Con v. Interstate Fire & Cas. Co.

• Citation: 794 F.Supp.2d 242
• Decision Date: 30 June 2011
• Docket Number: No. 2:10–cv–185–GZS.,2:10–cv–185–GZS.
• Parties: PRO CON, INCORPORATED, Plaintiff,v.INTERSTATE FIRE & CASUALTY COMPANY, Defendant.
• Court: U.S. District Court — District of Maine

794 F.Supp.2d 242

PRO CON, INCORPORATED, Plaintiff,

v.INTERSTATE FIRE & CASUALTY COMPANY, Defendant.

No. 2:10–cv–185–GZS.

United States District Court, D. Maine.

June 30, 2011.

Jeffrey T. Edwards, Preti, Flaherty, Beliveau, Pachios & Haley, LLP, Portland, ME, for Plaintiff.Karin McCarthy, Richard Feldman, Rivkin Radler, LLP, Uniondale, NY, Marc N. Frenette, Stephen B. Wade, Skelton, Taintor & Abbott, Auburn, ME, for Defendant.

ORDER ON CROSS–MOTIONS FOR SUMMARY JUDGMENT

GEORGE Z. SINGAL, District Judge.

Before the Court are the parties' cross-motions for summary judgment. As explained herein, the Court GRANTS IN PART and DENIES IN PART Plaintiff's Motion for Summary Judgment (Docket # 18) and DENIES Defendant's Motion for Summary Judgment (Docket # 20).

I. LEGAL STANDARD

Generally, a party is entitled to summary judgment if, on the record before the Court, it appears “that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248, 106 S.Ct. 2505. A “material fact” is one that has “the potential to affect the outcome of the suit under the applicable law.” Nereida–Gonzalez v. Tirado–Delgado, 990 F.2d 701, 703 (1st Cir.1993) (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505) (additional citation omitted).

The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether this burden is met, the Court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor. Santoni v. Potter, 369 F.3d 594, 598 (1st Cir.2004).

Once the moving party has made this preliminary showing, the nonmoving party must “produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue.” Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir.1999) (citation and internal punctuation omitted); see also Fed.R.Civ.P. 56(e). “Mere allegations, or conjecture unsupported in the record, are insufficient.” Barros–Villahermosa v. United States, 642 F.3d 56, 58 (1st Cir.2011) (quoting Rivera–Marcano v. Normeat Royal Dane Quality A/S, 998 F.2d 34, 37 (1st Cir.1993)); see also Wilson v. Moulison N. Corp., 639 F.3d 1, 6 (1st Cir.2011) (“A properly supported summary judgment motion cannot be defeated by conclusory allegations, improbable inferences, periphrastic circumlocutions, or rank speculation.”) (citations omitted). “As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to the moving party.” In re Spigel, 260 F.3d 27, 31 (1st Cir.2001) (quoting In re Ralar Distribs., Inc., 4 F.3d 62, 67 (1st Cir.1993)).

The above-described “standard is not affected by the presence of cross-motions for summary judgment.” Alliance of Auto. Mfrs. v. Gwadosky, 430 F.3d 30, 34 (1st Cir.2005) (citation omitted). “[T]he court must mull each motion separately, drawing inferences against each movant in turn.” Cochran v. Quest Software, Inc., 328 F.3d 1, 6 (1st Cir.2003) (citation omitted); see also Alliance of Auto. Mfrs., 430 F.3d at 34 (“[L]ike the district court, we must scrutinize the record in the light most favorable to the summary judgment loser and draw all reasonable inferences therefrom to that party's behoof.”).

II. FACTUAL BACKGROUND

Construing the record in accordance with the just-described standard, the Court finds the following undisputed facts:

A. The Bowdoin Project & the Pro Con/Canatal Subcontract

Plaintiff Pro Con, Incorporated (“Plaintiff” or “Pro Con”)—a construction company incorporated in the State of New Hampshire and with a principal place of business in Manchester, New Hampshire—was the general contractor for a hockey rink construction project for Bowdoin College in Brunswick, Maine (the “Bowdoin Project”). In the Fall of 2007, Pro Con entered into a written subcontract with Canatal Industries Inc. (“Canatal”)—a structural steel company and a Canadian corporation with its principal place of business in Quebec, Canada (hereinafter the “Pro Con/Canatal Subcontract”). ( See Docket # s 1–2 to 1–4.) The Pro Con/Canatal Subcontract stated that the scope of the subcontract would generally encompass all of the structural steel work for the Bowdoin Project.¹ Under this agreement, Pro Con obligated Canatal to procure and maintain in force with respect to the Bowdoin Project commercial general liability insurance in the amount of $1,000,000 per occurrence with Pro Con and Bowdoin College named as additional insureds on the policy. ( See Docket # 1–4 at PageID # 73.) ²

