United States District Court, D. Delaware
RICHARD G. ANDREWS, District Judge.
Presently before the Court are Plaintiff's (D.I. 17) and Defendants' (D.I. 21) Cross-Motions for Summary Judgment, and related briefing (D.I. 18, 22, 23, 24, 25, 26). Plaintiff Beazer Homes was added as an additional insured to Defendant T.C. Electric's insurance policy, issued by Defendant Selective Way Insurance Co. ("Selective"). One of T.C. Electric's employees was injured at a Beazer development site and brought suit against Beazer. Suit against T.C. Electric was barred due to Delaware's Worker's Compensation laws. See 19 Del. C. § 2304. Beazer brought the instant suit seeking a declaration of insurance coverage and damages for related breaches of contract. Selective counterclaimed that it has no duty to defend or indemnify Beazer in the underlying litigation.
The insurance policy provides coverage for "those sums that the insured becomes legally obligated to pay as damages because of bodily injury' or property damage' to which [the policy] applies." (D.I. 22-2 at 23). The policy obligates the insurer "to defend the insured against any suit' seeking [the aforementioned] damages." Id. Section II of the policy identifies who is an insured. (D.I. 22-2 at 31). The policy includes an endorsement, referred to as the additional insured provision, which amends Section II as follows:
WHO IS AN INSURED is amended to include as an additional insured any person or organization whom you have agreed in a written contract, written agreement or written permit to add as an additional insured on your policy. Such person or organization is an additional insured only with respect to liability for "bodily injury" or "property damage" or "personal and advertising injury" caused, in whole or in part, by:
1. Your ongoing operations, "your product, " or premises owned or used by you[.]
(D.I. 22-2 at 50-51). The words "you" and "your" refer to the named insured, T.C. Electric. (D.I. 22-2 at 23).
The policy has two other provisions of note, an employer's liability exclusion and a separation of insureds provision. The employer's liability exclusion precludes coverage for bodily injury to "an employee' of the insured arising out of and in the course [of e]mployment by the insured." (D.I. 22-2 at 24). The separation of insureds provision states:
Except with respect to Limits of Insurance, and any rights or duties specifically assigned in this Coverage Part to the first Named Insured, this insurance applies:
a. As if each Named Insured were the only Named Insured; and
b. Separately to each insured against whom claim is made or "suit" is brought.
(D.I. 22-2 at 35).
Defendants have two arguments for why there is no coverage. The first is that the injury does not come under the policy, because it was not caused by T.C. Electric's ongoing operations, products or premises. (D.I. 22 at 17-19). The second argument is that the employer's liability provision excludes coverage. (D.I. 22 at 19-21).
Defendants' first argument is premised on the idea that the additional insured provision requires more than a "but for" connection, such that there can be no coverage unless the underlying complaint alleged negligence against T.C. Electric. I think that the actual issue is whether the underlying complaint provides a basis to infer that T.C. Electric could be liable for negligence, but for the Worker's Compensation exclusion. See Continental Cas. Co. v. Alexis I. duPont Sch. Dist., 317 A.3d 101, 105 (Del. 1974) ("The test is whether the complaint alleges a risk within the coverage of the policy."). Beazer has the burden of proving the existence of coverage and that the claims fall within the general terms of the insurance policy. See State v. National Auto Ins. Co., 290 A.2d 675, 678 (Del. Ch. 1972). I do not think that Beazer has met this burden.
The underlying complaint, as written, certainly says that T.C. Electric had "ongoing operations" and maybe "used" the "premises, " but it gives no reason at all to infer T.C. Electric's negligence. The allegations of the underlying complaint spell out Beazer's negligence (Count 1), and more dubiously allege negligence by a whole bunch of others (Counts 2 to 7). Counts 2 to 7 do not implicate T.C. Electric at all, and, fairly read, Count 1 does not either. The only way Count 1 might reasonably be read to infer negligence against T.C. Electric is to assume that T.C. Electric is one of Beazer's "agents and/or employees" that was accused of installing the hand hold. (D.I. 22-1 ...