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Cincinnati Insurance Co. v. Boller Construction

March 15, 2006

THE CINCINNATI INSURANCE COMPANY, AN OHIO CORPORATION, PLAINTIFF,
v.
BOLLER CONSTRUCTION, INC., JUDGE REBECCA R. PALLMEYER AN ILLINOIS CORPORATION; AND KRZYSZTOF KULASIK, AN INDIVIDUAL, DEFENDANTS.
HARLEYSVILLE LAKE STATES INSURANCE ) COMPANY, A MICHIGAN CORPORATION, INTERVENING PLAINTIFF,
v.
CINCINNATI INSURANCE COMPANY, AN OHIO CORPORATION, COUNTER-DEFENDANT.



The opinion of the court was delivered by: Rebecca R. Pallmeyer United States District Judge

MEMORANDUM OPINION AND ORDER

In this insurance coverage dispute, Plaintiff Cincinnati Insurance Co. seeks a declaration that it has no duty to defend or indemnify Defendant Boller Construction, Inc., the general contractor on a construction project in which the employee of one of Boller's subcontractors was injured. Intervening Plaintiff, Harleysville Lake Station Insurance Co., seeks equitable subrogation or contribution from Cincinnati, for amounts spent defending and indemnifying Boller in the underlying lawsuit.

INTRODUCTION

On October 20, 1997, Krzysztof Kulasik was injured when he fell from scaffolding while working on a construction project in Mundelein, Illinois. At the time of the incident, Mr. Kulasik was employed by M. Burzynska Construction, Inc. ("MBC"), which was performing masonry work on the project as a subcontractor to Boller Construction, Inc. ("Boller"). Pursuant to its subcontractor agreement with Boller, MBC had agreed to name Boller as an additional insured on its own insurance policies. At that time, MBC maintained primary and umbrella insurance policies with Cincinnati Insurance Company ("Cincinnati"). Two years after he was injured, Mr. Kulasik sued Boller, alleging that it had negligently operated and supervised the job site where he was injured (the "Kulasik Suit"). Boller tendered its defense and indemnification to Cincinnati, claiming status as an additional insured under MBC's policies, but Cincinnati refused to extend coverage on the ground that Boller had been added to Cincinnati's primary policy with MBC one day after Mr. Kulasik's accident. And while Cincinnati conceded that Boller was covered under the umbrella policy between Cincinnati and MBC, Cincinnati claimed that that coverage was excess to Boller's own insurance. Harleysville Lake States Insurance Company ("Harleysville"), Boller's insurer, defended Boller and ultimately settled the case with Mr. Kulasik for $1.9 million.

In July 2004, Cincinnati brought this action seeking a declaratory judgment that it had no duty to defend or indemnify Boller in connection with the Kulasik Suit. In its answer, Boller alleged that it was insured under MBC's primary policy with Cincinnati on the date of Mr. Kulasik's accident, or, in the alternative, that if Boller was not covered, the policy should be reformed to name Boller as an additional insured as of February 1997. On October 20, 2004, Harleysville filed an intervening complaint seeking recovery against Cincinnati for the costs of defending and indemnifying Boller. Cincinnati filed a three-count counterclaim against Harleysville on November 17, 2004, alleging that it had no duty to defend Boller, that its umbrella policy was excess to Boller's policies with Harleysville, and that, if its umbrella policy shared liability with Harleysville's, the two policies should share by relative policy limits.

Three motions for summary judgment are before the court.*fn1 Boller and Harleysville (collectively, "Defendants") have moved jointly for summary judgment on Cincinnati's complaint for declaratory judgment and on Harleysville's intervening complaint. Cincinnati has filed separate motions for summary judgment on its complaint for declaratory judgment and on Boller's and Harleysville's requests to reform Cincinnati's primary policy with MBC. Because the court concludes that Cincinnati owed no duty to defend Boller under Cincinnati's primary policy with MBC, Cincinnati's motion is granted, and Defendants' motion is denied, with respect to that policy. Furthermore, Cincinnati's motion is granted with respect to Defendants' claims for reformation of the primary policy because Defendants have not raised a genuine issue of material fact concerning the meeting-of-the-minds element of reformation. Cincinnati's motion is granted, and Defendants' motion is denied, with respect to Cincinnati's umbrella policy with MBC, as well, because the court concludes that Cincinnati did not breach its duty to defend Boller under that policy. The court concludes, however, that Harleysville is entitled under its equitable contribution theory to half of the $900,000 by which the Kulasik settlement exceeded Boller's primary policy with Harleysville.

FACTUAL BACKGROUND

The relevant facts, based on the parties' Local Rule 56.1 statements and attachments, are as follows.

