Alpha Construction and Enginee v. The Insurance Company of the S

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:06-cv-02352-JFM Copies to all parties and the district court/agency. [998430230] [09-1394]

Alpha Construction and Enginee v. The Insurance Company of the S

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-1394 ALPHA CONSTRUCTION AND ENGINEERING CORPORATION; RUMMEL, KLEPPER & KAHL; UNITED STATES FIDELITY AND GUARANTY COMPANY; THE AMERICAN INSURANCE COMPANY, Plaintiffs - Appellants, v. THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, Defendant - Appellee.

Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, District Judge. (1:06-cv-02352-JFM) Argued: May 13, 2010 Decided: September 22, 2010

Before KING and DAVIS, Circuit Judges, and C. Arlen BEAM, Senior Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation. Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion. Senior Judge Beam wrote a concurring and dissenting opinion. ARGUED: Patrick James Attridge, KING & ATTRIDGE, Rockville, Maryland; Robert Lawrence Ferguson, Jr., FERGUSON, SCHETELICH & BALLEW, PA, Baltimore, Maryland, for Appellants. J. Gregory Lahr, SEDGWICK, DETERT, MORAN & ARNOLD, New York, New York, for Appellee. ON BRIEF: Michele Z. Blumenfeld, FERGUSON, SCHETELICH

Dockets.Justia.com

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& BALLEW, PA, Baltimore, Maryland, for Appellants. Stacey A. Moffet, ECCLESTON & WOLF, PC, Hanover, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM: The plaintiffs in this declaratory judgment action, Alpha Construction Klepper Company & and Engineering ("RKK"), and Corporation States ("Alpha"), and Rummel, Guaranty Company

Kahl

United The

Fidelity

("USF&G"),

American

Insurance

("American") (collectively, the "Plaintiffs"), appeal from the district court's judgment in favor of defendant The Insurance Company of the State of an Pennsylvania insurance ("ICSP," or the See

"Defendant"),

resolving

coverage

dispute.

Alpha Constr. & Eng'g Corp. v. Ins. Co. of State of Pa., 601 F. Supp. 2d 684 (D. Md. 2009) (the "Opinion") (awarding summary judgment to ICSP and denying summary judgment to Plaintiffs). As explained below, we are content to affirm the district court on its insurance coverage declaration. vacate its reimbursement award and On the other hand, we remand for further

proceedings.

I. A. The Maryland Transit Administration ("MTA") is a state

governmental agency that provides rail, bus, and other transit

3

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services within the confines of Maryland. 1

MTA's Construction Most of the from outside

Division manages its capital improvement programs. Construction independent Division's firms staff is leased by MTA

through

so-called

"consultant

contracts."

Alpha and RKK were independent firms that provided inspectors and resident engineers to MTA for its projects. Various

agreements between MTA, Alpha, RKK, and other firms allowed MTA to have a labor pool readily available for its various

construction projects. In January 2003, MTA was involved in construction and

improvement work at the Rogers Avenue Metro Station in Baltimore (the "Weatherization ("Maple") Project"), was the and a firm called for Maple this

Construction undertaking. safety

general

contractor

On January 13, 2003, MTA received a report of a at the Rogers Avenue station, and two MTA

violation

inspectors, Michael Gray and Anthony Combs (inspectors supplied to MTA by Alpha and RKK, respectively), were dispatched to the station. Upon arriving at the Rogers Avenue station, Gray saw a The evidence

large piece of plywood perched above an escalator.

reflects that Maple's employees used several similar boards to

The MTA is liable for its contracts and torts and for the torts of its officers, agents, and employees in connection with the performance of the duties and functions of the agency. See Md. Code Ann., Transp. § 7-702(a). 4

1

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cover

an

opening

to

the

escalator

while

they

worked

on

the

Weatherization Project during daylight hours. all but one board was removed, however,

During the night, apparently because

Maple's owner and project foreman decided there was no point in taking the last board down. Although Gray noticed some wire on

or near the single board, he could not ascertain whether the plywood was tied securely. While in the process of examining

the board, Gray lifted and dislodged it, causing the board to fall onto the back and head of MTA passenger Mary Griffin as she ascended the escalator. injuries as a result. Griffin thereafter settled her personal injury lawsuit Griffin sustained serious and permanent

arising from the foregoing incident for the sum of $855,000. The settlement involved a number of parties ---- MTA, Maple, MTA's and Maple's general liability insurer and (ICSP), RKK Alpha its and its

general

liability carrier

carrier

(USF&G), In

and

general Funding

liability

(American).

the

Settlement

Agreement, each of the settling parties reserved the right to seek reimbursement from one another for the defense costs and indemnity payments incurred. Nonetheless, the actual settlement

funds came from the three insurers ---- ICSP, USF&G, and American -- and the Settlement Funding Agreement was signed by

representatives of each of these insurers. that the possible negligence and 5

The Agreement states of the various

liability

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parties had not been adjudicated or apportioned and expressly reserved such issues for future determination. The general liability policy issued to MTA by ICSP for the Weatherization Project (the "ICSP Policy") was part of an owner controlled insurance program, called an "OCIP." known as wrap-around for those insurance programs, and OCIPs, also insurance supplying

provide

coverage

contractors

subcontractors

direct labor or personnel at a construction project, and insure against the damage, risk of loss arising and from, inter alia, property claims.

personal

injury,

workers'

compensation

Under the ICSP Policy issued to MTA, ICSP provided a defense for both MTA and Maple in the Griffin lawsuit, but denied coverage for Alpha and RKK and their employees Gray and Combs. B. As a result of the foregoing events, Alpha and RKK, on behalf of themselves and their insurers USF&G and American,

filed this declaratory judgment action in the district court, alleging diversity jurisdiction and seeking a declaration that Alpha and RKK and their employees, Gray and Combs, were insureds under the ICSP policy. Alpha and RKK sought a declaration from

the district court that ICSP owed them and/or Gray and Combs a duty to defend the Griffin lawsuit and a duty to indemnify them for the settlement contributions made on their behalf. ICSP

counterclaimed against Alpha, alleging that it was entitled to 6

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contribution

or

indemnity

from

Alpha

for

the

costs

it

had

incurred in defending MTA and in paying the sum of $400,000 to help settle the Griffin lawsuit. 1. In addressing the cross-motions of the parties for summary judgment, the district court declared in its Opinion that ICSP was entitled to prevail on the insurance coverage contentions presented by the Plaintiffs. 2
2

