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St. Paul Fire and Marine Insurance Co. v. Tip Top Builders

May 5, 2006

ST. PAUL FIRE AND MARINE INSURANCE COMPANY, PLAINTIFF,
v.
TIP TOP BUILDERS, INC.; DENNIS MARKOS; CAROL MARKOS; NORTH LAKE SHORE DRIVE CONDO-MINIMUM ASSOCIATION; AND LATHOMUS PROPERTY SERVICES, LLC, DEFENDANTS.



The opinion of the court was delivered by: Judge Manning

1418

MEMORANDUM AND ORDER

Plaintiff St. Paul Insurance issued a commercial general liability policy to E. Shavitz & Sons, Inc., a subcontractor on a construction project where defendant Tip Top was the general contractor. A pipe burst on the project, causing significant damage to various condominium units. As a result, eight separate lawsuits were filed against Tip Top and Shavitz (as well as others). Claiming it was an additional insured on the St. Paul-Shavitz policy, Tip Top sought coverage from St. Paul. In response, St. Paul filed the instant declaratory judgment action seeking an order finding that it is not obligated to defend or indemnify Tip Top.*fn1

Tip Top's first motion in limine is before the court. In this motion, Tip Top seeks to bar St. Paul from introducing evidence or advancing arguments disputing that Tip Top is an additional insured on the St. Paul-Shavitz policy. For the following reasons, Tip Top's motion is denied.

I. Background

Tip Top contends that St. Paul's lawyers in the underlying state court actions ("Underlying Actions") told the trial court that Tip Top was an additional insured on the St. Paul policy. Tip Top thus argues that St. Paul is collaterally estopped from contesting Tip Top's status as an additional insured in the instant action.

A. Explanation of the Issue

At the outset, the court notes the parties' positions require the reader to focus on the difference between the ministerial task of naming a person or entity as an additional insured on a certificate of insurance and that person or entity actually qualifying for coverage as an additional insured under the terms of the policy. For this purpose, it is important to keep two things in mind: (1) both parties agree that Shavitz gave Tip Top with a certificate of insurance naming Tip Top as an additional insured, and (2) the policy issued by St. Paul to Shavitz states that additional insured status is only provided to "any person or organization you [Shavitz] are required in a written contract to show as an additional protected person." (emphasis added).

Thus, when the parties filed cross-motions for summary judgment before this court, they focused on whether a written contract required Shavitz to name Tip Top as an additional insured. St. Paul argued that no such written contract existed. In contrast, Tip Top argued that various written communications between the parties constituted a contract. The court found that genuine issues of material fact existed with respect to the existence of a written contract and thus denied the motion for summary judgment.

In Tip Top's present motion in limine, it asserts that it does not need to prove at trial that a written contract required Shavitz to name Tip Top as an additional insured. In support, Tip Top invokes collateral estoppel, contending that the trial court in the Underlying Actions previously ruled that it was an additional insured.

B. The Parties' Positions

In support of its claim that it is an additional insured, Tip Top directs the court's attention to Counts II and III of its second amended cross-claim filed in the Underlying Actions. In those counts, Tip Top alleged that Shavitz breached written and oral contracts by failing to designate Tip Top as an additional insured on the Shavitz-St. Paul policy. Shavitz ultimately filed a motion for summary judgment as to these claims. As Tip Top acknowledges, Shavitz's motion did not concede that any sort of contract existed between Tip Top and Shavitz. Instead, Shavitz's motion stressed that Shavitz had provided a certificate of insurance to Tip Top naming it as an additional insured under its policy with St. Paul. The state court found that this satisfied any obligation that Shavitz may have had to name Tip Top as an additional insured and rejected Tip Top's breach of contract claims against Shavitz.

St. Paul does not dispute that Shavitz issued a certificate of insurance to Tip Top naming it as an additional insured. However -- and this is where it gets a little tricky -- St. Paul contends that the issuance of a certificate of insurance does not necessarily mean that Tip Top actually qualified as an additional insured under the Shavitz-St. Paul policy. Specifically, St. Paul contends that Tip Top was only eligible to be an additional insured under the Additional Insured Endorsement if a written contract required Shavitz to include it as an additional insured. According to St. Paul, the state court did not litigate or decide this issue. Or, to put it in St. Pauls' own words:

As the trial court in the Underlying Lawsuit recognized, whether Tip Top is an insured under the terms, conditions and exclusions of the St. Paul Policy's Additional Insured Endorsement is purely a question of coverage distinct from whether Shavitz fulfilled a purported ...


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