A. The Cincinnati/MBC Insurance Policies

Boller, as general contractor, and MBC, as subcontractor, executed two contracts for work to be performed on separate construction projects in Illinois. Boller/Harleysville LR 56.1(a) Stmt. ¶ 61. Sometime in 1996-the record does not disclose a precise date-MBC began construction work on the first project at Oak Grove School in Green Oaks, Illinois (the "Oak Grove Project"). Id. at ¶ 62. The Oak Grove subcontractor agreement is not included in the record, but Robert Boller, Boller's president at the time that Boller and MBC executed the subcontractor agreement, testified that a standard provision of Boller's subcontractor contracts required its subcontractor to name Boller as an additional insured on the subcontractor's insurance polices. Id. at ¶ 142. Presumably the Oak Grove subcontractor agreement contained such an additional-insured requirement, as Boller was added as an additional insured, effective December 17, 1996, to MBC's general liability insurance policy with Cincinnati (the "Primary Policy"). Id. at ¶ 4. By its terms, the endorsement adding Boller to the policy made Boller an additional insured "RE: ADDITIONAL RENOVATION -- PH. II CONSTRUCTION, PROJECT NO. 42727, OAK GROVE SCHOOL, GREEN OAKS, IL." 1996 Boller Endorsement, Ex. 13 to Boller/Harleysville LR 56.1(a) Stmt., at 539.*fn2

In addition to this Primary Policy, Cincinnati had also issued an umbrella insurance policy (the "Umbrella Policy") to MBC, effective December 9, 1996. Boller/Harleysville LR 56.1(a) Stmt. ¶ 138. Although there is no separate endorsement naming Boller as an insured under this policy, the "Who is an Insured" provision of the Umbrella Policy includes as an insured any organization for which MBC is obligated by written contract to provide insurance. Id. at ¶ 139. The Primary Policy expired on January 4, 1997. Id. at ¶ 4. The Umbrella Policy remained in effect at all times relevant to this lawsuit. Cincinnati Umbrella Policy, Ex. 1 to Boller/Harleysville LR 56.1(a) Stmt., at 71.

Cincinnati and MBC renewed the Primary Policy effective January 4, 1997 through January 4, 2000, see Primary Policy, Ex. 1 to Boller/Harleysville LR 56.1(a) Stmt., at 12, but they did not renew the endorsement adding Boller as an additional insured. Boller/Harleysville LR 56.1(a) Stmt. ¶¶ 19--20. Consequently, as of January 4, 1997, Boller was no longer an additional insured on the Primary Policy. See Kristoffersen Dep., Ex. 13 to Boller/Harleysville LR 56.1(a) Stmt., at 407--09. Then, on February 18, 1997, MBC asked Premier Risk Services, Inc. ("Premier"), for a certificate of insurance identifying Boller as an additional insured under the renewed policy. Premier "Deletion Report," Ex. 13 to Boller/Harleysville LR 56.1(a) Stmt., at 675;*fn3 see also Kristoffersen Dep. at 410.

Cincinnati asserts that Premier was acting as MBC's agent. See Cincinnati's Reply Brief in Support of its Motion for Summ. J. on Coverage (hereinafter "Coverage Reply"),at 8. Cincinnati and Premier were, however, parties to an "Agency Agreement," effective January 1, 1997, pursuant to which Premier was authorized to "accept and bind contracts of insurance . . . [on] [a]ll lines of insurance." Agency Agreement, Ex. 12 to Boller/Harleysville LR 56.1(a) Stmt., at 360. Moreover, Premier issued certificates of insurance and endorsements identifying additional insureds on Cincinnati policies. See, e.g., Boller/Harleysville LR 56.1(a) Stmt. ¶¶ 45--46; see also Agency Agreement at 361 (Premier was responsible for sending Cincinnati "copies of all applications, insurance binders and requests for policy changes within three working days after the effective date of coverage.") (emphasis added).

On February 18, 1997, Bonnie Kristoffersen, Premier's customer service representative assigned to MBC's account, issued the certificate to MBC. Boller/Harleysville LR 56.1(a) Stmt. ¶ 24. The certificate identified Boller as an additional insured "with respects [sic] to general liability . . . re: addition and renovation - PH. II Construction, Project No. 42727, Oak Grove School, Green Oaks, IL." February 1997 Insurance Certificate, Ex. 13 to Boller/Harleysville LR 56.1(a) Stmt., at 549. The certificate itself did not, by its terms, "amend, extend or alter" the Primary Policy. See Id. ("THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW."). Ms. Kristoffersen testified that in the ordinary course of business she would have issued an endorsement-which formally amends the policy to add an additional insured-at the same time she issued the certificate of insurance. Boller/Harleysville LR 56.1(a) Stmt. ¶ 26--28; Kristoffersen Dep. at 413. No endorsement bearing the date "February 18, 1997" appears in the Primary Policy, however. See generally Primary Policy at 12--70.

