Essex Insurance Company v. Morton Construction, LLC
Filing
29
MEMORANDUM OPINION & ORDER: 1. The Plaintiff's Motion for Summary Judgment [R. 24 ] shall be GRANTED; 2. The Final Pretrial Conference scheduled for Tuesday, February 18, 2014, and the Jury Trial scheduled for Monday, March 3, 2014, are CANCELLED; and 3. The Court will enter an appropriate Judgment contemporaneously herewith. Signed by Judge Gregory F. Van Tatenhove on 2/7/14.(SYD)cc: COR, Diary
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
ESSEX INSURANCE COMPANY,
Plaintiff,
V.
MORTON CONSTRUCTION, LLC,
Defendant.
)
)
)
)
)
)
)
)
)
)
Crim. No. 12-138-GFVT
MEMORANDUM OPINION
&
ORDER
*** *** *** ***
This matter is before the Court on the Plaintiff’s Motion for Summary Judgment. [R. 24.]
The Plaintiff, Essex Insurance Company, has argued that the commercial liability insurance
policy that it issued to Defendant Morton Construction, LLC does not require it to defend or
indemnify the Defendant in the underlying state court action. For the reasons discussed below,
the Plaintiff’s Motion is GRANTED.
I
A
Plaintiff Essex Insurance Company (“Essex”) issued a commercial general liability
insurance policy, Policy No. 3DE7627, with effective dates of November 24, 2010, through
November 24, 2011, to Defendant Morton Construction, LLC (“Morton”). [R. 24 at 1, 3.] The
claim at issue arises out of an incident occurring on August 11, 2011, in Letcher County,
Kentucky on the premises of Whitaker Bank. Whitaker Bank had contracted with Morton to
perform certain renovations on the bank building, and Morton then subcontracted with Johnson
Masonry to remove brick from the side of the building. [Id. at 2; R. 25 at 1.] James Johnson, Jr.
who was the owner of Johnson Masonry, was injured while performing the work on Whitaker
Bank. Johnson then brought suit against both Whitaker Bank and Morton Construction in
Letcher Circuit Court, alleging negligence on the part of Whitaker Bank and also on the part of
Morton Construction who was acting as the Bank’s retained agent. [R. 24 at 2.] The parties do
not dispute that at the time Johnson was injured he was working as a subcontractor for Morton.
[Id. at 3, Ex. 2 at 1-2.] Johnson’s complaint further alleged that he was entitled to damages for
medical expenses, pain and suffering, loss of earning capacity, parental loss of consortium, and
punitive damages.
Essex has undertaken Morton’s defense in the state court action subject to a reservation
of rights. [Id. at 3.] Morton, however, also insists that its insurance policy requires Essex to
indemnify it against any judgment that may be awarded to Johnson in the state court action. In
response, Essex has filed suit in this Court, pursuant to the Court’s diversity jurisdiction, seeking
a declaratory judgment that it is not required to either defend or indemnify Morton under the
policy. According to Essex, the endorsements in the insurance policy contain various exclusions
to coverage, including exclusions for injuries sustained by subcontractors, certain damages
sustained by independent contractors, and punitive damages. [R. 24 at 3-4.] Morton, however,
contends that the language of the insurance policy creates an ambiguity concerning coverage,
and that because of the alleged inconsistencies and unexplained ambiguities in the policy, any
doubt as to whether or not there is coverage should be resolved in Morton’s favor. [R. 25 at 2-3.]
B
Summary judgment is appropriate when there are no genuine issues of material fact, and
the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 323-25 (1986). Summary judgment is improper, however, if genuine
2
factual issues exist that “may reasonably be resolved in favor of either party,” and therefore must
be submitted to a jury. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In applying
the summary judgment standard, the Court must review the facts and draw all reasonable
inferences in favor of the non-moving party. Logan v. Denny’s, Inc., 259 F.3d 558, 566 (6th Cir.
2001) (citing Liberty Lobby, 477 U.S. at 255).
The moving party has the initial burden of demonstrating the basis for its motion and
identifying those parts of the record that establish the absence of a genuine issue of material fact.
