Fireman's Fund v. Structural Systems Technology
| Decision Date | 28 March 2006 |
| Docket Number | No. 8:04CV194.,No. 8:03CV341.,8:03CV341.,8:04CV194. |
| Citation | 426 F.Supp.2d 1009 |
| Court | U.S. District Court — District of Nebraska |
| Parties | FIREMAN'S FUND, Plaintiff, v. STRUCTURAL SYSTEMS TECHNOLOGY, INC., Defendant. Structural Systems Technology, Inc., Plaintiff, v. NATIONAL FIRE & MARINE INSURANCE Co., et al. Defendants. |
Robert S. Keith, Engles, Ketcham Law Firm, Omaha, NE, for Plaintiff, Fireman's Fund.
Angus R. Everton, Morgan, Shelsby Law Firm, Hunt Valley, MD, Ronald E. Temple, Fitzgerald, Vetter Law Firm, Norfolk, NE, for Defendant, Structural Systems Technology, Inc.
George B. Hall, Jr., Phelps, Dunbar Law Firm, New Orleans, LA, Nancy F. Peters, Susan H. Carstens, National Indemnity Company, Mary K. O'Connor, Cline, Williams Law Firm, Michele E. Young, William M. Lamson, Jr., William R. Johnson, Lamson, Dugan Law Firm, Michael J. Mooney, Thomas E. Morrow, Jr., Gross, Welch Law Firm, Patrick W. Kennison, Jr., Richard P. Jeffries, Kutak Rock LLP, David A. Blagg, John R. Douglas, Cassem, Tierney Law Firm, Omaha, NE, for Defendants, National Fire & Marine Insurance Co., et al.
This matter is before the court on cross-motions for summary judgment on issues of coverage filed by Structural Systems Technology, Inc. (hereinafter, "SST"), Filing No. 58 in 8:03CV341, Filing No. 97 in 8:04CV194; Zurich American Insurance Co. ("Zurich"), Filing No. 92 in 8:04CV194; Duhamel Broadcasting Enterprises ("Duhamel"), Filing Nos. 58 & 100, supplemented by Filing Nos. 113 & 114 in 8:04CV194 and Filing No. 61 in 8:03CV341; and Underwriter's at Lloyd's of London ("Lloyd's, London"), Filing No. 101 in 8:04CV194. Great American E & S Insurance Co. ("Great American"), Fireman's Fund and National Fire and Marine ("National Fire") have also filed statements of position on the coverage issue, Filing No. 95 in 8:040V194, Filing No. 106 in 8:04CV194, and Filing No. 108 in 8:04CV194. In essence, SST and Duhamel seek a declaration that the respective insurers should cover damage to Duhamel's property as the result of the collapse of Duhamel's 1,965-foot-tall guyed television transmission tower in Hemingford, Nebraska, on September 24, 2002. The insurers seek a declaration that there is no coverage under each of their respective policies and some argue that another insurer's policy provides coverage or a duty to defend.1 The liability of SST for the collapse of the tower was established in the related case of Duhamel Broadcasting Enters. v. Structural Sys. Tech., Inc., No. 8:03CV47, Memorandum and Opinion (Mem.Op.) (D. Neb. June 8, 2005) ("the underlying action"); Filing No. 76 in 8:04CV194; Filing No. 45 in 8:03CV341.
These consolidated actions seek a declaratory judgment with respect to the rights and responsibilities of the respective parties for coverage for property damage to the tower under certain contracts of insurance. The facts are set forth in this court's Memorandum Opinion in the underlying action and need not be repeated here. See id., Filing No. 67, Memo. Op. at 1-6. Briefly, the court found that SST had agreed, pursuant to contract, to design, furnish and install redundant horizontal members and stronger diagonal members on the Hemingford tower. Id., Memo. Op. at 2-3; Trial Exhibit ("Trial Ex.") 1. SST contracted, in turn, with Mid-Central Tower Company ("Mid-Central") to provide the labor, tools, and equipment for the installation. Id., Memo Op. at 4; Trial Ex. 3. The contract between SST and Duhamel provided that SST's quoted price included workers' compensation insurance in the statutory amount, automobile liability insurance in the amount of $1 million, commercial general liability insurance ("CGL") in the amount of $1 million, umbrella (excess) liability insurance in the amount of $10 million, and builders all risk insurance in the amount of $2.5 million. Id., Trial Ex. 1 at 2. The contract between SST and Mid-Central required that Mid-Central provide insurance that listed SST as an additional insured for CGL coverage in the amount of $1 million. Id., Tr. Ex. 3.