On May 23, 1997, Boller sent Premier a request for a revised certificate of insurance to reflect automobile coverage and to extend the cancellation-notice period from 10 to 30 days.*fn4 Id. at ¶¶ 39--40. Boller's request indicated that the revised certificate should be in a form similar to February 18, 1997 certificate, which Boller attached as "a sample copy of a certificate of insurance for this project." See id.; May 1997 Boller Memorandum, Ex.14 to Boller/Harleysville LR 56.1(a) Stmt., at 914. Ms. Kristoffersen issued a revised certificate on May 28, 1997 that reflected changes consistent with Boller's request. See May 1997 Revised Insurance Certificate, Ex.13 to Boller/Harleysville LR 56.1(a) Stmt., at 699. Like the prior certificate, this revised certificate identified Boller as an additional insured with respect to the Oak Grove Project, but mentioned no other projects. Id.

On September 4, 1997, MBC and Boller entered into a subcontractor agreement for a second construction project, this one for the construction of an elementary school for the Freemont School District in Mundelein, Illinois (hereinafter, the "Freemont Project."). Freemont Subcontractor Agreement, Ex. 15 to Boller/Harleysville LR 56.1(a) Stmt., at 1061. Consistent with Boller's past practice, the Freemont subcontractor agreement required MBC to add Boller as an additional insured on MBC's insurance policies. See id. at 1062.*fn5

B. The Kulasik Suit and Boller's Attempts to Tender Defense and Indemnification to Cincinnati

On October 20, 1997, Mr. Kulasik fell from scaffolding while working on the Freemont Project; he later claimed that he injured his knee and fractured his ribs in the incident. See Boller/Harleysville LR 56.1(a) Stmt. ¶¶ 63, 87; "Updated Pretrial Report," Ex. 15 to Boller/Harleysville LR 56.1(a) Stmt., at 1066. The day after Mr. Kulasik was injured, a Boller employee faxed Ms. Kristoffersen a request for issuance of a certificate of insurance "ASAP," "per attached requirements." October 21, 1997 Fax, Ex.13 to Boller/Harleysville LR 56.1(a) Stmt., at 706. This fax attached a partially completed certificate of insurance identifying Boller; the Board of Education Freemont School District 79; and Legat Architects, as additional insureds "Re: Freemont K-3 Elementary School, Mundelein, IL 60060." Id. at 705. On October 21, 1997, Marlene Tovar, a Premier employee, prepared a certificate substantially in the form that the Boller employee had requested. October 21, 1997 Insurance Certificate, Ex.13 to Boller/Harleysville LR 56.1(a) Stmt., at 702--04. On October 22, 1997, an endorsement adding the same three parties was sent to MBC. Boller/Harleysville LR 56.1(a) Stmt. ¶ 46. The effective date of the endorsement is October 21, 1997-one day after Mr. Kulasik was injured. October 1997 Boller Endorsement, Ex. 1 to Boller/Harleysville LR 56.1(a) Stmt., at 70.

Mr. Kulasik filed a lawsuit against Boller on October 20, 1999, alleging that Boller's negligence was the proximate cause of his injuries. Kulasik Complaint, Ex. 14 to Boller/Harleysville LR 56.1(a) Stmt., at 876--77. Shortly after Boller was served with the complaint (the precise date is not clear from the record), Boller forwarded the suit papers to Harleysville. Boller/Harleysville LR 56.1(a) Stmt. ¶ 214. On February 2, 2000, John Prusik, the attorney retained by Harleysville to represent Boller, sent MBC a letter tendering Boller's defense and indemnification in the Kulasik Suit to MBC and Cincinnati. See Boller/Harleysville LR 56.1(a) Stmt. ¶¶ 95--96. In his letter, Mr. Prusik cited the provision of the Freemont Project subcontractor agreement requiring MBC to name Boller as an additional insured on its policies, and attached two insurance certificates identifying Boller as an additional insured on MBC's policies with Cincinnati. February 2000 Tender Letter, Ex. 14 to Boller/Harleysville LR 56.1(a) Stmt., at 895--97. Both certificates postdate Mr. Kulasik's accident. Id. at 896--97 (attaching certificates dated January 14, 1998, and October 22, 1997). On May 24, 2000, Boller filed a three-count, third-party complaint against MBC in the Kulasik Suit for contribution, indemnification and breach of contract. Boller/MBC Third-Party Complaint, Ex. 13 to Boller/Harleysville LR 56.1(a) Stmt., at 732. Boller's breach-of-contract count cited the February 2, 2000 letter, stated that Boller's tender had "not been accepted by any insurance company," and alleged that MBC had breached the Freemont Project subcontractor agreement by "not providing complete comprehensive general liability coverage." Id.