Chao v. Hall Holding Co., Inc., 285 F.3d 415, 424 (6th Cir. 2002). The movant may satisfy its
burden by showing “that there is an absence of evidence to support the non-moving party’s
case.” Celotex Corp., 477 U.S. at 325. Once the movant has satisfied this burden, the nonmoving party must go beyond the pleadings and come forward with specific facts to demonstrate
that a genuine issue exists. Chao v. Hall Holding Co., Inc., 285 F.3d 415, 424 (6th Cir. 2002)
(citing Celotex Corp., 477 U.S. at 324). Yet even when construing the evidence in the light most
favorable to the non-moving party, the non-moving party still “must do more than simply show
that there is some metaphysical doubt as to the material facts.” Matsushitu Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Rather, the Federal Rules of Civil Procedure
require the non-moving party to present “specific facts showing that there is a genuine issue for
trial.” Id. (citing Fed. R. Civ. P. 56(e)).
C
For purposes of jurisdiction, Essex is a citizen of Delaware, Morton is a citizen of
Kentucky, and the amount in controversy is over $75,000. Thus, this Court has diversity
jurisdiction pursuant to 28 U.S.C. §1332, and must apply the laws of the state of Kentucky
concerning insurance policies to determine the scope of Morton’s coverage. See Scottsdale Ins.
3
Co. v. Flowers, 513 F.3d 546, 563 (6th Cir. 2008). In doing so, this Court must follow the
decisions of the highest court of Kentucky and may consider the appellate courts’ decisions as
persuasive. Id. In Kentucky, “the interpretation of insurance contracts is a matter of law for the
Court” to decide, and is appropriately determined through summary judgment when there are no
other factual issues in dispute. West Am. Ins. Co. v. Prewitt, 401 F. Supp. 2d 781, 783 (E.D. Ky.
2005), aff’d, 208 F. App’x 393 (6th Cir. 2006).
Under Kentucky law, “[e]very insurance contract shall be construed according to the
entirety of its terms and conditions as set forth in the policy, and as amplified, extended, or
modified by any rider, indorsement, or application attached to and made a part of the policy.”
Ky. Rev. Stat. § 304.14-360. When interpreting an insurance contract, the policy “must be
construed without disregarding or inserting words or clauses, and ‘seeming contradictions should
be harmonized if reasonably possible.’” Kemper Nat. Ins. Cos. v. Heaven Hill Distilleries, Inc.,
82 S.W.3d 869, 875-76 (Ky. 2002) (quoting Am. Jur. 2d, Insurance, § 275).
Kentucky courts have long recognized that for public policy reasons, insurance contracts
“should be liberally construed and any doubts resolved in favor of the insured.” Dowell v. Safe
Auto Ins. Co., 208 S.W.3d 872, 878 (Ky. 2006). Courts should seek to interpret the policy
according to the intent of the parties at the time they entered into the contract. Nationwide Mut.
Ins. Co. v. Nolan, 10 S.W. 3d 129, 132 (Ky. 1999). Where ambiguities in the policy exist, they
are to be construed in favor of the insured and so as to effectuate coverage. Wolford v. Wolford,
662 S.W. 2d 835, 838 (Ky. 1984); see also St. Paul Fire & Marine Ins. Co. v. Powell-WaltonMilward, Inc., 870 S.W.2d 223, 227 (Ky. 1994)( stating that when provisions in an insurance
policy conflict, “the contract shall be resolved to afford maximum coverage”); James Graham
4
Brown Found., Inc. v. St. Paul Fire & Marine Ins. Co., 814 S.W.2d 273, 279 (Ky. 1991)
(“Kentucky has consistently recognized that an ambiguous policy is to be construed to effectuate
the purpose of indemnity.”).
Despite a policy inclination of favoring the insured, however, “‘[t]he rule of strict
construction against an insurance company certainly does not mean that every doubt must be
resolved against it and does not interfere with the rule that the policy must receive a reasonable
interpretation consistent with . . . the plain meaning and/or language of the contract.’”
Scottsdale, 546 F.3d at 564 (quoting St. Paul, 870 S.W.2d at 226). “Insurance policies, like
statutes, must receive a sensible construction.” Id. (quoting Simpsonville Wrecker Serv. Inc. v.
Empire Fire & Marine Ins. Co., 793 S.W.2d 825, 829 (Ky. App. 1989)). Indeed, Kentucky
courts have recognized that “a liberal interpretation [of an insurance policy] is not synonymous
with a strained one.” K.M.R. v. Foremost Ins. Group, 171 S.W.3d 751, 753 (Ky. App. 2005).
