First Mercury Ins. Co. v. Shawmut Woodworking & Supply, Inc.

• Decision Date: 23 September 2014
• Docket Number: Civil No. 3:12cv1096 JBA.
• Citation: 48 F.Supp.3d 158
• Court: U.S. District Court — District of Connecticut
• Parties: FIRST MERCURY INSURANCE COMPANY, Plaintiff, v. SHAWMUT WOODWORKING & SUPPLY, INC., et al., Defendants.

48 F.Supp.3d 158

FIRST MERCURY INSURANCE COMPANY, Plaintiff

v.SHAWMUT WOODWORKING & SUPPLY, INC., et al., Defendants.

Civil No. 3:12cv1096 JBA.

United States District Court, D. Connecticut.

Signed Sept. 23, 2014.

Jonathan A. Kocienda, R. Cornelius Danaher, Jr., Danaher, Lagnese & Sacco, P.C., Hartford, CT, for Plaintiff.

Timothy R. Scannell, Boyle, Shaughnessy & Campo, P.C., Alfred A. Divincentis, Jr., William S. Wilson, II, Halloran & Sage, Kenneth G. Williams, Paula S. Bennett, Philip J. O'Connor, Russell Nicholas Jarem, Gordon, Muir & Foley, Hartford, CT, Eric P. Smith, Timothy P. Pothin, Stratton Faxon, New Haven, CT, for Defendant.

RULING ON MOTIONS FOR SUMMARY JUDGMENT

JANET BOND ARTERTON, District Judge.

Plaintiff First Mercury Insurance Company (“First Mercury”) moves [Doc. # 89] for summary judgment seeking a declaratory judgment that Defendants Shawmut Woodworking & Supply, Inc. (“Shawmut”) and Shepard Steel Company (“Shepard”), who are named defendants in state court lawsuits brought by employees of Shepard's subcontractor, Fast Trek Steel, are not “additional insureds” under a general liability policy that First Mercury issued to Fast Trek and thus that there is no duty to defend or indemnify them.

Intervenor–Counterclaim Plaintiff Liberty Mutual Insurance Company (“Liberty Mutual”), who issued a liability policy to Shepard and is providing a defense to Shepard and Shawmut under a reservation of rights opposes First Mercury's motion, and along with Shawmut and Shepard, has cross moved [Doc. # 90, 96–1, 87] for summary judgment seeking a declaratory judgment that First Mercury owes a duty to defend Shawmut and Shepard in the underlying actions. For the reasons that follow, Plaintiff's motion is denied and the motions of Liberty Mutual, Shawmut and Shepard are granted.

I. Facts

A. Background

On September 13, 2010, a steel web structure collapsed during installation at Yale University's Science Area Chilled Water Plant Shell, causing the death of Robert F. Adrian and injuries to Robert Enfield, Robert Elliot, and Sheneane Ragin, all of whom were iron workers employed by Fast Trek. Shawmut was the general contractor and designer for the project and subcontracted Shepard for steel fabrication and construction. Shepard in turn subcontracted erection work to Fast Trek. As required by its contract with Shepard, Fast Trek obtained a general liability policy from First Mercury with a $1 million per occurrence coverage limitation and an excess liability policy from National Union Fire Insurance Company of Pittsburgh, PA (“National Union”) with up to $10 million of coverage.¹

The injured parties and Mr. Adrian's estate administrators have filed negligence suits against Shawmut and Shepard, both of whom have demanded that First Mercury defend and indemnify them as “additional insureds” under its policy issued to Fast Trek. Liberty Mutual is currently providing a defense to Shepard and Shawmut under a reservation of rights and has made demand upon First Mercury to assume that defense, also maintaining that First Mercury has a duty to defend Shawmut and Shepard as additional insureds under the policy issued by First Mercury.

II. Discussion ²

A. Insurance Coverage Standards

At oral argument, all parties agreed that Connecticut law governs, under which “it is well established that a liability insurer has a duty to defend its insured if the pleadings” against the insured “allege a covered occurrence.” Ryan v. Nat'l Union Fire Ins. Co., 692 F.3d 162, 167 (2d Cir.2012) (quoting Hartford Cas. Ins. Co. v. Litchfield Mut. Fire Ins. Co., 274 Conn. 457, 876 A.2d 1139 (2005) (alterations omitted)). “In determining whether a claim falls within the scope of an insurance policy, the Supreme Court of Connecticut ‘construes broad policy language in favor of imposing a duty to defend on the insurer,’ and ‘requires a defense if an allegation of the complaint falls even possibly within the coverage.’ ” Id. (quoting Hartford Cas. Ins. Co., 274 Conn. at 466, 876 A.2d 1139 (2005) (alterations omitted)).

“[A]n insurer's duty to defend, being much broader in scope and application than its duty to indemnify, is determined by reference to the allegations contained in the [underlying] complaint.” Coregis Ins. Co. v. American Health Found., 241 F.3d 123, 127 (2d Cir.2001) (internal citations and quotation marks omitted) (quoting Springdale Donuts, Inc. v. Aetna Cas. and Sur. Co., 247 Conn. 801, 807, 724 A.2d 1117 (1999) ).

