Thunder Basin Coal Company, L.L.C. v. Zurich American Insurance Company et al

Filing 83

MEMORANDUM AND ORDER re: 54 MOTION for Judgment on the Pleadings filed by Defendant National Union Fire Insurance Company of Pittsburgh, PA. IT IS HEREBY ORDERED that defendant National Union Fire Insurance Company's motion for judgment on the pleadings [#54] is DENIED. Signed by District Judge Catherine D. Perry on May 2, 2013. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
THUNDER BASIN COAL
COMPANY, L.L.C.,
Plaintiff,
vs.
ZURICH AMERICAN
INSURANCE COMPANY, et al.,
Defendants.

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) Case No. 4:12CV231 CDP
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MEMORANDUM AND ORDER
Plaintiff Thunder Basin Coal Company, L.L.C. seeks a declaratory judgment
that defendant National Union Fire Insurance Company of Pittsburgh is required to
defend and indemnify it against a separate lawsuit, under an “additional insured”
provision of a commercial umbrella policy. Thunder Basin was sued in the United
States District Court for the District of Wyoming for injuries suffered by two
individuals when a crane collapsed at its Black Thunder Mine. National Union
moves for judgment on the pleadings, arguing, among other things, that its policy
could only cover Thunder Basin for any vicarious liability, and that vicarious
liability is precluded as a matter of law. I conclude that Thunder Basin has not
shown that it is entitled to judgment on the pleadings.

Background
Thunder Basin operates the Black Thunder Mine, located in Wyoming. It
entered into a contract with The Industrial Company of Wyoming, Inc. (TIC) for
TIC to construct a coal handling railway expansion project. The contract required
TIC to obtain primary and excess insurance and to name Thunder Basin as an
additional insured. To complete the project, TIC leased a crane and crane
operators from Lampson International. One of the cranes used by Lampson
collapsed on May 31, 2008, injuring two employees of TIC: Andrew Milonis and
Federico Salinas. Milonis then filed suit against Lampson, Earth Work Solutions,1
and Thunder Basin in the District of Wyoming. Salinas filed suit against Lampson
and Earthworks, Inc., and later filed a separate suit against Thunder Basin.
Thunder Basin now seeks an order requiring National Union to defend and
indemnify it against these lawsuits as an additional insured under the policy issued
to TIC. The National Union insurance policy at issue defines an “insured” as “any
person or organization . . . included as an additional insured under Scheduled
Underlying Insurance, but not for broader coverage than would be afforded by
such Scheduled Underlying Insurance.” (Doc. #36-5, at 38). The scheduled
underlying insurance in this case is TIC‟s policy issued by Zurich American
Insurance Company. The Zurich policy includes an endorsement that contains the

1

Earth Work Solutions is apparently also known as Earthworks, Inc.

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following provisions relevant to coverage for an additional insured:
A.

Section II – Who Is An Insured is amended to include as an
insured any person or organization who you are required to add
as an additional insured on this policy under a written contract
or written agreement.

B.

The insurance provided to the additional insured person or
organization applies . . . only with respect to liability for
“bodily injury,” “property damage” or “personal and
advertising injury” caused, in whole or in part, by:
1.

Your acts or omissions; or

2.

The acts or omissions of those acting on your behalf . . . .

(Doc. #36-5, at 18).2
In Count VII of the amended complaint, Thunder Basin seeks a declaratory
judgment that National Union is obligated to defend and indemnify it in both of the
underlying suits. National Union moves for judgment on the pleadings, arguing
that Thunder Basin‟s liability was not caused by TIC‟s acts or omissions, as
required under the Zurich policy.
Discussion
Judgment on the pleadings under Federal Rule of Civil Procedure 12(c) is
appropriate “where no material issue of fact remains to be resolved and the movant
is entitled to judgment as a matter of law.” Minch Family LLLP v. Buffalo-Red
River Watershed Dist., 628 F.3d 960, 965 (8th Cir. 2010). “The facts pleaded by

2

The terms “you” and “your” in these provisions refer to TIC, the named insured on the policy.