First, the court assessed the

Importantly, in issuing its coverage declaration, the district court recognized that "[t]he contracts in dispute in this case were made in Maryland and, accordingly, Maryland substantive law governs." Alpha Constr. & Eng'g, 601 F. Supp. 2d at 688. The court further recognized that, [w]hen interpreting the meaning of an insurance policy, Maryland courts "construe the instrument as a whole to determine the intention of the parties." Clendenin Bros., Inc. v. U.S. Fire Ins. Co., 889 A.2d 387, 393 (Md. 2006) (citing Cheney v. Bell Nat'l Life Ins. Co., 556 A.2d 1135, 1138 (Md. 1989)). Courts will look first to the contract language employed by the parties to determine the scope and limitations of the insurance coverage. Id. (quoting Cole v. State Farm Mut. Ins. Co., 753 A.2d 533, 537 (Md. 2000)). The court is to give a term within the contract its "usual, ordinary and accepted meaning unless there is evidence that the parties intended to employ it in a special or technical sense." Id. (citations omitted). Maryland courts will examine "the character of the contract, its purpose, and the facts and circumstances of the parties at the time of execution." Id. (quoting Pacific Indem. Co. v. Interstate Fire & Cas. Co., 488 A.2d 486, 488 (Md. 1985)). If the terms used in the insurance policy are unambiguous, the court will determine the meaning of the terms of the contract as a matter of law; however, (Continued) 7

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Plaintiffs' contention "that Alpha and RKK are `insureds' under the ICSP Policy," and concluded that "[t]he terms of the ICSP Policy demonstrate that the Policy does not provide coverage to Alpha and RKK." Alpha Constr. & Eng'g, 601 F. Supp. 2d at 689.

The court explained: Plaintiffs argue that Alpha and RKK are included within the Policy's definition of "Named Insured," which includes "[a]ll contractors, all tiers of subcontractors, each separate contractor of [MTA], others to whom [MTA] Contracts to furnish insurance under the insurance program" for the Weatherization Project. Plaintiffs describe Alpha and RKK as "contractors," "separate contractors of [MTA]," or, alternatively, "others to whom [MTA] Contracts to furnish insurance . . . ." Alpha and RKK might appear to be insureds under the Policy's definition of "Named Insured"; however, they are explicitly excluded from coverage by Endorsement MS # 00006 of the Policy. The Endorsement provides that "coverage for `Named Insured(s)' shall be automatically effected based upon issuance of a workers compensation policy as afforded by the wrap-up program/owner controlled insurance program." The Endorsement also states that the Policy "does not apply to any of the following as an insured: ...

if the language is ambiguous, extrinsic evidence may be consulted. Id. (citations omitted). A term of a contract is ambiguous "if, to a reasonably prudent person, the term is susceptible to more than one meaning." Id. (citing Cole, 753 A.2d at 537). Summary judgment is appropriate when the contract in question is unambiguous or when an ambiguity can be resolved by reference to extrinsic evidence. Washington Met. Area Transit Auth. v. Potomac Inv. Props., Inc., 476 F.3d 231, 235 (4th Cir. 2007). Alpha Constr. & Eng'g, 601 F. Supp. 2d at 688-89. 8

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[e]xcept as respects to any contractor or subcontractor who will have employees engaged in work at the project hereof who are not provided workers compensation and employers liability coverage under the owner provided insurance program, unless specifically endorsed to the policy." Although this provision is not artfully worded, it is included among provisions which explicitly list those entities and individuals who are not covered under the Policy. Its import is clear: those contractors or subcontractors who are not provided workers' compensation and employer's liability coverage under OCIP are not insured under the ICSP Policy. Thus, if Alpha and RKK were not provided workers' compensation and employer's liability coverage under OCIP, they were not insured under the ICSP Policy. Plaintiffs present no evidence that Alpha and RKK were provided any coverage under OCIP. In fact, the record evidence indicates quite the opposite. Catharine Jones, MTA's project manager of OCIP, testified in her deposition that neither Alpha nor RKK was ever covered under OCIP. Jones identified at her deposition a spreadsheet dated March 31, 2007, and kept by MTA's broker, listing all of the companies that were ever enrolled in the OCIP starting in 2000. Alpha and RKK do not appear on the list. Additionally, the Alpha and RKK Contracts (collectively "Consulting Contracts") do not incorporate, either directly or by reference, the terms and conditions of the ICSP Policy, and they do not reference participation in OCIP. John Cousins, MTA's Manager of Procurement, testified that consultant contracts of the type entered into by Alpha and RKK typically do not contain an application for enrollment in OCIP because "[w]e [MTA] don't enroll consultants in OCIP." In fact, the Consulting Contracts require Alpha and RKK to enter into their own workers' compensation and comprehensive general liability insurance and to name MTA as an additional insured under their comprehensive general liability policies. Moreover, both the RKK and Alpha Contracts state that they are the "exclusive statement" of the parties' agreement, suggesting that Plaintiffs' reliance on the provisions of the ICSP Policy is misplaced. 9

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Id. at 689-90 (alterations in original) (footnotes and citations omitted). According to the court, "[b]ecause Alpha and RKK

cannot demonstrate that they were provided coverage under OCIP, . . . they are not covered by the ICSP Policy." Id. at 690.

Thus, "ICSP had no duty to defend or indemnify [Alpha and RKK] in the underlying suit." Next, the Id. at 691. 3 court assessed the Plaintiffs'

district

contention "that, under the doctrine of equitable subrogation, they are entitled to reimbursement from ICSP based on their

common law indemnity rights against individuals (Gray and Combs) who were . . . insured under the ICSP Policy." Eng'g, 601 F. Supp. 2d at 691. The court Alpha Constr. & concluded that,

because "Gray and Combs were not insured under the ICSP Policy," there was no merit to the Plaintiffs' equitable subrogation

theory.

