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Mumford & Miller Concrete, Inc. v. Marinis Bros., Inc.

Superior Court of Delaware, New Castle

April 16, 2015

MUMFORD & MILLER CONCRETE, INC., Plaintiff,
v.
MARINIS BROS., INC., NAUTILUS INSURANCE COMPANY, JOHN L. BOONE, CHERYL BOONE, Defendants.

Submitted: January 20, 2015

Upon Defendant Nautilus Insurance Company's Motion for Judgment on the Pleadings Regarding Claims by Mumford & Miller Concrete, Inc. GRANTED.

Upon Defendant Nautilus Insurance Company's Motion for Judgment on the Pleadings Regarding Cross-Claim Against Marinis Bros., Inc. GRANTED.

Susan L. Hauske, Esquire, Tybout, Redfearn & Pell, Wilmington, Delaware, Attorney for Plaintiff Mumford & Miller Concrete, Inc.

Gary W. Alderson, Esquire, Elzufon Austin Tarlov & Mondell, P.A., Wilmington, Delaware, Attorney for Defendant Marinis Bros., Inc.

Marc S. Casarino, Esquire, White and Williams, LLP, Wilmington, Delaware, Attorney for Defendant Nautilus Insurance Company.

Cynthia H. Pruitt, Esquire, Doroshow Pasquale Krawitz & Bhaya, Wilmington, Delaware, Attorney for Defendants John Boone and Cheryl Boone.

MEMORANDUM OPINION

RICHARD R. COOCH, R.J.

I. INTRODUCTION

This declaratory judgment action, and cross claim asserting breach of contract, stems from a personal injury claim for injuries sustained while John Boone, a Plaintiff in the underlying action, was working as an employee of Defendant Marinis Bros., Inc. Mr. Boone suffered injuries when, while performing sandblasting work, he was allegedly struck and pinned beneath a piece of heavy machinery. Defendant Nautilus Insurance Company has filed a Motion for Judgment on the Pleadings regarding the Claims by Plaintiff Mumford & Miller Concrete, Inc. and a second Motion for Judgment on the Pleadings regarding the Cross-Claim against Defendant Marinis. The issue at the heart of both motions is whether the policy issued by Defendant Nautilus to Defendant Marinis provides coverage for each distinct set of claims.

For the reasons set forth below, Defendant Nautilus Insurance Company's Motion for Judgment on the Pleadings Regarding Claims by Mumford & Miller Concrete, Inc. is GRANTED. Defendant Nautilus Insurance Company's Motion for Judgment on the Pleadings Regarding Cross-Claim against Marinis Bros., Inc. is GRANTED.

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Factual Background and Procedural History

The instant action, commenced by Plaintiff Mumford, "seeks a declaration that Defendant Nautilus is obligated to defend and/or indemnify [Plaintiff Mumford] in the underlying litigation[, ]" and further seeks a declaration that Marinis breached the subcontractor agreement between Marinis and Mumford.[1]The underlying action, John Boone, et al. v. Mumford & Miller Concrete, Inc., et al., [2] alleges significant personal injuries sustained while Mr. Boone was working as an employee of Defendant Marinis, a subcontractor of Plaintiff Mumford and Miller.

Defendant Nautilus contends that both motions should be granted in its favor as there is no coverage under the Policy it issued to Defendant Marinis for either claim at issue. Plaintiff Mumford argues that the Motion regarding the claims against it should be denied because the Policy issued by Nautilus provides coverage in this case. Defendant Marinis contends that the Motion regarding its cross claim should likewise be denied because the motion is untimely, but also because coverage exists for the claim. Defendants John and Cheryl Boone take no position on the motions and did not participate in the briefing.[3]

B. Relevant Insurance Contract Provisions:

Defendant Nautilus issued a Commercial General Liability Policy and an Excess Insurance Policy to Defendant Marinis ("the Policies"). At issue in this matter is interpretation of the primary CGL policy. The language of the primary policy issued by Defendant Nautilus to Defendant Marinis provides in pertinent part:

COVERAGE A BODILY INJURY AND PROPERTY ...

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