United States District Court, E.D. Pennsylvania
CERTAIN UNDERWRITERS AT LLOYD'S LONDON SUBSCRIBING TO POLICY NO. GL1580/01/AM1723, Plaintiff,
CATA CONSTRUCTION, et al., Defendants.
the Court are Plaintiff's uncontested Motion for Summary
Judgment (Doc. 14) and Plaintiff's Memorandum of Law in
Support thereof (Doc. 14-1). Upon consideration of
Plaintiff's submissions and exhibits, Plaintiff's
Motion for Summary Judgment is GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
an insurance company, brings this suit seeking declaratory
judgment regarding an insurance policy that it issued to its
insured, Defendant Cata Construction
(“Cata”).Specifically, Plaintiff seeks a declaration
that it owed no duty to defend or indemnify its insured in
connection with an underlying state lawsuit by Defendant
Pulte Group, Inc. (“Pulte”) against Defendant
Nassau Construction Company (“Nassau”) for work
that Nassau and Cata, as Nassau's subcontractor,
performed on a residential construction project known as the
Traditions at Washington Crossing, located in Bucks County,
Pennsylvania (“Washington Crossing Project”).
Plaintiff contends that it owes no duty to defend or
indemnify its insured because, in the underlying action,
Pulte alleged that it suffered damages stemming from
Cata's and Nassau's faulty workmanship. Faulty
workmanship, Plaintiff reasons, does not trigger coverage
under the governing insurance policy and, therefore,
Plaintiff is entitled to summary judgment.
Underlying State Court Lawsuit Over The Washington Crossing
September 2010, Pulte filed a complaint against various
construction contractors that it had hired to perform work on
the Washington Crossing Project. After several amendments to
its complaint, Pulte finally filed a Fourth Amended Complaint
in which it alleged that Nassau was liable for damages
incurred in connection with purportedly defective decks and
patio doors that Nassau and/or its subcontractors installed
on 299 homes in the Washington Crossing Project. Pl.'s
Mem. of Law in Supp. Ex. 1-b, at 3 ¶ 8. The Fourth
Amended Complaint set forth two causes of action against
Nassau: Count 3 (Negligence) and Count 4 (Breach of
Contract). Id. at 11-18. Both counts set forth a
number of factual allegations indicating that Nassau and/or
its subcontractors failed to perform a variety of
construction tasks properly. Id.
Joinder Complaint By Nassau Against Cata
and as a result of Pulte's Fourth Amended Complaint,
Nassau filed an Amended Joinder Complaint in which Nassau
asserted claims against 18 subcontractors who performed work
on the Washington Crossing Project. Pl.'s Mem. of Law in
Supp. Ex. 1-b, at 21-93. Among the subcontractors identified
was Cata who had performed “cornice work” for
Nassau. Id. at 36 ¶ 56. Nassau alleged that
Cata was liable, as the cornice subcontractor, for the
property damage identified in Pulte's Fourth Amended
Complaint. As a result of this litigation, Nassau notified
Plaintiff that the underlying state court action might
trigger coverage under a Commercial General Liability Policy
that Cata had obtained from Plaintiff. See Pl's
Mem. of Law in Supp. Ex. 1-c, at 44-48 (indicating that
Nassau notified Plaintiff of Plaintiff's potential
obligation to cover damages alleged in the underlying state
The Commercial General Liability Policy: Coverages and
Commercial General Liability Policy, CGL Policy
GL1580/01AM1723 (“CGL Policy”), was issued by
Plaintiff to Cata, and was in effect during the time that
Cata performed work on the Washington Crossing Project.
See Pl.'s Mem. of Law in Supp. Ex. 1-c, at 17
(providing that the “policy period” ran from
“23 May 2001” to “23 May 2002”). The
CGL Policy delineates its scope of coverage and identifies
the circumstances that would obligate Plaintiff to defend and
indemnify Cata under Section I. Section I provides, in
A BODILY INJURY AND PROPERTY DAMAGE LIABILITY
. . . . We will pay those sums that the insured becomes
legally obligated to pay as damages because of ‘bodily
injury' or ‘property damage' to which this
insurance applies. We will have the right and duty to defend
the insured against any ‘suit' seeking those
damages. However, we will have no duty to defend the insured
against any ‘suit' seeking damages for
‘bodily injury' or ‘property damage' to
which this insurance does not apply.
. . . . This insurance applies to ‘bodily
injury' and ‘property damage' only if:
(1) [t]he ‘bodily injury' or ‘property
damage' is caused by an ‘occurrence' . . .
and (2) [t]he ‘bodily injury' or ‘property
damage' occurs during the policy period.
Pl.'s Mem. of Law in Supp. Ex. 1-c, at 25 (emphasis
Policy definitions for important terms including a definition
for the term “occurrence, ” which means,
“an accident, including continuous or repeated
exposure to substantially the same or general harmful
conditions.” Pl.'s Mem. of Law in Supp. Ex. 1-c, at
36 (emphasis added). The definition for the term
“occurrence” is further defined by an Endorsement
attached to the CGL Policy, which provides “[w]hen used
in this policy . . . . ‘occurrence' means an
accident, including continuous or repeated exposure to
conditions, which results in bodily injury or property damage
neither expected nor intended from the standpoint of the
insured.” Id. at 24.
preliminary matter, the Court addresses the implications of
Defendants' failure to respond to the present Motion for
Standard Of Review For Summary Judgment Motions
party fails to respond to a properly filed motion, the Court
may treat the motion as uncontested. E.D. Pa. Local R. Civ.
P. 7.1(c). In the case of a motion for summary judgment,
however, the Court “may not grant an uncontested
summary judgment motion without an independent determination
that the movant is entitled to judgment under Fed.R.Civ.P.
56.” B&B Fin. Servs. LLC v. Kallock, No.
CIV. A. No. 05-1277, 2006 WL 2869529, at *1 (E.D. Pa. Oct. 4,
2006); see Hitchens v. County of Montgomery, 98 Fed.
App'x 106, 110 (3d Cir. 2004) (providing the same).
Still, “[b]y failing to respond . . . ‘the
nonmoving party waives the right to respond to or to
controvert the facts asserted in the summary judgment
motion.'” Kallock, 2006 WL 2869529, at *1
(citing Reynolds v. Rick's Mushroom Serv., 246
F.Supp.2d 449, 453 (E.D. Pa. 2003)). Thus, when a party fails