Ill. Valley Paving Co. And v. Old Repub. Ins. Co.
| Decision Date | 10 February 2011 |
| Docket Number | Case No. 4:06CV1837 HEA |
| Parties | ILLINOIS VALLEY PAVING COMPANY and CONTINENTAL CASUALTY COMPANY, Plaintiffs, v. OLD REPUBLIC INSURANCE COMPANY, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Missouri |
This matter is before the Court on Defendant American Alternative Ins. Corporation's (AAIC) Motion for Partial Summary Judgment, [Doc. No. 149]; Plaintiffs' Motion for Partial Summary Judgment against Defendant United Rentals, [Doc. No. 150]; Defendant Old Republic Insurance Company's Motion for Summary Judgment, [Doc. No. 151]; Plaintiffs' Motion for Partial Summary Judgment against Defendants Old Republic and AAIC, [Doc. No. 153]; Plaintiff Continental Casualty Company's Motion to Compel Regarding Exhaustion of Limits, [Doc. No. 158]; Plaintiff Illinois Valley Paving Company's Motion for Joinder in the Motion to Compel, [Doc. No. 161]: Plaintiffs' Motion to Strike the Affidavit of Raymond J. Alletto and Exhibit HH, [Doc. No. 169]; Plaintiffs' Motion to Strike the Affidavit of Michael J. Meyer, [Doc. No. 200]; and Plaintiffs' Motion for Pretrial Status Conference, [Doc. No. 232]. For the reasons set forth below, Defendant American Alternative Ins. Corporation's (AAIC) Motion for Partial Summary Judgment, [Doc. No. 149], is granted; Plaintiffs' Motion for Partial Summary Judgment against Defendant United Rentals, [Doc. No. 150], is denied; Defendant Old Republic Insurance Company's Motion for Summary Judgment, [Doc. No. 151], is denied; Plaintiffs' Motion for Partial Summary Judgment against Defendants Old Republic and AAIC, [Doc. No. 153], is denied; Plaintiff Continental Casualty Company's Motion to Compel Regarding Exhaustion of Limits, [Doc. No. 158], is denied; Plaintiff Illinois Valley Paving Company's Motion for Joinder in the Motion to Compel, [Doc. No. 161], is granted to the extent of joinder only; Plaintiffs' Motion to Strike the Affidavit of Raymond J. Alletto and Exhibit HH, [Doc. No. 169], is denied; Plaintiffs' Motion to Strike the Affidavit of Michael J. Meyer, [Doc. No. 200], is denied; Plaintiffs' Motion for Pretrial Status Conference, [Doc. No. 232], is denied.
As previously detailed in its Opinion, Memorandum and Order of February 26, 2010, Illinois Valley Paving Company (IVP), as Contractor, entered into a Subcontract Agreement with United Rentals Highway Technologies, Inc., (United Rentals), as Subcontractor, to provide equipment for a construction project on Route 13 in Polk County, Missouri. Pursuant to the Subcontract, United Rentals was to maintain general liability insurance naming IVP as an additional insured.
United Rentals maintained primary commercial general liability insurance with Old Republic and an excess liability policy from AAIC. The relevant policy period was January 1, 2004 through January 5, 2005.
The Subcontract provided, in pertinent part,:
Article Ten of the Subcontract provides, in pertinent part:
Prior to commencing any work under this Subcontract Agreement, Subcontractor shall procure insurance for the Subcontract work and maintain in effect Workers Compensation/Employer Liability, Comprehensive General Liability, Automobile Liability, and such other insurance as is appropriate for the Subcontract work and as may be required by the Owner. As to the work performed under or incident to this Subcontract Agreement, Subcontractor shall obtain and maintain insurance acceptable to and protecting Contractor, which is primary as to any other existing, valid, and collectible insurance, and names Contractor as an additional insured. Subcontractor shall pay the premium and forward appropriate Certificates of Insurance immediately upon obtaining same and at such further times as requested by Contractor...
Said insurance as described in this article shall be maintained in the limits required by Owner under the General Contract, but in no event less than the following...Comprehensive general liability insurance on an occurrence basis... $1,000, 000 Each Occurrence... $2,000, 000 General Aggregate Limit.