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the non-moving party must be accepted as true and all reasonable inferences from
the pleadings should be taken in favor of the non-moving party.” Mills v. City of
Grand Forks, 614 F.3d 495, 498 (8th Cir. 2010). In ruling on a motion for
judgment on the pleadings, a court “may consider the pleadings themselves,
materials embraced by the pleadings, exhibits attached to the pleadings, and
matters of public record. Id.
Thunder Basin brought this case based on diversity jurisdiction under 28
U.S.C. § 1332. “A district court sitting in diversity must apply the conflict of law
rules for the state in which it sits.” Inacom Corp. v. Sears, Roebuck & Co., 254
F.3d 683, 687 (8th Cir. 2001). In deciding choice of law questions for insurance
cases, Missouri applies § 193 of the Restatement (Second) of Conflict of Laws
“[i]f the insurance contract does not specify which state‟s law applies, or if the
policy insures risks located in a state other than Missouri.” Curran Composites,
Inc. v. Liberty Mut. Ins. Co., 874 F. Supp. 261, 264 (W.D. Mo. 1994). Under §
193, Missouri courts will apply the law of the state where “the principal location of
the insured risk” is located, unless another state has a more significant relationship
to the transaction and the parties. Restatement (Second) of Conflict of Laws § 193.
In this case, the National Union policy does not specify which state‟s law
applies to its interpretation, and the policy insures risks located outside of

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Missouri.3 When a policy “insure[s] against risks located in several states,” each
risk is treated as if it was insured under a separate policy. Restatement (Second) of
Conflict of Laws § 193 cmt. f. Because the risk at issue in this case involves a
single facility located in Wyoming, this court will apply Wyoming law based on
Missouri‟s conflict of law rules.
Under Wyoming law, “[t]he interpretation and construction [of an insurance
contract] is done by the court as a matter of law.” Amoco Prod. Co. v. Stauffer
Chemical Co. of Wyo., 612 P.2d 463, 465 (Wyo. 1980). The Wyoming Supreme
Court has set out several tenets for the interpretation of insurance contracts, as
follows:
(1) words must be given their common and ordinary meaning, and
courts may not torture policy language to create an ambiguity; (2) the
parties‟ intention, ascertained from the policy language when viewed
in the light of what the parties must reasonably have intended,
receives primary consideration; (3) the policy must not be construed
so strictly as to contradict the policy‟s general object; (4) courts may
not rewrite lawful policy terms; (5) absent ambiguity, courts must
enforce the policy according to its terms and not engage in
construction; (6) if the policy is ambiguous, courts must construe the
contract liberally in favor of the insured and strictly against the
insurer.
Mena v. Safeco Ins. Co., 412 F.3d 1159, 1163 (10th Cir. 2005) (citing Aaron v.
State Farm Mut. Auto. Ins. Co., 34 P.3d 929, 933 (Wyo. 2001)).

3

The schedule of locations covered by the Zurich policy was not attached to the parties‟
motions, although at least one of those covered locations is located outside of Missouri: the
Black Thunder Mine in Wyoming. Therefore, I find that application of § 193 is appropriate.

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1.

Policy Language
As required under Wyoming law, the interpretation of this insurance contract

must begin with its plain language. The parties offer different interpretations of
the relevant portion of the Zurich policy. The pertinent phrase states that
insurance is only provided “with respect to liability for „bodily injury,‟ „property
damage‟ or „personal and advertising injury‟ caused, in whole or in part, by” the
acts or omissions of TIC or those acting on its behalf. The parties dispute whether
the emphasis in this phrase is on “liability” or “bodily injury,” and they also raise
arguments concerning the “in whole or in part” language.
National Union argues that the policy only covers Thunder Basin if it is held
vicariously liable for the acts of TIC, and that as a matter of Wyoming law, it
cannot be vicariously liable for TIC‟s acts, so there is no coverage. Thunder Basin,
on the other hand, argues that coverage is provided because the plaintiffs in the
underlying suits allege that a party acting on behalf of TIC is also alleged to have
caused the plaintiffs‟ bodily injuries.4 I conclude that the plain language of the
policy does not support National Union‟s interpretation.
As to the dispute between whether “liability” or “bodily injury” is the focus
4

Count VII seeks a declaration that National Union has both a duty to defend and a duty to
indemnify under the contract. As in most states, under Wyoming law, the duty to defend is
broader than the duty to indemnify. See, e.g., Great Divide Ins. Co. v. Bitterroot Timberframes
of Wyo., No. 06-CV-020-WCB, 2006 WL 3933078, at §7 (D. Wyo. Oct. 20, 2006); Sabins v.
Commercial Union Ins. Cos., 82 F. Supp. 2d 1270, 1276 (D. Wyo. 2000). The duty to defend
exists if a claim in the underlying lawsuit is rationally or potentially covered by the policy.
Great Divide, 2006 WL 3933078, at *7.

