JP Energy Mktg., LLC v. Commerce & Indus. Ins. Co.

412 P.3d 121
CourtCourt of Civil Appeals of Oklahoma
DecidedMarch 20, 2017
DocketCase Number: 115285; Consol. w/115281
StatusPublished
Cited by4 cases

This text of 412 P.3d 121 (JP Energy Mktg., LLC v. Commerce & Indus. Ins. Co.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
JP Energy Mktg., LLC v. Commerce & Indus. Ins. Co., 412 P.3d 121 (Okla. Ct. App. 2017).

Opinion

Kenneth L. Buettner, Chief Judge:

¶ 1 Defendants/Appellants BITCO General Insurance Corporation (BITCO), Alterra America Insurance Company (Alterra), and Navigators Insurance Company (Navigators) appeal from summary judgment granted in favor of Plaintiff/Appellee JP Energy Marketing, LLC (JP). After de novo review, we hold that JP is an additional insured under the terms of the insurance policies issued by BITCO, Alterra, and Navigators and that the insurers have a duty to indemnify and defend JP in the underlying litigation. The professional services and construction operations exclusions to coverage do not apply. The indemnity agreements and agreements to name JP as an additional insured do not violate Oklahoma's anti-indemnity statute, 15 O.S. § 221. Therefore, JP is entitled to judgment as a matter of law. AFFIRMED.

¶ 2 JP, formerly known as Parnon Gathering, Inc., owned the Great Salt Plains Pipeline in Payne County, Oklahoma. JP entered into an Engineering, Procurement and Construction Agreement (JP-IPS Contract) with IPS Engineering, LLC (IPS) March 1, 2012. IPS was to serve as general contractor for the construction of the pipeline. IPS then entered into a subcontract with Global Pipeline Construction, LLC (Global) to perform construction services and had previously entered into a subcontract with Wilcrest Field Services, Inc. (Wilcrest) to perform certain engineering and related technical services. The JP-IPS Contract and the subcontracts required the subcontractors maintain certain insurance coverages and that they name JP or the project owner as an additional insured on their policies.

¶ 3 On August 4, 2012, a fire occurred where the pipeline was being constructed. Numerous property owners in multiple lawsuits sued JP, IPS, Global, and Wilcrest for damages resulting from the fire. JP requested defense and indemnity from Global and Wilcrest's insurance carriers. BITCO had issued insurance policies to Global. Alterra had *123issued an insurance policy to Global. Navigators had issued a policy to Wilcrest. BITCO, Alterra, and Navigators denied coverage.

¶ 4 JP filed a Petition for Declaratory Judgment March 26, 2015 seeking declaratory relief that it is an additional insured under the BITCO, Alterra, and Navigators policies for the claims alleged against it in the underlying litigation; that BITCO, Alterra, and Navigators are obligated to indemnify and defend JP in the underlying litigation; and that the trial court determine the priority of payments among the defendant insurers.1 JP filed a Motion for Summary Judgment to which BITCO, Alterra, and Navigators responded and also sought summary judgment in their favor. The trial court held a hearing on the motions July 7, 2016. The trial court found JP was an additional insured under the insurance policies issued by BITCO, Alterra, and Navigators, granted JP's motion for summary judgment, and denied BITCO, Alterra, and Navigators' requests for summary judgment in their favor.2 The Journal Entry on Motions for Summary Judgment was entered July 27, 2016. BITCO, Alterra, and Navigators appeal.3

¶ 5 We review the trial court's grant of summary judgment de novo . Carmichael v. Beller , 1996 OK 48, ¶ 2, 914 P.2d 1051. Summary judgment proceedings are governed by Rule 13, Rules for District Courts, 12 O.S.2011 ch. 2, app. Summary judgment is appropriate where the record establishes no substantial controversy of material fact and the prevailing party is entitled to judgment as a matter of law. Brown v. Alliance Real Estate Group , 1999 OK 7, ¶ 7, 976 P.2d 1043. Where the facts are not disputed, an appeal presents only a question of law. Jones v. Purcell Investments, LLC , 2010 OK CIV APP 15, ¶ 2, 231 P.3d 706. Here, the material facts are not in dispute. The questions of law presented concern contract interpretation and statutory construction, which we review de novo . See May v. Mid-Century Ins. Co. , 2006 OK 100, ¶ 22, 151 P.3d 132 (contract interpretation); Welch v. Crow , 2009 OK 20, ¶ 10, 206 P.3d 599 (statutory construction).

¶ 6 The parties' dispute centers around whether JP is an additional insured under the terms of four insurance policies. BITCO, Alterra, and Navigators contend JP is not an additional insured, because they do not have a direct contractual relationship with JP. JP argues the additional insured endorsements do not require privity of contract. Instead, the policy language at issue requires only that both have agreed in a written contract that JP will be added as an additional insured. JP argues that, when read together, the JP-IPS Contract and the subcontracts satisfy this requirement.

¶ 7 Because the policy language is the same for the BITCO and Alterra policies, we will analyze them together.

BITCO COMMERCIAL LINES POLICY AND BITCO UMBRELLA POLICY ISSUED TO GLOBAL

¶ 8 At the time of the fire, Global was insured by a $2,000,000.00 per occurrence Commercial Lines Policy issued by BITCO (BITCO general policy) and a $5,000,000.00 Commercial Umbrella Policy also issued by BITCO (BITCO umbrella policy). The BITCO general policy contains an Oil and Gas Extended Liability Coverage Endorsement that defines who is an insured:

SECTION II-WHO IS AN INSURED is amended to include:
Any person or organization for whom you are performing operations if you and such person or organization have agreed in a written contract or written agreement executed prior to any loss that such person or organization will be added as an additional insured on your policy but *124only with respect to "bodily injury," "property damage" or "personal and advertising injury" caused, at least in part, by your negligence and with respect to liability resulting from:
1. Your ongoing operations for the additional insured(s), or
2. Acts or omissions of the additional insured(s) in connection with their general supervision of such operations.

¶ 9 The BITCO umbrella policy insures any organization which qualifies as an insured in any underlying insurance designated on the declarations page. The schedule of underlying insurance on the declarations page includes the BITCO general policy.

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Bluebook (online)
412 P.3d 121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jp-energy-mktg-llc-v-commerce-indus-ins-co-oklacivapp-2017.