford Ins. Co., 614 A.2d 295, 298 (Pa. Super. Ct. 1992)—is a “misfit” that we cannot follow.
Lupu v. Loan City, LLC, 903 F.3d 382, 391–92 (3d Cir. 2018). Commerce’s duty to defend
therefore couldn’t have arisen until Daniel filed her second complaint.
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Determining precisely when Commerce’s duty to defend Lind arose, though, is best left
for the district court to resolve on remand. As Century notes, it may raise “a whole new set of
tender issues.” Appellee Br. at 36. Regardless, when splitting the bill, Century must be left with
the costs it incurred for Lind’s defense before Commerce’s duty to defend arose; for costs after
that point, Commerce pays.
III.
For these reasons, we AFFIRM the judgment with respect to Weston’s defense costs. We
VACATE the judgment with respect to Lind’s defense costs, and REMAND for further
proceedings.
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