United States District Court, E.D. Pennsylvania
ZURICH AMERICAN INSURANCE COMPANY, Individually and as Subrogee of Rittenhouse Claridge, LP
INDIAN HARBOR INSURANCE COMPANY, ET AL.
BARCLAY SURRICK, J.
before the Court are cross-motions for summary judgment
involving an insurance coverage dispute. Plaintiff Zurich
American Insurance Company (“Zurich”) provides
general insurance coverage for Rittenhouse Claridge, LP
(“Rittenhouse”). Plaintiff alleges that Defendant
Indian Harbor Insurance Company (“Indian Harbor”)
has a duty to defend and a duty to indemnify Rittenhouse in
an underlying personal injury lawsuit.
underlying lawsuit involves a tort liability claim brought by
Milton Corado (“Corado”) against Rittenhouse.
Corado was an employee of LWC City, Inc. (“LWC”),
a company that had contracted with Rittenhouse to provide
window washing services for the Rittenhouse apartment
building (the “building”). While performing
window-washing services for the building, Corado fell and
sustained serious injuries. (Corado Second Am. Compl. 2,
Pl.'s Mot. SJ Ex. A, ECF No. 20.) Corado filed the
underlying complaint for the injuries he sustained while
washing windows for Rittenhouse. (Id.) As a part of
the contract between LWC and Rittenhouse, LWC was required to
add Rittenhouse as an additional insured to its own insurance
policy with Indian Harbor. This dispute centers on whether,
by adding Rittenhouse as an additional insured, Indian Harbor
has a duty to defend Rittenhouse in the underlying
August 22, 2013, as an employee for LWC, Corado was washing
windows at the Rittenhouse building. (Corado First Am. Compl.
3, Pl.'s Supp. Br. Ex. B, ECF No. 28.) LWC entered into a
contract with Rittenhouse to perform window-washing services
for the building. (Id. at 2.) Corado alleges that
while at the work site, Rittenhouse directed him to set up
his equipment against the metal flashing off of the
building's eighteenth floor balcony. (Id. at 3.)
Corado alleges that the metal flashing was sharp, and
therefore severed his rope, causing him to fall and incur
serious injuries. (Id.) The “rope grab”
that Corado attempted to use was manufactured and designed by
Mio Mechanical Corporation (“Mio”).
(Id.) In addition to filing a negligence action
against Rittenhouse, Corado also filed a negligence and
product liability action against Mio. Corado argues that the
rope grab was unsafe, and the unsafe design contributed to
his injuries. (Id.) On February 17, 2016, Corado
filed a First Amended Complaint naming Mio and Rittenhouse as
defendants in the underlying lawsuit. (Corado First Am.
brings a negligence claim of premises liability against
Rittenhouse. (Id. at 6.) Corado alleges that his
injuries were caused by the negligence of Rittenhouse and
Rittenhouse's agents, servants, workers, or employees.
(Id. at 7.) Corado contends that Rittenhouse and
Rittenhouse's agents, workers, etc., were negligent in
the following ways: by failing to maintain the premises and
safeguard persons lawfully on the premises, by failing to
inspect and supervise the dangerous condition (the metal edge
of the flashing), by failing to maintain the proper barrier
and equipment around the dangerous area, and by failing to
warn Corado of the danger. (Id. at 6- 7.) Corado
also contends that Rittenhouse failed to properly supervise
the work site and failed to provide proper safety management
at the site. (Id. at 6.)
Additional Insured Provision
entered into a contract with Rittenhouse, wherein LWC was to
perform window washing services for the building. As part of
the contract, LWC was required to add Rittenhouse as an
additional insured to its own insurance policy with Indian
Harbor for comprehensive bodily injury and property damage
insurance. (Purchase Order, Pl.'s Mot. SJ Ex. B;
Def.'s Mot. SJ 2, ECF No. 24.) The additional insured
policy provides that Rittenhouse is an additional insured:
[O]nly with respect to liability for ‘bodily injury,
' ‘property damage, ' or ‘personal and
advertising injury' caused, in whole or in part, by:
1. [LWC's] acts or omissions; or
2. The acts or omissions of those acting on [LWC's]
behalf; In the performance of [LWC's] ongoing operations
(Additional Insured, Pl.'s Mot. SJ Ex E.)
the Indian Harbor policy contains a “Primary and
Non-Contributory Wording Endorsement” (the
“Endorsement”) which provides that:
The following additional provisions apply to any person or
entity added as an additional insured by endorsement to this
. . .
3. Notwithstanding any other provision of this policy or any
endorsement attached hereto, no coverage shall be afforded
under this policy for any loss, cost or expense arising out
of the sole negligence of any additional insured or any
person or organization on behalf of any additional insured.
(The Endorsement, Def.'s Mot. SJ Ex. A. 39.)
Rittenhouse signed Purchase Order 56758, requiring that
Rittenhouse be added as an additional insured to LWC's
insurance policy with Indian Harbor. (Purchase Order.)
Purchase Order 56758 contained additional terms, which
provided that LWC was required to “at all times and at
its own cost, maintain comprehensive bodily injury and
property damage Insurance (naming Rittenhouse Claridge, L.P.,
as additional insured), including bodily injury and property
damage arising out of or resulting from Work provided by this
Agreement.” (Additional Terms, Pl.'s Mot. SJ Ex.
