Dorsey v. United Rentals North America, Inc. et al

Filing 353

ORDER: IT IS HEREBY ORDERED that Arch's 220 Cross-Motion for Partial Summary Judgment as to the Declaratory Judgment and Cross-Claim of the P.R. Skate, L.L.C. is GRANTED IN PART AND DENIED IN PART. Arch's motion is GRANTED to the extent t hat it seeks summary judgment on the issue of whether it has a duty to defend P.R. Skate against Plaintiff's claims for bodily injury. It does not. Arch's motion is DENIED in all other respects. IT IS FURTHER ORDERED that P.R. Skate's 155 Motion for Summary Judgment of Liability Against Arch Specialty Insurance Company is GRANTED IN PART AND DENIED IN PART. P.R. Skate's motion is GRANTED to the extent that it seeks summary judgment on its claim that Arch breached its contract by failing to defend United Rentals and Wal-Mart under the Blanket Additional Insured Endorsement. P.R. Skates motion is DENIED in allother respects. Signed by Judge Nannette Jolivette Brown on 2/15/2017. (Reference: All Cases)(mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
EDWARD DORSEY, JR.

CIVIL ACTION

VERSUS

NO. 15-1528
C/W 15-1723

UNITED RENTALS NORTH AMERICA, INC., et al.

SECTION “G”(4)

ORDER
Before the Court are The P.R. Skate, LLC’s (“P.R. Skate”) “Motion for Summary
Judgment of Liability Against Arch Specialty Insurance Company”1 and Arch Specialty Insurance
Company’s (“Arch”) “Cross-Motion for Partial Summary Judgment as to the Declaratory
Judgment and Cross-Claim of the P.R. Skate, L.L.C.”2 Having reviewed the motions, the
memoranda in support, the memoranda in opposition, the record, and the applicable law, the Court
will grant each motion in part and deny each motion in part.
I. Background
A.

Factual Background
This litigation arises out of an industrial accident, which occurred on April 19, 2014, at the

Wal-Mart Supercenter in Cut Off, Louisiana.3 Arch issued a policy of commercial general liability
coverage to P.R. Skate as the named insured, effective November 27, 2013, to November 27,
2014.4 In 2013, P.R. Skate contracted with Wal-Mart Stores, Inc. (“Wal-Mart Stores”) to remodel

1

Rec. Doc. 155.

2

Rec. Doc. 220.

3

See Rec. Docs. 56, 70.

4

See Rec. Doc. 220-7.

1

the Wal-Mart Supercenter in Cut Off, Louisiana.5 To perform the physical remodeling work at the
Wal-Mart Supercenter, P.R. Skate subcontracted with Sartin Builders, LLC (“Sartin”).6 Sartin
subsequently subcontracted “some or all of its work” to another contractor, Affordable Painting.7
Plaintiff Edward Dorsey, Jr., and his son Plaintiff Edward Blair Dorsey (collectively, “Plaintiffs”)
were employed by Affordable Painting.8
On April 11, 2014, P.R. Skate rented a scissor lift from United Rentals North America, Inc.
(“United Rentals”).9 On April 19, 2014, Plaintiffs were injured when they both fell from the scissor
lift.10 The scissor lift was manufactured by Skyjack, Inc. (“Skyjack”).11
B.

Procedural Background
On December 19, 2014, Edward Dorsey, Jr. filed suit against United Rentals and Liberty

Mutual Insurance Company (“Liberty Insurance”) in the Thirty-Second Judicial District Court,
Parish of Terrebonne.12 On April 28, 2015, Edward Blair Dorsey also filed suit against United
Rentals and Liberty Insurance in the Thirty-Second Judicial District Court.13 On May 8, 2015,
United Rentals and Liberty Insurance removed Edward Dorsey, Jr.’s state court action to this
Court.14 On May 21, 2015, United Rentals and Liberty Insurance removed Edward Blair Dorsey’s

5

Rec. Doc. 155-3 at 1; Rec. Doc. 220-3 at 1.

6

Id.

7

Rec. Doc. 155-3 at 1; Rec. Doc. 220-3 at 2.

8

Id.

9

Rec. Doc. 155-3 at 2; Rec. Doc. 155-4 at 141–43.

10

Id.

11

Id.

12

Rec. Doc. 1-2.

13

See Civ. A. No. 15-1723, Rec. Doc. 1-2.

14

See Rec. Doc. 1.

2

action to this Court.15 Plaintiffs later dismissed Liberty Insurance without prejudice.16 On June 25,
2015, both cases were consolidated.17
On May 29, 2015, United Rentals filed third party complaints against P.R. Skate and P.R.
Skate’s insurer Arch.18 On October 6, 2015, the Court granted Edward Dorsey, Jr. leave to file a
first amended complaint, which added a claim against Wal-Mart Louisiana, LLC (“Wal-Mart
Louisiana”).19 On November 3, 2015, the Court granted P.R. Skate leave to file a crossclaim and
request for declaratory judgment against Arch.20 On November 3, 2015, the Court granted Edward
Dorsey, Jr. leave to file a second amended complaint adding claims against P.R. Skate, Arch, and
Skyjack.21 On November 3, 2015, the Court granted Edward Blair Dorsey leave to file a first
amended complaint adding claims against Wal-Mart Stores, Inc. (“Wal-Mart Stores”), P.R. Skate,
Arch, and Skyjack.22 On December 29, 2015, the Court granted United Rentals leave to file an
amended answer and crossclaim against Skyjack.23 On March 4, 2016, the Court granted P.R.
Skate leave to file its request for declaratory judgment and third-party demand against its
subcontractor Sartin and Sartin’s insurer Western World Insurance Company.24

15

See Civ. A. No. 15-1723, Rec. Docs. 1 & 3.

16

See Rec. Doc. 6; see also Civ. A. No. 15-1723, Rec. Doc. 14.

17

See Rec. Doc. 17.

18

See Rec. Docs. 10; see also Civ. A. No. 15-1723, Rec. Doc. 6.

19

Rec. Docs. 55–56.

20

Rec. Docs. 64–65.

21

Rec. Docs. 67–68.

22

Rec. Docs. 69–70.

23

Rec. Docs. 86–89.

24

Rec. Docs. 144, 146.

3

On March 23, 2016, the Court granted an unopposed motion to dismiss the claims filed
against Wal-Mart Louisiana and Wal-Mart Stores.25 On January 25, 2016, the Court was notified
that all parties had reached a settlement with Plaintiff Edward Blair Dorsey, and the Court issued
an Order dismissing his case.26 On February 2, 2017, the parties filed a joint stipulation dismissing
all claims against Skyjack with prejudice.27
On March 15, 2016, P.R. Skate filed a motion seeking summary judgment on the issue of
liability as to the following crossclaims against Arch: (1) breach of contract; (2) insurance bad
faith; (3) violation of the Washington Insurance Fair Conduct Act; and (4) violation of the
Washington Consumer Protection Act.28 On April 12, 2016, Arch filed its opposition to P.R.
Skate’s motion.29 On April 27, 2016, with leave of Court, P.R. Skate filed a reply memorandum
in further support of its motion for summary judgment.30 On April 28, 2016, with leave of Court,
P.R. Skate filed a sur-reply memorandum in further support of its motion for summary judgment.31
In its sur-reply, P.R. Skate confirms that pursuant to an agreement among the parties, it “merely
seeks determination of whether summary judgment is warranted on P.R. Skate’s crossclaim against
Arch for breach of contract by breach of the duty to defend P.R. Skate and breach of the contractual
duty to accept the additional insured status of United Rentals and Wal-Mart.”32 Accordingly, the

25

Rec. Doc. 182.

26

Civ. A. No. 15-1723, Rec. Doc. 18.

27

Rec. Doc. 345.

28

Rec. Doc. 155.

29

Rec. Doc. 221.

30

Rec. Doc. 266.

31

Rec. Doc. 267.

32

Id. at 3.

4

breach of contract issue is the only issue currently before the Court. On May 7, 2016, with leave
of Court, Arch filed a sur-reply memorandum in response to the reply memorandum filed by P.R.
Skate.33
On April 12, 2016, Arch filed a cross-motion for summary judgment.34 On April 19, 2016,
P.R. Skate filed an opposition to Arch’s motion.35 On May 13, 2016, with leave of Court, Arch
filed a reply memorandum in further support of its cross-motion for summary judgment.36
II. Parties’ Arguments
A.

P.R. Skate’s Arguments in Support of its Motion for Summary Judgment
P.R. Skate seeks summary judgment against Arch on two breach of contract claims.37 First,

P.R. Skate argues that Arch breached a contractual duty to defend P.R. Skate against Plaintiffs’
claims for bodily injury.38 Second, P.R. Skate asserts that Arch breached a contractual duty to
accept the additional insured status of United Rentals and Wal-Mart.39 P.R. Skate asserts
Washington law applies to the dispute between it and Arch.40
1.

Whether Arch has a Duty to Defend P.R. Skate against Plaintiffs’ Claims for
Bodily Injury

According to P.R. Skate, Arch issued an insurance policy which covers all sums that P.R.
Skate became legally obligated by pay for “personal injury” or “property” damage, and to defend

33

Rec. Doc. 279.

34

Rec. Doc. 220.

35

Rec. Doc. 236.

36

Rec. Doc. 280.

37

Rec. Doc. 155-1.

38

Id.

39

Id.

40

Id. at 6.