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of the first part of this phrase, National Union argues that coverage is only
provided for liability caused by the acts or omissions of TIC or those acting on its
behalf, such that the policy would only cover Thunder Basin for vicarious liability,
which is not permitted under Wyoming law. To interpret the policy as National
Union suggests would essentially eliminate all meaning of the phrase, “for „bodily
injury,‟ „property damage‟ or „personal and advertising injury.‟” Rather, National
Union‟s interpretation would read, “The insurance provided to the additional
insured person or organization applies . . . only with respect to liability . . . caused,
in whole or in part, by” the acts or omissions of TIC or those acting on its behalf.
Such an interpretation isolates certain parts of the language, rather than reading the
policy as a whole, which is impermissible under Wyoming principles of contract
interpretation. See State ex rel. Arnold v. Ommen, 201 P.3d 1127, 1138 (Wyo.
2009) (stating that Wyoming courts “interpret contracts a whole, reading each
provision in light of all the others to find the plain and ordinary meaning of the
words” and “are reluctant to read parts of an insurance contract in isolation”).
When reading the clause as a whole, I conclude that the plain language
unambiguously does not limit coverage to situations involving vicarious liability.
The key term in the contract provision at issue is the “bodily injury” caused by TIC

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or those working on its behalf.5 National Union‟s attempt to focus on the term
“liability” controverts the plain meaning of the language at issue.6 Furthermore,
the policy does not contain any specific mention of vicarious liability as a
limitation on coverage, and such a restriction could have been written into the
policy if the parties had intended to limit coverage in that way. See Am. Empire
Surplus Lines Ins. Co. v. Crum & Forster Specialty Ins. Co., No. Civ. H-06-0004,
2006 WL 1441854, at *7 (S.D. Tex. 2006) (denying to read into the policy an
unstated coverage limitation to vicarious liability in the absence of the words
“derivative” and “vicarious”).
National Union‟s argument regarding vicarious liability is therefore without
merit. Because I have concluded that the policy provides coverage for bodily
injury caused by the insured, rather than liability caused by the insured, National
Union‟s arguments concerning vicarious liability and comparative fault are

5

The parties have cited a number of cases examining the same or similar contract language,
which have reached inconsistent results regarding the meaning of this language. See, e.g.,
Gilbane Bldg. Co. v. Admiral Ins. Co., 664 F.3d 589 (5th Cir. 2011); Lincoln Gen. Ins. Co. v.
Federal Constr., Inc., No. 09-C-6087, 2010 WL 4978852 (N.D. Ill. Dec. 2, 2010); Dale Corp. v.
Cumberland Mut. Fire Ins. Co., No. 09-1115, 2010 WL 4909600 (E.D. Pa. Nov. 30, 2010). The
parties have tried to distinguish these cases, but no unifying principles may be drawn from the
holdings of these cases because all involve factual circumstances different from each other and
from the facts presented here, as well as various contract interpretation principles that are not
invoked under Wyoming law.
6

Even if the language is ambiguous, in that the interpretations urged by both parties are plausible
readings of the language, Wyoming insurance law mandates that I must construe the language in
favor of the insured and strictly against the insurer. See Mena, 412 F.3d at 1163.

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irrelevant to this analysis.7
Furthermore, the parties raise arguments about another phrase contained in
the additional insured provisions of the Zurich policy: “caused, in whole or in part,
by” TIC or those acting on TIC‟s behalf. The underlying complaints allege
separate acts of negligence performed by Lampson, Earth Works, and Thunder
Basin, which together caused the bodily injuries suffered by Milonis and Salinas.
Even if – as National Union argues – Thunder Basin will only be held liable for its
proportion of fault in the underlying lawsuits, that principle does not preclude
coverage under this policy. By its plain language, the phrase “caused, in whole or
in part,” merely requires the named insured or those acting on its behalf to have
been at least partially responsible for the injuries alleged by the claimant. See, e.g.,
Pro Con, Inc. v. Interstate Fire & Cas. Co., 794 F. Supp. 2d 242, 256-57 (D. Me.
2011) (holding that inclusion of the “in whole or in part” language “specifically
intended coverage for additional insureds to extend to occurrences attributable in
part to acts or omissions by both the named insured and the additional insured”);
Am. Empire, 2006 WL 1441854, at *7 (holding that an additional insured is
entitled to coverage if the complaint potentially alleges a claim based on some

7

Specifically, National Union argues that Wyoming law does not allow a contractor‟s employee
injured on a construction worksite to hold the owner of the worksite vicariously liable for any
negligence of the contractor. Similarly, National Union argues that under Wyoming‟s
comparative fault statute, Thunder Basin will only be held liable for its own negligence, not the
negligence of TIC or those acting on its behalf.

