The opinion of the court was delivered by: James F. Holderman, Chief Judge
MEMORANDUM OPINION AND ORDER
In this case, plaintiff American Interstate Insurance Company ("American Interstate") seeks a declaratory judgment that American Interstate owes no duty to defend or indemnify defendants Bauer Roofing, Inc. ("Bauer Roofing") and/or Paul Bauer for injuries sustained by Paul Bauer on October 13, 2003. In the alternative, American Interstate seeks a declaratory judgment that Bauer Roofing, Paul Bauer and John Bauer, together and individually, must indemnify American Interstate for any payments American Interstate is required to make to or on behalf of Paul Bauer. For the reasons stated below, American Interstate's Motion for Summary Judgment is denied.
The facts in this case are largely undisputed, but there is a sufficient dispute of material fact to preclude summary judgment. At issue is the effect of an exclusion provision set forth in the workers' compensation policy of insurance issued to Bauer Roofing by American Interstate, Policy No. AVWCIL1175882003, with effective dates of April 12, 2003 to April 23, 2004 (the "Policy").
By way of background, when Bauer Roofing applied for a workers' compensation policy of insurance for the period of April 15, 2002 to April 15, 2003 (a year prior to the Policy at issue), Bauer Roofing originally listed both John and Paul Bauer as officers who were to be excluded from coverage under that insurance policy. (SMF ¶ 7). Later, in August, 2002, John Bauer signed a form excluding himself from insurance coverage as an officer of Bauer Roofing, but also stating that Paul Bauer was "not employed with Bauer Roofing presently." (SMF ¶ 8).
Bauer Roofing then renewed its coverage with American Interstate for the period of April 12, 2003 to April 12, 2004 -- the Policy at issue in this case. (SMF ¶ 9). On or about June 14, 2003, John Bauer again executed an exclusion for himself, as an officer of Bauer Roofing. (Id.). Later, on July 11, 2003, Bauer Roofing's accountant Ron Paquette faxed a letter to Joyce Whiddon at American Interstate requesting that American Interstate also "Please exclude Paul Bauer from the above policy effective immediately. He resumed his position on June 9, 2003." (SMF ¶ 10).
American Interstate sent the proper forms to Bauer Roofing and, on September 8, 2003, both John and Paul Bauer signed an exclusion form regarding the Policy. (SMF ¶ 11). The exclusion form stated, in relevant part:
This policy does not cover bodily injury to any person described in the Schedule. The premium basis for the policy does not include the remuneration of such persons. You will reimburse us for any payment we must make because of bodily injury to such persons.
PARTNERS: OFFICERS: OTHERS:
PAUL BAUER - EFF 07/12/2003
On or about October 13, 2003, Paul Bauer sustained bodily injuries when he fell off a roof while working in the course and scope of his employment with Bauer Roofing. (SMF ¶ 13). as result of this accident, Paul Bauer became a paraplegic and is paralyzed from the waist down. (Id.). At some time after the accident on October 13, 2003, John Bauer checked the corporate books of Bauer Roofing and discovered that Paul Bauer was never an officer of Bauer Roofing. (SMF ¶ 14). Up to the date of the accident on ...