United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Talwani United States District Judge.
Atlantic Casualty Insurance Company (“Atlantic
Casualty”) seeks a declaration that it has no duty to
defend or indemnify Defendant Doyle Price
(“Price”) in connection with a personal injury
action that Defendant Antonio Sousa (“Sousa”) is
litigating against Price. Presently before the court is
Atlantic Casualty’s Motion for Summary
Judgment [#24]. For the reasons set forth below, the
motion is ALLOWED.
Factual and Procedural Background
is the sole proprietor of the construction business that
operates as “Onsite Construction.” Pl.’s
Statement Undisputed Material Facts Supp. Mot. Summ. J.
¶ a [#26] (“Pl.’s Facts”). Price was
hired as the general contractor for the demolition and
construction of a home in Winchester, Massachusetts.
Id. ¶ b. Price subcontracted, via oral
agreement, with insulation company Anderson Insulation to
work on the home. Id. Sousa, one of Anderson
Insulation’s employees, was injured while working on
the site. Id. ¶¶ c, d. Sousa has filed a
complaint in state court against Price, alleging that Price
was negligent in not ensuring the safety of the workplace.
See Compl. Ex. 1 [#1-1].
Casualty is an out-of-state insurance company. Pl.’s
Facts Ex. 1 80 [#26-1] (Price Dep.). Atlantic Casualty
provided general liability insurance to OnSite Construction.
See Pl.’s Facts Ex. 5 [#26-5] (Atlantic
Casualty Insurance Policy). Atlantic Casualty asserts that
Price has requested a defense and indemnification under the
insurance contract for Sousa’s state court action.
See Pl.’s Facts Ex. 1 32 [#26-1] (Price
interrogatory response in underlying personal injury action
stating that he is covered under an insurance policy for the
satisfaction of any judgment in that action). Atlantic
Casualty claims that Sousa’s injury is not covered
under OnSite Construction’s policy due to an
endorsement to the policy titled “Exclusion of Injury
to Employees, Contractors and Employees of
Contractors.” See Pl.’s Facts Ex. 5 36
Casualty filed this declaratory judgment action on July 3,
2015, naming both Price and Sousa as defendants. See
Maryland Cas. Co. v. Pacific Coal & Oil Co., 312
U.S. 270, 274 (1941) (finding that an action brought by an
insurance company seeking declaratory relief against the
insured and an injured party contained an actual controversy
between the parties). Atlantic Casualty’s complaint
seeks a declaration that it has no duty to defend or
indemnify Price and a declaration that Sousa is bound by that
first declaration. See Compl. 6 [#1]. Sousa, in
turn, seeks a declaration that third party defendant P.J.
Lombardo Insurance Agency, Inc. (“PJ Lombardo”),
seeking a declaration that PJ Lombardo is also bound by any
judgment, order, or declaration applicable to Sousa. Sousa
Amended Answer & Third Party Claim 9 [#15].
Casualty now moves for summary judgment that it has no duty
to defend or indemnify Price. Pl.’s Mot. Summ. J.
[#24]. Sousa opposes Atlantic Casualty’s motion. Price
has been served but has not answered the complaint or
responded to the motion. PJ Lombardo has answered the
cross-complaint but has filed no response to Atlantic
Summary Judgment Standard
movant is entitled to summary judgment if “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). A genuine dispute of fact exists if an issue can be
resolved in favor of either party. Calero-Cerezo v. U.S.
Dep’t of Justice, 355 F.3d 6, 19 (1st Cir. 2004).
Facts are material if they have the potential to affect the
outcome of the case. Id.
facts here are not in dispute. Atlantic Casualty and Sousa
do, however, dispute both the construction of the policy and
the endorsement at issue, and the enforceability of the
policy to the extent it excludes coverage for Sousa’s
injuries. The court first construes the policy and then
reaches the parties’ enforceability arguments.
Construction of the Policy and Endorsement
Casualty argues that Sousa’s claim against Price is not
covered by Price’s policy, due to the endorsement
titled “Exclusion of Injury to Employees, Contractors
and Employees of Contractors” (the “Employee and
Contractor Endorsement”). That endorsement provides:
insurance does not apply to:
i. “Bodily injury” to any “employee”
of any insured arising out of ...