IVP received a Certificate of Insurance, dated June 3, 2004, which stated that United Rentals had commercial general liability insurance with Old Republic and excess insurance with AAIC. The Certificate named IVP as an additional insured. It further provided that the Old Republic policy, MWZRD 1048 provides $1,750, 000 in liability insurance per occurrence, in excess of a $250,000 self insured retention, and the excess policy, 01-AZ-UM-00000487-02 provides $2million excess liability insurance per occurrence and in the aggregate. The AAIC policy does not specifically name IVP as an additional insured.
Old Republic issued a policy of comprehensive general liability insurance to United Rentals. The Declarations page states a $2 million limit of liability for each occurrence. A subsequent endorsement, dated August 30, 2005 states that the limit of liability to $1.75 million per occurrence is made retroactively to the policy's January 1, 2004 beginning date.
Included in the policy are two endorsements relevant to the instant issues. Endorsement Form B, entitled, ADDITIONAL INSURED--OWNERS, LESSEES OR CONTRACTORS--(Form B) provides that coverage for the insured person applies only to United Rentals' work for that insured by or for United Rentals. The ADDITIONAL INSURED ENDORSEMENT (Form C) provides that the insurance under the commercial general liability coverage is modified as follows:
WHO IS AN INSURED (Section II) is amended to include any person(s) or organization(s) for whom you have agreed in a written contract to provide insurance, but only for damages:
a. Which are covered by this Insurance; and
b. Which you have agreed to provide in such contract.
2. The limits of insurance afforded to such person(s) or organization(s) will be:
a. The minimum limits of insurance which you agreed to provide,
orb. The limits of insurance of this policy whichever is less.
The Subcontract also included an agreement by subcontractor, United Rentals, to defend, indemnify and hold harmless IVP from and against actions, damages and expenses arising from United Rentals' work, including claims for bodily injury and death.
On June 30, 2004, a minivan struck construction equipment and then collided with a gravel truck on Route 13 in Polk County, Missouri. Two men in the minivan were killed. Their two sons were injured, as was a construction worker at the site. Three lawsuits were filed as a result of the accident. In all three suits, claimants alleged that IVP and United Rentals negligently caused or contributed to cause the deaths and the injuries by failing to channel traffic properly, warn motorists of roadwork and adequately protect motorists in the construction zone.
Continental Casualty, IVP's insurer, 1 defended IVP in the lawsuits. At the request of IVP, Continental Casualty settled the lawsuits in advance of jury trials in the amount of the policies, i.e., $6 million.
Plaintiffs IVP and Continental Casualty brought this action to recover some or all of the settlement amounts. Plaintiffs allege equitable subrogationreimbursement and/or contribution. Alternatively, if coverage is not found under the Old Republic and AAIC policies, Plaintiffs allege they are entitled to recover their defense expenses and indemnification amounts for the underlying lawsuits from United Rentals for breaching its obligations under the Subcontract, including its obligation to obtain and maintain insurance acceptable to and protecting IVP which is primary as to any other existing, valid and collectible insurance.
The standards for summary judgment are well settled. In determining whether summary judgment should issue, the Court must view the facts and inferences from the facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005); Littrell v. City of Kansas City, Mo., 459 F.3d 918, 921 (8th Cir. 2006). The moving party has the burden to establish both the absence of a genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56©; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Enterprise Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir. 1996). Once the moving party has met this burden, the nonmoving party may not rest on the allegations in his pleadings but by affidavit or other evidence must set forth specific facts showing that a genuine issue of material fact exists.
party opposing summary judgment may not rest on the allegations in its pleadings; it must 'set forth specific facts showing that there is a genuine issue for trial.'" United of Omaha Life Ins. Co. v. Honea, 458 F.3d 788, 791 (8th Cir.2006) (quoting Fed.R.Civ.P. 56(e)); Hitt v. Harsco Corp., 356 F.3d 920, 923 (8th Cir. 2004). An issue of fact is genuine when "a reasonable jury could return a verdict for the nonmoving party" on the question. Anderson, 477 U.S. at 248; Woods, 409 F.3d at 990. To survive a motion for summary judgment, the "nonmoving party must 'substantiate his allegations with sufficient probative evidence [that] would permit a finding in [his] favor based on more than mere speculation, conjecture, or fantasy.' Wilson v. Int 'l Bus. Machs. Corp., 62 F.3d 237, 241 (8th Cir. 1995)(quotation omitted)." Putman v. Unity Health System, 348 F.3d 732, 733-34 (8th Cir. 2003). A plaintiff may not merely point to unsupported self-serving allegations, but must substantiate allegations with sufficient probative...
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