Id.

On this issue, the court explained:

In support of their claim that the ICSP Policy includes Gray and Combs as insureds, Plaintiffs assert that Gray and Combs were "employees" of MTA at the time of the Griffin incident. Under the section "WHO IS AN INSURED," the ICSP Policy includes "employees" of MTA. The Policy does not define "employee" except to state that "employee" includes a "leased worker" but not a "temporary worker." "Leased worker" is defined as "a person leased to [MTA] by a labor Notably, the district court also rejected the Plaintiffs' alternative theory "that Alpha and RKK should be covered under the ICSP Policy as third-party beneficiaries of the Policy and of the Maple Contract." See Alpha Constr. & Eng'g, 601 F. Supp. 2d at 690-91. 10
3

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leasing firm under an agreement between [MTA] and the labor leasing firm, to perform duties related to the conduct of [MTA's] business." A "temporary worker" is "a person who is furnished to [MTA] to substitute for a permanent `employee' on leave or to meet seasonal or short-term workload conditions." Plaintiffs assert that Gray and Combs were "leased workers." I need not determine whether Gray and Combs could be properly characterized as "employee[s]" or "leased worker[s]" of MTA because even if that characterization were appropriate, Plaintiffs may not use an equitable subrogation argument to circumvent their clear exclusion under the terms of the ICSP Policy. Under Maryland law, "any construction of a contract that makes another provision superfluous is generally disfavored." National Cas. Co. v. Lockheed Martin Corp., 415 F. Supp. 2d 596, 602 (D. Md. 2006) (citing Baltimore Gas & Elec. Co. v. Commercial Union Ins. Co., 688 A.2d 496, 503 (Md. Ct. Spec. App. 1996) ("A contact must be construed as a whole, and effect given to every clause and phrase, so as not to omit an important part of the agreement.")); see also 11 Richard A. Lord, Williston on Contracts § 32:5 (4th ed. 1992) ("An interpretation which gives effect to all provisions of the contract is preferred to one which renders a portion of the writing superfluous, useless or inexplicable"). In this case, if I were to accept Plaintiffs' reading and find that the terms "employee[s]" or "leased worker[s]" applied to Gray and Combs, the ICSP Policy's exclusion of those contractors or subcontractors not provided coverage under OCIP, like Alpha and RKK, would be rendered effectively meaningless. As discussed above, Endorsement MS # 00006 of the ICSP Policy provides that no contractor or subcontractor will receive coverage under the Policy unless first provided coverage under OCIP. The enrollment process for OCIP gives MTA the discretion to choose which entities participate in OCIP. IF MTA chose to explicitly exclude entities like Alpha and RKK from coverage, but the employees those entities provided to MTA were nonetheless covered, the terms of Endorsement MS # 00006 would have no effect. As Alpha and RKK have no relationship with MTA but to provide "`competent personnel' to work on MTA construction projects," insuring an Alpha or RKK employee against third-party 11

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claims would have essentially the same effect as insuring Alpha or RKK themselves, a result clearly contrary to the terms of Endorsement MS # 00006. Alpha Constr. & Eng'g, 601 F. Supp. 2d at 691-92 (alterations in original) (citations omitted). The court summarized that,

because "Gray and Combs are not insured under the ICSP Policy, Plaintiffs Defendant are for not their entitled defense to and equitable settlement subrogation expenses in from the

underlying suit."

Id. at 692. 2.

The district court then focused in its Opinion on ICSP's counterclaim Alpha for reimbursement, the Alpha in which by ICSP asserted to "that or

breached

Contract

failing

defend

indemnify MTA in the Griffin suit." F. Supp. 2d at 692.

Alpha Constr. & Eng'g, 601

The court agreed with ISCP that, pursuant

to the Alpha Contract, "Alpha owed MTA a duty to defend and indemnify in the underlying suit." Id. The Opinion explained

the court's reimbursement award as follows: In Maryland, an insurer has a duty to defend when there exists a "potentiality that the claim could be covered by the policy." Litz v. State Farm Fire and Cas. Co., 695 A.2d 566, 570 (Md. 1997) (citation omitted). In this case, the source of Alpha's duty to defend is not an insurance policy, but rather the Alpha Contract, which provides "[t]he consultant [Alpha] shall pay any claims for personal injury, bodily injury, or property damage which the Consultant is legally obligated to pay and shall indemnify the State against such claims. The Consultant shall undertake to defend any third party claim seeking such damages." The indemnity provision of the Alpha 12

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Contract requires Alpha to indemnify MTA against all claims arising from "errors, omissions, negligent acts . . . of [Alpha] or those of his . . . agents or employees under this Contract . . . ." A negligence claim is clearly potentially covered. The Griffin suit was a personal injury action by a third party which specifically named Gray, an Alpha employee, as committing the act which led to Griffin's injury. The facts alleged in the underlying complaint clearly brought the claim within Alpha's duty to defend under the Alpha Contract. The duty to indemnify is more narrow. While the duty to defend depends only upon the facts as alleged, the duty to indemnify depends upon liability. Walk v. Hartford Cas. Ins. Co., 852 A.2d 98, 106 (Md. 2004) (citation omitted). The Fourth Circuit has held that the duty to indemnify may be triggered by a settled liability. St. Paul Fire & Marine Ins. Co. v. Am. Int'l Speciality Lines Ins. Co., 365 F.3d 263, 274 (4th Cir. 2004). The issue is whether the claims against the named defendants in the underlying suit and the facts pled in that action would give rise to an indemnification obligation under the agreement between the parties. Id. The indemnity provision of the Alpha Contract provides that Alpha shall indemnify MTA from and against all claims, suits, judgements, expenses, actions, damages and costs of every name and description arising out of or resulting from errors, omissions, negligent acts, negligent performance or nonperformance of the services of the Consultant [Alpha] or those of his subcontractors, agents or employees under this Contract . . . . The facts pled and the claims asserted in the underlying action provide sufficient evidence to determine that the settled liability is encompassed by Alpha's indemnification obligation. See St. Paul Fire & Marine Ins. Co., 365 F.3d at 273-74. The Griffin complaint charged the defendants (including Alpha) "by and through their various agents, servants, and/or employees" with negligence. Specifically, the complaint alleged that the plywood which injured 13