B. The Canatal/CCS Subcontract

Canatal, in turn, subcontracted with CCS Constructors, LLC (“CCS”)—a crane services and rental company incorporated in the State of Vermont with a principal place of business in Morrisville, Vermont—for the structural steel erection work for the Bowdoin Project (hereinafter the “Canatal/CCS Subcontract”). ( See Docket # 19–1 at PageID # 173 to PageID # 206.) Pursuant to the Canatal/CCS Subcontract, effective as of November 22, 2007, CCS was obligated to secure general liability insurance coverage naming Canatal, Pro Con and Bowdoin College as additional insureds. Specifically, in an Exhibit entitled “Insurance Requirements,” the Canatal/CCS Subcontract provides as follows:

Erector [CCS] shall, at all times, maintain and keep in force during the term of this Agreement insurance in the forms and with limits to satisfy both the requirements listed in this Exhibit A

[including Commercial General Liability

Insurance] and those specified by other Contract Documents.

...

[CCS] shall provide [Canatal] with certificates of insurance evidencing the required insurance coverage before [CCS]'s work under this agreement is begun

....

All policies must include a Waiver of Subrogation in favor of [Canatal].

[Canatal], the General Contractor [Pro Con] and the Owner and other entities as may be reasonably requested are to be included as additional insured under the Commercial General Liability insurance policies as well as under Umbrella Excess Liability insurance which shall be on a primary and non-contributing basis and must be written as follows: “[Canatal] is named additional insured as respects of all operations performed by or on behalf of the named insured for the certificate holder.”

( Id. at PageID # 186–87.)

The Canatal/CCS Subcontract additionally provides at Article 1.3 that the subcontract “shall not be construed to create a contractual relationship of any kind ... between the General Contractor [Pro Con] and the Subcontractor [CCS], or ... between any persons or entities other than [Canatal and CCS].” ( Id. at PageID # 174.) Article 2.1 provides that CCS is bound by the subcontract and “Prime Contract documents” (i.e., the contract between Bowdoin College and Pro Con) as applicable to the subcontract work, but to the extent that the contracts conflict, the subcontract terms will control. ( See id.)

C. The Interstate Policy

CCS obtained the required commercial general liability insurance policy through Defendant Interstate Fire and Casualty Company (hereinafter “Defendant” or “Interstate”)-a foreign insurer authorized to do business in the State of Maine. Specifically, on or about October 1, 2007, Interstate issued to CCS a Commercial General Liability policy numbered NGL 1000049 effective from the date of issue through October 1, 2008 (hereinafter the “Interstate Policy”). ( See Docket # 19–7.) The Interstate Policy, under which CCS is the sole Named–Insured, provided limits of $1,000,000 per occurrence with $2,000,000 in the general aggregate with a $10,000 per occurrence deductible for bodily injury and property damage.

Attached to the Interstate Policy are a number of industry standard form endorsements that modify the policy by changing the coverage afforded under the policy. Most relevant here, the Interstate Policy contains an endorsement entitled “ADDITIONAL INSURED—OWNERS, LESSEES OR CONTRACTORS—SCHEDULED PERSON OR ORGANIZATION.” ( Id. at PageID # 355.) Rather than requiring that an additional insured be specifically named in the Interstate policy, this Additional Insured Endorsement states, in pertinent part:

This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABILITY COVERAGE PART

SCHEDULE

Name of Additional Insured Person(s) Or Organizations: Any person or organization for whom you are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy.

...

A. Section II—Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for “bodily injury”, “property damage” or “personal and advertising injury” caused, in whole or in part, by:

1. Your acts or omissions; or

2. The acts or omissions of those acting on your behalf;

In the performance of your ongoing operations for the additional insured(s) at the location(s) designated above.

( Id. (hereinafter the “Interstate AIE” or “PageID # 355”).)

Along with the Interstate AIE, the Interstate Policy also contains an endorsement entitled “AMENDMENT OF OTHER INSURANCE...