Meadow Valley Contractors, Inc. v. Transcontinental Insurance Co.

2001 UT App 190, 27 P.3d 594, 423 Utah Adv. Rep. 29, 2001 Utah App. LEXIS 42, 2001 WL 664434
CourtCourt of Appeals of Utah
DecidedJune 14, 2001
Docket20000262-CA
StatusPublished
Cited by13 cases

This text of 2001 UT App 190 (Meadow Valley Contractors, Inc. v. Transcontinental Insurance Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Meadow Valley Contractors, Inc. v. Transcontinental Insurance Co., 2001 UT App 190, 27 P.3d 594, 423 Utah Adv. Rep. 29, 2001 Utah App. LEXIS 42, 2001 WL 664434 (Utah Ct. App. 2001).

Opinion

OPINION

BENCH, Judge:

1 Transcontinental Insurance Co. (Transcontinental) appeals from the trial court's grant of summary judgment in favor of Meadow Valley Contractors, Inc. (Meadow Valley). The trial court ruling requires Transcontinental to provide insurance coverage, investigate, defend, and indemnify Meadow Valley for flood damage claims. We affirm.

BACKGROUND 1

{2 Meadow Valley was the general contractor on a highway construction project extending from the I-15/1-215 merger to 2600 South in Woods Cross, Utah. Meadow Valley hired BT Gallegos Construction Company, Inc. (BT Gallegos) as a subcontractor to extend existing drainage lines and to tie those lines into an existing drainage system. As part of its project, BT Gallegos had to construct a concrete drainage box. To maintain a dry area for the construction, BT Gallegos diverted a stream of drainage water into a pre-existing drainage ditch by way of a diversion ditch. Neither the drainage ditch nor the diversion ditch were constructed by BT Gallegos. BT Gallegos expressed concerns about proceeding in the face of impending bad weather, but Meadow Valley instructed BT Gallegos to move forward with the work.

T3 After diverting the water, BT Gallegos erected forms for the walls of the drainage box and poured concrete into the forms. The last concrete was poured on the afternoon of May 23, 1997. To allow the concrete time to set, the forms had to remain in place for twenty-four hours. While in place, the forms prevented water from flowing through the drainage box.

T4 Heavy rain hit the construction site early the following morning, May 24, 1997. Upon arriving at the construction site that morning, a BT Gallegos foreman saw that water had overflowed the diversion and drainage ditches and was flowing into the parking lot of a nearby business. A Meadow Valley foreman was already at the construction site using a small trackhoe in an effort to stabilize the overflowing ditches. The BT Gallegos foreman tried to remove the forms on the drainage box, which would have allowed water to flow into the regular drainage system, but the extensive flooding prevented their removal.

15 After deciding that the small trackhoe was not big enough to stabilize the ditches, *596 the two foremen worked together to find a large backhoe. The BT Gallegos foreman suggested that they use the backhoe to tear out a metal pipe, which would allow water to flow into the regular drainage system. The Meadow Valley foreman had earlier decided not to remove the pipe because he did not want to ruin BT Gallegos's work. The BT Gallegos foreman persuaded the Meadow Valley foreman to remove the pipe, which eventually stopped the flooding. As a result of the flooding, however, several nearby businesses incurred damages. Those businesses submitted claims to Meadow Valley for reimbursement of expenses associated with the flooding.

T6 The subcontract agreement between BT Gallegos and Meadow Valley required BT Gallegos to purchase an insurance policy with an endorsement naming Meadow Valley as an additional insured. BT Gallegos purchased a commercial general liability insurance policy, with the required endorsement, from Transcontinental. The endorsement extends insurance coverage to Meadow Valley with respect to "liability arising out of [BT Gallegos's] work." BT Gallegos's "work" is defined by the insurance policy as: "a. Work or operations performed by you or on your behaif; and b. Materials, parts[,] or equipment furnished in connection with such work or operations." 2

11 7 Meadow Valley tendered defense of the flood damage claims to Transcontinental, claiming that the policy requires Transeonti-nental to provide insurance coverage, investigate, defend, and indemnify Meadow Valley. After Transcontinental refused the tenders of defense, Meadow Valley filed a lawsuit naming both Transcontinental and BT Gallegos as defendants. In its complaint, Meadow Valley asserted: 1) Transcontinental breached its duty under the policy to provide insurance coverage, investigate, defend, and indemnify Meadow Valley; and 2) BT Gallegos breached the subcontract agreement, which required BT Gallegos to indemnify Meadow Valley and to obtain an insurance policy that covered Meadow Valley as an additional insured.

T8 In response, Transcontinental and BT Gallegos filed an answer and counterclaim asserting that Meadow Valley's negligence caused the flooding and that neither the subcontract agreement nor the policy requires either Transcontinental or BT Gallegos to provide insurance coverage, investigate, defend, or indemnify Meadow Valley for its own negligence. Meadow Valley replied by asserting that BT Gallegos's defenses and claims against Meadow Valley were barred by BT Gallegos's own negligence and breach of contract.

19 On a motion by BT Gallegos and Transcontinental, the trial court, acting pursuant to Rule 21 of the Utah Rules of Civil Procedure, severed Meadow Valley's claims against Transcontinental from its claims against BT Gallegos. The trial court subsequently granted summary judgment in favor of Meadow Valley on its claims against Transcontinental and required Transcontinental to provide insurance coverage, investigate, defend, and indemnify Meadow Valley for the flood damage claims. This appeal followed.

ISSUE AND STANDARD OF REVIEW

10 The sole issue on appeal is whether the trial court properly granted summary judgment in favor of Meadow Valley on its claims against Transcontinental. Summary judgment is proper when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c). " Because a challenge to summary judgment presents for review only questions of law, we accord no deference to the trial court's conclusions but review them for correctness." " Crossroads Plaza Ass'n v. Pratt, 912 P.2d 961, 964 (Utah 1996) (citation omitted).

ANALYSIS

I. Interpretation of the Policy

T11 This case involves interpretation of policy language that extends insurance cover *597 age to Meadow Valley with respect to "liability arising out of [BT Gallegos's] work." Cit, ing case law from Texas, Transcontinental contends that the phrase "arising out of" unambiguously provides coverage only for damages caused by BT Gallegos. See Granite Constr. Co., Inc. v. Bituminous Ins. Co., 832 S.W.2d 427, 430 (Tex.App.1992). But see Admiral Ins. Co. v. Trident NGL, Inc., 988 S.W.2d 451, 454-55 (Tex.App.1999) (following majority rule that the phrase "arising out of" does not limit coverage to accidents caused by the named insured). Because the issue of who caused the flooding is disputed in this case, Transcontinental first argues that genuine issues of material fact preclude summary judgment.

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2001 UT App 190, 27 P.3d 594, 423 Utah Adv. Rep. 29, 2001 Utah App. LEXIS 42, 2001 WL 664434, Counsel Stack Legal Research, https://law.counselstack.com/opinion/meadow-valley-contractors-inc-v-transcontinental-insurance-co-utahctapp-2001.