Evanston Insurance v. Westchester Surplus Lines Insurance

546 F. Supp. 2d 1134, 2008 U.S. Dist. LEXIS 16358, 2008 WL 623393
CourtDistrict Court, W.D. Washington
DecidedMarch 4, 2008
DocketNo. C07-923-MJP
StatusPublished
Cited by2 cases

This text of 546 F. Supp. 2d 1134 (Evanston Insurance v. Westchester Surplus Lines Insurance) is published on Counsel Stack Legal Research, covering District Court, W.D. Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Evanston Insurance v. Westchester Surplus Lines Insurance, 546 F. Supp. 2d 1134, 2008 U.S. Dist. LEXIS 16358, 2008 WL 623393 (W.D. Wash. 2008).

Opinion

ORDER ON DEFENDANT WEST-CHESTER SURPLUS LINES INSURANCE COMPANY AND ROYAL INSURANCE COMPANY OF AMERICA A/K/A/ ROYAL INSURANCE COMPANY’S MOTIONS FOR SUMMARY JUDGMENT

MARSHA J. PECHMAN, District Judge.

This matter comes before the Court on defendant Westchester Surplus Lines Insurance Company and Royal Insurance Company of America a/k/a Royal Insurance Company’s (“Defendants”) motions for summary judgment. (Dkt. Nos. 32 & 34.) Having considered Defendants’ motions and replies (Dkt. Nos. 40 & 41), the declarations attached to Defendants’ motions and reply (Dkt. Nos. 33, 35, & 42), Plaintiffs’ response, declarations, and surreplies (Dkt.Nos.36-39, 44-45), the complaint (Dkt. No. 1), and the balance of the record, the Court GRANTS Defendants’ motions for summary judgment.

Background

The dispute between Plaintiffs and Defendants arises out of an accident involving a personnel hoist that occurred on June 26, 2002 at a construction site owned by Bellevue Master LLC (“Bellevue Master”), called the Lincoln Square Project in Bellevue, Washington. In 2002, prior to the accident, Bellevue Master hired Bovis Lend Lease as the construction manager, who then hired Champion Elevators, Inc. (“Champion”) to supply, erect, and dismantle personnel hoists for the project. (Olson Deck, Ex. 11, Dkt. No. 33-11.) In April 2002, Champion orally agreed to subcontract the personnel hoist work to [1138]*1138Northwest Tower Crane Service, Inc. (“Northwest”). (Olson Decl. Ex. 3, Dkt. No. 33-3, at ¶ 5.) David Weber, owner of Northwest, and Kevin Lavorgna, agent of Champion, met in Bellevue and orally agreed to the terms of work, including the pricing, scope of work, and scheduling. (See Lavorgna Dep., Dkt. No. 33-6, at 5; see also Dkt. No. 33-14 at 2 (letter discussing installation, jump, and dismantle prices).) Weber and Lavorgna never discussed terms regarding insurance or indemnification.

Prior to the agreement between Champion and Northwest, Northwest had performed work directly for Bellevue Master. In 2001, Bellevue Master contracted with Northwest to erect and dismantle tower cranes at the Lincoln Square Project. (Brady Decl., Dkt. No. 39-3.) Work was completed in 2001. None of the parties has produced a copy of the contract, though Plaintiffs claim that one exists.

On May 4, 2002, Northwest began installation of the personnel hoist and completed the first phase of the project on May 7, 2002. On May 21, 2002, Kevin Lavorgna of Champion sent Northwest a purchase order and subcontract agreement. (Dkt. Nos. 33-14 & 33-15.) The purchase order specified the erection, jump, dismantle, and permitting of the personnel hoist at a price of $44,250, which Northwest confirms as the agreed-upon price. (Id.; see Weber Dep., Dkt. No. 35-4 Ex. 5 at 133-34.) The purchase order also stated that the terms were “Subject to the return of the signed subcontract which is attached herto [sic] and made a part of this Purchase Order.” (Olson Decl. Ex. 15, Dkt. No. 33-15.)