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Griffin fell when Gray, an Alpha employee, was handling it, and the testimony in the underlying action demonstrates that Gray was indeed inspecting and lifting the plywood when it fell, a duty that was part of his performance under the Alpha Contract. Plaintiffs themselves admit that the fact that Griffin was injured when Gray was inspecting the plywood "may be some evidence of Gray's negligence." Though Griffin charged the named defendants collectively with negligence, she alleged that it was Gray's actions or omissions which caused her injury. As Gray was an "employee[]" of Alpha, the settlement of Griffin's allegations against him triggered Alpha's duty to indemnify MTA. Alpha Constr. & Eng'g, 601 F. Supp. 2d at 692-93 (alterations in original) (footnotes the and citations concluded omitted). Alpha In these its

circumstances,

court

"that

breached

duties to defend and indemnify MTA in the underlying action, and ICSP is entitled to reimbursement from Alpha [in the amount of] the costs it incurred in the underlying suit." Id. at 694. The

court awarded ICSP $400,000 -- "the specific amount requested by ICSP in its counterclaim" and the amount "that ICSP paid . . . in settling the Griffin suit." Id. at 694 & n.10.

In accordance with its Opinion, the district court entered an Order on March 9, 2009, denying the Plaintiffs' request for summary imposing judgment, a awarding summary of judgment $400,000 to plus ICSP, and

reimbursement

award

prejudgment

interest and costs.

The Plaintiffs timely noted this appeal,

and we possess jurisdiction pursuant to 28 U.S.C. § 1291.

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II. We review de novo a district court's award of summary

judgment, applying the standards set forth in Federal Rule of Civil Procedure 56 and viewing the facts in the light most

favorable to the nonmoving party.

See Lee v. York Cnty. Sch. Where "an appeal from

Div., 484 F.3d 687, 693 (4th Cir. 2007).

a denial of summary judgment is raised in tandem with an appeal of an order granting a cross-motion for summary judgment, we have jurisdiction to review the propriety of the denial of

summary judgment by the district court."

Monahan v. Cnty. of

Chesterfield, Va., 95 F.3d 1263, 1265 (4th Cir. 1996) (internal quotation marks omitted).

III. On appeal, the Plaintiffs challenge two aspects of the

district court's Opinion.

First, they contend that the court

erred in its insurance coverage declaration, in that Alpha and RKK are entitled to reimbursement from ICSP under the doctrine of equitable subrogation, because Gray and Combs were "insureds" under the ICSP Policy. 4
4

We reject the Plaintiffs' contention in

The Plaintiffs have abandoned on appeal their theory that Alpha and RKK were "insureds" under the ICSP Policy. See Br. of Appellants 21 n.10. ("While Appellants maintain that the District Court's ruling was incorrect, Appellants do not raise that issue in this Appeal."). 15

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this regard and affirm the insurance coverage declaration on the reasoning of the district court. See supra Part I.B.1.

Second, the Plaintiffs assert that the district court erred in imposing the $400,000 reimbursement award. On this aspect of

the Opinion, we agree with the district court that, under the Alpha Contract, Alpha was obliged to defend MTA in the

underlying Griffin suit.

Nevertheless, we cannot endorse the

court's ruling that, as a matter of law, Alpha was required to indemnify MTA, thus entitling ICSP to reimbursement of the full amount of costs it incurred in settling Griffin's claims. supra Part I.B.2. As the Plaintiffs maintain, the issue of whether Alpha had a duty to indemnify MTA depends on whether Gray's negligence was the sole (or at least a contributing) cause of Griffin's See

injuries. Alpha

That is so because, under the express terms of the Alpha is required to indemnify MTA for only

Contract,

Alpha's or its employee's negligence.

Significantly, Alpha did

not agree to indemnify MTA for the negligence of MTA or anyone else. See Heat & Power Corp. v. Air Prods. & Chems., Inc., 578

A.2d 1202, 1208 (Md. 1990) (recognizing "that a [non-insurance] contract will not be construed to indemnify a person against his own negligence unless an intention to do so is expressed in those very words or in other unequivocal the terms" (internal

quotation

marks

omitted)).

Thus, 16

$400,000

reimbursement

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award is appropriate only if Gray was 100% at fault for the Griffin incident. Although Gray was conceivably negligent at the Rogers

Avenue station, this question has not yet been determined as required by the parties' Settlement Funding Agreement. There

was, at best, a comedy of errors leading to Griffin's injuries. Surely the Maple employee that left the board in place afterhours, and perhaps failed to properly secure it, was possibly negligent as well. In paragraph seventeen of Griffin's

complaint, she alleges that all of the defendants (including MTA, Maple, Alpha, and RKK) and their various agents and

employees were negligent for, inter alia, (1) failing to prevent falling objects, (2) failing to remedy the dangerous situation, (3) failing to give notice of the dangerous condition, (4)

failing to prevent the accident, (5) failing to properly oversee and inspect the site, (6) failing to close the site during

construction, (7) failing to inspect the site entrance, and (8) failing to secure the materials at the site. Griffin's tortfeasor. The district court thus erred when it concluded that "[t]he facts pled and the claims evidence asserted to in the underlying that the action settled complaint did not single out In other words, as the sole

Gray

provide

sufficient

determine

liability is encompassed by Alpha's indemnification obligation." 17

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Alpha Constr. & Eng'g, 601 F. Supp. 2d at 693.

Rather, Alpha's

negligence-based liability, if any, must actually be adjudicated or agreed upon before it can be determined whether Alpha is obliged to indemnify MTA and, if so, in what amount. Cf. St.

Paul Fire & Marine Ins. Co. v. Am. Int'l Speciality Lines Ins. Co., 365 F.3d 263, 273-75 (4th Cir. 2004) (concluding summary judgment appropriate where one party had agreed to indemnify all parties for ordinary negligence was we for and it was undisputed only). vacate that In the

settlement these

liability

ordinary

negligence to

circumstances,

are

constrained

reimbursement award and remand for further proceedings.

