Lexington Insurance v. Charter Oak Fire Insurance

81 A.3d 903, 2013 Pa. Super. 286, 2013 WL 5935237, 2013 Pa. Super. LEXIS 3146
CourtSuperior Court of Pennsylvania
DecidedNovember 6, 2013
StatusPublished
Cited by15 cases

This text of 81 A.3d 903 (Lexington Insurance v. Charter Oak Fire Insurance) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lexington Insurance v. Charter Oak Fire Insurance, 81 A.3d 903, 2013 Pa. Super. 286, 2013 WL 5935237, 2013 Pa. Super. LEXIS 3146 (Pa. Ct. App. 2013).

Opinion

OPINION BY

BENDER, P.J.

Lexington Insurance Company (Lexington) appeals from the order entered September 7, 2012, granting summary judgment to North River Insurance Company (North River) in this insurance coverage dispute. We reverse in part, affirm in part, and remand.

In 2005, the City of Philadelphia (City) undertook a flood control project in the Dobson Run area of Fairmont Park. The City contracted with CMX, Inc., formerly known as Schoor DePalma, Inc., (collectively, CMX) for engineering services on the project. CMX was required to maintain insurance and indemnify the City. To meet this obligation, CMX maintained a commercial general liability insurance policy through The Hartford Fire Insurance Company (Hartford) and a professional services liability insurance policy through Lexington.

In 2006, JPC Group, Inc. (JPC) and Jay Dee Contractors, Inc. (Jay Dee) formed a joint venture, known as JPC-Jay Dee, and bid to perform certain work on the project. The City accepted their bid. Thereafter, JPC-Jay Dee subcontracted a portion of the work to JPC and other work to Jay Dee.

The JPC subcontract required JPC to maintain $10 million in “primary and noncontributing” general liability coverage. See North River Motion for Summary Judgment on the Issue of the Duty to [906]*906Defend, Exhibit H (JPC Subcontract), at 7. The JPC subcontract further required JPC to name CMX as additional insured on each of its insurance policies for the project. Id.

To meet its coverage obligation, JPC maintained policies through The Charter Oak Fire Insurance Company (Charter Oak) and North River. The Charter Oak policy provided $1 million general liability coverage per occurrence. The North River policy provided $20 million in liability coverage per occurrence. The North River policy functioned as excess insurance to the Charter Oak policy. See North River Motion for Summary Judgment on the Issue of the Duty to Defend, Exhibit A, “Schedule A — Schedule of Underlying Insurance” (Schedule A), at 1; “Commercial Umbrella Policy” (Commercial Umbrella Policy), at 3.

The North River policy afforded liability coverage to CMX as an additional insured, defined as follows:

[A]ny person, organization, trust, or estate that has obligated you [i.e., JPC] by an “Insured Contract” to provide the insurance that is afforded by this policy, but this policy applies:
a. only up to the policy limits required by the “Insured Contract,” subject to the limits of this policy; and,
b. only with respect to “Bodily Injury,” “Property Damage” or “Personal and Advertising Injury” that occurs subsequent to the time you enter into the “Insured Contract;” and,
c. only with respect to liability arising out of ‘Tour Work,” ‘Tour Product,” or property owned or used by you, or with respect to other liability arising out of your negligence.

See North River Motion for Summary Judgment on the Issue of the Duty to Defend, Exhibit A, “Commercial Umbrella Policy” (Commercial Umbrella Policy), at 6-7. Thus, despite the North River policy limit of $20 million, CMX was entitled to $9 million coverage.

The North River policy required the insurer to provide its insureds a defense against any suits seeking damages covered by its terms:

A. We will have the right and duty to defend the Insured against any “Suit” seeking damages, or damages and “Covered Pollution Cost or Expense,” covered by the terms and conditions of this policy, even if the allegations are groundless, false, or fraudulent, when:
1. the applicable limits of “Underlying Insurance” and “Other Insurance” have been exhausted by payment of judgments or settlements; or
2. damages, or damages and “Covered Pollution Cost or Expense,” are sought which are not covered by the terms and conditions of “Underlying Insurance” or “Other Insurance.”
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E. We will not defend any “suit” after we have exhausted by payment of settlements or judgments the applicable Limits of Insurance.

Commercial Umbrella Policy, at 4-5. Underlying insurance is defined as those policies and/or self-insurance identified in Schedule A. Id. at 13. The Charter Oak policy is underlying insurance. See Schedule A. Other insurance refers to (1) any insurance policy affording coverage for damages for which the North River policy also provides coverage and (2) self-insurance, but it does not include underlying insurance or insurance purchased expressly to apply in excess of the North River Policy. See Commercial Umbrella Policy, at 11-12. The Hartford policy maintained by CMX is other insurance as defined by the North River policy.

[907]*907The availability of other insurance and its impact on the coverage afforded by the North River policy is further addressed in the following manner:

If there is any collectible “Other Insurance” available to the Insured, (whether such Insurance is stated to be primary, contributing, excess or contingent), the insurance provided by this policy will apply in excess of, and shall not contribute with such “Other Insurance.” This Condition does not apply to any insurance policy purchased specifically to apply in excess of this policy.
However, with respect to any person or organization qualifying as an [additional insured], this policy will apply before any “Other Insurance” that is excess insurance available to the insured so long as:
1. insurance with limits equal to or exceeding the limits of “Underlying Insurance” is available to and collectible by the Insured; and
2. the “Insured Contract” giving rise to Insured status specifically requires that this insurance apply before such other excess insurance.

Id. at 28.

Finally, the North River policy includes a professional services exclusion. The policy does not provide coverage for:

“Bodily Injury” or “Property Damage” or “Personal and Advertising Injury” due to rendering or failure to render any professional service. This includes but is not limited to:
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2. Preparing, approving, or failing to prepare or approve maps, drawings, opinions, reports, surveys, change orders, designs or specifications; [and]
3.Engineering services, including related supervisory or inspection services[.]

Id. at 21.

In September 2007, bicyclist Albert Childs sustained injuries when a motorist struck him at the site of the Dobson Run project. Mr. Childs eventually died from his injuries. A complaint filed on behalf of his wife and estate alleged numerous acts and omissions of negligence and named several defendants, including the City, the contractor, the subcontractors, and CMX. See CMX Complaint, Exhibit A, “Civil Action Complaint” (Childs Complaint), at ISIS. Expert reports filed on behalf of Mrs. Childs support claims of professional negligence against CMX. These reports were submitted beginning January 4, 2010. See

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Bluebook (online)
81 A.3d 903, 2013 Pa. Super. 286, 2013 WL 5935237, 2013 Pa. Super. LEXIS 3146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lexington-insurance-v-charter-oak-fire-insurance-pasuperct-2013.