The subcontract contained 'terms that neither party had discussed. Most notably, the subcontract required Northwest to indemnify Champion and Bellevue Master and to waive employer immunity. (See Lavorgna Dep., Dkt. No. 13 at 76.) Northwest did not sign or return the subcontract. Testimony is conflicting as to whether David Weber communicated with Kevin Lavorgna about his dissatisfaction with the contract. Weber claims he left a message with Lavorgna expressing his refusal of the subcontract. Weber states that he did not sign the subcontract because he noted the one-sided nature of the contractual terms and was advised by his counsel not to sign. Lavorgna denies the existence of Weber’s message. (Lavorgna Decl., Dkt. No. 38-5 at ¶¶ 5-6.) However, no one disputes that Northwest did not sign or return the subcontract or purchase order. There were no further discussions over the subcontract until after the June 26, 2002 accident occurred. (Id.)

Despite not having signed the subcontract, Northwest proceeded to dismantle the hoist under Champion’s direction. On June 26, 2002, while dismantling the hoist, three Northwest employees fell seventy feet in a hoist. The employees were severely injured in the fall. (Tomasello Compl., Dkt. No. 33-9.) They filed suit in the U.S. District Court for the Western District of Washington (CV03-3650-Z) against Champion, which then brought third-party claims against Bellevue Master and Northwest. (Id.; Consolidated Compl., Dkt. No. 35-4, at 96-104.) The three injured employees ultimately settled their claims with Champion and Bellevue Master and their insurance carriers, Evanston Insurance Company (“Evanston”) and American Guarantee and Liability Insurance Company (“American Guarantee”). Evanston and American Guarantee now seek indemnification from Northwest’s insurers, claiming that they are additional insureds under Northwest’s insurance policies.

During the relevant time period, Northwest had a primary policy with Westchester Surplus Lines Insurance Company (“Westchester”) and an excess policy with [1139]*1139Royal Insurance Company of America (“Royal”). (Dkt. Nos. 35-1 at 5-8, 35-2 at 62-63.) The Westchester policy contained an additional-insured endorsement extending coverage “as required by contract, provided the contract is executed prior to loss.” (Dkt. No. 35-1, Ex. 1, at 35.) Royal provided bodily-injury coverage to Northwest and its insureds, but the policy did not specify who was an additional insured. Royal argues, without objection, that if any third-party was an insured under the Westchester policy, it would also have been an additional insured under the Royal policy for excess coverage. (PI. Royal’s Mot. for SJ, Dkt. No. 34 at 7.) On June 27, 2002, one day after the accident, Northwest’s insurance brokers at JBL & K Risk Services issued a certificate of insurance to Champion that stated Champion had coverage as an additional insured. (Olson Decl., Dkt. No. 33-16.) However, the record does not reflect who requested the certificate.

Plaintiffs originally filed this case in King County Superior Court. (Not. of Removal, Dkt. No. 1.) Royal removed to this Court on June 14, 2007. (Id.) Jurisdiction is proper under 28 U.S.C. § 1332.

Discussion

I. Motion to Strike

Plaintiffs have moved to strike the majority of the exhibits submitted by Defendants in support of their summary judgment motion. Plaintiffs contend variously that: (1) certain documents lack foundation or have not been authenticated; (2) certain deposition transcripts lack the court reporter’s certification; and (3) several declarations contain statements from declarants who lack personal knowledge to make such statements. Defendants respond that: (1) many of the documents were authenticated by virtue of Plaintiffs disclosure thereof; (2) the deposition transcripts were marked as certified copies and Plaintiffs have submitted identical copies of the same depositions; and (3) the declarants did have personal knowledge to support their statements.

Several of the documents to which Plaintiffs object are irrelevant to the decision of Defendants’ motion for summary judgment. The Court does not rely on that information to decide the summary judgment motion and does not address Plaintiffs’ motion to strike those exhibits. In regards to the remaining disputed documents which are relevant, the Court DENIES Plaintiffs’ motion to strike.

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Bluebook (online)
546 F. Supp. 2d 1134, 2008 U.S. Dist. LEXIS 16358, 2008 WL 623393, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evanston-insurance-v-westchester-surplus-lines-insurance-wawd-2008.