IV. Pursuant to the foregoing, we affirm in part, vacate in part, and remand for such other and further proceedings as may be appropriate. AFFIRMED IN PART, VACATED IN PART, AND REMANDED

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BEAM, Senior Circuit Judge, concurring and dissenting: The discrete plaintiffs, and Alpha, RKK, USF&G of and American and raise

intertwined

issues

insurance

indemnity

contract interpretation. The district court entered judgment in favor of defendant ICSP on all issues. panel acting for the court (the court) The majority of this affirms the district

court on all points except for the question of whether total indemnification agreement is due MTA ICSP and under Alpha. an I indemnity/save concur in the harmless court's

between

vacation of the district court's indemnification award to ICSP and in its remand of the question of Alpha's duty to ICSP in this regard. I respectfully dissent from the balance of the

issues affirmed by the court.

I. I begin with the indemnity contract dispute between MTA and Alpha over whether Alpha and USF&G owed MTA a duty to defend against claims asserted by Griffin against MTA and its

employees. of the

The district court found the "save harmless" portion agreement, which I set out in detail

indemnification

below, required Alpha, or its insurer USF&G, to reimburse MTA, or its insurer ICSP, for all costs incurred in defending the various third-party claims asserted by Griffin against MTA in the Maryland trial court. This "duty to defend," according to 19

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the district court, was separate and apart from the obligation of Alpha (through USF&G) to indemnify ICSP for ICSP's (for MTA) settlement vacated by payments the to Griffin, It is an obligation that now the correctly costs of

court.

undisputed

defending MTA against the Griffin allegations were paid by ICSP. Accordingly, imposition by the district court of this duty to defend MTA upon Alpha and USF&G allows ICSP to step into the shoes of MTA and to be reimbursed for these costs by Alpha or USF&G under the doctrine of equitable subrogation. This duty to defend MTA, says ICSP, the district court and now this court, emerges from the language of the indemnity

agreement between the parties. The words from which this obligation of Alpha purportedly springs are as follows: The Consultant(s) [Alpha] shall indemnify and save harmless the Department of Transportation [MTA], the Administration, their Officers, agents, and employees from and against all claims, suits, judgements, expenses, actions, damages and costs of every name and description arising out of or resulting from errors, omissions, negligent acts, negligent performance or nonperformance of the services of the Consultant [Alpha] or those of his subcontractors, agents or employees [Gray] under this Contract, or arising from or based on the violation of applicable federal, state or local law, ordinance, regulations, order or decree, whether by himself or his employees or subcontractors. Further, the consultant [Alpha] shall pay any claims for personal injury, bodily injury or property damage which the Consultant [Alpha] is legally obligated to pay and shall indemnify the State against such claims [against Alpha]. The Consultant [Alpha] shall 20

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undertake to defend any third party claim seeking such damages. J.A. 157. From this language, neither Alpha nor its insurer

USF&G acquired a duty to defend or to indemnify MTA against allegations of negligence or liability leveled against anyone except Alpha and its employees. At best, Alpha's duty to defend

MTA extended no further than a claim against MTA "arising out of or resulting from errors, omissions, negligent acts, negligent performance or nonperformance" of Alpha and Alpha's employees. However, such an obligation is not in play in this dispute. USF&G, Alpha's insurer, incurred all defense costs arising from all claims made against Alpha or its employees. Indeed, ICSP

specifically denied Alpha coverage and refused to defend Alpha and its employees. the court that Accordingly, I dissent from the holding of Alpha's duty beyond the indemnity

extends

agreement's specific obligation.

It seems probable that the

district court's decision in this regard, now affirmed by the court, arose from the district court's misinterpretation of the breadth leads of the court indemnity to agreement, and a misinterpretation the district that

the

reverse

remand

court's

indemnity judgment.

21

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II. I next consider the insurance coverages. At the outset, I

adopt by reference the facts and circumstances set forth in Part IA of the court's opinion. I accept in part and reject in part

segments of Part IB and repeat other components of the court's opinion to facilitate and, hopefully, simplify this dissent. The comprehensive general liability policy issued to MTA by ICSP for the Rogers Avenue station improvement project was part of an "owner controlled insurance program" (OCIP), a program formulated by MTA for most, but not all, of its major projects. OCIPs, also known such as as wrap-around coverage insurance provided programs, by ICSP, provide for the

insurance,

the

contractors or subcontractors providing direct manual or nonmanual labor or service personnel at the weatherization

construction sites.

J.A. 73.

An OCIP policy insures against

risk of loss arising from, among other things, property damage, personal injury and workers' compensation claims. Endorsement

MS #00005 of the ICSP agreement states that the ICSP "policy is primary." J.A. 53. Accordingly, under MTA's OCIP, ICSP was the

primary (first to pay) insurer for the Rogers Avenue station improvement project even when MTA's contractors and their

subcontractors coverage.

provided

their

own

contract-mandated

insurance

See, e.g., id. at 77.

Alpha purchased comprehensive

liability coverage for itself and its employees from USF&G and 22

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RKK

purchased

similar

coverage

from

American.

MTA

and

its

employees, as required by the contract, were named additional insureds under the USF&G and American contracts. Thus, MTA and

its employees were insured under at least these three policies. However, since ICSP is the primary policy for the project, the USF&G and American insurance represents excess coverage which comes into play only if the limits of the primary policy are exhausted. There is no evidence that ICSP's total obligations And, although ICSP provided for MTA and some of for its the

in this regard have been exceeded. both a defense as and well indemnification as for Maple

employees,

and

its

employees,

Griffin claim, it has denied coverage for Alpha and RKK and their employees Gray and Combs. As noted by the court, Alpha and RKK and their insurers, USF&G and American, filed this action seeking a declaratory

judgment that Alpha and RKK were insured by the ICSP policy and that their employees, Gray and Combs, were also employees of MTA and, thus, insureds under the ICSP policy. Alpha and RKK

likewise sought a declaration that ICSP owed Alpha and RKK and Gray and Combs a duty to defend the Griffin suit and a duty to indemnify and reimburse their insurers USF&G and American for the Griffin settlement contributions made by them in return for the Griffin release. insurer, alleging ICSP counterclaimed against Alpha or its it is 23 entitled to contribution or

that

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indemnity from Alpha or its insurer for the costs it incurred in defending lawsuit. Upon cross-motions for summary judgment, the district court granted judgment in favor of ICSP, finding that clear policy language precluded Alpha and RKK, or their employees, from being insureds under MTA's OCIP policy. The district court found that MTA and in paying $400,000 to settle the Griffin