5

P.R. Skate against such claims.41 P.R. Skate argues that it cannot be disputed that Plaintiffs’ claims
are within the grant of coverage under the insurance policy.42 In order for Arch to establish that
the policy does not apply to Plaintiffs’ claims, P.R. Skate argues that Arch must “show that the
loss is excluded by specific policy language.”43 P.R. Skate contends that Arch’s sole basis for
denying P.R. Skate a defense is the “Employer’s Liability Exclusion” contained in the insurance
policy.44
P.R. Skate represents that the “Employer’s Liability Exclusion” excludes from coverage
bodily injuries to the following groups of people: (1) employees of P.R. Skate who are injured in
the course of employment or while performing duties related to the conduct of the business; (2)
spouses, children, parents, brothers or sisters of employees; and (3) subcontractors or any
employees of subcontractors.45 The provision defines “subcontractor” as “any worker, including,
but not limited to, a temporary worker, casual laborer, borrowed worker, servant or independent
contractor, who is not an ‘employee’ of the insured.”46
P.R. Skate contends that Plaintiffs are not employees of P.R. Skate nor are Plaintiffs related
to any P.R. Skate employees that were injured.47 Further, P.R. Skate argues that the subcontractor
exclusion does not apply because Affordable Painting was a subcontractor of Sartin, not P.R.

41

Id. at 10.

42

Id.

43

Id. (quoting McDonald v. State Farm Fire and Cas. Co., 837 P.2d 1000, 1004 (1992)).

44

Id. at 11.

45

Id.

46

Id.

47

Id.

6

Skate.48 P.R. Skate asserts that the definition of “subcontractor” in the insurance policy is vague
and ambiguous because the term “worker” is not defined.49 P.R. Skate cites Webster’s II New
College Dictionary, which defines “worker” as “[o]ne that works . . . [o]ne who does manual or
industrial labor . . . [or a] member of the working class.”50 P.R. Skate contends that reading the
provision as a whole indicates that the word “worker” means an individual “working for and under
the direction and control of” P.R. Skate, and therefore the term “subcontractor” should be
“interpreted to be someone working for the insured, not simply someone who works.”51 P.R. Skate
argues that its proposed definition “is the only ‘fair, reasonable, and sensible construction’ that
comports with how the average purchaser of insurance would view the policy.”52 Moreover, P.R.
Skate asserts that this definition is “consistent with the common understanding of a ‘subcontractor’
as someone who has a contractual relationship, whether written or oral, with the primary contractor
for whom he or she works.”53 P.R. Skate also cites Wellington Specialty Ins. Co. v. Ling, a case
from the Northern District of Texas, to support this interpretation.54 Finally, P.R. Skate asserts that
the title of the exclusion, “Employer’s Liability Exclusion,” suggests that the exclusion applies to
P.R. Skate’s liability for those who it employs. 55 P.R. Skate contends that Arch’s interpretation of

48

Id.

49

Id. at 11–12.

50

Id. at 12 (quoting Webster’s II New College Dictionary, at 1271 (Houghton Mifflin Company 1995)).

51

Id. at 13.

52

Id. (quoting Grange Ins. Co. v. Brosseau, 776 P.2d 123, 125 (Wash. 1989)).

53

Id.

54

Id. at 14 (citing No. 3:08-CV-738-L, 2009 WL 2136399 (N.D. Tex. Jul. 17, 2009)).

55
Id. at 15 (citing Diamond “B” Constructors, Inc. v. Granite Falls School Dist., 70 P.3d 966, 968–69 (Wash.
Ct. App. 2003)).

7

the provision is far broader and “effectively an exclusion of all liability for any personal injuries.”56
Accordingly, because the “Employer’s Liability Exclusion” does not apply, P.R. Skate argues that
Arch breach its duty to defend P.R. Skate.57
2.

Whether Arch has a Duty to Defend United Rentals and Wal-Mart as
Additional Insureds under the Blanket Additional Insured Endorsement

Finally, P.R. Skate asserts that Arch breached its contractual duty to P.R. Skate to defend
United Rentals and Wal-Mart as additional insureds under the policy.58 P.R. Skate notes that Arch
denied tenders on behalf of United Rentals and Wal-Mart based on its assertion that neither was
an additional insured under the policy.59 P.R. Skate avers that Arch maintains that the additional
insured endorsement required that the complaints allege the negligence of P.R. Skate.60 P.R. Skate
contends that Arch’s position is incorrect.61 According to P.R. Skate, the Blanket Additional
Insured Endorsement provides additional insurance coverage to “those persons or organizations
who are required under a written contract with [P.R. Skate] to be named as additional insureds, but
only with respect to liability for ‘bodily injury’ . . . caused, in whole or in part, by [P.R. Skate’s]
acts or omissions or the acts or omissions of [P.R. Skate’s] subcontractors. . . .”62 P.R. Skate
contends that under Washington law where “the policy language does not require an adversarial
claim or a third party threat or a formal threat of legal action” courts will not interpret a policy to

56

Id.

57

Id. at 16.

58

Id. at 19.

59

Id.

60

Id.

61

Id.

62

Id. at 20.

8

require that a claim be filed before the duty to defend arises.63 P.R. Skate contends that it
committed an “act” when it rented the scissor lift for use at the Wal-Mart Supercenter in Cut Off,
Louisiana. 64 According to P.R. Skate, while this act was not negligent, but for that act, Plaintiffs’
“accident would not have happened and neither United Rentals nor Wal-Mart would be facing any
liability for it.”65 Accordingly, P.R. Skate contends that “Arch’s position in denying coverage to
United Rentals and Wal-Mart was directly contrary to settled Washington law and, therefore,
unreasonable as a matter of law.”66 P.R. Skate asserts that Arch’s breach of the insurance policy
harmed P.R. Skate by causing United Rentals to sue P.R. Skate and by obligating P.R. Skate to
accept Wal-Mart’s tender of defense to avoid being sued by Wal-Mart.67
B.

Arch’s Arguments in Opposition to P.R. Skate’s Motion for Summary Judgment and in
Support of Its Motion for Summary Judgment
In opposition, Arch adopts all arguments and evidence cited in support of its cross-motion

for summary judgment.68 Arch seeks partial summary judgment in its favor dismissing P.R.
Skate’s “Request for Declaratory Judgment and Cross-Claim” and P.R. Skate’s “First Amended
Request for Declaratory Judgment and Cross-Claim.”69 Additionally, Arch seeks dismissal of P.R.
Skate’s claims related to the defense and indemnity of P.R. Skate.70 Arch asserts that the Court

63

Id. (citing Weyerhaeuser Co. v. Aetna Cas. and Surety Co., 874 P.2d 142, 154 (Wash. 1994); Zurich Am.
Ins. Co. v. Certain Underwriters at Lloyd’s London, No. C12-5749 RJB, 2013 WL 3208566, *1–2 (W.D. Wash. June
24, 2013)).
64

Id. at 21.

65

Id.

66

Id. (citing Weyerhaeuser, 874 P.2d at 154).

67

Id. at 22.

68

Rec. Doc. 221.

69

Rec. Doc. 220 at 1.

70

Id.

9

should dismiss P.R. Skate’s declaratory relief claims regarding the defense and/or indemnity of
United Rentals and Wal-Mart.71 Finally, Arch seeks dismissal of any claims by P.R. Skate for
defense or insurance coverage for the contractual claims asserted by United Rentals or Wal-Mart
against P.R. Skate.72
Arch states that for the purposes of this motion it “will assume Washington law applies to
the interpretation of the Policy, although Arch does not concede this point.”73 Arch contends that
there are no disputed issues of material fact which would prevent the Court “from reaching a
determination as to whether a duty to defend or to indemnify is owed to P.R. Skate, United Rentals
or Wal-Mart for the personal injury claims of [Plaintiffs], the employees of P.R. Skate’s
subcontractor.”74
1.

Whether Arch has a Duty to Defend P.R. Skate against Plaintiffs’ Claims for
Bodily Injury

Arch asserts that “the Employer’s Liability Exclusion Endorsement precludes coverage for
P.R. Skate because the ‘bodily injury’ alleged by the Plaintiffs is to employees of a
subcontractor.”75 Arch argues that Plaintiffs were employees of Affordable Painting, a
subcontractor of Sartin, which was a subcontractor of P.R. Skate.76 Arch contends that all work
being performed at the Wal-Mart location was based on the initial contract between P.R. Skate and

71

Id.

72

Id. at 2.

73

Id. at 5.

74

Id. at 5–6.

75

Id. at 9.

76

Id. at 10–11.

10

Wal-Mart, meaning that “all work being performed was by employees working on portions of the
P.R. Skate/Wal-Mart contract.”77
Arch argues that the insurance policy’s definition of the term “subcontractor” is
unambiguous and precludes coverage for P.R. Skate in this matter.78 Arch asserts that the policy
does not require that a subcontractor relationship exist between P.R. Skate and Affordable Painting
in order for the exclusion to preclude coverage.79 Nonetheless, Arch argues that such a relationship
did exist because Affordable Painting was performing a portion of the work detailed in the P.R.
Skate/Wal-Mart contract.80 Arch asserts that the policy’s definition of the term subcontractor
“includes any workers, including temporary or casual workers, who are not an ‘employee’ of the
insured.”81
Arch notes that the “Exposed Work Area Limitation Endorsement” of the policy defines a
subcontractor as “any person or organization who is not an ‘employee’ of the insured and does
work or perform services for or on behalf of an insured.”82 Arch contends that “[u]nlike the broader
definition in the Employer’s Liability Exclusion, this definition limits the term subcontractor to
those who are performing services for or on behalf of an insured.”83 Arch argues that “[t]he
omission of this language from the Employer’s Liability Exclusion demonstrates that the exclusion
precludes coverage not only for employees of a named insured but also for any other class of

77

Id. at 11.