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conduct by the named insured, despite allegations of wrongful conduct by the
additional insured).8 Whether Thunder Basin was also negligent does not
determine its eligibility for coverage. Based on the allegations raised in the
underlying complaints and in Thunder Basin‟s complaint in this case, Thunder
Basin has raised a plausible argument that it may be liable for injuries caused by
the actions of Lampson, which was acting on behalf of TIC.
Alternatively, in its reply brief, National Union argues that Lampson was not
actually working on TIC‟s behalf because it was an independent contractor. As an
initial matter, I need not consider this argument, as it was not raised until the reply
brief. K.C. 1986 Ltd. P’Ship v. Reade Mfg., 472 F.3d 1009, 1018 n.2 (8th Cir.
2007) (“It is well settled that [courts] do not consider arguments raised for the first
time in a reply brief.”). However, even if this argument were proper, I do not find
that it has merit at this stage of the proceedings. Wyoming courts have not
interpreted the scope of individuals qualifying as “acting on behalf” of the named
insured, though some other courts have held that this class is limited to agents of
the named insured. See, e.g., Gilbane Bldg. Co. v. Admiral Ins. Co., 664 F.3d 589,
8

Thunder Basin correctly points out that National Union has previously made the opposite
argument of its position in this case. In National Union Fire Insurance Company of Pittsburgh,
PA v. NGM Insurance Company, No. 11-CV-303-JD, 2011 WL 6415484 (D.N.H. Dec. 21,
2011), National Union argued that coverage should be provided for an additional insured when
the named insured was performing work for the additional insured when the injury occurred,
even though the injured party did not allege that the named insured caused his injuries. Id. at *3.
That court agreed with National Union that because the injury could potentially be attributable to
the named insured – even though the complaint did not specifically allege any wrongdoing by
the named insured – the additional insured was entitled to coverage. Id. at *4-5.

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593 (5th Cir. 2011). Wyoming law defines agency as “the manifestation of
consent by one person to another that the other shall act on his behalf and subject
to his control and consent.” Krier v. Safeway Stores 46, Inc., 943 P.2d 405, 411
(Wyo. 1997) (emphasis in original) (internal quotation marks and citation omitted).
This contract requires only the element of acting on behalf of the named insured,
not necessarily being subject to its control. However, even if both elements of an
agency relationship are required, the facts in this case meet those requirements. In
a summary judgment opinion issued in one of the underlying Wyoming district
court cases – attached in support of plaintiff‟s response brief – the court
summarized facts relevant to the relationship between TIC and Lampson as
follows:
Without enumerating all details relevant to this project, it is clear that
TIC retained exclusive control of the job site; that TIC controlled the
lifting operations and the crane operators on site, including in
particular the lift operation in which plaintiff Salinas was injured.
TIC developed the final lift plans, coordinated operations and supplied
rigging crews and iron workers. TIC determined what loads would be
lifted and when and where those activities would occur. TIC directed
supervision of crane operators on site and controlled when those
workers would work or go home. TIC accepted and controlled the
engineers supplied by Lampson to TIC pursuant to the lease
agreement . . . .
(Doc. #61-2, at 7-8). This recitation of facts demonstrates a substantial level of
control by TIC over the work performed by Lampson. National Union is therefore
not entitled to judgment on the pleadings on this basis.

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Based on the above analysis of the policy language itself, I conclude that
Thunder Basin has plead a plausible claim for a declaratory judgment against
National Union that it is entitled to coverage as an additional insured under the
policy. Therefore, National Union is not entitled to relief on the basis of the policy
language.
2.