Alpha and RKK were excluded from the policy because they were not listed as companies on the enrollment list kept by MTA as part of the OCIP. Furthermore, the district court concluded

that though possibly qualifying as "Named Insured[s]" under the insuring language of the ICSP policy, Alpha and RKK were

specifically excluded from protection by virtue of Endorsement MS #00006 (Endorsement 6) * which was appended to the policy. In support of this holding, the district court found that the

employees provided to MTA by Alpha and RKK were not endorsed for workers' compensation and employer's liability coverage as

Endorsement 6 provides that "coverage for 'Named Insured(s)' shall be automatically effected based upon issuance of a workers compensation policy as afforded by the wrap-up program/owner controlled insurance program." Endorsement 6 also states that the policy "does not apply to any of the following as an insured: . . . [e]xcept as respects to any contractor or subcontractor who will have employees engaged in work at the project hereof who are not provided workers compensation and employers liability coverage under the owner provided insurance program, unless specifically endorsed to the policy." 24

*

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required by Endorsement 6. Accordingly, said the district court, such employees were not "insureds" under the ICSP policy and because of this Alpha and RKK were, likewise, not entitled to reimbursement from ICSP. Finally, the court ruled in favor of

ICSP on its counterclaim, holding that Alpha was required to reimburse ICSP for the $400,000 ICSP contributed to the Griffin settlement. Alpha, RKK, USF&G and American appeal the district

court's judgment.

III. On appeal, rather than continuing to argue that they, as entities, are covered by ICSP, Alpha and RKK confine their

arguments to the employment status of Gray and Combs as they performed their duties for MTA at Rogers Avenue at the time of Griffin's injury. under Maryland Such status raises two separate issues, one law both and the other under the insurance insurance

tort But,

contracts. obligations.

issues

affect

ICSP's

A. Maryland thereunder, is tort not, law, of and duties and obligations by the arising of

course,

governed

content

insurance policies or even the existence, or not, of insurance coverage. Insurance indemnity benefits come into play only

25

Case: 09-1394 Document: 51

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after liability to a tort claimant has been determined under Maryland law. Gray and Combs were furnished to MTA by Alpha and RKK

respectively.

As established by their MTA contracts, Alpha and

RKK were the general or administrative employers of Gray and Combs and MTA was the functioning and controlling employer.

Specifically, Alpha, RKK, Gray and Combs had no authority to make changes in the plans and specifications of the Rogers

Avenue work or any other portion of the weatherization project to which they were assigned. They had no input into work

assignments and were, in fact, dispatched to Rogers Avenue by their immediate MTA supervisor on the day in question. were directed, supervised and managed on the project by They MTA

employees and supervisors.

Under the agreement, MTA reviewed

and approved their qualifications and had the right to accept, or not, their services and to terminate them at any time for any reason. Indeed, MTA was in full control of their actions at the

Rogers Avenue site. Upon receiving contract-specified payments from MTA, Alpha and RKK paid Gray and Combs, made and submitted required deductions, paid fringe benefits, if any, and provided workers' virtually compensation certain benefits, under if necessary, law although MTA also it had is a In

that

Maryland

workers' compensation undertaking to Gray and Combs as well.

Maryland when an employee is employed jointly by two employers, 26

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both

are

liable,

primarily

or

secondarily,

for

workers'

compensation benefits regardless of any agreements between the two employers. Temp. Staffing, Inc. v. J.J. Haines & Co., 765 The Code of Maryland Regulations

A.2d 602, 606 n.7 (Md. 2001).

14.09.01.08 permits a party to implead alleged co-employers in a compensation case. Chaney Enters. Ltd. P'ship v. Windsor, 854

A.2d 233, 246 (Md. Ct. Spec. App. 2004). Alpha and RKK provided Gray and Combs small tools (rulers and hand levels), safety equipment (hard hats and safety vests) and mobile phones all of which items were also available to MTA personnel. For tort liability purposes, the recognized factors

in determining the existence of an employment relationship under Maryland law are: (1) who has the power to select and hire the

employee; (2) who pays the wages; (3) who has the power to discharge; conduct; (4) who (5) has the power work to is control part the of employee's regular

and

whether

the

the

business of the employer. 103 (Md. 1982).

Mackall v. Zayre Corp., 443 A.2d 98,

If both employers have the power to perform a

number of these five functions, the employee will be considered an employee of both. Id. Of these five factors, "control is Great Atl. & Pac. Tea Thus, under were, under

paramount and, in most cases, decisive."

Co. v. Imbraguglio, 697 A.2d 885, 894 (Md. 1997). the circumstances of this case, Gray and Combs

Maryland precedent, borrowed servants. 27

And, in this regard, it

Case: 09-1394 Document: 51

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is

a

settled

principle

of

Maryland

law

that

a

worker

may

simultaneously be the employee of two employers. Anderson, 785 A.2d 726, 741 (Md. 2001). concurrently Maryland. serve two employers is not

Lovelace v.

That an employee can a novel concept in

Id.

Thus, the initial question is whether under the

applicable facts, MTA, as a joint employer, became vicariously liable to Griffin for negligent acts, if any, performed by Gray and Combs at the Rogers Avenue station at the time Griffin was injured. As a matter of Maryland law, there seems to be little Gray and Combs were going the scope of their

doubt that MTA did become liable. about MTA's business, acting

within

contracted-for relationship with MTA and, at the time of the incident with Griffin, were under the complete control of MTA supervisors. 2003). As a panel of this circuit previously noted: The borrowed servant doctrine arose as a means of determining which of two employers, the general employer or the borrowing employer, should be held liable for the tortious acts of an employee whose conduct injured a third party and who, although in the general employ of the former, was performing a task for the latter. See Standard Oil Co. v. Anderson, 212 U.S. 215, 220 (1909) ("[W]hen . . . an attempt is made to impose upon the master the liability for [the servant's tortious acts], it sometimes becomes necessary to inquire who was the master at the very time of the negligent act or omission."). The Supreme Court summed up the doctrine as follows: "One may be in the general service of another, and, nevertheless, with respect to particular work, may be transferred . 28 See S. Mgmt. Corp. v. Taha, 836 A.2d 627, 638 (Md.

