12 Fla. L. Weekly Supp. 149b
Insurance — Liability — Subcontractor’s general liability policy — Coverage — Where subcontractor’s general liability policy affords coverage to any other person or entity that subcontractor is required by agreement to add to policy, certificate of insurance stating general contractor is to be named as additional insured on subcontractor’s policy with regard to certain project is effective to add general contractor as additional insured under terms of policy only if there was agreement requiring subcontractor to add general contractor as named insured — Where record does not establish why language was added to certificate of insurance, if named project is site where subcontractor’s employee was injured, or amount of coverage required if subcontractor was required to add general contractor as named insured, motion for summary judgment is denied
WORTHINGTON COMMUNITIES, INC., Plaintiff, vs. TRANSPORTATION INSURANCE COMPANY, AMERICAN GUARANTEE AND LIABILITY INSURANCE COMPANY, and AMERICAN NATIONAL FIRE INSURANCE COMPANY, Defendants. Circuit Court, 20th Judicial Circuit in and for Lee County, Civil Action. Case No. 02-CA 736 L. November 24, 2004. R. Thomas Corbin, Judge. Counsel: Steven M. Brady. Lora A. Dunlap. John R. Sutton. Ralph L. Marchbank, Jr. Williams S. Reese.
[Editor’s note: See 13 Fla. L. Weekly Supp. 43a.]
ORDER DENYING AMERICAN NATIONAL’S MOTION FOR SUMMARY JUDGMENT
This matter came before the court on November 22, 2004 on American National Fire Insurance Company’s motion for summary judgment filed October 25, 2004 and also on November 2, 2004, against American Guarantee and Liability Insurance Company. It is ordered:
1. Findings
Two factual issues are in dispute. First, whether Sunshine Masonry, Inc., was contractually required to add Worthington Communities, Inc., as an additional named insured on a general liability policy for the site where Mr. Mejia was injured, and, second, if so, the amount of coverage required. The parties agree on everything else.
Worthington was an owner and general contractor developing a certain property. Juan C. Mejia was injured on a Worthington construction site. The record does not identify the site. He was employed by Sunshine Masonry and Sunshine had a general liability insurance policy with Transportation. The Transportation policy provides under a “Contractor’s Blanket Additional Insured Endorsement”:
“A. WHO IS AN INSURED (Section II) is amended to include as an insured any person or organization (called additional insured) whom you are required to add as an additional insured on this policy under:
1. A written contract or agreement; or
2. An oral contract or agreement where a certificate of insurance showing that person or organization as an additional insured has been issued; . . .”
American Guarantee provided an excess or umbrella policy for Sunshine and the American Guarantee policy lists the Transportation policy in its “Schedule of Underlying Insurance” and provides under “SECTION III — WHO IS INSURED”:
“ . . .
5. Subject to the terms and conditions of this policy, any additional insured included in the underlying insurance listed in the Schedule of Underlying Insurance but only to the extent that insurance is provided to such additional insured thereunder.
This insurance shall not afford such person or organization limits of insurance in excess of:
a. The minimum limit of insurance you agreed to provide; or
b. The limit of insurance under this policy
whichever is less.”
The parties agree that Sunshine was a subcontractor of Worthington but they do not agree upon the terms of the subcontract, and the terms of the subcontract are not established in the record. The record does not demonstrate whether the subcontract was oral or written, whether it obligated Sunshine to add Worthington as an additional named insured to its general liability policy for the construction project where Mr. Mejia was injured, or, if so, the amount of coverage Sunshine was obligated to provide.
The movant offers the affidavit of Andrea Skiera, Vice President of Finance for Worthington Communities, Inc. She says that “[o]n or about 12/29/98, Sunshine Masonry, Inc. agreed to name Worthington Communities, Inc., as an additional insured under the policies issued by Transportation Insurance Company.” She refers to a Certificate of Insurance issued by Sunshine’s insurance agent on December 29, 1998 which adds Worthington as an additional insured to the Transportation policy, which Certificate was Exhibit 2 at the hearing on the motion, but she does not say how she is a competent witness for the conclusion that Sunshine and Worthington had an agreement to add Worthington as an additional named insured to the Transportation policy. She does not explain the predicate for her knowledge, she does not explain whether the agreement was oral or written, she does not explain who made the agreement for Sunshine and Worthington. In short, apparently she infers from the Certificate of Insurance that there must have been an agreement between Sunshine and Worthington that required Sunshine to add Worthington as an additional named insured to a general liability insurance policy.