78

Id.

79

Id.

80

Id.

81

Id. at 12.

82

Id.

83

Id.

11

worker on a job site, whether the worker was directly hired by, indirectly hired by, or not related
to employment with the named insured at all.”84 Arch asserts that all of the work performed at
Wal-Mart was ultimately on behalf of P.R. Skate pursuant to subcontracts, and the work was done
to fulfill P.R. Skate’s responsibilities under its contract with Wal-Mart.85 Accordingly, Arch
contends that Plaintiffs were employees of a subcontractor performing work subcontracted from
the P.R. Skate/Wal-Mart contract.86 Because the insurance policy excludes coverage for bodily
injury claims of employees of subcontractors, Arch argues that there is no duty to defend or
indemnify P.R. Skate with respect to Plaintiffs’ personal injury claims.87
2.

Whether Arch has a Duty to Defend United Rentals and Wal-Mart as
Additional Insureds under the Blanket Additional Insured Endorsement

Arch notes that the insurance policy contained a “separation of insureds clause” which
states that the policy applies “[a]s if each Named Insured were the only Named Insured; and
[s]eparately to each insured against whom claim is made or ‘suit is brought.”88 According to Arch,
it did not contract with P.R. Skate to provide additional insured coverage to United Rentals or WalMart.89 Arch contends that it contracted with P.R. Skate to include the additional insured
endorsement on the policy, and whether the policy provides coverage to an insured is between
Arch and the putative insureds, United Rentals and Wal-Mart.90 Arch notes that neither United
Rentals nor Wal-Mart brought claims against Arch asserting that a duty to defend or indemnify
84

Id. at 12–13.

85

Id. at 14.

86

Id.

87

Id.

88

Id. at 14–15.

89

Id. at 15.

90

Id.

12

was breached.91 Accordingly, Arch argues that P.R. Skate does not have standing to bring such a
claim.92
Even assuming that P.R. Skate could bring this claim, Arch argues that under the original
complaints neither United Rentals nor Wal-Mart qualified as an additional insured on the insurance
policy.93 Arch notes that it did provide a defense to United Rentals and Wal-Mart retroactive to
November 3, 2015, the date that the second amended complaint was filed adding P.R. Skate as a
defendant, and October 6, 2015, the date that the first amended complaint was filed adding WalMart as a defendant, respectively.94 Arch states that the original complaints alleged that the “sole
and proximate cause of the injuries and damages sustained by [Plaintiffs’] was the negligence of
the defendant, United Rentals. . . .”95 Arch contends that under the insurance policy United Rentals
and Wal-Mart can be insureds “only with respect to liability for ‘bodily injury’ . . . caused, in
whole or in part, by [P.R. Skate’s] acts or omissions or the acts or omissions of [P.R. Skate’s]
subcontractors. . . .”96 Arch argues that the policy required that the complaints allege that Plaintiffs’
bodily injuries were caused, in whole or in part, by P.R. Skate’s acts or omissions, or the acts or
omissions of P.R. Skate’s subcontractors, in order for the additional insured endorsement to be
triggered.97

91

Id.

92

Id. at 14–15.

93

Id. at 15.

94

Id.

95

Id. at 16.

96

Id.

97

Id. at 17.

13

Finally, Arch notes that P.R. Skate’s request for a declaratory judgment seeks a judgment
requiring Arch to defend and indemnify P.R. Skate in connection with the contractual claims
asserted against P.R. Skate by United Rentals and Wal-Mart by virtue of P.R. Skate’s contracts
with those entities.98 Arch asserts that the policy unambiguously excludes coverage for bodily
injury claims which P.R. Skate “may be obligated to pay by reason of the assumption of liability
in a contract agreement unless the assumption of liability was part of the ‘insured contract’ under
the policy.”99 Arch asserts that P.R. Skate’s rental agreement with United Rentals was for rental
of the scissor lift, and P.R. Skate’s contract with Wal-Mart was a construction agreement.100
Therefore, Arch contends that neither agreement meets the definition of an “insured contract.”101
Accordingly, Arch contends that there is no duty for it to defend or indemnify P.R. Skate, United
Rentals or Wal-Mart with respect to the contractual claims of United Rentals or Wal-Mart.102
C.

P.R. Skate’s Arguments in Opposition to Arch’s Motion for Summary Judgment and in
Further Support of Its Motion for Summary Judgment
In opposition, P.R. Skate adopts all arguments and evidence cited in support of its cross-

motion for summary judgment and its reply brief.103 In its reply, P.R. Skate contends that
Washington law applies to the instant insurance dispute.104 It further argues that it has standing to
assert breach of contract claims based on Arch’s denial of the tenders to provide additional insured

98

Id. at 18–19.

99

Id. at 19.

100

Id.

101

Id.

102

Id.

103

Rec. Doc. 221.

104

Rec. Doc. 266 at 1.

14

coverage to both United Rentals and Wal-Mart, causing harm to P.R. Skate.105 According to P.R.
Skate, the separation of insureds provision is irrelevant to P.R. Skate’s standing to sue on the
insurance contract and P.R. Skate has standing to assert breach of contract claims against Arch for
its failure to provide additional insured coverage to United Rentals and Wal-Mart.106
P.R. Skate also argues that United Rentals and Wal-Mart are additional insureds and that
“a reasonable interpretation of the facts alleged regarding the acts or omissions of P.R. Skate or
Sartin—regardless of negligence—triggers the application of the Blanket Additional Insured
Endorsement.”107 According to P.R. Skate, the Dorsey, Jr. complaint alleges that P.R. Skate rented
the scissor list at issue from United Rentals.108 Thus, P.R. Skate argues that the complaint alleges
facts that demonstrate that P.R. Skate’s action was a “but for” cause of Plaintiffs’ injuries and
liability that they allege against United Rentals and Wal-Mart, which triggered additional insured
status under the contract.109 P.R. Skate contends that it should be granted summary judgment as to
Arch’s breach of the contract through the denial of additional insured status of United Rentals and
Wal-Mart.110
P.R. Skate next asserts that the insurance policy’s Employer’s Liability Exclusion does not
bar coverage in this case.111 P.R. Skate contends that Arch’s use of the term “worker” in its
definition of “subcontractor” in the Employer’s Liability Exclusion introduces inherent ambiguity

105

Id. at 2.

106

Id. at 3.

107

Id. at 4.

108

Id. at 5 (citing Rec. Doc. 1-2 at 4).

109

Id. (citing American Best Food, Inc. v. Alea London, Ltd., 229 P.3d 693, 696 (Wash. 2010)).

110

Id. at 6.

111

Id.

15

and potentially writes out of the policy any coverage for bodily injury, not just bodily injury related
to employment by an insured.112 Moreover, P.R. Skate argues that Arch’s interpretation of the
endorsement renders most of the exclusionary language superfluous, which is contrary to
Washington law.113 P.R. Skate also argues that there is no evidence that Plaintiff’s employer was
working for P.R. Skate, as Arch suggests,114 and that despite Arch’s arguments to the contrary, the
final paragraph of the exclusion does not support Arch’s interpretation of the contract.115
Next, P.R. Skate argues that Arch’s interpretation of the definition of “subcontractor” is
incorrect and that the dictionary definition provided in P.R. Skate’s opening brief and the common
building trade definition cited by the Supreme Court contradict Arch’s interpretation.116 According
to P.R. Skate, under Washington law, ambiguity must be resolved against the drafter-insurer and
in favor of the insured, and that means that, reading the endorsement as a whole, a worker for the
insured and Affordable Painting was not a “subcontractor” of P.R. Skate and the exclusion does
not bar coverage for Plaintiff’s claims.117 Finally, P.R. Skate contends that Arch’s entire discussion
of whether the Wal-Mart contract or United Rentals rental agreement was an “insured contract” is
irrelevant, because P.R. Skate does not assert coverage or a duty to defend those claims under an
“insured contract” theory.118

112

Id. at 6–7.

113

Id. at 7.

114

Id. at 8.

115

Id.

116

Id. at 9 (citing J.W. Bateson Co. v. U.S., 434 U.S. 586, 590 (1978)).

117

Id. (citing Weyerhaeuser Co. v. Commercial Union Ins. Co., 15 P.3d 115, 122 (Wash. 2000)).

118

Id. at 10.

16

D.

P.R. Skate’s Sur-Reply in Further Support of Its Motion for Summary Judgment
In its sur-reply, P.R. Skate confirms that pursuant to an agreement among the parties, it

“merely seeks determination of whether summary judgment is warranted on P.R. Skate’s
crossclaim against Arch for breach of contract by breach of the duty to defend P.R. Skate and
breach of the contractual duty to accept the additional insured status of United Rentals and WalMart.”119 Thus, P.R. Skate agrees to defer the arguments in Sections III (C), (E), and (F) of its
motion and the Court need not consider these arguments.120 P.R. Skate asserts that if the Court
rules in P.R. Skate’s favor on the contractual crossclaim, it intends to seek submission of summary
judgment on the bad faith crossclaims.121
E.