At the close of evidence in the trial of the underlying action, this court sustained Duhamel's motion for judgment as a matter of law on the issue of liability. Id., Memo. Op. at 1. The court found that Mid-Central's negligence was the cause of the tower's collapse and that Mid-Central's negligence could be imputed to SST under agency principles. Id. at 8-9. The court further found that SST was independently liable for failing to properly supervise Mid-Central. Id. at 14-15. The court also found that SST had breached its contract with Duhamel in failing to supervise Mid-Central, but noted that the damages for the breach of contract were co-extensive with the damages for negligence. Id. at 11. The case was submitted to the jury for determination of damages only. Id. at 1. In answer to special interrogatories, the jury determined the value of Duhamel's losses and the court entered judgment in favor of Duhamel and against SST in the amount of $3,239,243.01.2 Id., Filing No. 63, Jury Verdict; Filing No. 68, Order and Judgment. The court held the parties' motions to amend the judgment in abeyance pending resolution of the coverage issues herein. Id., Filing No. 76.
Five policies of insurance arguably provide coverage to SST for its liability to Duhamel for the tower collapse.3 Fireman's Fund insured SST for "inland marine coverages" with a limit of $2.5 million for any one loss disaster or casualty from October 10, 2001 to October 31, 2002, policy no. MXI-97301479. Filing No. 107, Index of Evidence, Ex. 1 ("Fireman's Fund Policy"). Great American insured SST tinder a commercial general liability policy, policy no. GLO 575 17 05, with limits of $1 million per occurrence for the coverage period from October 31, 2001 to October 31, 2002. Filing No. 33, Great American Answer and Cross-claim, Ex. Al ("Great American Policy"). Lloyd's, London insured SST under a "Professional Liability (claims-made form)" certificate, effective from January 1, 2002 to January 1, 2003, with a retroactive date of January 1, 2001, certificate no. A2002MP00002380. Filing No. 104, Index of Evidence, Ex. 1, Complaint, Ex. 4 (the "Lloyd's, London Certificate"). Zurich insured SST under an Architects and Engineers Professional Liability Policy, policy no. EAC9308433 00, to SST for the period January 1, 2003 to January 1, 2004 with a retroactive date of January 1, 2001. Id., Ex. 5 (the "Zurich Policy"). In addition, SST is named as an additional insured under a commercial general liability policy issued by National Fire to Mid-Central Tower Co., for the period from January 13, 2002 to January 13, 2003, No. 72LP 14 03 27. Id., Ex. 3 (partial copy); Filing No. 44, Index of Evidence, Ex. 1, Affidavit of Michelle Young, Ex. F (hereinafter, "National Fire Policy"). Claims were filed under each of these policies and were denied by the insurers for various reasons. See Filing No. 1 in 8:04CV194, Complaint; Filing No. 26 in 8:03CV341, Amended Complaint; Filing No. 44, Great American Index of Evidence, Ex. 1, Affidavit of Michelle Young, Ex. D, Correspondence.
The Fireman's Fund Policy includes two sets of declarations. In its "General Declarations," the policy provides that "the insurance provided by this policy consists of the following coverage form(s) . . . INLAND MARINE COVERAGES." Filing No. 107, Ex. 1, Fireman's Fund Policy at 2, (GD-1). Under "Installation Floater Declarations — Commercial Inland Marine," the policy states "[i]nsurance is provided only for those coverages for which an `x' is entered in the applicable box and limits of liability or amounts of insurance are stated in the place provided in the declarations." Id. at 3 (form 345174DEC 08-88). An "x" is marked next to the box indicating a monthly reporting period and next to a box indicating as the premium base. Id. The declarations page further provides that "the limitation of liability at any one installation site is $2.5 million." Id. Nothing is entered in the space on the page for "Location and Description of Property Covered." Id.
"Commercial Inland Marine Coverage Form" provides that the "Property and Interests Covered" are: "materials, supplies, machinery, equipment and fixtures, property of the Insured or similar property of others for which the Insured has assumed liability and which the Insured has contracted to install or erect, provided the values of such property of others are included in reports required elsewhere, if this policy is written on a reporting form basis." Id. at 4, ¶ 1 (form 345174 8-88 at 1 of 4). Under "duration of coverage," the policy provides:
This policy attaches from the time the property is at the risk of the Insured and, except as excluded elsewhere in the policy, covers continuously thereafter during transit, while awaiting and during installation, and terminates when:
a. the interest of the Insured in the property ceases, or
b. the installation or erection of the property is completed and accepted as satisfactory, or
c. this policy expires or is cancelled: whichever of the foregoing conditions first occurs.
