Granted in part and denied in part plaintiff’s motion for partial summary judgment; defendant was obligated to provide a defense to plaintiff as an additional insured on the policy

The plaintiff owned a building and had hired Ecker Window Corp. to install windows at the premises. Ecker secured an insurance policy from Harleysville and listed the plaintiff as an additional insured, in accordance with the parties’ written agreement. The plaintiff also had a separate CGL policy through Zurich, which provided coverage subject to a $150,000 self-insured retention. Michael Wenzel commenced an underlying action against the plaintiff, alleging that he had sustained personal injuries while performing work on behalf of Ecker at the subject premises. The plaintiff tendered its defense and requested indemnification from the defendant insurer. The defendant declined the request on the basis that, in order for the additional insured coverage to apply, the loss must have arisen from the acts or omissions of the named insured. Because the loss allegedly occurred due to the plaintiff’s negligence, the defendant denied coverage. The plaintiff filed a declaratory judgment action and then filed a motion for partial summary judgment requesting a declaration that: the defendant is obligated to defend the plaintiff in the underlying action; the defendant is obligated to reimburse the plaintiff its past defense costs incurred in the underlying action; the coverage applicable to the plaintiff as an additional insured is primary to any other coverage available to the plaintiff as a named insured; and the plaintiff is entitled to consequential damages, including attorney’s fees and expenses. The defendant filed a cross-motion for summary judgment, requesting that the court dismiss the complaint. The court granted the plaintiff’s motion for summary judgment, in part, declaring that the defendant is obligated to defend the plaintiff as an additional insured since the underlying complaint alleged that Wenzel’s injuries arose out of work performed by Ecker. The portion of the plaintiff’s motion declaring that the defendant is obligated to reimburse the plaintiff its past defense costs was likewise granted. However, the portion of the plaintiff’s motion declaring that the coverage the defendant afforded to the plaintiff as an additional insured is primary to any other coverage available to the plaintiff as a named insured was denied on the ground that Zurich was not a party to the action. The plaintiff’s motion declaring that it is entitled to consequential damages was also denied.

_{Case Law Alerts, 3rd Quarter, July 2015}

_{Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2015 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}