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International Ship Repair & Marine Services, Inc v. the Northern Assurance Company of America

November 23, 2011

INTERNATIONAL SHIP REPAIR & MARINE SERVICES, INC., PLAINTIFF,
v.
THE NORTHERN ASSURANCE COMPANY OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Richard A. Lazzara United States District Judge

ORDER

Before the Court is Defendant's Motion for Summary Judgment with attachments (Dkt. 38), Plaintiff's Response in Opposition (Dkt. 49), Defendant's Reply (Dkt. 57), Plaintiff's Motion for Partial Summary Judgment and Statement of Undisputed Facts with attachments (Dkts. 34 & 35), and Defendant's Response in Opposition with exhibits. (Dkts. 50 & 51). After careful consideration of the applicable law and the entire record, the Court concludes that both motions should be denied.

BACKGROUND

This is a dispute involving coverage under a commercial general liability insurance policy issued to Advanced Technology, Inc. (ATI) by Defendant The Northern Assurance Company of America (Northern). ATI is in the business of providing workers to companies like Plaintiff International Ship Repair & Marine Services, Inc. (ISR) that are in the business of ship repair and marine services. Pursuant to a Subcontractor Agreement dated March 28, 2005, between ATI and ISR, ATI agreed to supply personnel to ISR on an "as-needed, per project basis" and to "procure and maintain Commercial General Liability insurance in the amount of $1,000,000/$2,000,000, naming [ISR] as additional insured."*fn1 One of the issues is whether the policy issued by Northern made ISR an additional insured as required by the agreement between ATI and ISR. In this case, ISR seeks a determination of coverage in the death of a worker supplied by ATI, Wilfredo Morales-Montalvo, who died of heat stroke while welding in the bowels of a floating dry dock owned by ISR on August 9, 2006.*fn2 Morales-Montalvo had reported to work at ISR's shipyard facilities on August 8, 2006, just one day earlier, and was assigned to making repairs on the floating dry dock.*fn3

The estate of Morales-Montalvo filed a wrongful death action in the Thirteenth Judicial Circuit of Hillsborough County, Florida, for $12,000,000.*fn4 In April 2008, the complaint was amended to add ISR based on a negligence theory. ISR notified Northern of the action and requested a defense no later than July 23, 2008.*fn5 Four months later, on November 23, 2008, Northern agreed to provide ISR with a defense under a full reservation of rights.*fn6 The reservation of rights was based on the absence of any agreement on the part of ATI to indemnify ISR for ISR's negligence as opposed to vicarious liability.*fn7 As a secondary reason supporting the reservation of rights, Northern noted that under the terms of the policy, ISR was not listed as an additional insured. Even if ISR did fall under the blanket additional insured endorsement, according to Northern, the endorsement providing for indemnity provisions does not void the exclusion for personal injuries to "employees."*fn8 On June 24, 2010, Northern, however, ceased to provide the defense of ISR, formally denying ISR's claim, based on the exclusion for personal injury to employees.*fn9 Three months later this action for declaratory relief and damages was filed.

THE DOCUMENTS

Certificate of Insurance

ISR holds a Certificate of Liability Insurance showing ATI as the insured with coverage for commercial general liability, policy number 7321364,*fn10 in accordance with the Subcontractor Agreement.*fn11 The Certificate of Liability contains the following language:

This Certificate is issued as a matter of information only and confers no rights upon the certificate holder. This certificate does not amend, extend or alter the coverage afforded by the policies below. .. . .

The policies of insurance listed below [including policy number 7321364]*fn12 have been issued to the insured named above [ATI] for the policy period indicated [7/19/2006-7/19/2007], notwithstanding any requirement, term or condition of any contract or other document with respect to which this certificate may be issued or may pertain. The insurance afforded by the policies described herein is subject to all the terms, exclusions and conditions of such policies. Aggregate limits shown may have been reduced by paid claims.

The Policy and Endorsements

The Comprehensive Marine Liability Policy with Ship Repairer's Liability Endorsement was issued by Northern to ATI, covering July 19, 2006 through July 19, 2007.*fn13 A "blanket additional insured" endorsement is attached and provides as follows:

This endorsement modifies coverage provided under the Comprehensive Marine Liability Coverage Form. . . . .

1. Section IV. of the policy (Who is an Insured) is amended to include any person or organization that you are obligated by an "insured contract" to include as Additional Insureds, but only with respect to liability arising out of "your work."

2. It is further agreed that we waive any right of recovery we may have against any such Additional Insured because of payments we make for "bodily injury" or "property damage" arising out of "your work" for that Additional Insured, but only to the extent of your obligation under the "insured contract."

Pursuant to Section IX, 9.f. of the policy, titled "Definitions," an "insured contract" means in pertinent part the following:

That part of any other contract or agreement pertaining to your business . . . under which you assume the tort liability of another party to pay for "bodily injury" or ...


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