Thus, “courts should not rewrite an insurance contract to enlarge the risk to the insurer.” St.
Paul, 870 S.W.2d at 226-27. Rather, where the language of the policy is not ambiguous, it
should not be construed to mean anything other than what it says. Simpsonville Wrecker, 793
S.W.2d at 226-27.
In the case at hand, the parties do not dispute that Whitaker Bank had contracted the work
to Morton at the time of the accident, nor do they dispute that Johnson was injured while
working as a subcontractor for Morton. [R. 24 at 2, 6; R. 25 at 2.] It appears that the only
dispute between the parties is whether the insurance policy contains an ambiguity as to whether
it provides coverage for injuries sustained by independent contractors and/or subcontractors. [R.
25 at 2.] Essex has pointed to three specific Endorsements in the insurance contract that Essex
claims modify the policy in order to exclude coverage for injuries sustained by subcontractors,
5
temporary workers, independent contractors, or employees of independent contractors, and also
excludes coverage of any punitive damages. [R. 24 at 3-4.] Thus, Essex claims it has no duty to
indemnify Morton for any of the claims asserted by Johnson in the state court action, and at the
very least, that Essex has no duty to indemnify Morton for the punitive damages which Johnson
has also claimed. [R. 24 at 6.] Essex further contends that it has no duty to defend Morton for
claims which are not covered by the policy. [R. 24 at 5.]
Morton, on the other hand, has presented only one argument in its responsive brief.
Morton claims that the policy language on the supplemental declarations page indicates that the
premium Morton paid included coverage for “contractors-subcontracted work,” thereby creating
an inconsistency with the language in the endorsements cited by Essex. [R. 25 at 2.] According
to Morton, because this alleged inconsistency is not explained in the policy, it creates an
ambiguity as to whether or not there is coverage, and any such ambiguity must be resolved in
favor of providing coverage to Morton. [Id. at 2-3.]
Morton is correct that where language in an insurance contract is ambiguous, the
ambiguity must be resolved in favor of the insured. Wolford, 662 S.W. 2d at 838. An ambiguity
exists within an insurance policy “when a policy is susceptible to two (2) or more reasonable
interpretations.” True v. Raines, 99 S.W.3d 439, 443 (Ky. 2003). In cases where such
ambiguities exist, the doctrine of reasonable expectations requires the Court to interpret the
ambiguous terms “ “in favor of the insured’s reasonable expectations’” of coverage. Id. at 443
(citing BLACK’S LAW DICTIONARY 1273 (7th ed. 1999)). If there is no ambiguity as to
coverage, however, then the reasonable expectations doctrine does not apply. Id. at 443.
The Court therefore must analyze the language of the policy, and specifically the
language referred to by the parties, in order to determine if an ambiguity exists. The policy at
6
issue is a commercial general liability insurance policy, Policy No. 3DE7627, and contains
various exclusions pertaining to coverage. As a threshold matter, the Court notes that the policy
itself does not cover the claims at issue in this case, and the parties do not cite to any part of the
general policy concerning questions of coverage for subcontractors or punitive damages. Rather,
the parties’ dispute centers entirely on the endorsements and the Declarations page. As
presented to the Court, several endorsements precede the general policy, all of which read in
large, bold block print: “THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ
CAREFULLY.” [See R. 24-5.] Each endorsement then explains which parts of the policy it
modifies and how. The first endorsement that Essex refers to is titled “Combination
Construction Related Endorsement,” and appears on page 1 of ME 043 04 10. [R. 24-5 at 13.]
The endorsement begins by stating that it modifies the policy by adding several items to “Section
1, Item 2, Exclusions.” [Id.] The relevant language for our purposes reads as follows:
1.
The coverage under this policy does not apply to “bodily injury,” “property
damage,” or “personal and advertising injury” or any injury, loss or damage:
(e)
***
Arising out of, caused or contributed to by any injury sustained by
any contractor, self-employed contractor, and/or subcontractor, or
any “employee,” “leased worker,” contract worker, “temporary
worker” or “volunteer worker” of same hired by you or on your
behalf. This exclusion applies to any obligation to share damages
with or repay someone else who must pay damages because of the
injury, as well as liability assumed under any “insured contract.”
