In a dispute between two insurers, the court denied a motion for judgment on the pleadings because there were disputed facts on whether operations were completed at the time of the injury. Citizens Ins. Co. of Am. v. Selective Way Ins. Co., 2015 U.S. Dist. LEXIS 48658 (E.D. Pa. April 15, 2015).
Lynmar Builders was the general contractor on a construction project at Save-A-Lot. Lynmar subcontracted with Integrity Plumbing & Heating to perform a portion of the work. A Save-A-Lot employee was injured when he fell through an unmarked hole in the floor. The employee sued Lynmar and Integrity for negligence.
Integrity was insured under a CGL policy with Selective. The policy insured as additional insureds any party who Integrity agreed to indemnify. Integrity's subcontract with Lynmar required Integrity to indemnify Lynmar with respect to liability arising from Integrity's work and required that Lynmar be added to the policy as an additional insured.
Therefore, Lynmar was insured under the Selective policy for liability that was "caused in whole or in part by . . . Integrity's ongoing operations performed for Lynmar." Although Integrity also had completed operations coverage, this coverage was not extended to additional insureds like Lynmar.
The insurers disputed whether there was a duty to defend Lynmar under Selective's policy. Citizens contended that the injury was caused by Integrity's ongoing operations and that Lynmar was therefore covered under Selective's policy. Selective argued that the injury occurred when Integrity had completed all of the work under its subcontract.
The pleadings did not state when Integrity completed its work on the project. However, Selective alleged in its Answer that Integrity's ongoing operations did not cause the bodily injury.
Citizens moved for judgment on the pleadings. Citizens carried the burden to show the allegations reflected that there were no issues of material fact and that it was entitled to judgment as a matter of law. The court ruled Citizens did not meet its burden based upon Selective's Answer. If the injury was not caused by Integrity's ongoing operations, Lynmar was not entitled to coverage from Selective. In light of Selective's allegation that the injury occurred after Integrity's operations were completed, Citizens could not show that there was not at least a question of fact regarding whether Lynmar was entitled to coverage.
