LM Insurance Corp. v. Szuhay

222 F. Supp. 3d 558, 2016 U.S. Dist. LEXIS 164298, 2016 WL 6962734
CourtDistrict Court, N.D. Ohio
DecidedNovember 29, 2016
DocketCASE NO. 5:15CV2647
StatusPublished
Cited by1 cases

This text of 222 F. Supp. 3d 558 (LM Insurance Corp. v. Szuhay) is published on Counsel Stack Legal Research, covering District Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
LM Insurance Corp. v. Szuhay, 222 F. Supp. 3d 558, 2016 U.S. Dist. LEXIS 164298, 2016 WL 6962734 (N.D. Ohio 2016).

Opinion

MEMORANDUM OPINION AND ORDER [Resolving ECF No. 11]

Benita Y. Pearson, United States District Judge

Plaintiff, LM Insurance Corporation, seeks declaratory judgment that it has no obligation under its Commercial General Liability insurance policy (the “CGL Policy”) to satisfy a default judgment secured by Defendant against insured non-party, Empire Die Casting Co., Inc. (“Empire”).1 ECF No. 1. Defendant, George Szuhay, counterclaims for: (1) declaratory judgment that the leasing agreement between Empire and Defendant’s employer was an “insured contract” covered under the CGL Policy; (2) declaratory judgment that Defendant’s employer and/or Defendant are “additional insured” covered under the CGL Policy; and (3) damages caused by Plaintiffs bad faith refusal to pay benefits to Defendant under the CGL Policy. ECF No. 8.

Pending before the Court is Plaintiffs Motion for Judgment on the Complaint (ECF No. 1) and Defendant’s Counterclaims (ECF No. 8). ECF No. 11.

For the following reasons, Plaintiffs motion for judgment on the pleadings is granted in its entirety. Accordingly, the Court declares that Plaintiff LM Insurance has no obligation to satisfy the judgment obtained by Defendant against non-party Empire Die Casting Co., Inc. for employer intentional tort and premises liability.

I. Background

George Szuhay was employed by Barnett & Brown Personnel Services, Inc., d/b/a Integrity Staffing Services (“ISS”)— an employment agency that assigned Defendant to work at non-party Empire’s facility as a machine operator pursuant to a leasing agreement between ISS and Empire (the “Leasing Agreement”). ECF No. 8 at PageID #: 145-46; ECF No. 23-1. Empire was a pressure die casting manufacturer. ECF No. 23-1 at PageID #: 353. On or about November 3, 2009, while operating one of Empire’s aluminum cast machines, Defendant sustained severe burns and bodily injury when 1,300° molten aluminum escaped out of the machine onto Defendant. ECF No. 1-4 at ¶ 15.

[561]*561A. The Leasing Agreement

Beginning March 15, 2000 through May 1, 2012, the Leasing Agreement governed the terms under which ISS employed a “Leased Employee” to perform services for Empire. ECF No. 23-1 at PageID #: 353, 363. Under the terms of the Leasing Agreement, ISS was responsible for recruitment, hiring, and compensation. ECF 23-1 at PageID #: 355. Empire was responsible for “the direction and control of the Leased Employee[ ] at the work site, including ... the manner in which [a Leased Employee performs] the duties and responsibilities of them respective jobs.” Id.

The Leasing Agreement included a reciprocal indemnification clause that provided as follows:

8. Indemnification
(a) [Empire] agrees that it will indemnify and hold ISS harmless from any and all “Damages” (as hereinafter defined) arising out of or related to (i) claims arising out of a breach of any obligation of [Empire] pursuant to this Agreement, ... (iv) claims of Leased Employees arising out of conduct of [Empire], such as (but not limited to) wrongful or unjust termination, breach of contract (express or implied), promissory estoppel, negligent or intentional (tortious) conduct, negligent or intentional infliction of emotional distresst.... Empire] releases ISS from any claims or liability to it related to any of the foregoing and agrees not to institute any legal proceedings against ISS with respect thereto.
(b) ISS agrees that it will indemnify and hold [Empire] harmless from any and all Damages ... arising out of or related to (i) claims arising out of a breach of any obligation of ISS pursuant to this Agreement, (ii) claims of Leased Employees arising out of the conduct of ISS, such as the conduct described in paragraph 8(a)(iv) above, and (iii) claims from any third party arising out of or related to the conduct of a Leased Employee while the Leased Employee was acting under the direct supervision of ISS[.... ISS] releases [Empire] from any claims or liability to it related to any of the foregoing and agrees not to institute any legal proceedings against [Empire] with respect thereto.

ECF No. 23-1 at PageID #: 357-58.

The Leasing Agreement’s indemnification clause defined “Damages” as “any claims, actions, demands, losses, costs, expenses, liabilities (joint or several), penalties and damages, including, without limitation, reasonable counsel fees and costs actually incurred in investigating or attempting to avoid the same, or in defending or opposing the imposition thereof.” Id.

Under the terms of the Leasing Agreement, Empire was also required to “maintain liability insurance coverage covering the acts of Leased Employees to the same extent as it maintains [liability insurance] coverage with respect to the acts of the Company’s direct employees.” ECF No. 23-1 at PageID #: 356. The Leasing Agreement provided that Empire “shall name ISS as an additional insured under such insurance.” Id.

B. Empire’s Commercial General Liability Insurance Coverage with LM Insurance

LM Insurance Corporation (“LM Insurance”) issued the CGL Policy, number TB5-Z81-034207-029, to named insured Empire for the policy period April 1, 2009-April 1, 2010. ECF No. 1 at ¶ 10; ECF No. 1-2. The CGL Policy, obligates LM Insurance to “pay those sums that the insured’ becomes legally obligated to pay as damages because of ‘bodily injury’ or [562]*562‘property damage’ to which this insurance applies.” EOF No. 1-2 at PageID #: 59. Among its exclusions for bodily injury and property damage liability, the CGL Policy provides no coverage for “ ‘[b]odily injury’ or ‘property damage’ expected or intended from the standpoint of the insured.” Id. at PageID #: 60. The CGL Policy also provides no coverage for “ ‘[b]odily injury* to ... [a]n ‘employee’ of the insured arising out of and in the course of ... (a) [e]m-ployment by the insured[,] or ... (b) [pier-forming duties related to the conduct of the insured’s business[.]” M Under the terms of the CGL Policy an “employee” includes a “leased worker.” Id. at PagelD #: 71 A “leased worker” is defined as “a person leased to [Empire] by a labor leasing firm under an agreement between [Empire] and the labor leasing firm, to perform duties related to- [Empire’s] business.” Id. at PagelD #: 72.

The CGL Policy provides two pertinent exceptions to this exclusion. First, the CGL Policy provides coverage for bodily injury and property damage liability that was “assumed in a contract or agreement that is an in ‘insured contract’.” ECF No. 1-2 at PageID #: 68. The CGL Policy, as amended, defines “insured contract” as follows:

9. “Insured contract” means ... [t]hat part of any other contract or agreement pertaining to [Empire’s] business ... under which [Empire] assume[s] the tort liability of another party to pay for “bodily injury” or “property damage” to a third person or organization, provided the “bodily injury” or “property damage” is caused, in whole or in part, by [Empire] or by those acting on [Empire’s] behalf.

M

Second, the CGL Policy provides coverage for the bodily injury and property damage liability of an “additional insured.” The CGL Policy, as amended, refers to “additional insured” as including:

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222 F. Supp. 3d 558, 2016 U.S. Dist. LEXIS 164298, 2016 WL 6962734, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lm-insurance-corp-v-szuhay-ohnd-2016.