The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
On April 27, 2009, Plaintiff Alberici Constructors, Inc. (Alberici) filed a First Amended Complaint at Law (#29) against Defendant's Mathew Wrigley and Anderson Electric, Inc. (Anderson). On June 17, 2009, Anderson filed a Motion to Re-Submit a Prior Motion for Summary Judgment (#31). Anderson had previously filed a Motion for Summary Judgment (#20) on February 9, 2009. Alberici filed its Response to the Motion for Summary Judgment (#33) on July 6, 2009. On July 20, 2009, Anderson filed its Reply (#34) to Alberici's Response. This case is before the Court for ruling on Anderson's Motion for Summary Judgment (#20) as resubmitted by Anderson's Motion to Re-Submit a Prior Motion (#31). For the following reasons, Anderson's Motion for Summary Judgment (#31) is GRANTED.
The following facts are taken from the "Undisputed Facts" section of Anderson's Motion for Summary Judgment which Alberici has conceded to in their Response, and from exhibits filed as attachments to the filings in this case. Alberici entered into a contract with Ameren Energy Generating Company (Ameren) to provide services including on-site supervision, crafts, labor, and materials to perform boiler maintenance at Ameren's Coffeen Power Plant. Anderson contracted with Ameren to provide electrical services at various Ameren power plants, including the Coffeen Power Plant. Both the Alberici and Anderson contracts with Ameren were subject to the requirement that commercial general liability insurance coverage be purchased naming Ameren and its subsidiaries and their affiliates as additional insured's "on a primary and noncontributory basis."
The Alberici and Anderson contracts with Ameren also were subject to the same set of General Conditions of Contract that were provided by Ameren, which had been incorporated into each of the aforementioned contracts. This General Conditions of Contract contained the following applicable provisions:
The term "Work" means all labor, methods, material, goods, equipment, structures, services, transportation and all other facilities to be provided by or performed by Contractor stated or reasonably inferred from the Contract Documents. The Work may constitute the whole or a part of the Project . . . Contractor shall defend, indemnify and save harmless Company, its parent, affiliates and subsidiaries, and all of their respective directors, officers and employees . . . from and against any and all claims, demands, losses, damages, attorney fees and expenses caused by or resulting from any act or omission of Contractor . . . arising out of or in connection with the Work to the fullest extent permitted by law . . . . No provision of the Contract is intended or shall be construed to be for the benefit of any third-party.
In addition, the Ameren "Coffeen Power Station Maintenance Contract" is incorporated by reference into both the Alberici and Anderson contracts. This maintenance contract provides that each contractor shall defend and indemnify Ameren "from and against any and all claims, demands, losses, damages, attorney fees and expenses caused by or resulting from any act or omission of Contractor . . . ."
Anderson's insurance policy which provides additional insured coverage for Ameren has a separate endorsement attached thereto entitled "Additional Insured -- Owners, Lessees or Contractors". This endorsement contains the following provision:
If a contract with the Named Insured requires that the insurance provided for the Additional Insured be primarily concurrent or primary non-contributory, then the coverage provided to the additional insured under this endorsement shall conform to that contract. However, this insurance will conform to that contract only to the extent that the contract requires this insurance to be primary in comparison to the Additional Insured's own policy or policies; in no event shall a contract with the named Insured operate to require this insurance to contribute with other Additional Insured coverage available to the additional insured, and this insurance shall be excess over any such other insurance, whether on an excess, contingent, or primary basis.
Alberici's insurance carrier for this incident is Discover Property and Casualty. This policy contains an endorsement entitled "Blanket Additional Insured." This endorsement contains the following provision: "Where required by such contract, agreement, bid specification or permit, this insurance is primary as respects any other coverage available to the additional insured and we will not seek contribution from such other."
In the underlying state court lawsuit, which is pending in Macon County, Illinois, Matthew Wrigley and his wife have alleged that the defendants' Ameren, Ceda, and Alberici breached their duties by (1) failing to provide Anderson employees, including Wrigley, with a reasonably safe place to work, by allowing them to be exposed to toxic chemicals; (2) failing to properly supervise or inspect the work being performed by Ceda; (3) failing to evacuate Anderson employees during boiler cleaning; (4) failing to restrict access during boiler cleaning when employees could be exposed to toxic chemicals; (5) failing to warn Anderson employees that Ceda was cleaning boilers; (6) failing to inform Anderson employees what Ceda was doing; (7) failing to warn Anderson employees of the risk associated with cleaning boilers; and (8) failing to provide Anderson employees with proper safety equipment, which could have prevented exposure to toxic chemicals used in the boiler cleaning.
In April, 2006, Ameren sent letters to Alberici and Ceda requesting that they defend and indemnify Ameren in the underlying lawsuit pursuant to the terms of the purchase orders. In June 2006, Alberici accepted Ameren's tender for defense. In August 2006, Ameren sent a letter granting Alberici permission to tender its defense and indemnity to Anderson for its pro rata share of defense and immunity. In October 2006, Alberici sent a letter to Anderson requesting that Anderson participate in the defense of Ameren on a one-third shared basis with Alberici and Ceda.
Alberici's First Amended Complaint alleges three counts as follows: Count I seeks a declaratory judgment that Anderson is obligated to pay its pro rata share of Ameren's defense and indemnity. Count II seeks an equitable contribution from Anderson for one-third, the pro rata share, of Ameren's defense costs and indemnification. Count III seeks equitable ...