Arch’s Sur-Reply in Response to Reply Filed by P.R. Skate
In its sur-reply, Arch asserts that it never conceded that Washington law applies but that

for purposes of the summary judgment motion, it has agreed to assume Washington law would
apply.122 Arch asserts that P.R. Skate cannot assert the rights of putative additional insureds and
may only assert claims for damages on behalf of itself.123 According to Arch, the additional insured
language can be triggered if the liability of United Rentals and Wal-Mart was for bodily injury that
was caused, in whole or in part, by P.R. Skate or its subcontractor’s acts or omissions, and this
requirement is not met by the allegations in the original complaint.124 Arch contends that the
original complaint is the operative complaint for purposes of the instant motions, because “Arch

119

Rec. Doc. 267 at 3.

120

Id.

121

Id. at 4.

122

Rec. Doc. 279 at 1.

123

Id. at 2.

124

Id. at 2–3.

17

agreed to defend United/Wal-Mart after the amendments of the complaint which brought P.R.
Skate in as a party.”125
Arch asserts that P.R. Skate’s argument that its rental of the scissor lift was in the chain of
causation between United Rental’s negligence and Plaintiff’s injuries is unpersuasive.126 Finally,
Arch contends that the term “worker” is defined by the insurance policy and that the definition
states that a “subcontractor” is defined as a worker.127 Thus, according to Arch, Plaintiffs’
employer, Affordable Painting, is an entity that is a “worker” and “subcontractor.”128 Arch
contends that P.R. Skate’s argument that Affordable Painting is a “sub-subcontractor” is
unreasonable given the policy language and the exclusion that precludes coverage concerning any
subcontractor, not merely first-tier subcontractors.129
F.

Arch’s Reply in Further Support of Its Motion for Partial Summary Judgment
In its reply to P.R. Skate’s opposition, Arch “stipulates to the applicability of Washington

law for the insurance coverage dispute with The P.R. Skate.”130
III. Law and Analysis
A.

Legal Standard for Summary Judgment
Summary judgment is appropriate when the pleadings, the discovery, and any affidavits

show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment

125

Id. at 3.

126

Id.

127

Id. at 4.

128

Id.

129

Id. at 5.

130

Rec. Doc. 280 at 1–2.

18

as a matter of law.”131 When assessing whether a dispute as to any material fact exists, the court
considers “all of the evidence in the record but refrains from making credibility determinations or
weighing the evidence.”132 All reasonable inferences are drawn in favor of the nonmoving party,
but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and
conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.”133
If the record, as a whole, “could not lead a rational trier of fact to find for the non-moving party,”
then no genuine issue of fact exists and the moving party is entitled to judgment as a matter of
law.134 The nonmoving party may not rest upon the pleadings, but must identify specific facts in
the record and articulate the precise manner in which that evidence establishes a genuine issue for
trial.135
The party seeking summary judgment always bears the initial responsibility of informing
the Court of the basis for its motion and identifying those portions of the record that it believes
demonstrate the absence of a genuine issue of material fact.136 Thereafter, the nonmoving party
should “identify specific evidence in the record, and articulate” precisely how that evidence
supports his claims.137 To withstand a motion for summary judgment, the nonmoving party must

131

Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
132

Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).

133

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.

134

Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986).

135

See Celotex, 477 U.S. at 325; Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).

136

Celotex, 477 U.S. at 323.

137

Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994).

19

show that there is a genuine issue for trial by presenting evidence of specific facts.138 The
nonmovant’s burden of demonstrating a genuine issue of material fact is not satisfied merely by
creating “some metaphysical doubt as to the material facts,” “by conclusory allegations,” by
“unsubstantiated assertions,” or “by only a scintilla of evidence.”139 Rather, a factual dispute
precludes a grant of summary judgment only if the evidence is sufficient to permit a reasonable
trier of fact to find for the nonmoving party. Hearsay evidence and unsworn documents that cannot
be presented in a form that would be admissible in evidence at trial do not qualify as competent
opposing evidence.140
On cross-motions for summary judgment, a court examines each party’s motion
independently, viewing the evidence and inferences in the light most favorable to the nonmoving
party.141 “Cross-motions for summary judgment will not, in themselves, warrant the court in
granting summary judgment unless one of the parties is entitled to judgment as a matter of law on
facts that are not genuinely disputed.”142 Nonetheless, cross-motions for summary judgment may
be probative of the absence of a factual dispute when they reveal a basic agreement concerning
what legal theories and material facts are dispositive.143

138

Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012) (citing Anderson v. Liberty, 477 U.S. 242, 248–

49 (1996)).
139

Little, 37 F.3d at 1075.

140

Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987); Fed. R .Civ. P. 56(c)(2).

141

White Buffalo Ventures, LLC v. Univ. of Tex. at Austin, 420 F.3d 366, 370 (5th Cir. 2005).

142

Joplin v. Bias, 631 F.2d 1235, 1237 (5th Cir. 1980).

143
Bricklayers, Masons & Plasterers Int'l Union of Am., Local Union No. 15, Orlando, Fla. v. Stuart
Plastering Co., 512 F.2d 1017, 1023 (5th Cir. 1975).

20

B.

Applicable Law
Both parties agree for the purposes of this motion that Washington law applies. Under

Washington law, “[i]nsurance policies are to be construed as contracts, and interpretation is a
matter of law.”144 Insurance policies are “construed as a whole, and ‘should be given a fair,
reasonable, and sensible construction’ as would be given to the contract by the average person
purchasing insurance.”145
“If policy language is clear and unambiguous, the court may not modify the contract or
create an ambiguity.”146 “The entire contract must be construed together in order to give force and
effect to each clause.”147 Interpretations that would cause a term to be superfluous are
disfavored.148 However, a court must not “add language to the words of an insurance contract that
were not contained in the parties’ agreement.”149
“If terms are defined in a policy, then the term should be interpreted in accordance with
that policy definition.”150 “Undefined terms in an insurance contract must be given their ‘plain,
ordinary, and popular’ meaning.”151 To determine the ordinary meaning of an undefined term, a

144

State Farm Gen. Ins. Co. v. Emerson, 687 P.2d 1139, 1141–42 (Wash. 1984).

145
Grange Ins. Co. v. Brosseau, 776 P.2d 123, 125 (Wash. 1989) (quoting Sears v. Grange Ins. Ass’n, 111
Wash.2d 636, 638, 762 P.2d 1141 (1988)).
146

Am. Star Ins. Co. v. Grice, 854 P.2d 622, 625 (Wash. 1993).

147

Stouffer v. Knight & Cont’l Cas. Co., 982 P.2d 105, 110 (Wash. Ct. App. 1999) (quoting Washington Pub.
Util. Dist. Utilities Sys. v. Public Util. Dist. No. 1 of Clallam County, 771 P.2d 701 (Wash. 1989)).
148

Am. Agency Life Ins. Co. v. Russell, 678 P.2d 1303, 1306 (Wash. Ct. App. 1984).

149

See Weyerhaeuser Co. v. Aetna Cas. and Surety Co., 874 P.2d 142, 154 (Wash. 1994).

150

Kitsap Cty. v. Allstate Ins. Co., 964 P.2d 1173, 1178 (Wash. 1998).

151
Boeing Co. v. Aetna Cas. & Sur. Co., 784 P.2d 507, 510 (Wash. 1990) (quoting Farmers Ins. Co. v. Miller,
87 Wash.2d 70, 73, 549 P.2d 9 (1976)).

21

court should look to standard English language dictionaries.152 If words have both a legal or
technical meaning, “it must be clear that both parties to the contract intended that the language
have a legal technical meaning.”153 “Otherwise, the words will be given their plain, ordinary
meaning.”154
“An insurance policy provision is ambiguous when it is fairly susceptible to two different
interpretations, both of which are reasonable.”155 However, when the language is ambiguous, the
ambiguity must be construed against the insurer, especially where the language concerns
exclusions limiting coverage.156 “[E]xclusions should be construed strictly against the insurer.”157
The reason for these rules is that “insurance contracts are ordinarily prepared solely by the
insurance company.”158 “Presumably the insurer, as drafter, is in a better position to prevent
mistakes or ambiguities.”159 The Washington Supreme Court has stated, “It must not be forgotten
that the purpose of insurance is to insure, and that the construction should be taken that will render
the contract operative rather than inoperative. A construction which contradicts the general
purpose of the contract or results in a hardship or absurdity is presumed unintended by the

152

Id. (internal citations omitted).

153

Id. at 513 (internal citations omitted).

154

McDonald v. State Farm Fire and Cas. Co., 837 P.2d 1000, 1004 (Wash. 1992) (citing Stanley v. Safeco
Ins. Co. of Am., 747 P.2d 1091 (Wash. 1988)).
155

Id. (internal citations omitted).

156

Findlay v. United Pac. Ins. Co., 917 P.2d 116, 119 (Wash. 1996).

157

Queen City Farms, Inc. v. Central Nat’l Ins. Co., 882 P.2d 703, 717 (Wash. 1994).

158

Continental Ins. Co. v. PACCAR, Inc., 634 P.2d 291, 294 (Wash. 1981).

159

Id.

22

parties.”160 Accordingly, “[i]nsurance clauses are to be liberally construed to provide coverage
whenever possible.”161
C.

Analysis
1.

