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Western World Insurance Co. v. Penn-Star Insurance Co.

August 25, 2009

WESTERN WORLD INSURANCE CO., PLAINTIFF,
v.
PENN-STAR INSURANCE CO., MCCOY CONSTRUCTION CO., AND THE CITY OF EAST ST. LOUIS, ILLINOIS, DEFENDANTS.



The opinion of the court was delivered by: Honorable J. Phil Gilbert United States District Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This matter came before the Court on July 20, 2009, for a bench trial before the Honorable J. Phil Gilbert, District Judge, presiding. After reviewing materials submitted by the parties, hearing the testimony of Ronnie McCoy and reviewing the deposition transcript of Angela Cale, the Court find in favor of the Plaintiff, Western World Insurance Company ("Western World"), based on the reasons stated on the record at the July 20, 2009 trial. Additionally, the Court makes the following Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

1. This is an action for declaratory judgment, brought by Western World to determine the parties' rights and obligations under a certain commercial general liability insurance policy issued by Western World for claims alleged against Ronnie McCoy by Penn-Star Insurance Company ("Penn-Star") and the City of East St. Louis, Illinois, arising out of an action filed in the United States District Court for the Southern District of Illinois, East St. Louis Division, under the caption, Penn-Star Ins. Co. v. McCoy Construction Co., Case Number 07-cv-175-DRH-CJP ("the Underlying Action").

2. The Underlying Action sought recovery for damage incurred on June 19, 2006, to a shared wall between a building McCoy was demolishing pursuant to a contract with East St. Louis and the neighboring property owned by Penn-Star's insured.

3. Western World issued three consecutive commercial general liability policies to McCoy.

4. The initial policy, NPP846253, with effective dates of August 19, 2003, to August 19, 2004, was printed and issued by Arlington/Roe & Company, an authorized agent of Western World.

5. Policy NPP846253, as evidenced by Plaintiff's Trial Exhibit 1, included Endorsement WW174 and this endorsement was listed in the Schedule of Forms and Endorsements, which functions as a table of contents for the forms in a policy. Angela Cale, an Arlington/Roe manager, testified that Docucorp, the computer program used to generate Western World's insurance policies, printed as a part of the policy every form listed in the Schedule of Forms and Endorsements. Consequently, if a form was listed on the Schedule of Forms and Endorsements, it was printed as a part of the policy. Two copies were then sent to the insurance agent, one of which he was to provide to the insured. Cale testified by deposition and, in light of the absence of any contradictory evidence, her familiarity with Arlington/Roe's Western World insurance policy issuance process, and the reasonableness of her testimony, the Court finds her testimony as to these matters to be credible. McCoy did not testify otherwise. He testified that he did not look at Policy NPP846253 to see if it actually contained Endorsement WW174, and he has since discarded that policy.

6. Endorsement WW174 entitled "Demolition and Building Wrecking Limitation Endorsement" provides, in pertinent part:

DEMOLITION AND BUILDING WRECKING LIMITATION ENDORSEMENT (Effective Date 9/30/2005) This insurance is amended as follows: * * *

C. Additional Exclusions

This insurance does not apply to:

1. Damage to abutting wall (touching along a border or with a projective part) adjoining wall, common or party wall nor property damage to any other property at any time resulting from such damage.

2. Injury or death caused by the use of explosives. 3. Injury, death or damage to persons or property arising from the use of a ...


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