[R. 24-5 at 13.] This endorsement clearly modifies the policy to exclude coverage of bodily
injury sustained by the groups and/or individuals described therein. Because the parties agree
that Johnson was at least working as a subcontractor, if not also an independent contractor and/or
self-employed contractor, it would appear from this language that Essex is not obligated to
7
provide coverage for his injuries.
Essex next points to Endorsement M/E-065 (1/09), which again reads in large block print
“THIS ENDORSEMENT CHANGES YOUR POLICY,” and then goes on to say:
The coverage under this policy does not apply to “bodily injury,” “property
damage,” “personal and advertising injury,” or any injury, loss or damage
sustained by any employee of an independent contractor contracted by you or on
your behalf.
[R. 24-5 at 17.] If Johnson was working as an independent contractor for Morton, which the
parties do not clearly address in their briefs and which Morton has not disputed, then this
endorsement excludes coverage for Johnson’s injuries.
Finally, Essex refers to the “Combination General Endorsement,” ME 001 04 10, which
says that the section of the policy dealing with Item 2 for Exclusions, section “e” for Employer’s
Liability, “is replaced by the following and applies throughout this policy.” [R. 24-5 at 10.]
That language is followed by a list of various exclusions which reads in relevant part:
3.
Fines, penalties, and punitive or exemplary damages are not covered
under this policy nor are any expenses or any obligation to share such damages
or repay another.
[R. 24-5 at 10.] This endorsement clearly adds the exclusion of punitive damages to the list of
exclusions contained in the general policy.
Thus far, it appears fairly clear that the insurance policy does not obligate Essex to cover
general or punitive damages connected to Johnson’s injuries.1 However, the part of the policy
1
If Morton were to provide evidence that Johnson was not working as a subcontractor or independent contractor for
Morton, then perhaps there would be an argument that these Endorsements do not apply to him, but Morton has not
disputed that Johnson was a subcontractor, and at least based on the facts presented it would appear that all three of
these Endorsements apply.
8
that Morton claims creates the ambiguity is a line on the page entitled “Commercial General
Liability Coverage Part Supplemental Declarations.” [R. 24-5 at 9.] That page lists the various
monetary limits of the insurance policy, and then lists the premium rating provisions. The
section at issue describes the rate for various types of work and describes Morton’s business
classification as “contractors-subcontracted work,” followed by the applicable premium. [Id.]
Despite Morton’s alleged confusion about coverage, this page merely describes the premium
rate. Moreover, directly beneath the section describing the premium, the same page contains
another section titled “Forms and endorsements applying to this Coverage Part and made part of
this policy at time of issue.” [Id.] Immediately following that language is a list of the page
numbers of various endorsements which are part of the policy. All three endorsements discussed
above are included in that list. Additionally, the language at the very bottom of the same page
states in all capital letters that the information on that page must be read in the context of the rest
of the policy. The content of the Declarations page, together with the clear statement as to what
items are part of the policy (and specifically including all endorsements at issue), make clear that
the endorsements apply, and that coverage for subcontractors and punitive damages is excluded.
“The policy and its endorsements validly made a part thereof together form the contract
of insurance, and are to be read together to determine the contract actually intended by the
parties.” Kemper, 82 S.W. 3d at 875 (quoting 1 Couch on Insurance 2d, § 4:36). Endorsements
“are later in time than the original policy,” and thus “should prevail over any conflicting
provisions of the policy.” Id. (quoting Goodin v. General Accident Fire and Life Assurance
Corp., 450 S.W.2d 252, 256 (Ky. App. 1970)). Moreover, “an insurance contract must be
construed without disregarding or inserting words or clauses.” Kemper, 82 S.W.3d at 875-76.
Thus, the endorsements in Essex’s insurance policy must be read together with the policy and
9
“prevail” over any possible contradictions in the Declarations page. See id. at 875.
The endorsements at issue here each involve a coverage exclusion. In Kemper, the court
recognized the principle of construing ambiguous terms in favor of the insured, but it granted
summary judgment in favor of the insurance company because the policy agreement read
together with the applicable exclusions clearly excluded coverage. Kemper, 82 S.W.3d at 873.