Whether Arch has a Duty to Defend P.R. Skate against Plaintiffs’ Claims for
Bodily Injury

The first issue before the Court is, whether under the insurance policy issued by Arch to
P.R. Skate, Arch has a duty to defend P.R. Skate against Plaintiff’s claims or whether, pursuant to
the Employer’s Liability Exclusion, Plaintiff’s claims are excluded from coverage.
The facts relevant to this issue are not in dispute. Arch issued a policy of commercial
general liability coverage to P.R. Skate as the named insured, effective November 27, 2013, to
November 27, 2014.162 In 2013, P.R. Skate contracted with Wal-Mart to remodel a Wal-Mart
Supercenter in Cut Off, Louisiana.163 To perform the physical remodeling work at the Wal-Mart
Supercenter, P.R. Skate subcontracted with Sartin.164 Sartin subsequently subcontracted “some or
all of its work” to another contractor, Affordable Painting.165 Plaintiffs were employed by
Affordable Painting.166 Plaintiffs brought claims for bodily injury against P.R. Skate.167 The
insurance policy issued by Arch to P.R. Skate includes an “Employer’s Liability Exclusion.”168

160

Schroeder v. Royal Globe Ins. Co., 659 P.2d 509, 511 (Wash. 1981) (internal citation omitted).

161

Odessa School Dist. v. Ins. Co. of America, 791 P.2d 237, 239 (Wash. Ct. App. 1990).

162

See Rec. Doc. 220-7.

163

Rec. Doc. 155-3 at 1; Rec. Doc. 220-3 at 1.

164

Id.

165

Rec. Doc. 155-3 at 1; Rec. Doc. 220-3 at 2.

166

Id.

167

See Rec. Doc. 68 at 2; Rec. Doc. 70 at 3.

168

See Rec. Doc. 220-8.

23

The Employer’s Liability Exclusion in the policy at issue excludes coverage for:
“Bodily injury” to:
(1) An “employee” of any insured arising out of and in the course of:
a. Employment by any insured; or
b. Performing duties related to the conduct of any insured’s business;
or
(2) The spouse, child, parent, brother or sister of that “employee” as a
consequence of paragraph (1) above.
(3) A “subcontractor” or an “employee” of any “subcontractor.”169
The Employer’s Liability Exclusion includes the following definition of the term “subcontractor”:
For purposes of this exclusion, a “subcontractor” means any worker,
including, but not limited to, a temporary worker, casual laborer, borrowed
worker, servant or independent contractor, who is not an “employee” of the
insured.170
The parties do not dispute that sections one and two of the Employer’s Liability Exclusion do not
apply to the instant matter.171 Thus, the issue before the Court is whether Arch is required to defend
P.R. Skate against Plaintiff’s claims or whether Plaintiff’s claims for bodily injury are excluded
under section three of the exclusion provision, which excludes coverage for bodily injury to a
subcontractor or an employee of any subcontractor.
P.R. Skate argues that Plaintiff’s172 claims are covered under its insurance policy with
Arch, because the Employer’s Liability Exclusion contained in the policy does not apply to
Plaintiff’s claims.173 P.R. Skate acknowledges that the exclusion applies to subcontractors or

169

Rec. Doc. 220-8.

170

Id.

171

See Rec. Doc. 151-1 at 11; Rec. Doc. 220-1 at 10.

172

On January 25, 2016, after the filing of the instant motions, the Court was notified that all parties had
reached a settlement with Plaintiff Edward Blair Dorsey, and the Court issued an Order dismissing his case. See Civ.
A. No. 15-1723, Rec. Doc. 18. Thus, only one Plaintiff remains.
173

Rec. Doc. 151-1 at 6.

24

employees of subcontractors but argues that the exclusion does not apply in this case because
Plaintiff’s employer, Affordable Painting, was a subcontractor of Sartin, not of P.R. Skate.174 P.R.
Skate contends that the term “subcontractor” should be “interpreted to be someone working for
the insured, not simply someone who works.”175 According to P.R. Skate, Arch’s interpretation of
the exclusion provision is too broad and effectively allows for “an exclusion of all liability for any
personal injuries.”176
Arch responds that the Employer’s Liability Exclusion precludes coverage for P.R. Skate,
because the bodily injury alleged by Plaintiff is to an employee of a subcontractor.177 According
to Arch, the policy’s definition of the term “subcontractor” is unambiguous and does not require
that a subcontractor relationship exist between P.R. Skate and Plaintiff’s employer, Affordable
Painting, in order for the exclusion to preclude coverage.178 Arch notes that another part of the
insurance policy, the Exposed Work Area Limitation Endorsement, defines a subcontractor as “any
person or organization who is not an ‘employee’ of the insured and does work or perform services
for or on behalf of the insured.”179 Arch argues that this definition included in the Exposed Work
Area Limitation Endorsement limits the term “subcontractor” to those performing services on
behalf of an insured, but that the definition of “subcontractor” contained in the Employer’s
Liability Exclusion does not include this limiting language. Instead, Arch points out that the
language in the Employer’s Liability Exclusion provides for the exclusion of coverage not only

174

Id. at 11.

175

Id. at 13.

176

Id. at 15.

177

Rec. Doc. 220-1 at 9.

178

Id. at 11.

179

Id. at 12.

25

for employees of a named insured by also for “any other class of worker on a job site.”180 Because
the insurance policy excludes coverage for bodily injury claims of employees of subcontractors,
Arch argues, there is no duty to defend P.R. Skate with respect to Plaintiff’s personal injury
claims.181
Under Washington law, which the parties agree governs the interpretation of the policy at
issue,182 insurance policies are “to be construed as contracts, and interpretation is a matter of
law.”183 “If terms are defined in a policy, then the term should be interpreted in accordance with
that policy definition.”184 Moreover, “[i]f the policy language is clear and unambiguous, the court
may not modify the contract or create an ambiguity,”185 and a court must not “add language to the
words of an insurance contract that were not contained in the parties’ agreement.”186
An insurance company, as a private contracting entity, is generally permitted to limit the
liability it assumes under its policies.187 In order to avoid liability under a commercial general
liability policy, the insurer must show that the loss is excluded by specific policy language.188
Exclusion clauses should be construed strictly against the insurer.189 However, the rule of strict
construction of exclusions contained in an insurance policy is “merely an aid at arriving at the

180

Id. at 12–13.

181

Id. at 14.

182

See Rec. Doc. 266 at 1; Rec. Doc. 280 at 1–2.

183

State Farm Gen. Ins. Co. v. Emerson, 687 P.2d 1139, 1141–42 (Wash. 1984).

184

Kitsap Cty. v. Allstate Ins. Co., 964 P.2d 1173, 1178 (Wash. 1998).

185

Am. Star Ins. Co. v. Grice, 854 P.2d 622, 625 (Wash. 1993).

186

See Weyerhaeuser Co. v. Aetna Cas. and Surety Co., 874 P.2d 142, 154 (Wash. 1994).

187

See Findlay v. United Pacific Ins. Co., 917 P.2d 116, 121 (Wash. 1996).

188

See Overton v. Consolidated Ins. Co., 38 P.3d 322, 329 (Wash. 2002) (internal citation omitted).

189

See Aetna Ins. Co. of Hartford v. Kent, 540 P.2d 1383, 1386 (Wash. 1975).

26

intention of the parties to that policy” and is not intended to “override the otherwise apparent clear
intention of the parties.”190 Moreover, “plain, explicit language cannot be disregarded, nor an
interpretation given the policy at variance with the clearly disclosed intent of the parties.”191
Here, Plaintiff’s complaint alleges that he was an employee of Affordable Painting, “which
was a subcontractor of Sartin Builders.”192 The parties do not dispute that Sartin subcontracted
work to Affordable Painting and that Plaintiff was an employee of Affordable Painting.193 P.R.
Skate nevertheless contends that the exclusion does not apply to Plaintiff’s claims, because
Affordable Painting was not subcontracted by P.R. Skate directly.194 P.R. Skate asserts that
Affordable Painting is not a subcontractor covered by the exclusion provision but is instead, a
“sub-subcontractor of the insured.”195
However, the policy language clearly and unambiguously states that the exclusion applies
to an employee of any subcontractor,196 not just employees of those subcontractors who have direct
contractual relationships with the insured. Where, as here, the policy language is clear and
unambiguous, under Washington law, the Court “may not modify the contract or create an
ambiguity,”197 nor may the Court “add language to the words of an insurance contract that were

190

Id.

191

Davis v. North Am. Acc. Ins. Co., 254 P. 722, 726 (Wash. 1953).

192

Rec. Doc. 1-2.

193
See Arch’s “Statement of Undisputed Facts,” Rec. Doc. 220-3 at 2 (stating that “Sartin subsequently
subcontracted some or all of its work to another contractor, Affordable Painting” and “[b]oth Plaintiffs . . . were
employed by Affordable Painting”); P.R. Skate’s “Statement of Material Facts Presenting No Genuine Issue,” Rec.
Doc. 155-3 at 1 (stating that “Sartin subsequently subcontracted some or all of its work to another contractor,
Affordable Painting” and “[b]oth Plaintiffs . . . were employed by Affordable Painting”).
194

See Rec. Doc. 151-1 at 6.

195

Rec. Doc. 266.

196

Rec. Doc. 220-8.

197

Am. Star Ins. Co. v. Grice, 854 P.2d 622, 625 (Wash. 1993).