Public Policy
National Union raises a separate argument that Wyoming public policy

precludes a mining company from obtaining indemnity for its own negligence, and
thus Thunder Basin may not shift its liability to an insurance company. Wyoming
Statute § 30-1-131 reads as follows:
(a) All agreements, covenants or promises contained in . . . any
agreement pertaining to any well for oil, gas or water, or mine for any
mineral, which purport to indemnify the indemnitee against loss or
liability for damages for: (i) death or bodily injury to persons . . . (B)
are against public policy and are void and unenforceable to the extent
that such contract of indemnity by its terms purports to relieve the
indemnitee from loss or liability for his own negligence. This
provision shall not affect the validity of any insurance contract . . . .
Wyo. Stat. § 30-1-131. Thunder Basin argues that the exemption for insurance
contracts contained in the statute applies, such that the insurance policy is valid.9

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Thunder Basin also argues that Wyoming courts would not interpret the work being performed
by Lampson in this case as “designing, excavating, constructing, improving, or otherwise
rendering services in or in connection with any mine shaft, drift, or other structure intended for
use in the exploration for or production of any mineral,” as required to fall within coverage of §
30-1-131. Wyo. Stat. § 30-1-132. Because I conclude that the insurance exemption adequately
resolves the question of coverage in this case, I need not predict how broadly Wyoming courts
would construe this phrase in the statute.

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Starting with the plain language, this Wyoming statute clearly states that it
“shall not affect the validity of any insurance contract.” Wyo. Stat. § 30-1-131.
An agreement by a subcontractor to indemnify the contractor for any liability or
damages is not the same as an agreement to procure insurance. See, e.g., Zettel v.
Paschen Contractors, Inc., 427 N.E.2d 189, 192 (Ill. App. Ct. 1981). Had the
contract between Thunder Basin and TIC required TIC to indemnify Thunder
Basin for any liability or damages, it apparently would be invalidated by § 30-1131. However, the contract between Thunder Basin and TIC only required TIC to
“provide and maintain insurance of the type and amounts set out” in an attached
table, and to include Thunder Basin as an additional insured on all policies. (Doc.
#55-1, at 9, 20). Therefore, because there was never an agreement that TIC would
indemnify Thunder Basin – but would rather list it as an additional insured on its
insurance policies – the statute does not preclude coverage for Thunder Basin
under the National Union policy.
National Union argues that a Wyoming district court reached the opposite
result in True Oil Co. v. Mid-Continent Cas. Co., No. 02-CV-1024 (D. Wyo. Feb.
9, 2005), aff’d on other grounds, 173 F. App‟x 645 (10th Cir. 2006), holding that
this statute precludes a mining company from obtaining additional insured
coverage under a contractor‟s policy. I disagree with National Union‟s
interpretation of that case and its applicability to the facts in this case. In True Oil,

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the court analyzed a contract that contained both an indemnification clause and a
clause requiring the subcontractor to procure insurance. Id. at *4-5. The insurance
policy at issue stated that it only provided coverage for an additional insured if it
was required by a written “insured contract” between the parties. Id. at *10. The
policy then defined “insured contract” as a contract under which “[the insured]
assume[s] the tort liability of another party to pay for „bodily injury‟ or „property
damage‟ to a third person or organization.” Id. The court held that the only part of
the party‟s contract that could arguably be considered an “insured contract” was
the indemnification provision, and since that was invalidated by § 30-1-131, the
contractor was not entitled to coverage under the insurance policy. Id. at *56-57.
This case is distinguishable from True Oil in several important ways. First,
the insurance policy provides coverage for an additional insured for “any person or
organization who [the insured] [is] required to add as an additional insured on this
policy under a written contract or written agreement.” (Doc. #36-5, at 18). As
stated above, Thunder Basin and TIC had a written contract providing that TIC
was required to add Thunder Basin as an additional insured. Unlike in True Oil,
there was no requirement of an “insured contract” prior to obtaining coverage, but
rather only a “written contract or written agreement,” and so Thunder Basin was
properly added as an additional insured under the National Union policy.
Additionally, there was not an indemnification agreement between the parties here,

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as there was in True Oil. Based on other cases that have considered similar
statutes in other states, I conclude that Wyoming courts would distinguish between
agreement to procure insurance coverage and agreements to indemnify. See, e.g.,
Roy Anderson Corp. v. Transcontinental Ins. Co., 358 F. Supp. 2d 553, 566 (S.D.
Miss. 2005) (collecting cases). Because the agreement in this case only contained
an agreement to procure insurance and not an agreement to indemnify, § 30-1-131
does not invalidate the agreement between Thunder Basin and TIC.
Construing the complaint in the light most favorable to Thunder Basin, I
conclude that it has plead a plausible claim for a declaratory judgment against
National Union that it is entitled to coverage as an additional insured under the
policy. Therefore, I will deny National Union‟s motion for judgment on the
pleadings as to Count VII of the first amended complaint.
Accordingly,
IT IS HEREBY ORDERED that defendant National Union Fire Insurance
Company‟s motion for judgment on the pleadings [#54] is denied.

_________________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 2nd day of May, 2013.

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