The court in Kemper reasoned that if “any one exclusion applies there should be no coverage,
regardless of inferences that might be argued on the basis of exceptions or qualifications”
contained in other parts of the policy. Kemper, at 874. Thus, the clearly drafted exclusions
contained in the Essex insurance policy’s endorsements are enforceable regardless of the
premium rating provision. “Where the terms of an insurance policy are clear and unambiguous,
the policy will be enforced as written.” West Am. Ins. Co., 401 F.Supp. 2d at 788 (quoting
Kemper, 82 S.W.3d at 873).
Moreover, as stated above, Kentucky law requires that “[e]very insurance contract shall
be construed according to the entirety of its terms and conditions as set forth in the policy, and as
amplified, extended, or modified by any rider, [e]ndorsement, or application attached to and
made a part of the policy.” KRS 304.14-360 (emphasis added). The endorsements excluding
coverage of punitive damages and for injuries sustained by subcontractors were clearly “attached
to and made a part of the policy,” by the endorsements themselves and by the language on the
page which Morton claims is ambiguous. In addition, each endorsement clearly states that it
changes the policy, clearly explains which part of the policy it changes and how, and admonishes
the reader to read it carefully. Even if there were some doubt as to the policy’s coverage,
“specific clauses in insurance policies control general clauses.” State Auto. Mut. Ins. Co. v. Ellis,
700 S.W. 2d 801, 803 (Ky. Ct. App. 1985). Thus, the specific clauses in the endorsements which
10
explicitly exclude coverage for subcontractors and independent contractors would control the
much more general description on the Declarations page. In this light, when interpreting the
policy as a whole, including the endorsements, no ambiguity exists as to whether subcontractors
are covered.
Despite Morton’s professed confusion as to the meaning of the terms in the Declarations
page concerning premiums, “[t]he rule of strict construction against an insurance company
certainly does not mean that every doubt must be resolved against it,” nor that “a nonexistent
ambiguity [should] be utilized to resolve a policy against the company.” St. Paul Fire & Marine,
870 S.W.2d at 226. Only when the policy contains “ambiguous insurance contract language”
will Kentucky courts apply the reasonable expectations doctrine and interpret the provisions in
favor of the insured. Scottsdale Ins. Co., 513 F.3d at 565 (citing True, 99 S.W.3d at 443).
As to coverage of punitive damages, Morton does not even claim that there is any
ambiguity or inconsistency concerning whether the policy covers punitive damages. The
Declarations page on which Morton bases its entire argument says nothing about punitive
damages except for referencing the endorsement that specifically excludes coverage of punitive
damages when listing what provisions are part of the policy. “The terms of insurance coverage
should not be extended beyond any clear or unambiguous limit,” and there is therefore no dispute
concerning the exclusion of punitive damages in this case. Masler v. State Farm Mut. Auto. Ins.
Co., 894 S.W.2d 633, 635-36 (Ky. 1995).
The Court fully recognizes that an insured person “is entitled to all the coverage he may
reasonably expect “under the policy and that only an unequivocally conspicuous, plain and clear
manifestation of the company’s intent to exclude coverage will defeat this expectation.”
Scottsdale Ins., 513 F.3d at 565 (quoting Brown v. Ind. Ins. Co., 184 S.W.3d 528, 540 (Ky.
11
2005)). However, the Court also notes that the endorsements in this policy clearly changed the
policy itself, and that the wording of the endorsements, together with the language on the bottom
of the supplemental declarations page specifically including those endorsements as part of the
policy, suffice as a “conspicuously plain and clear manifestation” of Essex’s intent to exclude
coverage for injuries sustained by subcontractors and for punitive damages. See id. Thus, policy
at issue is not “susceptible to two or more interpretations” concerning coverage, and Morton’s
confusion about the applicable premium alone cannot create an ambiguity where none exists.
See True, 99 S.W.3d at 443. Because there is no ambiguity, Morton’s argument that the policy
should be interpreted in light of his expectations of coverage fails because “[o]nly actual
ambiguities, not fanciful ones, will trigger application of the doctrine [of reasonable
expectations.]” Id. (finding the doctrine of reasonable expectations inapplicable where the court
could discern no ambiguity).