Likewise, Robert Stephenson infers that Sunshine asked its insurance agent, Poe & Brown, to add Worthington as an additional named insured on its policy with Transportation. He made this inference from a review of the same Certificate of Insurance. Mr. Stephenson is an employee of Poe & Brown and a licensed insurance agent. At page 19-20 of his deposition taken June 4, 2003, he was being examined about the Certificate of Insurance, and he was asked:
(Question) “. . .did Sunshine Masonry request of Poe & Brown that Worthington be included as additional insured under coverage which it, Sunshine was acquiring?”
(Answer) “The call would not come to me. For me to answer it I have no idea. What they asked for here is evidence of insurance, and that’s what they were provided with. Obviously Sunshine must have said name Worthington as additional insured on the general liability policy, and that’s what we have done.”
It is obvious from the Certificate that Poe & Brown intended to add Worthington as an additional insured on the Transportation policy with regard to a project known as “Sutton Walker Gardens.” Whether they did so because someone from Sunshine or Worthington asked them to do this and whether this was done pursuant to an agreement between Sunshine and Worthington is unknown. The Certificate of Insurance is a document certifying coverage that Sunshine Masonry, Inc., had in effect on the date of the certificate, December 29, 1998. It indicates the Transportation general liability policy was in effect and also an automobile liability policy and an umbrella or excess policy. Under the heading of “special items” it states: “Re: Sutton Walker Gardens. With regards (sic) to the general liability Worthington Communities, Inc., shall be named as additional insureds. (sic)”
That language in the Certificate is effective to add Worthington as an additional insured under the terms of the Transportation policy quoted above if there was an agreement, oral or written, requiring Sunshine to add Worthington as an additional named insured to its general liability policy. Presumably, if there is such an agreement it should also specify the amount of liability coverage Sunshine was required to provide. The record does not establish why this language was added to the Certificate, and it does not reveal whether the “Sutton Walker Gardens” project is the site where Mr. Mejia was injured.
After hearing the parties’ evidence at trial, a finder of fact might one day make those inferences, perhaps because that was the site where Mr. Mejia was injured and perhaps because common sense indicates that insurance agents do not add statements to Certificates of Insurance without some reason to do so, but the court cannot make that inference on a motion for summary judgment. American Guarantee disputes whether there was an agreement requiring Worthington to be named as an additional insured to Sunshine’s general liability policy and says it is entitled to see the agreement, if it was written, or entitled to take the deposition of the employees of Sunshine and Worthington that made the agreement if it was oral. American Guarantee stands by the language of the policies which afford coverage if there is an agreement requiring Sunshine to add Worthington as an additional named insured to its general liability policy and then only to the amount agreed.
The parties have shown the court photocopies of three pages of a written subcontract that appears to be between Sunshine and Worthington. A paragraph in one of these pages requires Sunshine to carry general liability insurance of at least $300,000, but there is no language in these pages or elsewhere in the record requiring Sunshine to name Worthington as an additional insured to a general liability policy. Further, there is nothing in the record indicating the amount of the general liability coverage, if any, that Sunshine was obligated to provide to Worthington.
The court is advised that in this litigation Transportation has admitted, by some means, that Worthington was an additional named insured under its policy and it has paid its policy limits in a settlement. This decision by Transportation does not require a finding that there was a contract between Sunshine and Worthington that obligated Sunshine to name Worthington as an additional named insured to its liability policy. Parties settle lawsuits for many reasons and their admissions are not binding on other parties.
2. Ruling
2.1 There are two genuine issues of material fact, that is, one, whether Sunshine Masonry, Inc., was contractually required to add Worthington Communities, Inc., as an additional named insured on its general liability policy for the site where Mr. Mejia was injured, and, two, if so, the amount of coverage required. The parties agree on everything else.
2.2 For the foregoing reason, the motion for summary judgment is denied.
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