27

not contained in the parties’ agreement.”198 Acceptance of P.R. Skate’s interpretation of the
exclusion provision would require the addition of language to the words of the insurance contract
that were not contained in P.R. Skate and Arch’s agreement.199
The Employer’s Liability Exclusion includes a definition of the term “subcontractor.”200
The Court must interpret the term “subcontractor” in accordance with that policy definition.201 The
Court notes that P.R. Skate’s proposed interpretation of the definition of subcontractor is in fact
found in another part of the insurance policy at issue, the Exposed Work Area Limitation
Endorsement. In that provision, the parties defined the term “subcontractor” as any person or
organization who is not an employee of an insured and “does work or performs services for or on
behalf of an insured.”202 This suggests that the parties contemplated and executed a contractual
provision that more narrowly defines the term “subcontractor,” and explicitly agreed to a broader
definition in the exclusionary provision at issue here. In essence, P.R. Skate requests that the Court
apply a similarly narrow definition here, even though the Employer’s Liability Exclusion contains
a broader definition of the term “subcontractor” than that contained in another part of the contract.
Reading the contract as a whole, however, the added language in the Exposed Work Area
Limitation Endorsement further supports the conclusion that the parties intended that the term
“subcontractor” to be defined more broadly in the context of the Employer’s Liability Exclusion.203

198

Weyerhaeuser Co. v. Aetna Cas. and Surety Co., 874 P.2d 142, 154 (Wash. 1994).

199

See id. See also Truck Ins. Exchange v. BRE Props., Inc., 81 P.3d 929, 932 (Wash. Ct. App. 2003).

200

See Rec. Doc. 220-8 (“For purposes of this exclusion, a ‘subcontractor’ means any worker, including, but
not limited to, a temporary worker, casual laborer, borrowed worker, servant, or independent contractor, who is not
an ‘employee’ of the insured.”).
201

Kitsap Cty. v. Allstate Ins. Co., 964 P.2d 1173, 1178 (Wash. 1998).

202

See Rec. Doc. 220-7.

203

Rec. Doc. 220-8. See also Aetna Ins. Co. of Hartford v. Kent, 540 P.2d 1383, 1386 (Wash. 1975) (holding
that the rule of liberal construction of exclusions contained in an insurance policy is “merely an aid at arriving at the

28

Accordingly, the Court finds P.R. Skate’s argument that the Employer’s Liability
Exclusion should be limited only to subcontractors of P.R. Skate, i.e. the insured, unpersuasive.
Nothing in the provision limits its application to subcontractors of the insured, and the provision
is worded broadly such that a subcontractor of a subcontractor would be excluded from coverage
as “any subcontractor.”204 P.R. Skate has not offered any explanation as to why the Employer’s
Liability Exclusion, which defines a subcontractor using broader language than the language
contained in the Exposed Work Area Limitation, should be given the same effect. Under
Washington law, all of the provisions in an insurance contract will be reviewed together so that
each will have its intended force and effect.205 To accept P.R. Skate’s interpretation would go
against this principle and would fail to give effect to the plain language in each provision of the
insurance policy in light of the whole contract.206
P.R. Skate also argues that the term “worker” in the exclusion’s definition of the term
“subcontractor” creates ambiguity.207 P.R. Skate contends that “[w]ithout further reference to the
policy for context,” the term “worker” could include “anyone who is not employed . . . unrelated

intention of the parties to that policy” and should not “be applied to override the otherwise apparent clear intention of
the parties”).
204

See Am. States Ins. Co. v. Delean’s Tile and Marble, LLC, 319 P.3d 38, 43 (Wash. Ct. App. 2013) (holding
that exclusion precluded claim arising from faulty work of subcontractor on multiple unit walkways where broad
language of exclusion’s definition of “construction operations” included conversion of the building to . . . any other
type of multiple unit residential structure”). Cf. Truck Ins. Exchange v. BRE Props., Inc., 81 P.3d 929, 933 (Wash.
App. Ct. 2003) (rejecting insurer’s argument that employer’s liability exclusion limiting coverage for employees of
“the insured” should be interpreted broadly to limit coverage for employees of “any insured.”).
205
See Moeller v. Farmers Ins. Co. of Washington, 267 P.3d 998, 1001 (Wash. 2011) (en banc) (citing Allstate
Ins. Co. v. Peasley, 932 P.2d 1244 (1997)).
206

See Certification from United States Dist. Ct. ex rel. Western Dis. of Washington v. GEICO Ins. Co., 366
P.3d 1237, 930 (2016) (“The court views an insurance contract in its entirety, does not interpret a phrase in isolation,
and gives effect to each provision.”) (internal citation omitted). Cf. Aetna Ins. Co. of Hartford v. Kent, 540 P.2d 1383,
1386 (Wash. 1975) (comparing two policies issued by the insurer to the insured and finding that the differing language
in the policies evidenced an intention that one policy provide liability coverage of a kind that the other policy
excluded).
207

Rec. Doc. 155-1 at 12.

29

to the job, who wanders onto the jobsite and gets injured.”208 However, under Washington law,
the Court does not construe a term in a vacuum without reference to the rest of the policy for
context. Rather, insurance policies are “construed as a whole and ‘should be given a fair,
reasonable, and sensible construction . . . .’”209 The Court notes that employee and contractor
exclusions are not uncommon in commercial general liability policies and that the purpose of such
exclusions is to eliminate redundant coverage for injury which is covered by workers’
compensation or other liability policies.210 A “fair, reasonable, and sensible” construction of the
insurance contract as a whole indicates that provision operates to exclude bodily injury claims of
several classes of workers from coverage—not to exclude coverage for bodily injury claims
generally. P.R. Skate’s attempt to create an ambiguity by interpreting the word “worker” without
reference to the policy for context does not change the clear and unambiguous language of the
exclusion, which excludes coverage for an employee of any subcontractor.211
As stated above, in the Employer’s Liability Exclusion, “subcontractor” is broadly defined
to include “any worker . . . who is not an ‘employee’ of the insured,” and the provision specifically
identifies an “independent contractor” as a type of “worker” for the purposes of the exclusion.
Here, both parties have explicitly stated that Sartin “subsequently subcontracted some or all of its

208

Id.

209

Grange Ins. Co. v. Brosseau, 776 P.2d 123, 125 (Wash. 1989) (quoting Sears v. Grange Ins. Ass’n, 111
762 P.2d 1141 (Wash. Ct. App. 1988)). See also Castle & Cooke, Inc. v. Great Am. Ins. Co., 711 P.2d 1108, 1110
(Wash. Ct. App. 1986);Mercer Place Condominium Ass’n v. Agora Syndicate, inc., 17 P.3d 626, 629 (Wash. Ct. App.
2000).
210

See BRUNER AND O’CONOR ON CONSTRUCTION LAW § 11:306 (2016) (noting the frequency of employee
and independent contractor exclusions in commercial general liability policies and observing that “[t]he incorporation
of ‘independent contractor’ exclusions and broad ‘employee’exclusions operate to eliminate bodily coverage for a
great variety of worker and invitee injuries . . . .”). See also INSURANCE COVERAGE OF CONSTRUCTION DISPUTES §
13:1 (2d ed.) (2016) (stating that the purpose of the employers liability exclusion is to eliminate “redundant coverage”
for injury and damage which is covered by workers’ compensation or other liability policies).
211
See Grange Ins. Co., 776 P.2d at 125; Am. Star Ins. Co. v. Grice, 854 P.2d 622, 625 (Wash. 1993) (“If
policy language is clear and unambiguous, the court may not . . . create an ambiguity.”).

30

work to another contractor, Affordable Painting.”212 Moreover, it is undisputed that Plaintiff is an
employee of Affordable Painting, and that Affordable Painting is not an “employee of the insured.”
Thus, pursuant to the plain language of the Employer’s Liability Exclusion, Affordable Painting
is a “subcontractor,” and Plaintiff is an “employee” of a “subcontractor.” Therefore, because
Employer’s Liability Exclusion clearly and unambiguously precludes coverage for “bodily injury”
to “an employee of any subcontractor,”213 the Court finds that the exclusion applies.
Under Washington law, the duty to defend “arises when a complaint against the insured,
construed liberally, alleges facts which could, if proven, impose liability upon the insured within
the policy’s coverage.”214 Where the alleged claim is “clearly not covered by the policy,” however,
an insurer is relieved of its duty to defend.215 Here, as the Court found supra, Plaintiff’s claim is
clearly not covered by the policy pursuant to the specific policy language found in the Employer’s
Liability Exclusion.216 Therefore, even construing Plaintiff’s complaint liberally, the Court finds
that the undisputed facts in the record indicate that Arch does not have a contractual duty to defend
P.R. Skate against Plaintiff’s claims. Accordingly, the Court finds there are no genuine disputes
of material fact and summary judgment in favor of Arch and against P.R. Skate on this issue is
appropriate.

212

See Arch’s “Statement of Undisputed Facts,” Rec. Doc. 220-3 at 2 (stating that “Sartin subsequently
subcontracted some or all of its work to another contractor, Affordable Painting” and “[b]oth Plaintiffs . . . were
employed by Affordable Painting”) (emphasis added); P.R. Skate’s “Statement of Material Facts Presenting No
Genuine Issue,” Rec. Doc. 155-3 at 1 (stating that “Sartin subsequently subcontracted some or all of its work to another
contractor, Affordable Painting” and “[b]oth Plaintiffs . . . were employed by Affordable Painting”).
213

Rec. Doc. 220-8 (internal quotation marks omitted).

