State Farm Fire & Cas. Co. v. OneBeacon Ins. Co.

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss.

I .

CIVIL ACTION

Docket No. CV-05-333

/

STATE FARM FIRE & CASUALTY CO., Plaintiff,

v. ORDER

ONEBEACON INSURANCE CO., D O N A L D L. GARBRECHT LAW LIBRARY

Defendant.

Before the court is a motion for summary judgment filed by defendant OneBeacon Insurance Co. and a cross motion for summary judgment filed by plaintiff State Farm Insurance Co.

The case presents the question of whether OneBeacon had a duty to defend Maurice Scribner in a case brought against Scribner by Pittsfield Bowling Center allegng that Scribner was liable for negligence and breach of contract in connection with a fire that occurred in December 2001. The facts have been stipulated.

The first issue is whether OneBeacon had a duty to defend Scribner because, although it is undisputed that Scribner was not in fact an employee of Pittsfield Bowling, Pittsfield Bowling's complaint did not exclude the possibility that Scribner was an employee and therefore might have qualified as an insured under Pittsfield Bowling's policy with a OneBeacon subsidiary. The complaint in Pittsfield Bowling's action against Scribner is annexed as Exhibit A to the Joint Statement of Material Facts.'

' The complaint alleges that Pittsfield Bowling "retained" Scribner to perform repairs to Pittsfield's bowling lanes, that Scribner welded braces to the pin-setting machine, that Scribner's welding activity negligently caused a fire, and that Scribner also breached a contractual obligation to perform the welding work in a workmanlike fashion. SMF Ex. A 9191 4-5,9,13,17.

The relevant insurance policy is annexed as Exhbit B to that Statement.

According to State Farm, it should prevail under the comparison test used in determining whether an insurer has a duty to defend. However, the court concludes that only actual insureds - as opposed to persons who might possibly be insured - are entitled to the benefit of the comparison test analysis. See Boise Cascade Corp. Inc. v. Reliance National Indemnitv Co., 99 F.Supp.2d 87, 99 (D. Me. 2000). The court therefore rejects State Farm's argument that the court should find a duty to defend in tkus case under an "expansive" reading of Mullen v. Daniels, 598 A.2d 451, 453 (Me. 1991). See State Farm Memorandum of Law at 4.

OneBeacon has raised additional arguments that it contends also eliminates any duty to defend on its part in tlus case. In view of the foregoing ruling, the court does not need to reach those arguments.

The entry shall be:

Defendant's motion for summary judgment dismissing the complaint is granted.

Plaintiff's cross-motion for summary judgment is denied. The clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a). Dated: September ZI ,2006.

-Thomas D. Warren

Justice, Superior Court

: COLIRTS i d County IX287 e 041 12-0287

THOMAS MARJERISON ESQ

PO BOX 4600

PORTLAND ME 04112

: COURTS ~d County IX287 e 041 12-0287

MICHAEL RAIR ESQ

PO BOX 2580

BANGOR ME 04402-2580