Maine Drilling & Blasting, Inc. v. Insurance Co. of North America

665 A.2d 671, 1995 Me. LEXIS 219
CourtSupreme Judicial Court of Maine
DecidedSeptember 29, 1995
StatusPublished
Cited by20 cases

This text of 665 A.2d 671 (Maine Drilling & Blasting, Inc. v. Insurance Co. of North America) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Maine Drilling & Blasting, Inc. v. Insurance Co. of North America, 665 A.2d 671, 1995 Me. LEXIS 219 (Me. 1995).

Opinions

RUDMAN, Justice.

Maine Drilling & Blasting, Inc. (Maine Drilling) instituted the present action in the United States District Court for the District of Maine claiming that the Insurance Company of North America (INA) wrongfully refused to defend and indemnify Maine Drilling in an action brought by Brox Industries, Inc. against Maine Drilling. Following the entry of a summary judgment in favor of INA, Maine Drilling appealed to the United States Court of Appeals for the First Circuit. The Court of Appeals, pursuant to 4 M.R.S.A. § 57 (1989) and M.R.Civ.P. 76B, has certified the following question to us for our instruction concerning a matter of state law:

Does the Explosives Limitation Endorsement attached to the standard Comprehensive General Liability policy, when considered in conjunction with the business risk exclusions, j(5) and j(6), and any relevant history and general understanding of the insurance industry, create such an ambiguity that it should be interpreted against the insurer, i.e., that it should be read as providing business risk coverage for MD & B’s claims against INA?

Because there is no dispute as to the material facts and our answer will be determinative of the ease, the statutory requirements of our acceptance of the question have been met and our exercise of jurisdiction is proper. Lovell v. One Bancorp, 614 A.2d 56, 57 (Me. 1992). We answer the presented question in the negative.1

The factual background of the case, as certified to this Court, is summarized as follows. Brox Industries, Inc., an excavation contractor, subcontracted to Maine Drilling the blasting work necessary for the excavation required to construct a building. Maine Drilling was the named insured in a comprehensive general liability (CGL) policy issued by INA, to which an “Explosives Limitation Endorsement” was attached. After Maine Drilling had performed its work, Brox discovered that the blasting had caused the foundation ledge to be fragmented at a level lower than desired. Brox incurred expenses for extra excavation and additional structural gravel to raise the grade of the foundation to its planned level. Maine Drilling notified INA of the potential claim, seeking indemnity and defense costs, but INA refused to defend Maine Drilling in the ensuing litigation between Maine Drilling and the excavation contractor. This litigation resulted in arbitration and a stipulated judgment against Maine Drilling for approximately $330,000.

Maine Drilling brought the present action against INA alleging that INA had wrongfully refused to defend and indemnify Maine Drilling as required by the terms of its insurance contract. Although Maine Drilling conceded that coverage for Brox’s claim ordinarily would be barred by certain exclusions contained in the policy, it contended that the attachment of the endorsement to the policy rendered the insurance policy ambiguous and that the ambiguous policy should be interpreted in favor of the insured. The District Court adopted the magistrate judge’s recommendation that a summary judgment be entered in favor of INA on the ground that the insurance policy unambiguously excluded coverage for Maine Drilling’s claims. Maine Drilling appealed.

The First Circuit concluded that, although we previously had held that the three specific exclusions in the CGL policy form were unambiguous in light of the distinction between [673]*673business risks and occurrence of harm risks,2 Peerless Ins. Co. v. Brennon, 564 A.2d 383, 386-87 (Me.1989), we never had addressed the construction of provisions in an attached endorsement that purport to modify such exclusions in a CGL policy. Accordingly, the Court of Appeals certified the issue to us.

INA contends that subsections (j)(5) and (j)(6) in the CGL policy,3 which exclude coverage for “business risks,” are not altered by any provision in the endorsement. According to INA, although the CGL policy form provides coverage for occurrence damages, the endorsement merely purports to limit the general coverage for occurrence damages by requiring Maine Drilling to pay a $25,000 deductible for property damage arising from its blasting activity and does not constitute a grant of coverage. As interpreted by INA, the endorsement simply increases the deductible payable for occurrence damages caused by blasting.

Maine Drilling concedes that subsections (j)(5) and (6) alone would exclude coverage but asserts the attachment of the endorsement creates an ambiguity as to coverage and the ambiguity is to be resolved against the insurer.

A contract of insurance, like any other contract, is to be construed in accordance with the intention of the parties, which is to be ascertained when there is ambiguity by examining the whole instrument. Baybutt Constr. Corp. v. Commercial Union Ins. Co., 455 A.2d 914, 919 (Me.1983) (overruled on other grounds). A liability insurance policy must be construed to resolve all ambiguities in favor of coverage. Massachusetts Bay Ins. Co. v. Ferraiolo Constr. Co., 584 A.2d 608, 609 (Me.1990).

Maine Drilling’s CGL policy begins by providing that INA

will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies. We will have the right and duty to defend any “suit” seeking those damages. We may at our discretion investigate any “occurrence” and settle any claim or “suit” that may result.

The attached endorsement reads as follows.

THIS ENDORSEMENT CHANGES THE POLICY.

PLEASE READ IT CAREFULLY.

This endorsement modifies insurance provided under the following:

Commercial General Liability Coverage Part
This insurance does not apply to “property damage” included within the “explosion hazard” or “underground property damage hazard” except as modified below:
EXPLOSIVES LIMITATION ENDORSEMENT
This insurance will apply to those sums that the insured becomes legally obligated to pay as damages for occurrences included within the “explosion hazard” or “underground property damage hazard” which[sic] arise out of “covered operations” subject to the following schedule of deductibles:
Amount and Basis of Property Damage Liability Deductible $25,000 per occurrence for intentional detonation $0 per occurrence for unintentional detonation
The following definitions are added.
[674]*674a. “Covered Materials” shall mean the following products:

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Maine Drilling & Blasting, Inc. v. Insurance Co. of North America
665 A.2d 671 (Supreme Judicial Court of Maine, 1995)

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Bluebook (online)
665 A.2d 671, 1995 Me. LEXIS 219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maine-drilling-blasting-inc-v-insurance-co-of-north-america-me-1995.