214

Truck Ins. Exch. v. VanPort Homes, Inc., 58 P.3d 276, 281 (Wash. 2002) (citing Hayden v. Mut. of
Enumclaw Ins. Co., 1 P.3d 1167, 1171 (Wash. 2000)).
215

Id. (citing Kirk v. Mt. Airy Ins. Co., 687 P.2d 456 (1980)). See also Stouffer & Knight v. Continental Cas.
Co., 96 Wash. App. 741 (Wash. Ct. App. 1999) (holding that coverage for claim under malpractice insurance policy
for employee’s embezzlement of client funds was precluded under plain language of employee exclusion).
216

Overton v. Consolidated Ins. Co., 38 P.3d 322, 329 (Wash. 2002) (internal citation omitted).

31

2.

Whether Arch has a Duty to Defend United Rentals and Wal-Mart as
Additional Insureds under the Blanket Additional Insured Endorsement

The second issue before the Court is whether, under the insurance policy issued by Arch
to P.R. Skate, Arch has a duty to defend United Rentals and Wal-Mart as additional insureds. “It
is common practice in the construction industry for owners to require contractors to name them as
additional insureds under their [commercial general liability insurance] policies.”217 “A common
approach in the construction industry is for a contractor or subcontractor to obtain a policy
endorsement that automatically confers additional insured status upon anyone with whom the
named insured has agreed in writing to provide additional insured coverage. Such an endorsement
is known as a ‘blanket additional insured’ endorsement.”218
The facts relevant to this issue are not in dispute. Arch issued a policy of commercial
general liability insurance to P.R. Skate, which listed P.R. Skate as the named insured, effective
November 27, 2013, to November 27, 2014.219 The policy included an additional insured
endorsement, titled “Blanket Additional Insured Endorsement.”220 The endorsement states, in
pertinent part:
SECTION II—WHO IS AN INSURED is amended to include as an additional
insured those persons or organizations who are required under a written contract
with you to be named as an additional insured, but only with respect to liability for
“bodily injury,” “property damage,” or “personal and advertising injury” caused, in
whole or in part, by your acts or omissions or the acts or omissions of your
subcontractors:
a. In the performance of your ongoing operations or “your work,”
including “your work” that has been completed; or

217

BRUNER & O’CONNER CONSTRUCTION LAW § 11:322 (2016).

218

Id. at § 11:328.

219

See Rec. Doc. 220-7.

220

Rec. Doc. 220-9 at 1.

32

b. In connection with your premises owned by or rented to you.221
In 2013, P.R. Skate contracted with Wal-Mart Stores to remodel a Wal-Mart Supercenter
in Cut Off, Louisiana.222 The contract between Wal-Mart Stores and P.R. Skate included a
provision which required P.R. Skate to name Wal-Mart Stores and “its subsidiaries, affiliates,
officers, directors, employees and agents as ‘additional insureds’” under P.R. Skate’s commercial
general liability insurance.223
On April 11, 2014, P.R. Skate rented a scissor lift from United Rentals.224 The rental
agreement required P.R. Skate to make United Rentals an additional insured under P.R. Skate’s
commercial general liability insurance.225 On April 19, 2014, Plaintiffs were injured when they
both fell from the scissor lift, which United Rentals had rented to P.R. Skate.226
By letter dated October 10, 2014, United Rentals tendered its defense of Plaintiffs’ claims
to Arch.227 Arch subsequently denied United Rentals’ tender.228 On May 29, 2015, United Rentals
filed a third-party complaint against P.R. Skate and Arch alleging that P.R. Skate and Arch
breached their contractual obligation to United Rentals by failing to reimburse United Rentals for

221

Id.

222

Rec. Doc. 155-3 at 1; Rec. Doc. 220-3 at 1.

223

Rec. Doc. 155-3 at 1; Rec. Doc. 155-4 at 15.

224

Rec. Doc. 155-3 at 2; Rec. Doc. 155-4 at 141–43.

225

Rec. Doc. 155-3 at 1; Rec. Doc. 155-4 at 142.

226

Rec. Docs. 56, 70.

227

Rec. Doc. 155-3 at 2; Rec. Doc. 155-4 at 144–45.

228

Rec. Doc. 155-3 at 2.

33

its defense costs and by refusing to acknowledge their contractual indemnity and defense
obligations.229
P.R. Skate also tendered defense and indemnity for Plaintiffs’ claims to Arch on behalf of
Wal-Mart.230 However, Arch denied the tender of defense on behalf of Wal-Mart.231 Thereafter,
P.R. Skate accepted the defense of Wal-Mart.232 By letter dated March 7, 2016, Arch accepted the
defense of Wal-Mart under a reservation of rights, from October 6, 2015.233 By letter dated March
7, 2016, Arch accepted the defense of United Rentals under a reservation of rights, but only from
November 3, 2015.234
a.

Standing

As a preliminary matter, Arch argues that P.R. Skate does not have standing to raise its
claim that Arch breached its contractual duty to P.R. Skate to defend United Rentals and Wal-Mart
as additional insureds under the insurance policy.235 Arch maintains that it contracted with P.R.
Skate to include the additional insured endorsement on the policy, and whether the policy provides
coverage to an insured is between Arch and the putative insureds, United Rentals and Wal-Mart.236
P.R. Skate asserts that it has standing to bring this claim because Arch’s breach of the insurance

229

Rec. Doc. 10.

230

Rec. Doc. 155-3 at 3.

231

Id.

232

Id.

233

Id. at 4.

234

Id.

235

Rec. Doc. 220-1 at 15.

236

Id. at 15.

34

policy harmed P.R. Skate by causing United Rentals to sue P.R. Skate and by obligating P.R. Skate
to accept Wal-Mart’s tender of defense to avoid being sued by Wal-Mart.237
Under Article III of the United States Constitution, federal courts only have jurisdiction
over “cases” or “controversies.”238 One requirement to have a “case” or “controversy” is that the
plaintiff must have standing to sue.239 “The standing inquiry focuses on whether the plaintiff is the
proper party to bring this suit[.]”240 The plaintiff must show that it has a “personal stake” in the
dispute, and that the injury alleged in the complaint is particularized as to him.241 To establish
standing, the plaintiff must show: (1) it suffered an “injury in fact,” which is a “concrete and
particularized invasion of a legally protected interest” that is actual or imminent, and not
conjectural or hypothetical; (2) there is a causal connection between the alleged harm and the
defendant’s conduct, such that the injury is fairly traceable to the challenged action rather than the
result of a third party’s independent action; and (3) it is likely, rather than merely speculative, that
a favorable decision will redress the injury.242 Under Washington law, a party to a contract may
bring a breach of contract claim.243

237

Rec. Doc. 155-1 at 22.

238

U.S. Const. art. III, § 2, cl. 1; see Raines v. Byrd, 521 U.S. 811, 818 (1997); Hollis v. Lynch, 827 F.3d
436, 441 (5th Cir. 2016).
239

Hollis, 827 F.3d at 441.

240

Raines, 521 U.S. at 818 (Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 37 (1976)).

241

Id. at 819 (citing Lujan, 504 U.S. at 560–561); see also Bender v. Williamsport Area School Dist., 475
U.S. 534, 543–544 (1986) (holding that a member of the school board who “has no personal stake in the outcome of
the litigation” had no standing).
242

Lujan, 504 U.S. at 560–61; Hollis, 827 F.3d at 441.

243
Brummett v. Washington’s Lottery, 288 P.3d 48, 55 (Wash. Ct. App. 2012). A third party beneficiary to a
contract may also bring a breach of contract claim. Id.

35

Here, it is undisputed that P.R. Skate is the named insured and a party to the insurance
policy. In the contract between Arch and P.R. Skate, Arch agreed to defend those who P.R. Skate
is required “under a written contract . . . [to name] as an additional insured.”244 It is also undisputed
that there was a written contract between P.R. Skate and United Rentals and a written contract
between P.R. Skate and Wal-Mart requiring that P.R. Skate name them as additional insureds. P.R.
Skate alleges that P.R. Skate suffered an injury as a result of Arch’s breach of contract.
Specifically, P.R. Skate alleges that it suffered an injury when United Rentals sued P.R. Skate
because Arch declined to defend United Rentals.245 P.R. Skate also asserts that it suffered an injury
by accepting Wal-Mart’s tender of defense to avoid being sued by Wal-Mart.246 Thus, the Court
finds that it suffered a concrete and particularized injury in fact as required to establish standing.247
Moreover, the Court finds that there is a causal connection between P.R. Skate’s alleged harm and
Arch’s conduct because P.R. Skate would not have suffered the alleged harm but for Arch’s denial
of United Rentals and Wal-Mart’s tenders of defense. Further, it is likely that a favorable decision
will redress the injury. Accordingly, the Court concludes that P.R. Skate has standing to bring this
claim.
b.

Coverage under the Blanket Additional Insured Endorsement

Next, while it is undisputed that the insurance policy included a Blanket Additional Insured
Endorsement requiring Arch to defend additional insureds, the parties dispute when Arch’s duty
to defend United Rentals and Wal-Mart first arose. P.R. Skate asserts that the duty to defend arose

244

Rec. Doc. 220-9 at 1.

245

Rec. Doc. 65 at 3.

246

Rec. Doc. 155-3 at 3.

247

Lujan, 504 U.S. at 560–61; Hollis, 827 F.3d at 441.

