R.G. Brinkmann Co. v. Amerisure Ins. Co.
| Decision Date | 30 November 2012 |
| Docket Number | Case No. 4:11CV1125 JAR |
| Parties | R.G. BRINKMANN COMPANY d/b/a R.G. BRINKMANN CONSTRUCTION COMPANY, Plaintiff, v. AMERISURE INSURANCE COMPANY, Defendant. |
| Court | U.S. District Court — Eastern District of Missouri |
This matter comes before the Court on Plaintiff R.G. Brinkmann Company d/b/a R.G. Brinkmann Construction Company's Partial Motion for Summary Judgment (ECF No. 30), Defendant's Motion for Summary Judgment (ECF No. 38), and Plaintiff's Motion to Strike and Objection to Certain Affidavit Testimony and Memorandum in Support (ECF No. 43). These matters are fully briefed and ready for disposition.
In 2001, Defendant Amerisure Insurance Company ("Amerisure") issued a Commercial General Liability ("CGL") insurance policy ("Policy") to Plaintiff R.G. Brinkmann Company d/b/a R.G. Brinkmann Construction Company ("Brinkmann"), the named insured, for any claims related to site construction work performed by Brinkmann as a general contractor. The CGL Policy issued by Amerisure was active between February 15, 2001 to February 15, 2006.
The "Coverage A" section of the CGL Policy, entitled "Bodily Injury and Property Damage Liability," insures against "property damage" that is caused by an "occurrence". Coverage A specifically provides:
The Policy also includes a "your work" exclusion of coverage for work performed by the insured:
This insurance does not apply to:
In turn, "Your work" is defined in the Policy as:
The underlying claims in this litigation arise from damage to what became the Hamilton Marketplace Shopping Center owned by JDN Real Estate-Hamilton, L.P. ("JDN") in Hamilton, New Jersey (the "Project"). JDN's predecessor in interest, JDN Development Co. ("JDN Development") and Brinkmann entered into a contract dated September 10, 2001, whereby Brinkmann agreed to perform Phase I of the Project, consisting of site work. The site work involved excavation, rough and finish grading, the installation of five earth building pads, and some of the asphalt and concrete paving for the access roads, crosswalks, sidewalks and parking lots. Brinkmann hired subcontractors to perform the site work. The two main subcontractors were Pillari Brothers("Pillari") and Trap Rock Industries ("Trap Rock"). Pillari performed the excavation work. Trap Rock installed the pavement in the Phase I.
JDN hired Jayeff Construction Corp. ("Jayeff") as the general contractor for Phase II of the Project. In Phase II, Jayeff and Trap Rock, as Jayeff's subcontractor, installed further shopping center improvements, including sidewalks, crosswalks and pavement.
On August 1, 2008, JDN filed suit in New Jersey Superior Court against Trap Rock and unnamed "ABC Company(ies) 1-10". The Complaint alleged that Trap Rock and the ABC Companies performed their work in a negligent manner, which resulted in "defective asphalt and paving, cracked sidewalks and deteriorated curbs."
On October 22, 2008, Trap Rock filed a Third-Party Complaint against Brinkmann, Jayeff, and other parties seeking indemnity or, in the alternative, contribution pursuant to New Jersey's Joint Tortfeasors Contribution Act. On that same day, Brinkmann forwarded the JDN Complaint and the Trap Rock Third-Party Complaint (collectively, the "Initial Pleadings") to AHM Financial Group ("AHM"), Brinkmann's insurance broker. Amerisure received the Initial Pleadings from AHM on November 5, 2008.
Amerisure assigned Wayne Andreae as its claims adjuster. Jill Siegrist was Mr. Andreae's supervisor. Amerisure began its investigation into Brinkmann's claim on November 6, 2008. On that date, Ms. Siegrist wrote, in part:
The allegations in the original complaint allege negligent construction, including cracks in the pavement, etc. No resulting damage alleged, the Contract between insured and owners contains a waiver of subrogation both ways. It appears that is why JDN filed original complaint against Trap Rock, who was insured's sub-contractor. The contract between insured and Trap Rock would indicate that Trap Rock owes indemnity to Insured not vice versa, regardless the entire claim involves construction defect to the insured's work. I don't think we even get to an occurrence which would trigger the policy...
On November 11, 2008, Mr. Andreae wrote a letter to Larry Lapinski, the project manager at Brinkmann, stating that Amerisure would investigate this matter under a full Reservation of Rights. Mr. Andreae indicated that the CGL Policy would not provide coverage "for an insured's alleged defective workmanship that does not result in damage to anything other than the work itself, as it is not an occurrence within the definition of the policy." This was not a denial letter because Amerisure stated that it would continue to investigate and monitor the claim to determine whether it had a duty to defend Brinkmann. Brinkmann was instructed to retain its own defense counsel while Amerisure investigated Brinkmann's claim and determined whether there was insurance coverage. Amerisure further advised that "if at a later date we determine that there would be coverage for your loss, we could reimburse your defense counsel for the costs involved in defending this action." Brinkmann retained the services of its regular general counsel, Andrew Manuel of Greensfelder, Hemker and Gale, P.C., as well as Alison Galer of Norris McLaughlin and Marcus, PA, who served as Brinkmann's local counsel.
Mr. Andreae prepared a "Referral Memorandum Questionable Coverage" ("QC Memorandum"), dated April 13, 2009, which stated:
The only comment made by the insured's attorney was that it is still not clear whether or not there is any other damage other than to the insured's work itself or that of their [sic] subcontractors. But it seems clear from the allegations in the lawsuit and the information that I have received that it only pertains to the asphalt driveways and parking lots, which would be excluded under our general liability policy.1
On April 20, 2009, JDN filed an Amended Complaint. JDN alleged, among other things, that Brinkmann carelessly and negligently performed the site work, and negligently supervised its subcontractors' performance, resulting in damage to pavement and other shopping centerimprovements. The Amended Complaint also noted that Jayeff was a prime contractor on Phase II of the Project, and alleged claims against Jayeff for breach of contract and negligent supervision.
In early 2009, Brinkmann filed a motion to compel arbitration in the New Jersey litigation. Thereafter, JDN agreed to pursue its claim against Brinkmann in arbitration.
On June 8, 2009, Amerisure issued a letter officially denying coverage to Brinkmann, which stated, in pertinent part:
First, our investigation has determined that the only damage that has occurred is to the concrete itself that [Brinkmann's] subcontractor constructed and/or designed. [Brinkmann's] policy does not provide coverage for alleged defective workmanship which has not resulted in any physical injury to tangible property, as this does not constitute an "occurrence" under Missouri law.
The letter concludes by saying, "[i]f you have information you believe would support a contrary determination, please submit the information to us in writing for further consideration in connection with this claim."
JDN's Detailed Statement of Claim lists the following two items as claims against Brinkmann: "full depth crosswalk replacement in front of Hallmark, Hair Cuttery, and Subway" and "Full depth crosswalk replacement at the intersection of Patriot's Way and the drive aisle across Hallmark, Hair Cuttery, and Michaels." Amerisure contends that "[t]his statement, taken in conjunction with the findings in the Expert Report, clearly show damage claimed against Brinkmann for replacement of work done by Jayeff, another contractor." (Defendant's Statement of Uncontroverted Material Facts ("DSUMF"), ECF No. 39, ¶31).
Amerisure received the Detailed Statement of Claim on January 7, 2010--about 3 weeks before the February 2010 arbitration hearings. Amerisure contends that Brinkmann did not provide...
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