B.) Further, the Additional Terms stated that LWC was to
“take all necessary precautions and erect safeguards
for the safety of its employees, Owner, Owner's employees
and tenants, and any invitees of Owner and/or
April 28, 2015, Plaintiff filed a Complaint in this Court.
(Compl., ECF No. 1.) Plaintiff filed the Complaint against
Defendants Indian Harbor and LWC, as well as against Milton
Corado, as a Nominal Defendant. (Id.) On June 29,
2015, LWC filed an Answer. (ECF No. 9.) On June 30, 2015,
Indian Harbor filed an Answer. (ECF No. 10.) On August 4,
2015, Corado filed an Answer. (ECF No. 20.) On September 30,
2015, Plaintiff filed the instant Partial Motion for Summary
Judgment against Indian Harbor. (Pl.'s Mot. SJ, ECF No.
20.) On October 30, 2015, LWC filed a Reply in Opposition to
Plaintiff's Motion for Partial Summary Judgment against
Indian Harbor. On October 30, 2015, Indian Harbor filed the
instant Cross-Motion for Summary Judgment. (Def.'s Mot.
SJ.) On December 1, 2015, Plaintiff filed a Response in
Opposition to Indian Harbor's Motion for Summary
Judgment. (Pl.'s Resp., ECF No. 25.) On February 23,
2016, Plaintiff filed a Supplemental Brief in Support of its
Motion for Partial Summary Judgment. On March 8, 2016, Indian
Harbor filed a Supplemental Brief in Support of its
Cross-Motion for Summary Judgment. (Def.'s Supp. Br., ECF
No. 29.) On March 15, 2016, Plaintiff filed a Brief in
Response to Indian Harbor's Supplemental Brief.
(Pl.'s Resp. Br., ECF No. 30.) On October 21, 2016,
Plaintiff filed a Brief to Advise this Court of Recent
Authority. (Pl.'s Auth., ECF No. 31.) On October 25,
2016, Indian Harbor filed a Response to Plaintiff's
Notice of Recent Authority. (Def.'s Resp. Br., ECF No.
is entitled to summary judgment “if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986) (“Only disputes
over facts that might affect the outcome of the suit under
the governing law will properly preclude the entry of summary
judgment. Factual disputes that are irrelevant or unnecessary
will not be counted.”). Where the nonmoving party bears
the burden of proof at trial, the moving party may identify
an absence of a genuine issue of material fact by showing the
court that there is no evidence in the record supporting the
nonmoving party's case. Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 325 (1986); UPMC Health
Sys. v. Metro. Life Ins. Co., 391 F.3d 497, 502 (3d Cir.
2004). If the moving party carries this initial burden, the
nonmoving party must set forth specific facts showing that
there is a genuine issue for trial. See Fed. R. Civ.
P. 56(c)(1) (“A party asserting that a fact is
genuinely . . . disputed must support the assertion by . . .
citing to particular parts of materials in the
record.”); see also Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (noting
that the nonmoving party “must do more than simply show
that there is some metaphysical doubt as to the material
the record taken as a whole could not lead a reasonable trier
of fact to find for the non-moving party, there is no
‘genuine issue for trial.'”
Matsushita, 475 U.S. at 587 (citations omitted).
When deciding a motion for summary judgment, courts must view
facts and inferences in the light most favorable to the
nonmoving party. Anderson, 477 U.S. at 255. Courts
must not resolve factual disputes or make credibility
determinations. Siegel v. Transfer, Inc. v. Carrier
Express, Inc., 54 F.3d 1125, 1127 (3d Cir. 1995).
“[A] mere ‘scintilla of evidence' in the
nonmovant's favor does not create a genuine issue of fact
and the non-movant may not rest on speculation and conjecture
in opposing a motion for summary judgment.” Ramara,
Inc. v. Westfield Ins. Co., 814 F.3d 660, 666 (3d Cir.
2016) (internal quotation marks and citations omitted). This
standard is no different when there are cross-motions for
summary judgment. Lawrence v. City of Philadelphia,
Pa., 527 F.3d 299, 310 (3d Cir. 2008).
argues that Indian Harbor has a duty to defend and a duty to
indemnify Rittenhouse because it is an additional insured
under the Indian Harbor insurance policy. Indian Harbor
argues that it does not have a duty to defend or indemnify
Plaintiff (1) because LWC's actions did not proximately
cause the injuries in the underlying complaint, and (2)
because the underlying claim against Rittenhouse arises out
of Rittenhouse's “sole negligence, ” which,
under the policy, releases Indian Harbor from its insurance
obligations. Furthermore, Indian Harbor alleges that even if
it does have a duty to defend Rittenhouse, it shares the
burden of defending Rittenhouse equally with Plaintiff.
order to determine whether Indian Harbor is required to
defend Rittenhouse in the underlying dispute, we must (1)
“determine the scope of coverage under the insurance
policy itself” and (2) “ascertain whether the
complaint against the insured states a claim that is
potentially covered under the policy.” Allstate
Ins. Co. v. Drumheller, 185 F.App'x 152, 154 n.2 (3d
Cir. 2006); see also Ramara, 814 F.3d at 673
(“[A] court ascertaining whether an insurer has a duty
to defend its insured makes its determination by defining the
scope of coverage under the ...