Hanover Ins. Co. v. Superior Labor Servs., Inc.
| Decision Date | 31 March 2016 |
| Docket Number | c/w 14-1930, 14-1933,CIVIL ACTION No. 11-2375 |
| Citation | 179 F.Supp.3d 656 |
| Parties | Hanover Insurance Company, Plaintiff v. Superior Labor Services, Inc., et al., Defendants Applies to: 14-1933 |
| Court | U.S. District Court — Eastern District of Louisiana |
Kristopher T. Wilson, Ralph Shelton Hubbard, III, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, New Orleans, LA, Tina L. Kappen, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, Baton Rouge, LA, for Plaintiff.
Paul N. Vance, Scott L. Sternberg, Stuart Glen Richeson, Baldwin, Haspel, Burke & Mayer, LLC, Jennifer R. Kretschmann, Phelps Dunbar, LLP, Andrew C. Wilson, Daniel J. Caruso, Douglass F. Wynne, Jr., Peter S. Thriffiley, Jr., Simon, Peragine, Smith & Redfearn, LLP, Elton Ford Duncan, III, Kelley A. Sevin, Duncan & Sevin, LLC, New Orleans, LA, Jay M. Lonero, Christopher Raymond Pennison, Stephanie Villagomez Lemoine, Larzelere, Picou, Wells, Simpson, Lonero, LLC, Metairie, LA, for Defendants.
SECTION “E”
ORDER AND REASONS
Before the Court is Hanover's motion for partial summary judgment seeking a declaration that Hanover has no duty to defend Masse and no duty to defend Allied as an additional insured.1 For the reasons set forth below, the motion is DENIED .
This is a consolidated action. The case originates from two personal-injury actions (“State-Court Lawsuits”) filed in state court against Allied Shipyard, Inc. (“Allied”): Adams, et al. v. Allied Shipyard, Inc., et al. and St. Pierre, et al. v. Allied Shipyard, Inc .2 The plaintiffs in the State-Court Lawsuits allege Allied negligently performed sandblasting activities, causing dangerous silica dust and other hazardous substances to permeate the plaintiffs' neighborhood.3 The plaintiffs seek damages for physical pain and suffering, medical expenses, property damage, and other damages as a result of their exposure to the hazardous substances.4 The two cases were consolidated in state court on September 9, 2013.5
In both State-Court Lawsuits, Allied filed third-party demands against its contractors that performed the sandblasting jobs, including Superior Labor Services, Inc. (“Superior”)6 and Masse Contracting, Inc. (“Masse”).7 Specifically, Allied alleges that Superior and Masse contracted with Allied to perform certain job responsibilities and to indemnify Allied under master work contracts.8 Allied seeks indemnity from Superior and from Masse with respect to the claims in the State-Court Lawsuits.9 Allied has also alleged the right to additional assured status and coverage on all insurance policies issued to Superior and to Masse for any liability in the State-Court Lawsuits.10
The plaintiffs in Adams amended their petition to name Superior, Masse, other subcontractors, and Gray Insurance Company as direct defendants.11
The contractors against which Allied brought third-party demands “in turn sought coverage, defense and/or indemnity from their various insurers for the periods of time when these jobs were allegedly performed, which prompted the insurers to file lawsuits in federal courts.”12
Three federal actions related to the State-Court lawsuits are pending in this Court. The Court consolidated the three cases on November 21, 2014.13
On September 21, 2011, Hanover Insurance Company (“Hanover”) filed a complaint in this Court.14 Hanover filed an amended complaint on September 27, 2012.15 Hanover alleges it has been participating in the defense of Superior against Allied's third-party demands in the State-Court Lawsuits.16 Hanover maintains the other insurers it names in its federal suit “are not participating in Superior's defense” in the State-Court Lawsuits.17 Hanover seeks judgment against Superior declaring that it has no duty to defend or indemnify Superior in the State-Court Lawsuits.18 If Hanover has a duty to defend or indemnify Superior, Hanover seeks declaratory judgment that State National Insurance Company (“State National”), Arch Insurance Company (“Arch”), and “other unidentified insurance companies collectively named as ABC Insurance Company” are liable “for their share of defense and indemnity to be paid on behalf of Superior” in the State-Court Lawsuits.19 Hanover also seeks reimbursement, contribution, and/or damages from State National, Arch, and other unidentified insurance companies for defense costs already incurred by Hanover on behalf of Superior in the State-Court Lawsuits that, Hanover argues, should have been paid by those insurance companies.20
