United States District Court, D. Massachusetts
For United States Liability Insurance Company, Plaintiff, Counter Defendant: John B. DiSciullo, LEAD ATTORNEY, Mitchell & DeSimone, Boston, MA.
For Benchmark Construction Services, Inc, Defendant, Counter Claimant: Michael P. Sams, LEAD ATTORNEY, Kenney & Sams, P.C., Framingham, MA; Ryan P. Menard, LEAD ATTORNEY, Kenney & Sams, P.C., Southboro, MA.
MEMORANDUM & ORDER
Nathaniel M. Gorton, United States District Judge.
This case arises from injuries purportedly suffered by a painter during the renovation of a home in Newton, Massachusetts. The painter filed a complaint in the Middlesex Superior Court against the general contractor for the renovation project, defendant Benchmark Construction Services, Inc. (" defendant" or " Benchmark" ). Benchmark tendered the claim to plaintiff United States Liability Insurance Company (" plaintiff" or " USLIC" ). USLIC now seeks a declaratory judgment from this Court that it has no obligation to defend or indemnify Benchmark in the case filed by the painter.
USLIC filed its Complaint in June, 2013. Cross motions for summary judgment are currently pending before the Court and a trial is scheduled for August 4, 2014.
Benchmark is a construction company that, among other things, renovates residences. USLIC issued Benchmark Commerical Liability Insurance Policy No. CL1151220D (" the Policy" ) for a period beginning on June 23, 2009 and ending on June 23, 2010. The premium of $9,122.88 was calculated to cover, among other things, " subcontracted work" by contractors.
The Policy covers lawsuits that allege, inter alia, bodily injury based upon an
accident that occurred within the United States. Coverage by the policy is, however, narrowed by an exclusion for
" Bodily injury" to ... [a]n " employee" of the insured arising out of and in the course of
(a) Employment by the insured; or
(b) Performing duties related to the conduct of the insured's business....
Commercial General Liability Coverage Form, § 1.2(e), Docket No. 25, Ex. 1, at 13.
That exclusion was deleted in its entirety by " Endorsement L500" , which is subtitled " Bodily Injury Exclusion - All Employees, Volunteer Workers, Temporary Workers, Casual Laborers, Contractors, and Subcontractors" and is appended to the Policy. Endorsement L500 excludes, in relevant part, coverage for
1. " Bodily injury" to any " employee" , " volunteer worker" , " temporary worker" or " casual laborer" arising out of or in the course of:
(a) Employment by any insured; or
(b) Performing duties related to the conduct of any ...