Mr. Prusik made a second attempt to tender Boller's defense to Cincinnati on November 14, 2000, this time in a letter addressed to Premier. November 2000 Tender Letter, Ex. 14 to Boller/Harleysville LR 56.1(a) Stmt., at 898. Ms. Kristoffersen transmitted the complaint and the November 14 letter to Cincinnati on or about December 13, 2000. Boller/Harleysville LR 56.1(a) Stmt. ¶ 102. According to Cincinnati's "Liability Initiation Report," dated June 13, 2001, Cincinnati received these materials sometime in "late 2000." Id. at ¶ 111. In June 2001, Ronald Day, Cincinnati's regional claim superintendent, reviewed the Liability Initiation Report as well as Cincinnati's "home office" file for MBC.*fn6 Day Dep., Ex. 15 to Boller/Harleysville LR 56.1(a) Stmt., at 973, 1015. In his deposition, Mr. Day recalled that among those documents, he saw only one that identified Boller as an additional insured-the October 21, 1997 endorsement. Day Dep. at 982. By the time that Cincinnati formally responded to Boller's tender on July 3, 2001, however, Mr. Kulasik had voluntarily dismissed his lawsuit and Cincinnati concluded that there was, therefore, no need to determine Cincinnati's obligations, if any, to Boller. Boller/Harleysville LR 56.1(a) Stmt. ¶¶ 122--24. In his July 3, 2001 letter to Boller's counsel, Mr. Day, without expressing an opinion on the merits of Boller's tender, requested that Boller's counsel contact him directly should the Kulasik matter "resurface." July 2001 Day/Prusik Letter, Ex. 15 to Boller/Harleysville LR 56.1(a) Stmt., at 1070.

Mr. Kulasik did refile his lawsuit on April 11, 2002, and Boller's counsel renewed his tender to Cincinnati. Id. at ¶ 126. Mr. Day formally denied Boller's tender by letter dated May 21, 2002. Id. at ¶¶ 188--89. In his letter, Mr. Day cited the October 21, 1997 endorsement and noted that Boller was not added as an additional insured to the Primary Policy until after Mr. Kulasik's injury.

May 2002 Rejection Letter, Ex. 15 to Boller/Harleysville LR 56.1(a) Stmt., at 1077. This letter does not mention the Umbrella Policy, however. Id. Meanwhile, Harleysville resumed Boller's defense in the refiled action, which included refiling Boller's third-party complaint against MBC for contribution, indemnification and breach of contract. See Boller/Harleysville LR 56.1(a) Stmt. ¶¶ 224--26; Harleysville "Log Notes," Ex. 17 to Boller/Harleysville LR 56.1(a) Stmt., at 1699.

The record reflects no further dealings between these parties until June 30, 2003, when Cincinnati's reiterated its position that Boller was not added to the Primary Policy until after Mr. Kulasik's injury. June 2003 Nightingale--Prusik Letter, Ex. 14 to Boller/Harleysville LR 56.1(a) Stmt., at 940.*fn7 In counsel's June 30, 2003 letter, Cincinnati acknowledged, apparently for the first time, that Boller was an insured under the Umbrella Policy. Id. at 940--41. Cincinnati maintained that its duty to defend Boller under that policy was triggered only if Boller did not have other insurance applicable to the Kulasik Suit, or if such insurance were exhausted, and asserted that Boller had not established that these conditions were satisfied. Id. at 941.

A year later, on June 17, 2004, Mr. Prusik tendered the Kulasik Suit to Cincinnati one more time, Boller/Harleysville LR 56.1(a) Stmt. ¶ 193; Cincinnati's counsel rejected the claim by letter dated that same day. Id. at ¶¶ 195--96. This letter reiterates Cincinnati's position with respect to the October 21, 1997 endorsement, and claims with respect to the Umbrella Policy that it was excess to "all other collectible insurance, including Boller's own CGL [comprehensive general liability] policies." June 2004 Rejection Letter, Ex. 15 to Boller/Harleysville LR 56.1(a) Stmt., at 1087.

Cincinnati's counsel observed in her letter that it was Cincinnati's "understanding" that Boller's own comprehensive general liability carrier was ...


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