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United Specialty Insurance v. Everest Construction

United States District Court, D. Utah

February 28, 2019

UNITED SPECIALTY INSURANCE CO., Plaintiff,
v.
EVEREST CONSTRUCTION, Defendant.

          ORDER AND MEMORANDUM DECISION

          Tena Campbell United States District Judge

         Plaintiff United Specialty Insurance Company filed this declaratory judgment action to resolve its insurance coverage dispute with Defendant Everest Construction. To that end, United Specialty has filed a motion for judgment on the pleadings. For the reasons stated below, the court DENIES the motion.

         Background

          From October 2016 to October 2017, United Specialty insured Everest, a roofing contractor, through a “surplus lines” insurance policy (the Policy). According to United Specialty, this is “the type of policy that often provides a narrower range of coverage than standard market policies.” (United Specialty Reply Mem. Supp. Mot. J. Pleadings at 2, ECF No. 20.)

         In 2017, Everest filed a claim with United Specialty after it was sued by personal injury plaintiff Kimberly Delobel in state court. Ms. Delobel-a building inspector-was seriously injured when she was struck by an eighty-five pound package of roofing shingles thrown by an Everest employee off the roof of a building at the Santorini Village Project.[1]

         United Specialty denied that it had either a duty to defend Everest in Ms. Delobel's personal injury suit or a duty to indemnify Everest for losses arising out of the suit. In its communications to Everest, it denied coverage, citing only the policy's “Fall from Heights” exclusion. It then filed this declaratory judgment action. In United Specialty's complaint, it denied coverage based on the “Fall from Heights” exclusion and asserted, for the first time, the “Multi-Unit Residential Structures” exclusion.

         The Policy Exclusions

          Under the “Fall from Heights” exclusion, contained in an endorsement to the policy, insurance coverage does not extend to:

“Bodily injury” sustained by any person at the location of the incident, whether working or not, arising out of, resulting from, caused by, contributed to by, or in any way related to, in whole or in part, from a fall from heights.For purposes of this exclusion, a “fall from heights” shall be defined as a fall from any elevation where there is a height differential between surfaces. This also includes the fall of an object causing, contributing to, or in any way relating to, in whole or in part, a person sustaining “Bodily injury.”

(Exclusion 2x of Policy (emphases added).)

         The “Multi-Unit-Residential Structures” exclusion says the insurance coverage does not extend to:

“Bodily injury” or “property damage” arising out of, resulting from, caused by, contributed to by, or in any way related to work, development, construction, renovation or reconstruction on, or performed about the premises of:
(1) any residential or commercial condominiums, townhouses, timeshares, cooperative housing, multi-family homes or homeowners association project(s) or
(2) any building or location which has been or is planned to be converted into a residential or commercial condominium, townhouse, cooperative housing, or timeshare, whether or not ...

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