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National Fire Insurance Co. of Hartford v. Burns & Scalo Roofing Co.

United States District Court, E.D. Pennsylvania

January 26, 2017

NATIONAL FIRE INSURANCE COMPANY OF HARTFORD and TRANSPORTATION INSURANCE COMPANY Plaintiffs
v.
BURNS & SCALO ROOFING COMPANY Defendant

          MEMORANDUM OPINION

          NITZA I. QUIÑONES ALEJANDRO, J.

         INTRODUCTION

         Plaintiffs National Fire Insurance Company of Hartford and Transportation Insurance Company (“Plaintiffs”) filed this civil action under the Declaratory Judgment Act, [1] seeking a determination regarding insurance coverage, and related rights and duties, if any, for the defense and/or indemnification owed to Defendant Burns & Scalo Roofing Company (“Defendant” or “Burns & Scalo”) in an underlying state court action.[2] [ECF1].

         Presently before this Court is Plaintiffs' motion for summary judgment filed pursuant to Federal Rule of Civil Procedure (“Rule”) 56, requesting judgment in their favor and a declaration that Plaintiffs do not owe a further duty to defend and/or indemnify Defendant in the above-referenced state court action. [ECF 33]. Defendant filed a response in opposition, [ECF 35], and Plaintiffs filed a reply. [ECF 42]. The issues raised in the motion for summary judgment have been fully briefed by the parties and are now ripe for disposition. For the reasons stated herein, Plaintiffs' motion for summary judgment is granted.

         BACKGROUND[3]

         Briefly, in the underlying state court action filed by Carl and Lori Bremer (collectively “the Bremers”) against Burns & Scalo, (the same Defendant in this federal case), Carl Bremer (“Dr. Bremer”) contends that during the summer months of the years 1973 through 1976, he was employed by Defendant, was exposed to asbestos dust and fibers during his employment and, as a result of this exposure, developed malignant mesothelioma. (See State Court Compl., attached as Ex. 1, Pltfs. Mot. for Summ. J., at ¶¶ 4-5, 8). In said complaint, his wife, Lori Bremer, pled a claim for loss of consortium.[4] (See Id. at ¶¶ 3, 8). The state court complaint incorporated, by reference, allegations and causes of action asserted in a master long form complaint filed as In re Asbestos Litigation in Philadelphia Court of Common Pleas, No. 8610-0001 (“the Master Long Form Complaint”), including, inter alia, an allegation in Count VII that the Dr. Bremers' injuries resulted from Defendant's intentional tortious conduct as Bremer's employer. (Id. at ¶ 9). The nine-paragraph state court complaint contains very little by way of factual allegations. However, it explicitly alleges that Dr. Bremer was employed by Defendant, and that his exposure to asbestos dust and fiber during the course of his employment with Defendant was the proximate cause of his injuries. (Id. ¶¶ 4-5).

         In the state court matter, Defendant sought a defense and indemnification from Plaintiffs consistent with the provisions of the general liability insurance occurrence policies issued to Defendant between the years 1988 and 1992 (“the Policies”). (See Pltfs. Mot. for Summ. J., Ex. 9-12). The Policies, which contained identical provisions, essentially provide for a defense and indemnification in any lawsuit seeking damages for “bodily injury” that occurs during the policy coverage period. (See, e.g., Pltfs. Mot. for Summ. J, Ex. 9 at Section I, ¶ 1.a.). The Policies defined the term “bodily injury” as “bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time.” (See Id. at Section V, ¶ 3). The Policies contained a liability exclusion provision, (“the Exclusion”), which reads as follow:

This insurance does not apply to:
e. “Bodily injury” to:
(1) An employee of the insured arising out of and in the course of employment by the insured; or
(2) The spouse, child, parent, brother or sister of that employee as a consequence of (1) above.
This exclusion applies:
(1) Whether the insured may be liable as an employer or in any other capacity; and
(2) To any obligation to share damages with or repay someone else who must pay damages ...

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