Amendatory Endorsement entitled "Concurrent Cause," the "Perils insured" under the policy were broadened from "all risks of direct physical loss of or damage to the property covered hereunder from any external cause . . . except as provided elsewhere in this policy" (emphasis added) to "risks of direct physical loss or damage to the insured property unless the loss or damage is excluded under the Perils Excluded section of this policy." Id., at 5, ¶ 6; 10, ¶ 1 (form 141731 6-84 at 1) (form 3451748-88 at 2 of 4). Among the listed "Perils Not Insured" is "the cost of making good faulty or defective...
To continue reading
Request your trial
-
Endurance Am. Specialty Ins. Co. v. Century Sur. Co.
...exception rended the second policy excess over the first policy (emphasis added)); see also, e.g., Fireman's Fund v. Structural Sys. Tech., Inc., 426 F.Supp.2d 1009, 1020, 1029 (D.Neb.2006) (“The [National Fire] policy also includes, as a condition, an ‘other insurance’ clause that was orig......
-
Vision One, LLC v. Phila. Indem. Ins. Co.
...compensate for loss due to physical damage or destruction caused to the construction project itself. Fireman's Fund v. Structural Sys. Tech., Inc., 426 F.Supp.2d 1009, 1025 (D.Neb.2006) (citation omitted). 2. This introductory paragraph was included as an endorsement to Vision's policy. CP ......
-
Liberty Ins. Underwriters v. Weitz Co.
...premises of the owner, while stored, or while in the custody of others generally." Id. See generally Fireman's Fund v. Structural Sys. Tech., Inc., 426 F.Supp.2d 1009, 1025 (D.Neb.2006) (wide variety of property damage coverages); Waldan Gen. Contractors, Inc. v. Mich. Mut. Ins. Co., 227 Mi......
-
Factory Mut. Ins. Co. v. Peri Formworks Sys., Inc.
...loss due to physical damage or destruction caused to the construction project itself.' " (quoting Fireman's Fund v. Structural Sys. Tech., Inc. , 426 F.Supp.2d 1009, 1025 (D. Neb. 2006) )). A builder's risk policy "protects those who have an insurable interest in a building that is under re......
-
Chapter 6
...L.L.C., 2011 WL 2456376 (D. Haw. June 20, 2011). Tenth Circuit: Fireman’s Fund Insurance Co. v. Structural System Technology, Inc., 426 F. Supp.2d 1009 (D. Neb. 2006). Eleventh Circuit: Office Depot, Inc. v. National Union Fire Insurance Company of Pittsburgh, Pa., 734 F. Supp.2d 1304 (S.D.......
-
CHAPTER 13 Title Insurance
...Co. v. Keating Building Corp., 513 F. Supp.2d 55 (D.N.J. 2007). Eighth Circuit: Fireman’s Fund v. Structural Systems Technology, Inc., 426 F. Supp.2d 1009 (D. Neb. 2006). Ninth Circuit: Oceanside Pier View, L.P. v. Travelers Property Casualty Company of America, 2008 WL 7822214 (S.D. Cal. M......
-
CHAPTER 3 The Insurance Contract
...Group, Inc. v. Royal Indemnity Co., 517 F. Supp.2d 1089 (D. Minn. 2007); Fireman’s Fund v. Structural Systems Technology, Inc., 426 F. Supp.2d 1009 (D. Neb. 2006). Ninth Circuit: Century Surety Co. v. Casino West, Inc., 677 F.3d 903 (9th Cir. 2012); St. Paul Fire & Marine Insurance Co. v. H......
-
CHAPTER 4 First-Party Insurance
...v. Assurance Company of America, 2009 WL 1392077 (D. Colo. May 14, 2009); Fireman’s Fund v. Structural Systems Technology, Inc., 426 F. Supp.2d 1009 (D. Neb. 2006). Eleventh Circuit: Ajax Building Corp. v. Hartford Fire Insurance Co., 358 F.3d 795 (11th Cir. 2004); Royal Bahamian Ass’n v. Q......