36

when Plaintiffs originally filed suit and United Rentals and Wal-Mart made tenders to Arch.248
Arch contends that the duty to defend did not arise with respect to Wal-Mart until October 6, 2015,
the date that the first amended complaint was filed adding Wal-Mart as a defendant, and the duty
to defend did not arise with respect to United Rentals until November 3, 2015, the date that the
second amended complaint was filed adding P.R. Skate as a defendant.249 Arch argues that it did
not have a duty to defend United Rentals and Wal-Mart under the original complaints because the
additional insured endorsement applies “only with respect to liability for ‘bodily injury’ . . . caused,
in whole or in part, by [P.R. Skate’s] acts or omissions or the acts or omissions of [P.R. Skate’s]
subcontractors . . . .”250 Because the original complaints alleged that the “sole and proximate cause
of the injuries and damages sustained by [Plaintiffs’] was the negligence of the defendant, United
Rentals,” Arch argues that it did not have a duty to defend United Rentals and Wal-Mart until the
complaints were amended to allege the negligence of P.R. Skate.251
P.R. Skate contends that Arch’s position is incorrect.252 P.R. Skate asserts that the
additional insured endorsement requires that the injury be caused by its acts, not its negligent
acts.253 P.R. Skate avers that it acted when it rented the scissor lift for use at the Wal-Mart
Supercenter in Cut Off, Louisiana. 254 According to P.R. Skate, while this act was not negligent,

248

Rec. Doc. 155-1 at 19.

249

Rec. Doc. 220-1 at 15.

250

Id. at 16.

251

Id.

252

Rec. Doc. 155-1 at 19.

253

Id. at 20.

254

Id. at 21.

37

but for that act, Plaintiffs’ “accident would not have happened and neither United Rentals nor WalMart would be facing any liability for it.”255
“An insurer’s duty to defend is broader than its duty to indemnify.”256 The duty to defend
“arises when a complaint against the insured, construed liberally, alleges facts which could, if
proven, impose liability upon the insured within the policy’s coverage.”257 An insurer is not
relieved of its duty to defend unless the claim alleged in the complaint is “clearly not covered by
the policy.”258 If a complaint is ambiguous, a court will construe it liberally in favor of “triggering
the insurer’s duty to defend.”259 “In sum, the duty to defend is triggered if the insurance policy
conceivably covers the allegations in the complaint, whereas the duty to indemnify exists only if
the policy actually covers the insured’s liability.”260 “The insurer may not rely on facts extrinsic
to the complaint to deny the duty to defend—it may do so only to trigger the duty.”261 In Woo v.
Fireman’s Fund Insurance Company, the Washington Supreme Court stated:
There are two exceptions to the rule that the duty to defend must be determined
only from the complaint, and both the exceptions favor the insured. First, if it is
not clear from the face of the complaint that the policy provides coverage, but
coverage could exist, the insurer must investigate and give the insured the benefit
of the doubt that the insurer has a duty to defend. Notice pleading rules, which
require only a short and plain statement of the claim showing that the pleader is
entitled to relief, impose a significant burden on the insurer to determine if there
are any facts in the pleadings that could conceivably give rise to a duty to defend.
Second, if the allegations in the complaint conflict with facts known to or readily
255

Id.

256

Truck Ins. Exch. v. VanPort Homes, Inc., 58 P.3d 276, 281 (Wash. 2002) (citing Hayden v. Mut. of
Enumclaw Ins. Co., 1 P.3d 1167, 1171 (Wash. 2000)).
257

Id. at 281–82 (quoting Unigard Ins. Co. v. Leven, 983 P.2d 1155, 1160 (Wash. Ct. App. 1999) (internal
quotation marks omitted)).
258

Id. at 282.

259

Id.

260

Woo v. Fireman’s Fund Ins. Co., 164 P.3d 454, 459 (Wash. 2007).

261

Id.

38

ascertainable by the insurer, or if the allegations . . . are ambiguous or inadequate,
facts outside the complaint may be considered. The insurer may not rely on facts
extrinsic to the complaint to deny the duty to defend—it may do so only to trigger
the duty.262
P.R. Skate relies on Weyerhaeuser Co. v. Aetna Casualty and Surety Co., a Washington
Supreme Court case, to support the proposition that where “the policy language does not require
an adversarial claim or a third party threat or a formal threat of legal action” courts will not interpret
a policy to require that a claim be filed before the duty to defend arises.263 In Weyerhaeuser the
Washington Supreme Court considered whether there could “be insurance coverage under a
Comprehensive General Liability (CGL) policy for property damage when the policyholder has
incurred environmental cleanup costs pursuant to statute, but where the involved government
environmental agency has not made an overt threat of formal legal action.”264 The policy language
provided that the insurance company would indemnify the insured “for all sums which the
[insured] shall be obligated to pay by reason of the liability, imposed upon the [insured] by law
. . . for damages . . . on account of property damage.”265 The policy did “not specify whether this
liability must be imposed by formal legal action (or threat of such) or by a statute which imposes
liability.”266 The Washington Supreme Court reasoned that coverage was triggered absent a claim
because “[t]here is nothing in the insurance policy language which requires a ‘claim’ or an overt
threat of legal action and . . . [i]f the insurers intended to provide coverage only if there were a

262

Id. (internal citations and quotation marks omitted).

263

Rec. Doc. 155-1 at 20 (citing Weyerhaeuser, 874 P.2d at 154).

264

Weyerhaeuser, 874 P.2d at 145.

265

Id. at 145–46.

266

Id. at 154.

39

lawsuit or a threat of such, that requirement could have been included in the policy.”267 The court
stated that it would not “add language to the words of an insurance contract that are not contained
in the parties’ agreement.”268
Although Weyerhaeuser stands for the proposition that the duty to defend may arise before
a claim is filed, P.R. Skate does not argue that the duty to defend arose at some point prior to the
filing of the original complaints. Instead, P.R. Skate asserts that the duty to defend arose with the
filing of the original complaints. The blanket additional insured endorsement provides additional
insurance coverage to “those persons or organizations who are required under a written contract
with [P.R. Skate] to be named as additional insureds, but only with respect to liability for ‘bodily
injury’ . . . caused, in whole or in part, by [P.R. Skate’s] acts or omissions or the acts or omissions
of [P.R. Skate’s] subcontractors. . . .”269
Plaintiffs’ original complaints alleged that “[t]he sole and proximate cause of [their]
injuries and damages sustained . . . was the negligence of the defendant, United Rentals. . . .”270
However, Plaintiffs’ original complaints alleged P.R. Skate acted when it rented the scissor lift for
use at the Wal-Mart Supercenter in Cut Off, Louisiana.271 Under the allegations presented in the
original complaints, but for P.R. Skate’s act, Plaintiffs’ accident would not have happened.
Therefore, construing the original complaints liberally, the Court finds that the duty to defend
under the Blanket Additional Insured Endorsement was triggered when the original complaints
were filed because the original complaints alleged facts which could, if proven, have shown that

267

Id.

268

Id.

269

Id. at 20.

270

Rec. Doc. 1-2 at 5; Civ. A. No. 15-1723, Rec. Doc. 1-2 at 5.

271

Rec. Doc. 1-2 at 4; Civ. A. No. 15-1723, Rec. Doc. 1-2 at 4.

40

Plaintiffs’ bodily injuries were caused, in whole or in part, by P.R. Skate’s acts or omissions.272
Accordingly, the Court finds that there is no genuine issue of material fact and P.R. Skate is entitled
to judgment as a matter of law on its claim that Arch breached its contract by failing to defend
United Rentals and Wal-Mart under the Blanket Additional Insured Endorsement.
Finally, Arch argues that the insurance policy excludes coverage for bodily injury claims
which P.R. Skate “may be obligated to pay by reason of the assumption of liability in a contract
agreement unless the assumption of liability was part of the ‘insured contract’ under the policy.”273
However, P.R. Skate asserts that it does not assert coverage under this provision of the insurance
policy.274 Accordingly, the Court need not reach this issue.
IV. Conclusion
Based on the foregoing, the Court finds that the undisputed facts in the record indicate that
Arch does not have a contractual duty to defend P.R. Skate against Plaintiff’s claims because
Plaintiff’s claims are precluded from coverage under the clear and unambiguous language of the
Employer’s Liability Exclusion of the insurance policy at issue. The Court also finds that the
undisputed facts in the record indicate that P.R. Skate is entitled to judgment as a matter of law on
its claim that Arch breached its contract by failing to defend United Rentals and Wal-Mart under
the Blanket Additional Insured Endorsement. Accordingly,
IT IS HEREBY ORDERED that Arch’s “Cross-Motion for Partial Summary Judgment
as to the Declaratory Judgment and Cross-Claim of the P.R. Skate, L.L.C.”275 is GRANTED IN

272

Truck Ins. Exch., 58 P.3d 276 at 281–82 (quoting Unigard, 983 P.2d at 1160).

273

Rec. Doc. 220-1 at 19.

274

Rec. Doc. 266 at 10.

275

Rec. Doc. 220.

41

PART AND DENIED IN PART. Arch’s motion is GRANTED to the extent that it seeks
summary judgment on the issue of whether it has a duty to defend P.R. Skate against Plaintiff’s
claims for bodily injury. It does not. Arch’s motion is DENIED in all other respects.
IT IS FURTHER ORDERED that P.R. Skate’s “Motion for Summary Judgment of
Liability Against Arch Specialty Insurance Company”276 is GRANTED IN PART AND
DENIED IN PART. P.R. Skate’s motion is GRANTED to the extent that it seeks summary
judgment on its claim that Arch breached its contract by failing to defend United Rentals and WalMart under the Blanket Additional Insured Endorsement. P.R. Skate’s motion is DENIED in all
other respects.
NEW ORLEANS, LOUISIANA, this 15th day of February, 2017.
____

____________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

276

Rec. Doc. 155.

42