More Form Insurance Policy Language to Check On
We take a lot of joy in writing about these coverage cases when we see them because they are turning out to be a patchwork of distinctions and guidelines that can allow you the ability to interpret some language in your own policies.
Today’s case is Mota Construction Co. v. Westfield Insurance Co. (1st Dist. Doc. No. 1-07-3208). The case involves a suit brought by a worker of a Mota subcontractor for injury on the job. The worker sued Mota, the GC on the project, and another subcontractor, GM Sloan, for injuries the worker alleges happened during his painting and drywall work on a project when he tripped over some material at the site.
The complaint alleged that Mota was negligent as a GC for not maintaining a safe worksite, that Mota was also negligent because it retained control over the site had a duty to properly supervise the work and not let injuries happen, and that GM Sloan was negligent because it failed to maintain a safe work site during its work on the project.
Westfield was the carrier for GM Sloan. The policy that GM Sloan had which Mota was named an additional insured on had a provision in the additional insured endorsement that stated:
“This endorsement provides no coverage to the additional insured [Mota] for liability arising out of the claimed negligence of the additional insured [Mota], other than that which may be imputed to the additional insured by virtue of the conduct of the named insured [GM Sloan].”
16 months after learning of the claim, Westfield denied coverage and argued that the claims made against Mota by the injured worker were not for claims that could be imputed to GM Sloan, but alleged Mota’s own negligence. The trial court agreed and Mota was forced to look to the policy of the injured worker’s employer for coverage. Mota appealed.
The appellate disagreed and held that because the complaint contained a count that alleged that Mota maintained control over the manner and means of the work of the subcontractors (including GM Sloan) and contained allegations of negligence against GM Sloan, there was a possibility that GM Sloan’s negligence would be imputed to Mota and thus, there was a duty to defend on the part of Westfield.
The court went on to state that imputed liability was implied by the allegations that a GC maintains control over the sub’s work because it means that a GC could be held vicariously liable for harm to third-parties caused by a sub’s negligence – which is vicarious liability imputed to the GC. The court distinguished this from the direct liability alleged in a case where the GC failed to properly inspect, manage, and supervise a jobsite… but when these direct negligence allegations are combined with allegations against as sub in a different count, the possibility of imputed liability exists.
The court also distinguished the policy clause in this case from one which included the word “solely” in a different case where the policy granted coverage to the additional insured for liability arising “solely” out of the claimed negligence of the additional insured.
Additionally, for those keeping track, the court also found that in any event, the 16 month delay in brining the claim against Mota meant that Westfield had waived its ability to assert its policy defenses. So time was against Westfield as well. The appellate court reversed the ruling by the trial court and sent the case back to the trial court to determine the appropriate relief for Mota now that a different insurance company had been defending it.
Pay attention to the policy language of your subs, look out for the magic word “solely” in an additional insured endorsement, and definitely consult with someone to make sure the policy you’re getting from your sub is what you’re contracting for.
as proof of your coverage as an additional insured. In 

them on September 24, 2001, and although they had allegedly had conversations about the suit with their insurance broker, they waited until January 19, 2004 – over 27 months – to tender written notice of the suit to their insurer. The case had been ongoing for over two years and was set to go to trial in March of 2004.
International
and indemnify the defendants to a lawsuit under a policy issued to a non-party for an accident at a construction site involving a scaffolding collapse in 2002. The entities seeking indemnification and defense owned the building and had entered into a construction contract with a non-party to the underlying suits in 2000 and the insurance coverage required by that agreement lasted into the time of the accident.
construction project.