KB Home Tucson, Inc. v. Charter Oak Fire Insurance

340 P.3d 405, 236 Ariz. 326, 700 Ariz. Adv. Rep. 19, 2014 Ariz. App. LEXIS 228, 2014 WL 6678662
CourtCourt of Appeals of Arizona
DecidedNovember 25, 2014
Docket1 CA-CV 12-0681
StatusPublished
Cited by68 cases

This text of 340 P.3d 405 (KB Home Tucson, Inc. v. Charter Oak Fire Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
KB Home Tucson, Inc. v. Charter Oak Fire Insurance, 340 P.3d 405, 236 Ariz. 326, 700 Ariz. Adv. Rep. 19, 2014 Ariz. App. LEXIS 228, 2014 WL 6678662 (Ark. Ct. App. 2014).

Opinion

OPINION

CATTANI, Judge.

¶ 1 KB Home Tucson, Inc. (“KB”) appeals from the entry of summary judgment in favor of The Charter Oak Fire Insurance Company and Travelers Property Casual Insurance Company (collectively, “Charter Oak”) on KB’s claims for declaratory relief, breach of contract, and breach of the covenant of good faith and fair dealing. KB also appeals from the entry of summary judgment in favor of Drachman Leed Insurance, Inc. (“Drachman Leed”) and American E & S Insurance Brokers of California, Inc. (“American E & S”) on KB’s claims for negligence, negligent misrepresentation, and fraud. All of the claims relate to whether KB was entitled to coverage as an “additional insured” under insurance policies issued to a subcontractor hired by KB. For reasons that follow, we reverse the entry of judgment in favor of Charter Oak, but affirm the entry of judgment in favor of Drachman Leed and American E & S.

*328 FACTS AND PROCEDURAL BACKGROUND

¶ 2 KB hired GRG Construction Co., Inc. (“GRG”) in May 1999 to perform work at a residential subdivision in Tucson. The contractual relationship continued for approximately four years. Charter Oak provided liability coverage for GRG, including “additional insured” coverage for any person or entity GRG was obligated to cover by virtue of a written contract or agreement. Draeh-man Leed and American E & S were GRG’s insurance agents/brokers who — at GRG’s direction — issued Certificates of Insurance requested by KB relating to GRG’s policy with Charter Oak and with another insurer, Ev-anston Insurance Company (“Evanston”).

¶ 3 Charter Oak issued two annual general liability policies to GRG during the relevant time periods. The policies included a blanket additional insured endorsement, which provided as follows:

WHO IS AN INSURED — (Section II) is amended to include any person or organization you are required to include as an additional insured on this policy by a written contract or written agreement in effect during this policy period and executed pri- or to the occurrence of any loss.

¶ 4 GRG’s written contracts with KB provided, in pertinent part:

7. All work and materials must be acceptable to and comply with all rules, regulations and requirements of [KB].
7. 1 [GRG] shall protect and indemnify [KB] from any claims, liability, or losses suffered by anyone wholly or partially through the negligence of [GRG] or any of his agents or employees. [KB] shall retain a reasonable portion of all payments due [GRG] until such claims are settled or suitable indemnity arrangements acceptable to [KB] are provided by [GRG].
8. [GRG] shall purchase and pay for all employer’s liability and workman’s compensation insurance required by the State in which this work is performed and shall also purchase and pay for public liability, property damage, products liability, and product performance insurance [in specified amounts]. Certificates of coverage or copies of such policies shall be furnished to [KB] prior to the commencement of work.

¶ 5 After the parties signed the contract, KB sent annual letters to GRG describing its insurance requirements. These letters detailed the minimum coverage mandated by KB and stated that KB “must be named as an Additional Insured on the General Liability Policy.” In response, GRG directed Drachman Leed to provide KB a copy of Charter Oak’s above-described blanket additional insured endorsements, together with certificates of liability insurance listing KB as an additional insured for COMMERCIAL GENERAL LIABILITY and AUTOMOBILE insurance.

¶ 6 Evanston also issued two annual policies insuring GRG for the relevant time periods. Drachman Leed provided KB with certificates of liability insurance for GRG’s Evanston policies, obtained through producer/broker American E & S. These informational certificates showed KB as an additional insured “As per written contract,” and named KB as “certificate holder,” stating, “Any and all jobs. Certificate Holder is an Additional Insured as per written contract, General Liability Coverage, as respect work performed by the named insured.”

¶ 7 The Evanston policies similarly contained blanket additional-insured endorsements, which referenced the “Name of Person or Organization: AS PER WRITTEN CONTRACT,” and provided:

WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of “your Work” for that insured by or for you.

¶ 8 In May 2001, the City of Tucson asserted a claim against KB alleging deficiencies in streets and sidewalks within KB’s residential subdivision project. KB sued GRG and other subcontractors for reimbursement for repair costs and attorney’s fees incurred in defending against the City’s claims. In February 2005, several homeowners in the project sued KB for damage to their homes *329 allegedly resulting from construction defects. KB tendered its defense to Charter Oak on all of the claims and to Evanston on the homeowners’ claims.

¶ 9 Charter Oak disclaimed coverage, stating that KB did not qualify as an additional insured under the blanket additional-insured endorsement because there was no written contract or agreement requiring that GRG add KB as an additional insured. Similarly, Evanston disclaimed coverage for the homeowners’ suit because the underwriting file and policies did not contain an additional-insured endorsement, and because any such endorsement would not have conveyed additional-insured coverage in the absence of a written contract requiring that KB Home be made an additional insured.

¶ 10 KB filed a complaint against Evanston for declaratory relief, breach of contract, and breach of the implied covenant of good faith and fair dealing. KB subsequently amended its complaint to include claims against Drach-man Leed and American E & S for negligence, negligent misrepresentation, and fraud. 2 KB also filed a separate action against Charter Oak for declaratory relief, breach of contract, and breach of the implied covenant of good faith and fair dealing. In January 2010, KB settled its claims against Evanston, and the superior court subsequently consolidated the Charter Oak, Draehman Leed, and American E & S actions.

¶ 11 Charter Oak, Draehman Leed, and American E & S filed separate motions for summary judgment on all of KB’s claims. Among other arguments, Charter Oak asserted that KB did not qualify as an additional insured under the policies issued to GRG. Draehman Leed argued primarily that (1) the firm did not owe a duty of care to KB because KB was not a client; and (2) the firm provided accurate insurance information to KB and, therefore, did not misrepresent coverage or commit fraud. American E & S argued that KB had not shown: (1) a misrepresentation of coverage; (2) that American E & S was aware of the falsity of any alleged misrepresentation; or (3) KB’s right to rely on the alleged misrepresentations. American E & S also joined Draehman Leed’s motion for summary judgment.

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Cite This Page — Counsel Stack

Bluebook (online)
340 P.3d 405, 236 Ariz. 326, 700 Ariz. Adv. Rep. 19, 2014 Ariz. App. LEXIS 228, 2014 WL 6678662, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kb-home-tucson-inc-v-charter-oak-fire-insurance-arizctapp-2014.