Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nautilus Insurance Co. v. Jirsa Contruction Co.

United States District Court, W.D. New York

March 24, 2017

NAUTILUS INSURANCE COMPANY, Plaintiff,
v.
JIRSA CONTRUCTION COMPANY, et al, Defendants.

          DECISION AND ORDER

          WILLIAM M. SKRETNY, United States District Judge

         I. INTRODUCTION

         Presently before the Court in this insurance coverage dispute are the parties' cross-motions for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. (Docket Nos. 40, 44, 46.) Plaintiff, Nautilus Insurance Company (“Nautilus”), seeks a judgment declaring that it need not defend and indemnify Defendants, Jirsa Construction Company (“Jirsa”), Burlington Coat Factory of New York, LLC, and Burlington Coat Factory Warehouse of Cheektowaga, Inc. (together, “Burlington”) in an underlying litigation. Defendant Jirsa does not oppose the motion. Defendants Burlington and CB Walden Village, LLC (“CB Walden”) oppose Nautilus' motion and have cross-moved, seeking a judgment declaring that Nautilus has a duty to defend and indemnify them. For the reasons discussed further below, Nautilus' motion for summary judgment is granted. Burlington and CB Walden's cross-motions are denied.

         II. BACKGROUND[1]

         Defendant Jirsa is an Illinois corporation in the construction business. Nautilus is an Ohio-based insurance company, which issued a general commercial liability policy to Jirsa effective during the relevant period. The insurance coverage dispute arises out of litigation pending in the Supreme Court of Erie County, New York, captioned John Green v. CB Walden Village, et. al., index number 809108/14 (the “Underlying Litigation”). (See Docket No. 5-2, Amended Complaint in John Green v. CB Walden Village, et. al. (the “Underlying Complaint”).) Plaintiff in the Underlying Litigation (the “Underlying Plaintiff”) allegedly sustained “serious and permanent injury” when, on September 29, 2012, he fell from a trailer while working as a construction site laborer for Jirsa. (Id. at ¶ 20.) The incident took place on property owned by CB Walden and located in Cheektowaga, New York. (Id. at ¶ 7.) CB Walden leased the property to Burlington (id. at ¶ 8), which hired Jirsa as the general contractor for a construction project (id. at ¶ 10). There is no dispute that the Underlying Plaintiff was engaged in construction work for Jirsa at the time of the alleged incident, nor that the alleged incident occurred in New York.

         Jirsa, Burlington, and CB Walden tendered the Underlying Litigation to Nautilus, seeking defense and indemnification for the claims asserted therein under the general commercial liability policy issued to Jirsa and in effect during the relevant period (the “Policy”). (Docket No. 5 at ¶¶ 20-26.) The Policy provides commercial general liability coverage, with certain exclusions. The Policy states:

We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” 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” or “property damage” to which this insurance does not apply.

(Docket No. 1-2 at 12.) The Policy contains a “Designated Ongoing Operations” exclusion, which limits coverage for occurrences in New York state:

This insurance does not apply to “bodily injury” or “property damage” arising out of [operations in the state of New York], regardless of whether such operations are conducted by you or on your behalf or whether the operations are conducted for yourself or for others.

(Id. at 32.) The terms “You” and “your, ” as used throughout the Policy, “refer to the Named Insured shown in the Declarations, and any other person or organization qualifying as a Named insured.” (Id. at 12.) It is not disputed that Jirsa is the only named insured on the Policy.

         Although Jirsa is the only named insured, the Policy extends coverage to additional insured parties for:

any person or organization when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy. Such person or organization is an additional insured only with respect to liability for “bodily injury” . . . caused, in whole or in part, by your acts or omissions, or the acts of those acting on your behalf:
1. In the performance of your ongoing operations for the additional insured . . . But only for: . . .
2. “Occurrences” or coverages not otherwise excluded in the policy to which this endorsement applies.

(Id.at 58.)[2]

         CB Walden has submitted an agreement between Jirsa and Burlington (the “Agreement”), wherein Jirsa agrees to provide insurance coverage to Burlington as an additional insured. (See Docket No. 45-1.) The Agreement states, under the heading “Name Owner and Landlord as Additional Insured”:

The General Liability coverage shall include Owner as an Additional Insured . . . Contractors shall also procure and maintain such additional types and minimum limits of insurance as the landlord may require of Owner under the Contract Documents between the Landlord and Owner and/or as Owner may require of Contractor hereunder.

(Docket No. 45-1 at 29.) “Owner” is defined as Burlington Coat Factory of New York LLC. (Docket No. 45-1 at 2.) “Landlord” does not appear to be defined, nor is CB Walden party to the Agreement.

         III. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.