Case: 09-1394 Document: 51

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. . to the service of a third person, so that he becomes the servant of that person, with all the legal consequences of the new relation." Id. NVR, Inc. v. Just Temps, Inc., 31 F. App'x 805, 807 (4th Cir. 2002) (alterations in original). Thus, if Gray's and/or Combs's acts of negligence, if any, were the cause, in whole or in part, of Griffin's damages, MTA was vicariously liable for the consequences of such behavior. So, whether or not Gray and Combs were insureds under the ICSP policy, MTA had tort liability to Griffin covered by ICSP's

primary policy.

With regard to MTA's responsibility to Griffin, "[ICSP] will pay those sums

ICSP's insuring agreement states:

that the insured [MTA] becomes legally obligated to pay . . . because of [damages] to which this insurance applies." J.A. 24.

The ICSP insurance clearly applies in this situation and ICSP as primary carrier is obligated to first pay all MTA losses within the limits of its coverage. While Maryland law permits contractual allocation of risk between a general employer and a borrowing employer under the borrowed servant doctrine, Sea Land Industries, Inc. v. General Ship Repair Corp., 530 F. Supp. 550, 563 (D. Md. 1982), the record discloses no indemnity agreement whatever between MTA and RKK and the indemnity agreement between MTA and Alpha set forth above fails to allocate all risk of a controlling employer to a non-controlling employer or if it does, the contract is void 29

Case: 09-1394 Document: 51

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under that reading.

Bethlehem Steel Corp. v. G.C. Zarnas & Co., And, this court has already MTA/Alpha agreement does not

498 A.2d 605, 610-11 (Md. 1985). unanimously determined that the

shift all risk of loss from MTA to Alpha. Accordingly, at the bottom line, if Gray and/or Combs were negligent, MTA, as their employer, incurred liability to Griffin arising out of such acts under the doctrine of respondeat

superior.

Thus, ICSP had a duty to MTA under the coverage

extended by its primary policy to pay for any provable damages suffered by Griffin. If negligent, Gray and Combs were, of Taha, 836 even an

course, also jointly and severally liable to Griffin. A.2d at 638. However, there is no evidence, or

allegation, in the record that Gray and Combs were solely liable for the injury. Indeed, the record indicates that Gray and

Combs were dispatched to Rogers Avenue by MTA upon receipt of a report of a pre-existing safety hazard at that location, On

possibly the handiwork of Maple, the general contractor.

these facts, ICSP denied coverage under its policy to Gray and Combs who then looked to USF&G and American, the excess

carriers, for indemnification.

USF&G and American responded to

ICSP's primary insurance obligations and are now entitled to indemnification by and reimbursement from ICSP.

30

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B. Analysis under Maryland tort law does not end the inquiry into ICSP's responsibilities to Gray and Combs. As noted above,

even though an employer is vicariously liable for the negligent acts of its employee, the employee may also be personally liable to a tort claimant and possibly, in a few instances, to a

totally blameless employer.

Hartford Accident & Indemnity Co.

v. Scarlett Harbor Assocs. Ltd., P'ship, 674 A.2d 106, 135 (Md. Ct. Spec. App. 1996). interest themselves obligations. in acquiring to provide As such, Gray and Combs had an insurable comprehensive liability for coverage for

indemnification

such

potential

As employees of Alpha or RKK, they acquired such But, if Gray

coverage through the USF&G or American policies.

and Combs were also employees of MTA as defined in the ICSP policy, that they acquired Such their primary would for indemnity coverage to a under policy any

policy. and

coverage

entitle liability

them

defense

indemnification

arising

from

actionable behavior. With that background, I turn to the key question in this coverage dispute: were Gray and Combs ICSP-covered employees of I turn to the policy's

MTA at the time of the Griffin incident? language for the answer. interpretational disputes. rules

I digress, however, to mention some in Maryland insurance contract

applied

The initial burden of proof is placed upon an insured 31

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seeking coverage under a policy's insuring language.

Perdue

Farms Inc. Co. v. Nat'l Union Fire Ins. Co., 197 F. Supp. 2d 370, 376 (D. Md. 2002). diminish or restrict, by However, when the insurer seeks to endorsement or written addendum,

otherwise proffered policy coverages, the burden of proof is reversed because the exceptions or exclusions essentially become affirmative defenses. As such, validation of the application

and efficacy of policy limitations is the burden of the insurer. Mut. Fire Ins. Co. v. Ackerman, 872 A.2d 110, 114 (Md. Ct. Spec. App. 2005). Cf. Boyd & Stevenson Coal Co. v. Director, Office

of Workers' Compensation Programs, 407 F.3d 663 (4th Cir. 2005) (applying applicable state insurance law in construing insurance contract). definitions Any must coverage be exclusions and or exceptions and in policy set

conspicuous

plainly

clearly

forth in the contract.

Megonnell v. United States Auto. Ass'n, Also, terms of exclusion cannot but must be given are strict designed and to

796 A.2d 758, 772 (Md. 2002). be extended by interpretation Id.

narrow

construction.

Since

exclusions

limit or avoid liability, they will be construed more strictly than coverage clauses and must be construed in favor of finding coverage. As Id. by the court, the district court relied upon

stated

Endorsement 6 and some related collateral actions to answer the question posed above in the negative. 32 Endorsement 6, according

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to the district court, required a contractor (here Alpha or RKK) to "effect" for ICSP coverage by specifically and endorsing its

employees

workers'

compensation

employer

liability

coverage "to the policy."

