United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
DAVID R. HERNDON, Chief District Judge.
Pending before the Court is plaintiff Maxum Indemnity Company's (Maxum) motion for summary judgment (Doc. 24). Maxum requests that the Court enter judgment in its favor finding it has no duty to defend or indemnify defendant Miller Contracting Services, Inc. (Miller) in Darrell Oller and Sarah Oller v. Miller Contracting Services, Inc. et al., Case No. 10 CT 040152, in the Circuit Court of Marion County, Indiana (Oller lawsuit). Miller responds with a cross-motion for summary judgment (Doc. 25). For the following reasons, Maxum's motion for summary judgment is GRANTED and Miller's motion is DENIED.
II. BACKGROUND AND UNDISPUTED FACTS
This declaratory judgment action seeks a finding that Maxum has no duty to defend or indemnify Miller for the allegations of the Oller lawsuit. Darrell Oller (Darrell) and Sarah Oller (Sarah) (collectively, the Ollers) filed the two-count Oller lawsuit against Miller and other defendants not present here, on October 11, 2012 (Doc. 8-2).
The Oller lawsuit alleges that Foresight Energy Group contracted Miller as the "general contractor for construction of the structures for the coal conveying and barge loading dock at or near the Ohio River in Mt. Vernon, Posey County, Indiana" (Doc. 8-2, ¶ 16). Miller "subcontracted Burkey's Construction to excavate the conveyor beds, pour concrete and set steel for the rail line and coal conveyor beds for the barge loading facility in Mt. Vernon, Posey County, Indiana" ( Id. at ¶ 17). "At all relevant times, [Darrell] "was an employee of Burkey's Construction, a subcontractor of [Miller]" ( Id. at ¶ 19).
On October 21, 2010, while Darrell "was assisting in the setting and bolting up of the steel I-beams, he was struck by 75-pound anchor bolts that fell from a plywood box used by a crane to lower five sets of bolts at a time into the area where [Darrell] was working" ( Id. at ¶ 21). The Oller lawsuit brings Count I, sounding in negligence, by Darrell, for his physical and emotional injuries ( Id. at ¶¶ 1-26). Sarah brings Count II for loss of "services, society and marital rights arising out of her marriage with her husband, [Darrell], known as consortium, " which she alleges directly and proximately resulted from the defendants' negligence ( Id. at ¶¶ 27-29).
Maxum issued a commercial general liability policy, policy number BDG XXXXXXX-XX, to Miller, effective June 26, 2010, to June 26, 2011 (Maxum Policy) (Doc. 8-1). The Maxum Policy includes limits of $1, 000, 000.00 per occurrence, $2, 000, 000.00 products-completed operations aggregate, and $2, 000, 000.00 general aggregate. Section I, Coverage A Bodily Injury and Property Damage Liability, subpart 1.a., provides:
[Maxum] will pay those sums that [Miller] becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies. [Maxum] will have the right and duty to defend [Miller] against any "suit" seeking those damages. However, [Maxum] will have no duty to defend [Miller] against any "suit" seeking damages for "bodily injury" or "property damage" to which this insurance does not apply.
(Doc. 8-1, p. 10).
The Maxum Policy contains the following Contractors Limitation Endorsement:
EXCLUSION - CONTRACTED PERSONS
This insurance does not apply to "bodily injury, " "property damage, " "personal and advertising injury" ...