Thompson v. National Union Fire Insurance Co.

249 F. Supp. 3d 606, 2017 U.S. Dist. LEXIS 52673
CourtDistrict Court, D. Connecticut
DecidedApril 6, 2017
Docket3:14-CV-00259-WWE
StatusPublished

This text of 249 F. Supp. 3d 606 (Thompson v. National Union Fire Insurance Co.) is published on Counsel Stack Legal Research, covering District Court, D. Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thompson v. National Union Fire Insurance Co., 249 F. Supp. 3d 606, 2017 U.S. Dist. LEXIS 52673 (D. Conn. 2017).

Opinion

MEMORANDUM OF DECISION ON CROSS MOTIONS FOR SUMMARY JUDGMENT

■ WARREN W. EGINTON, SENIOR UNITED STATES DISTRICT JUDGE

This is an insurance policy coverage dispute stemming from the February 7, 2010, [608]*608Kleen Energy Systems power plant explosion in Middletown, Connecticut.

Plaintiffs are individuals and estates harmed by the blast. After obtaining judgment against subcontractor Bluewater Energy Systems, Inc., in the amount of $13.5 million, plaintiffs instituted this action to enforce Bluewater’s claim of insurance coverage against defendant.

Defendant contends that (1) the commercial umbrella insurance policy it issued to Bluewater excluded coverage for “any liability arising out of any project insured under a ‘wrap-up’ or any similar rating plan;” and (2) the power plant project was insured under such a “wrap-up” plan. Plaintiffs respond that the term “wrap-up,” not defined by the policy, is ambiguous and should be construed in favor of the insured.

Both sides have moved for summary judgment. For the following reasons, summary judgment will be granted in favor of plaintiffs.

DISCUSSION

A motion for summary judgment will be granted where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper.” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991).

The burden is on the moving party to demonstrate the absence of any material factual issue genuinely in dispute. American International Group, Inc. v. London American International Corp., 664 F.2d 348, 351 (2d Cir. 1981). In determining whether a genuine factual issue exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

If a nonmoving party has failed to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof, then summary judgment is appropriate. Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. If the nonmoving party submits evidence which is “merely colorable,” legally sufficient opposition to the motion for summary judgment is not met. Anderson, 477 U.S. at 249, 106 S.Ct. 2505.

The Wrap-Up Exclusion

The parties agree that Georgia law applies to interpretation of the policy.

Defendant argues that plaintiffs are not entitled to indemnity under the commercial umbrella insurance policy issued to Bluewater, as Endorsement 7 to its policy clearly and unambiguously excludes coverage for plaintiffs’ claims. Endorsement 7 provides, in relevant part:

“This insurance does not apply to ... any liability arising out of any project insured under a ‘wrap-up’ or similar rating plant.]”

Defendant asserts that the Kleen Energy Systems Project was insured under a contractor controlled insurance program, which it contends is a type of “wrap-up” program.1 Plaintiffs respond that there are multiple reasonable interpretations of Endorsement 7 that would allow for coverage in this case. Moreover, under the principle of contra proferentem, [609]*609where the exclusion is drafted by the insurer, the operative language must be read strictly against the insurer and in favor of providing coverage. See Lunceford v. Peachtree Cas. Ins. Co., 230 Ga.App. 4, 495 S.E.2d 88, 90 (1997) (holding that where a rational argument can be made that the contract language is ambiguous, courts apply “the longstanding rule that the interpretation which favors the insured prevails”).

The policy does not define “wrap-up” or “similar rating plan[.]” Nor does the policy define “insured under” or “project.” Even if defendant’s interpretation of the “wrap-up” language is the correct one, defendant had a duty to explain its definition to the insured so that the insured could understand the significant coverage limitation. See MAG Mut. Ins. Co. v. Gatewood, 186 Ga.App. 169, 367 S.E.2d 63, 67 (1988). “Where the phrasing of an insurance policy is so confusing that an average policyholder cannot make out the boundaries of coverage, there is a genuine ambiguity.” Georgia Baptist Children’s Homes & Family Ministries, Inc. v. Essex Ins. Co., 207 Ga.App. 346, 427 S.E.2d 798, 800 (1993).

Moreover, in applying these rules, we have consistently held that an insurance contract is to be strictly construed against the insurer and in favor of the insured. Our courts have further held that the insurer, having affirmatively expressed coverage in broad promissory terms, has a duty to define any limitations or exclusions clearly and explicitly. In construing an insurance contract the test is not what the insurer intended its words to mean, but rather what a reasonable person in the insured’s position would understand them to mean. Where such a provision is susceptible of two or more interpretations, the court will construe it most favorably to the insured.

Gatewood, 367 S.E.2d at 67.

Considering the insurance policy as a whole, defendant’s exclusion for “liability arising out of any project insured under a Svrap-up’ or similar rating plan” is ambiguous. See Georgia Farm Bureau Mut. Ins. Co. v. Meyers, 249 Ga.App. 322, 548 S.E.2d 67, 69 (2001) (“Ambiguity in an insurance contract is duplicity, indistinctiveness, uncertainty of meaning of expression, and words or phrases which cause uncertainty of meaning and may be fairly construed in more than one way.”). The ambiguity is not resolved by extrinsic evidence of intent, as defendant’s intent in drafting the language reflects neither the mutual intent of the parties nor the insured’s reasonable expectations of coverage. Although insurance experts and attorneys may debate the contours of a “wrap-up or similar rating plan,” the Court cannot find that a reasonable layperson in the insured’s position would. have understood and expected— based on the language of the contract— that liability was excluded under the instant circumstances. Moreover, insurance contracts must be construed most “strongly against the insurer and liberally in favor of the insured, particularly where the insurer seeks to deny coverage based on a policy exclusion.” Id.2

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Anderson v. Liberty Lobby, Inc.
477 U.S. 242 (Supreme Court, 1986)
Mag Mutual Insurance v. Gatewood
367 S.E.2d 63 (Court of Appeals of Georgia, 1988)
HERTZ EQUIPMENT RENTAL CORPORATION v. Evans
397 S.E.2d 692 (Supreme Court of Georgia, 1990)
Georgia Farm Bureau Mutual Insurance v. Meyers
548 S.E.2d 67 (Court of Appeals of Georgia, 2001)
Lunceford v. Peachtree Casualty Insurance
495 S.E.2d 88 (Court of Appeals of Georgia, 1997)
Padgett v. Georgia Farm Bureau Mutual Insurance
625 S.E.2d 76 (Court of Appeals of Georgia, 2005)
Travelers Insurance v. Blakey
342 S.E.2d 308 (Supreme Court of Georgia, 1986)
Lopez-Medina v. United States
502 U.S. 849 (Supreme Court, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
249 F. Supp. 3d 606, 2017 U.S. Dist. LEXIS 52673, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-national-union-fire-insurance-co-ctd-2017.