Finding no such endorsement in the

OCIP spreadsheet maintained by MTA, the district court concluded that Gray and Combs were not ICSP insureds. The district court additionally opined, somewhat

inconsistently, that it "need not determine" whether Gray and Combs could be properly characterized as employees or leased workers of MTA because to do so would "circumvent" the

endorsement's "clear exclusion" under the policy and render the endorsement superfluous because it would permit Alpha and RKK as uninsured entities under the ICSP policy to use an equitable subrogation remedy to override a written policy exclusion. 780. These conclusions are problematic for at least J.A. three

reasons. First, an ambiguity exists as to who the district court believes is clearly excluded by the endorsement--the contractors, the contractors' employees or both. Second, while Endorsement 6

uses the nonendorsement of a contractor's employees for workers' compensation benefits and employer liability coverage as the key to excluding the contractor, here Alpha and RKK, from ICSP

coverage, nothing in the endorsement excludes the contractor's separately insurable workers, especially ICSP-policy-defined MTA 33

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leased workers. Combs stated,

So, there is no "clear exclusion" of Gray and especially when the aforementioned rules of

interpretation are correctly applied. Third, Endorsement 6 is not superfluous. The endorsement

may be inoperative when a contractor's worker is entitled to ICSP insurance 6's coverage under policy language But, unrelated otherwise, to the

Endorsement

"contractor"

exclusion.

endorsement is fully effective to fulfill its purpose.

Indeed,

it has served to exclude Alpha and RKK and any employees not under the control of MTA, if any, performing services for the weatherization project. But even if Endorsement 6 is deemed

superfluous and collides with the other clearly stated insuring language in the ICSP policy, the endorsement must yield because terms of exclusion cannot be extended by interpretation but must be given strict and narrow construction. 772. I turn now to the coverage language. Section employee contract is II.2.a. "an of the ICSP J.A. an policy 29. states Section that V.5. a an of MTA the Megonnell, 796 A.2d at

insured." notes that

further

employee

"includes

`leased

worker'" but such an employee "does not include a `temporary worker.'" Id. at 32. The ICSP policy defines "leased worker"

as "a person leased to you by a labor leasing firm under an agreement between you and the labor leasing firm, to perform duties related to the conduct of your business." 34 Id. at 33. A

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"temporary worker" is defined as "a person who is furnished to you to substitute for a permanent `employee' on leave or to meet seasonal or short-term workload conditions." Id. at 34-35.

In Gray's case, he was assigned to MTA by Alpha in July 2002 and worked solely and continuously thereafter on the

weatherization improvement project.

He testified that during And, there is no or that he

his Alpha employment, he worked only for MTA. evidence that he worked seasonally or

short-term

substituted for anyone.

In Combs's case, he had worked at MTA

long enough that he had reached the highest class of inspector. Although the terms "leased worker" and "temporary worker" appear in numerous insurance contracts, and are mentioned in numerous court opinions, there is a dearth of cases

definitionally analyzing leased worker status.

As noted by the

parties, Scottsdale Ins. Co. v. Torres, 561 F.3d 74 (1st Cir. 2009), stands almost alone in this regard. some guidance. In Torres (a case not quite factually on point because it involved "temporary an "employer's worker," as liability" defined, exclusion under which a the We look to it for

was

protected

against

negligent acts of an employer but a "leased worker," as defined, received, instead, scheduled workers' compensation benefits),

Venturi hired individuals and placed them with client companies for varying lengths of time. CTC contracted with Venturi to 35

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supplement its workforce.

Venturi paid the supplied worker,

withheld taxes and took responsibility for workers' compensation benefits. While Venturi retained the right to hire, place,

discipline and terminate its employees, CTC was responsible for training, supervision and assigning work tasks. worker not to return. CTC could ask a

Torres worked from August to December

2003 and from January 2004, except for a week in June, until August 2004, when an accident occurred. While the Venturi/CTC

contract did not mention the term "lease," it used definitions of "leased" and "temporary" workers identical to those used in this case. On these facts, the First Circuit found Venturi to

be a "labor-leasing firm," found the agreement to be a lease and found that Torres was a "leased" worker within the applicable definition. Id. at 78. In Torres, evidence not present in this

case made the temporary worker exclusion a fact question. In this case, however, under the narrow interpretation to be given coverage limiting language, it is clear that Gray and Combs do not fit within the "temporary worker" definition. They were

leased workers under the ICSP policy as a matter of law. As leased workers, Gray and Combs were insured employees of MTA and, thus, fully insured by the ICSP policy. denied them coverage. USF&G and American them Even so, ICSP

At that point, Gray and Combs looked to who provided losses 36 in them the with amount a defense of and

indemnified

from

$400,000.

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Accordingly,

USF&G

and

American,

as

excess

carriers

to

the

primary policy issued by ICSP, are entitled to step into the shoes of their insureds Gray and Combs and to be reimbursed by ICSP under the doctrine of equitable subrogation. See Fireman's Fund v. Cont'l Ins. Co., 519 A.2d 202, 204 (Md. 1987)

("Equitable subrogation arises by operation of law when a person pays the debt of another under such circumstances that equity entitles the person to reimbursement."). In Fireman's Fund, Glen Falls Insurance, a subsidiary of Continental, issued Publication Press a primary comprehensive Fireman's A

general liability policy with limits of $500,000.

issued Publication an excess policy with a $2 million limit.

former employee sued Publication for $15 million in compensatory and $15 million in punitive damages. Although warned by its

counsel of the likelihood of a verdict in excess of its policy limits, limits. Glen Falls repeatedly refused to settle within the

Upon the rendering of a jury verdict of $1 million,

settled for $900,000, Fireman's was forced to pay the $400,000 excess. The Maryland Court of Appeals ruled that Fireman's was

entitled under the doctrine of equitable subrogation to step into the shoes of Publication to pursue Publication's bad faith claim (for not settling within policy limits) against Glen Falls to recover Fireman's payment of $400,000. Id. at 205.

37

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Applying this precedent, USF&G and American are entitled to reimbursement from ICSP in the amount of $400,000 plus Gray's and Combs's defense costs. I dissent from the court's

conclusion to the contrary.

38