B. The Underlying Complaints

Because coverage is determined as a matter of law by looking at the underlying complaints, see Ryan, 692 F.3d at 167, the Court examines the complaints brought by Mr. Enfield and Mr. Adrian's estate, which contain identical allegations against Shawmut and Shepard. The Enfield and Adrian complaints allege that the plaintiffs were by “employed by Fast Trek Steel, Inc.” and that Charney Architects, LLC (“Charney”) created the design for the chilled water plant and designed the steel web structure used to support the building and create the outer shell, including columns and beams to support flat steel trusses upon which tubular steel trusses were to be installed and connected, providing support for the roof decking. These plaintiffs further allege that “the design created by Charney failed to include critical bolt holes for the steel tubes of the web structure to be secured during construction” and as a result the steel tubes became dislodged and collapsed causing Mr. Enfield to fall from the structure and suffer serious injuries and causing Mr. Adrian's death. (See Complaints, Robert Enfield v. Charney Architects, EEC, et al. (“Enfield Complaint”) & Estate of Robert Adrian v. Charney Architects, EEC, et al. (“Adrian Complaint”), Exs. B & C to Liberty Mutual's Loc. R. 56(a) 1 Stmt. [Doc. # 91] ¶¶ 1–3, 12–13, 16, 18.)

Shawmut and Shepard are alleged to have “approved this design and accepted the order for fabrication and/or installation.” (Id. ¶ 18.) The specific allegations of negligence as to Shawmut and Shepard are that “through [their] agents[,] servants[,] or employees”:³

a. they approved the web structure in a defective manner making it unsuitable for safe installation;

b. they failed to provide for bolt holes in the web structure to allow it to be secured during installation;

c. they failed to provide for an alternative means for safe installation;

d. they failed to warn ... of this defect in their design;

e. they permitted the ... workers to utilize steel tubing in the construction of the steel structure that could not be bolted or otherwise safely secured to the underlying steel structure after the initial installation of these tubes, before the steel construction was completed;

f. they failed to ensure that the steel tubes could be placed in position on underlying trusses in accordance with applicable government safety regulations;

g. they approved and/or allowed the steel and iron workers to install steel tubes that could not be safely fastened to the underlying steel supports while they were being adjusted and construction of the steel support structure was being completed;

h. they failed to take reasonable measures to ensure that the work area was safe for the decedent and other workers when they knew or should have known that the steel tubes could not be bolted during installation, adjustments, and completion of the steel support structure;

i. they failed to take reasonable measures to ensure that the steel tubes installed by the decedent and other workers could be fastened to the underlying steel truss beams or columns while they were being installed to prevent unsafe movement and/or collapse of the tubes; and/or

j. they failed to take reasonable measures to ensure that the work site, work conditions and/or construction methods complied with state and federal safety regulations when they knew or should have known that the steel tubes were not fabricated to be fastened to the underlying steel structure with bolts while the steel structure was being completed.

(Id. ¶ 19.)

Mr. Elliot's and Mr. Ragin's identical actions similarly allege that “the defendants, Shawmut and Charney, designed a steel web structure” that negligently failed to include bolt holes on the steel tubes and that Shawmut, Shepard, Charney and other defendants “negligently approved the design flaw and accepted the order for the transaction.” (See Complaints, Robert Elliot, et al. v. Charney Architects, LLC, et al. (“Elliot Complaint”) & Sheneane Ragin, et al. v. Charney Architects, LLC, et al. (“Ragin Complaint”), Exs. D–E to Liberty Mutual's 56(a)1 Stmt. Count Three ¶¶ 15–18, Count Two ¶¶ 15–18.) The negligent acts alleged against Shawmut, Shepard, Charney, and all other defendants⁴ are that “through [their] agents, servants and/or employees:”

a. They designed the web structure in a defective manner making it unsuitable for safe installation;

b. They failed to provide for bolt holes in the web structure to allow it to be secured during installation;

c. They relied on tack welding which could not be done due to the adjustable nature of the web structure;

d. ... [T]hey failed to adequately support each piece of steel by at least one bolted connection at each end before it was released from the hoist;

e. ... [T]hey allowed heavy structural steel members to sit at the perimeter of the building's roof 30 feet above ground retained by wraps of wire only 18 percent stronger [than] common baling wire;

f. They failed to provide for an alternative means of safe installation; and/or

g. They failed to warn the workers authorized to be at the site ... of the defect in their design.

(Id., Counts One–Three ¶ 20.)

Fast Trek is not named in the four underlying complaints and the only specific reference to it is in the Enfield and Adrian complaints, which each state that the plaintiffs were employed by Fast Trek at the time of the accident. (Enfield Compl. ¶ 1; Adrian Compl. ¶ 2.)

C. Additional Insured Endorsement

The parties' dispute centers around the interpretation...