On January 14, 2015, Hanover filed a second supplemental and amending complaint naming Allied as a defendant.21 Hanover alleges that “Allied has tendered the to Hanover for defense and indemnity in its capacity as an alleged additional insured” under Superior's policies, and Hanover has offered to participate in Allied's defense in the State-Court Lawsuits subject to a full reservation of rights.22 Hanover alleges that Allied is not an additional assured under Hanover's policies, and Hanover seeks judgment against Allied declaring that it has no duty to defend or indemnify Allied in the State-Court Lawsuits.23 In the alternative, if the Court finds Hanover has a duty to defend or indemnify Allied, Hanover seeks judgment declaring that Arch, State National, other unidentified insurance companies are obligated to pay their portions of defense costs and/or indemnity incurred by Hanover on behalf of Superior and Allied in the State-Court Lawsuits.24
On August 22, 2014, Arch Insurance Company brought an action for declaratory judgment against Superior and Allied. Arch seeks a declaration of its rights and responsibilities under “certain insurance policies issued by Arch to Superior,” with respect to Superior's request for defense and indemnity in the State-Court Lawsuits.25 Arch also seeks a declaration of its rights and responsibilities with respect to Allied's request for additional assured status under the Superior policies and defense and indemnity of Allied in the State-Court Lawsuits.26 Arch seeks a declaration against Superior and Allied that Arch has no defense or indemnity obligation to Superior in the State-Court Lawsuits.27 Arch also seeks recovery of the portion of defense costs already incurred by it on behalf of Superior.28
On August 22, 2014, Arch also filed an action for declaratory judgment against Masse and Allied. Arch seeks a declaration of its rights and responsibilities under “certain insurance policies issued by Arch to Masse,” with respect to Masse's request for defense and indemnity in the State-Court Lawsuits.29 Arch also seeks a declaration of its rights and responsibilities with respect to Allied's request for additional assured status under the Masse policies and defense and indemnity of Allied in the State-Court Lawsuits.30 Arch seeks a declaration against Masse and Allied that Arch has no defense or indemnity obligation to Masse in the State-Court Lawsuits.31
On January 14, 2015, Hanover filed a complaint in intervention in Case No. 14-1933 against Defendants Masse and Allied.32 Hanover seeks judgment declaring that Hanover has no obligation to defend or indemnify Masse or Allied in the State-Court Lawsuits.33
State National Insurance Company (“State National”) also filed a petition for intervention for declaratory judgment on January 14, 2015.34 State National issued two marine general liability policies to Masse that provided coverage from November 15, 2006, to November 15, 2007, and from November 15, 2007, to November 15, 2008.35 Allied seeks additional insured status under the policies issued by State National to Masse.36 State National seeks a judgment declaring there is no coverage afforded to Masse under the State National policies and that State National has no duty to defend or indemnify Masse in the State-Court Lawsuits.37 State National also seeks a declaration that “there is no coverage afforded to Allied under the [State National] policies as a purported additional insured” and that State National does not owe a duty to defend or indemnify Allied in the State-Court Lawsuits.38
Hanover filed a motion for partial summary judgment against Masse and Allied on July 29, 2015.39 Hanover argues it has no duty to defend Masse or Allied, as an additional insured under the policies issued to Masse, in the State-Court Lawsuits for three reasons: (1) that the plaintiffs in the State-Court Lawsuits do not allege “bodily injury” or “property damage” that occurred during the terms of the policies Hanover issued to Masse; (2) alternatively, that the plaintiffs in the State-Court Lawsuits seek recovery for injuries arising out of exposure to silica dust and the Hanover policies contain an exclusion for silica, silicon, and silicate; and (3) alternatively, the policies contain a Pollution Buyback Endorsement that is not triggered by the State-Court Lawsuits and thus does not extend coverage for the state-court plaintiffs' injuries.40 In its motion, and solely for purposes of its motion, Hanover assumes that Allied qualifies as an additional assured within the meaning of the Masse policies.41 Whether Allied will indeed qualify as an additional assured under the policies is not addressed in this ruling.
Masse filed its opposition to Hanover's motion on December 8, 2015,42 and Allied filed its opposition on December 14, 2015.43 Hanover filed a reply memorandum in support of its motion on December 15, 2015.44 After deposing Anthony Boudreaux, Allied's vice president of operations and Superior's former vice president, Masse filed a memorandum to supplement its opposition on February 29, 2016.45
The Court must determine whether Hanover's intervention in No. 14-1933 was permissible under Rule 24. Rule 24(a) provides for intervention as of right, while Rule 24(b) provides for permissive...
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