CX Reinsurance Company Limited v. Jessica-Carl, Inc. et al

Filing 64

MEMORANDUM Signed by Judge J. Frederick Motz on 9/21/2017. (cags, Deputy Clerk)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

CX REINSURANCE COMPANY LIMITED

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v.
B&R MANAGEMENT, INC.

Civil No. - JFM-17-363

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MEMORANDUM.

This is an action brought by CX Reinsurance Company Limited seeking a declaration
that it is not obligated to provide a defense to, or to indemnify, Jessica-Carl, Inc., Nancy Oring,
Renee King, and Alvin Lapidus ("the named insureds") for claims asserted by Sean Nicholson in
the Circuit Court for Baltimore City for injuries which Nicholson alleges he sustained due to
exposure to paint and dust containing lead or lead pigment. CX has filed a motion for summary
judgment prior to the conducting of discovery. Jessica-Carl, Inc., Lapidus, Oring, and Nicholson
have opposed the motion. King has filed a motion to dismiss that has been denied. Unity
Properties, Inc. and George Kleb, defendants in this action and in the underlying Baltimore City
action, have answered the complaint. The other defendants have not entered an appearance.
Plaintiffs motion for summary judgment will be granted.
Sean Nicholson instituted an action against the named insureds alleging that he was
injured by exposure to lead or lead-based paint at premises known as 1813 West Mosher Street
in Baltimore, Maryland which was owned by the named insureds. CX provided insurance for the
property. The insurance policy provided an exclusion for "bodily injury ... arising out of the
ingestion, inhalation, absorption of, or exposure to, lead, lead-paint or other lead-based products
of any kind, form or nature whatsoever."

An exception to the exclusion applied "for bodily

injury, a lead level in blood, bone or body tissue in excess of the 'safe level' [that] is first
diagnosed by a State licensed physician or other State licensed health care provider during this
policy period." The term "safe level" is further defined in the policy to mean "10 micrograms of
lead per deciliter of blood as prescribed by the Centers for Disease Control."
The burden is on the insured to show that the exception to the exclusion applies. See CX
Reinsurance Company, Ltd. v. Heggie, 2016 W L 6025488 (D. Md. Oct. 14,2016); CX
Reinsurance v. Levitas, 207 F. Supp. 3d 566 (D. Md. 2016), aff'd sub nom. CX Reinsurance Co.
Ltd. v. Loyal, No. 16-2180,2017 WL 2445874 (4th Cir. June 6, 2017); CX Reinsurance Co. Ltd
v. Camden Management Services, LLC, 2014 WL 5510914 (D. Md. Oct. 30,2014).

The named

insureds have not done so here.l I believe that these decisions are correctly decided.
Accordingly, CX's motion will be granted.
A separate order effecting the ruling made in this memorandum is being entered
herewith.

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J)'rederick Motz
United States District Judge

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1 CX has provided information that it would be impossible to make such a showing since in 1997
Nicholson's lead level exceeded the 10 micrograms oflead per deciliter of blood prescribed as
the "safe level" as defined in the policy. CX does not, however, rely upon this information but
rather upon the named insureds failure to meet their burden of proof.

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