Employers Insurance Co. of Alabama v. Fidelity & Casualty Insurance Co. of New York

505 So. 2d 303, 1987 Ala. LEXIS 4148
CourtSupreme Court of Alabama
DecidedJanuary 16, 1987
Docket85-17
StatusPublished

This text of 505 So. 2d 303 (Employers Insurance Co. of Alabama v. Fidelity & Casualty Insurance Co. of New York) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Employers Insurance Co. of Alabama v. Fidelity & Casualty Insurance Co. of New York, 505 So. 2d 303, 1987 Ala. LEXIS 4148 (Ala. 1987).

Opinion

SHORES, Justice.

This is an appeal from a declaratory judgment requiring the insurer, The Fidelity & Casualty Insurance Company of New York (hereinafter referred to as “F & C”), to reimburse its insured, Employers Insurance Company of Alabama, Inc. (hereinafter referred to as “Employers”), for attorney fees and amounts paid to settle one of five lawsuits against Employers.

Employers is in the business of writing casualty, workmen’s compensation, general liability, and fire insurance for various businesses throughout the state of Alabama. Among its insureds are Thoray Equipment Company, Cahaba Veneer, Inc., Kirkland Enterprises, Inc., Kieffer Custom Converting Corporation, and Phoenix Lumber Company.

Each of Employers policies providing workmen’s compensation coverage to these entities contains the following language:

“Inspection and Audit: The company and any rating authority having jurisdiction by law shall be permitted but not obligated to inspect at any reasonable time the workplaces, operations, machinery and equipment covered by this policy. Neither the right to make inspections nor the making thereof nor any report thereon shall constitute an undertaking on behalf of or for the benefit of the insured or others to determine or warrant that such workplaces, operations, machinery or equipment are safe or healthful, of are in compliance with any law, rule or regulation.”

Pursuant to this provision, Employers inspected the premises, at various locations in Alabama, of each insured mentioned above. Following these safety inspections, a number of the insureds’ employees were allegedly injured. Beginning in 1979, these employees filed separate and unrelated individual suits against Employers, claiming negligence in the conduct of the safety inspections.

The five negligent safety inspection lawsuits at issue in this case are Nichols v. Thoray Equipment Company, CV-79-2238, Jefferson County; Anderson v. Employers Insurance Company of Alabama, CV-81-17, Bibb County; Pickell v. Kirkland Enterprises, CV-80-3479, Jefferson County; Tolliver v. Smith, CV-81-06, Sumter County; and Littleton v. Employers Insurance Company of Alabama, CV-81-3, Russell County. These claims shall hereinafter be referred to as the Nichols claim, the Anderson claim, the Pickett claim, the Tolliver claim, and the Littleton claim.

On or about April 18, 1978, defendant F & C issued a comprehensive general liability insurance policy to Employers for one year. This policy was renewed through a [305]*305separately written policy which extended coverage through April 18, 1980.

A written endorsement is attached to and made a part of each of the aforementioned insurance policies. This endorsement is labeled Y-388A and styled “Insurance Company as Insured Endorsement.” The endorsement provides, in pertinent part:

“The insurance afforded by this policy does not apply to any obligation assumed by or imposed upon the insured under the provisions of any contract of insurance issued by the insured to another.”

Prior to purchasing the F & C policies, Thomas H. Hoover, part owner and operator of Employers, talked with Bob Wilkins, an independent agent with Interstate Underwriters, about obtaining more comprehensive liability insurance. Wilkins gave Hoover a number of policies from different companies to examine. Hoover ultimately selected the F & C policy. Upon delivery of the F & C policy in 1978, Wilkins told Hoover that the Y-388A endorsement excluded coverage for safety engineer liability in negligent inspection suits. Hoover testified at trial that from that day until the first part of 1982, he was under the impression that the policies would not cover the lawsuits in question. He stated that he first realized that there might indeed be coverage under existing policies after a discussion with John Baker, an officer of Employers.

In early 1982, Baker visited the General Reinsurance Corporation in New York, and after meetings with individuals at that company, he concluded that Employers should reexamine its policies for negligent safety inspection lawsuit coverage possibilities. After talking with Baker, Hoover instructed Employers’s vice-president in charge of claims, Harold A. Duenow, to^ locate its liability policies and take the necessary steps to procure coverage.

Pursuant to Hoover’s instructions, Due-now set about the task of finding the policies. His efforts were thwarted somewhat because, since 1922, all of Employers’ insurance policies had been maintained by the corporate secretary, L.A. Henry. Due to Henry’s haphazard filing methods, no one else knew the location of the policies at the time of his retirement in 1979 and his death in 1981 at age 85.

Duenow had two or three meetings with Andy Ardivino of Interstate Underwriters to determine whether Employers had an insurance policy that would cover the safety engineering negligence suits that had been filed against Employers. At these meetings, Duenow did not divulge the names of the particular cases; he just talked generally about the fact that these cases were being filed. Duenow testified that at the time of these meetings he had no knowledge of the existence of the F & C policy, even though Hoover apparently did.

Duenow finally discovered the F & C policies in Employers’ company safe in June of 1982. On the fifteenth of that month, he wrote Ardivino a letter stating that in his opinion there was coverage under the F & C policies for the Anderson, Nichols, and Littleton claims. This letter was forwarded to Ben Long, supervising adjuster for Underwriters Adjusting Company. F & C and Underwriters Adjusting Company are both subsidiaries of Continental Insurance Company.

Long treated Duenow’s letter as a notice of loss to F & C. He sent a representative to Employers’ office to copy its claims files, ordered a copy of the policy with all endorsements from the underwriting department, and discussed coverage questions under Y-388A with a Continental underwriter. After taking these steps to process Employers’ claim, Long sent letters to Due-now denying coverage for the Anderson, Nichols, and Littleton claims, based on the language of Y-388A. Duenow never notified F & C of the Tolliver and Pickell claims.

At trial, F & C maintained that its endorsement Y-388A excluded coverage of the negligent safety inspection suits. The trial court, however, found that Y-388A was ambiguous and, therefore, was not effective to exclude coverage for such suits.

Also at trial, F & C raised, for the first time, the defense of lack of notice, relying on the following policy provisions:

[306]*306“4. INSURED’S DUTIES IN THE EVENT OF OCCURRENCE, CLAIM OR SUIT
“(a) In the event of an occurrence, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses shall be given by or for the insured to the company or any of its authorized agents as soon as practicable.

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Beasley v. MacDonald Engineering Co.
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Bailey v. Liberty Mutual Insurance Co.
451 So. 2d 279 (Supreme Court of Alabama, 1984)

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505 So. 2d 303, 1987 Ala. LEXIS 4148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/employers-insurance-co-of-alabama-v-fidelity-casualty-insurance-co-of-ala-1987.