Thus, the Court finds no ambiguity as to whether the insurance policy covers punitive
damages or injuries sustained by subcontractors. Morton has not provided any arguments or
legal analysis to say otherwise – Morton merely asserts that the language is ambiguous without
explaining how, and without citing to any caselaw that would support the argument that the
general description of premiums on the declarations page should somehow trump the explicit
exclusions set out by the endorsements. “It is not enough for one party to claim ambiguity.”
Kentucky Ass'n of Counties All Lines Fund Trust v. McClendon, 157 S.W.3d 626, 635 (Ky. 2005)
(acknowledging that ambiguities should be resolved in favor of the insured but nevertheless
finding that the coverage exclusions clearly stated in the insurance policy applied). Regardless
of what Morton initially thought was covered, the endorsements by their very nature alter the
insurance policy to which they are attached, and Morton has not shown how or why this Court
12
should disregard the clear language of the endorsements. Indeed, the “mere fact that [a party]
attempt[s] to muddy the water and create some question of interpretation does not necessarily
create an ambiguity.” True, 99 S.W. 3d at 443 (internal quotations omitted).
Because no ambiguity exists, the Court must enforce the policy as it was written and
agreed to by the parties. Kentucky Ass’n of Counties, 157 S.W. 3d at 633 (“[W]here there is no
ambiguity, the rule of liberal construction in favor of the insured is inapplicable. As it has been
stated numerous times by the courts in this Commonwealth, courts cannot enlarge coverage or
make new contracts under the guise of construction, but must determine the parties'
responsibilities according to the contract terms.”); see also Jett v. Doe, 551 S.W.2d 221, 223
(Ky. 1977) (“[O]nce such a condition is clearly expressed in the policy and agreed upon by the
parties, the courts must give it full force and effect and abstain from making a new or different
contract under the guise of interpretation at the instance of the disappointed party.”).
As for whether Essex must defend Morton in the Letcher County lawsuit, the duty to
defend is separate from and broader than the duty to indemnify. Brown Found., 814 S.W.2d 273,
279-80 (Ky. 1991). Essex has a duty to defend Morton “if there is any allegation which
potentially. . . might come within the coverage of the policy.” Id. at 279. Based on the facts
before the Court, Johnson was working on the Bank as a subcontractor for Morton. As discussed
above, the endorsements in the insurance policy clearly exclude any damages for any injury
sustained by subcontractors, and any punitive damages. An insurer’s duty to defend ends once it
becomes clear that the liability at issue is not covered by the policy. See id. at 279. Therefore,
the allegations Johnson has brought in Letcher Circuit Court would not come within the policy’s
13
coverage, and Essex does not have a duty to defend Morton from Johnson’s claims.2
III
“Because the insurance contract is not ambiguous, we do not need to inquire into the
reasonable expectations of the parties, but rather must construe the contract ‘according to the
entirety of its terms and conditions as set forth in the policy.’” Scottsdale, 513 F.3d at 566
(quoting KRS § 304.14-360.) Thus, the Endorsements should be construed and enforced as
stated, excluding coverage of punitive damages and of injuries sustained by subcontractors and
independent contractors. Consequently, it is clear that Essex has no duty to defend or indemnify
Morton for the damages claimed by Johnson in the Letcher Circuit Court. Accordingly, the
Court having considered the record and being otherwise sufficiently advised, it is hereby
ORDERED as follows:
1.
The Plaintiff’s Motion for Summary Judgment [R. 24] shall be GRANTED;
2.
The Final Pretrial Conference scheduled for Tuesday, February 18, 2014, and
the Jury Trial scheduled for Monday, March 3, 2014, are CANCELLED; and
3.
The Court will enter an appropriate Judgment contemporaneously herewith.
This 7th day of February, 2014.
2
The Court notes that Morton has made no attempt to argue that Essex has a duty to defend Morton. Morton’s
response brief contains only one paragraph concerning any argument on Morton’s behalf, and that paragraph merely
asserts that the contract contains an ambiguity as to coverage because of the Declarations sheet, and that any doubt
about coverage must be resolved in Morton’s favor. The Court has already addressed this argument above, and as
Morton has advanced no further arguments concerning the specific duty to defend, the Court assumes that Morton
14
has conceded the point that if Johnson is a subcontractor, and if the policy excludes coverage for injuries sustained
by subcontractors, then Essex has no duty to defend Morton from Johnson’s claims.
15
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?