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Walton Construction-A Core Company, LLC v. First Financial Insurance Co.

United States District Court, E.D. Louisiana

March 12, 2015

WALTON CONSTRUCTION — A CORE COMPANY, LLC,
v.
FIRST FINANCIAL INSURANCE COMPANY, Section R (2)

ORDER AND REASONS

SARAH S. VANCE, District Judge.

This insurance coverage dispute concerns a commercial general liability policy issued by defendant First Financial Insurance Company. Plaintiff Walton Construction seeks a declaration that the policy affords it "additional insured" coverage in an underlying state court tort suit. First Financial seeks a declaration that it has no duty to defend or indemnify Walton. The parties have filed cross motions for summary judgment.[1] For the following reasons, the Court denies Walton's motion and grants First Financial's motion.

I. BACKGROUND

This insurance coverage dispute arises out of a personal injury lawsuit brought by John Maestri against Entergy Louisiana, LLC, in Louisiana state court. Only a few facts are necessary to understand the underlying suit. Entergy is a power company. Maestri worked in construction for A-1 Glass Service, Inc., a commercial glazier. A-1 worked as a subcontractor to Walton on a construction project for the Jefferson Parish School Board. In March 2012, while Maestri was installing glass as part of that project, an Entergy high-voltage power line electrocuted him, burning his arms, chest, and hands.

Maestri sued Entergy for his injuries. After Maestri sued Entergy, Entergy filed a third-party complaint against A-1 and Walton, alleging that the companies had violated the Louisiana Overhead Power Line Safety Act, La. Rev. Stat. §§ 45:141-146, by failing to give Entergy advance notice that their workers would be working in close proximity to its power lines. Entergy argues that under section 144 of the Act, A-1 and Walton are liable to Entergy for any damages that Entergy must pay to Maestri. Section 144 provides:

If a violation of this Chapter results in physical or electrical contact with any high voltage overhead line, the person violating this Chapter shall be liable to the owner or operator of the high voltage overhead line for all damages, costs, or expenses incurred by the owner or operator as a result of the contact.

Walton seeks to recover from First Financial the costs it has expended so far to defend against Entergy's third-party complaint. It also seeks a declaration that First Financial has an ongoing duty to defend and indemnify Walton against Entergy's third-party complaint.

The parties agree on the following facts about the policy at issue in these motions. First Financial issued commercial general liability Policy No. HGL0028059, with a policy period of July 1, 2011 to July 1, 2012, to A-1 as the named insured.[2] A-1's contract with Walton for the School Board project specified that A-1 would "purchase and maintain insurance, " including commercial general liability insurance, that would "name Walton... as [an] additional insured[] with regard to the specified project."[3]

The policy's Insuring Agreement provides, in relevant part:

We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury"... 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"... to which this insurance does not apply.[4]

The policy contains an endorsement allowing for the inclusion of "additional insureds" by contract. That endorsement provides, in relevant part:

Who Is An Insured is amended to include as an additional insured any... organization[] with whom you agreed, because of a written contract... to provide insurance such as is afforded under this Coverage Part, but only:
1. With respect to liability fo "bodily injury"... caused by "your work" or maintenance, operations or use of facilities owned or used by you; and
2. When such written contract... is fully executed prior to an "occurrence" in [sic] which coverage is ...

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