2004 Ct. Sup. 10677
No. X07-CV03 0084312SConnecticut Superior Court, Judicial District of Tolland at Rockville
July 16, 2004
MEMORANDUM OF DECISION
SFERRAZZA, JUDGE.
The plaintiff, Zurich American Insurance Co., moves for summary judgment in this declaratory judgment action against the defendant, Liberty Mutual Insurance Co. The defendant also moves for summary judgment against the plaintiff, and both parties assert that no genuine factual disputes exist. The dispositive legal determination is whether the defendant has a duty to defend ABB Alstom Power, Inc. (Alstom) against allegations of negligence in six underlying wrongful death and/or personal injury cases arising from the collapse of a heat recovery steam generator during construction of a power plant.
Summary judgment shall be granted if the pleadings and documentary proof submitted demonstrate that no genuine dispute as to material fact exists and that the movant is entitled to judgment as a matter of law. Practice Book § 17-49.
The pleadings and material proffered in conjunction with these motions demonstrate that no genuine dispute exists with respect to the following facts. Alstom entered into a consortium agreement with codefendant, Black and Veach Construction, Inc. (BVCI), which sets forth the relationship between Alstom and BVCI and identifies areas of responsibility in regard to the design and construction of a power plant for another defendant, Milford Power. The project includes the erection of two heat recovery steam generators.
During construction of one of these generators, the structure collapsed killing two workers and seriously injuring four others. Six lawsuits against Alstom and BVCI, inter alia, ensued.
Appendix 4 of the consortium agreement obligated both Alstom and BVCI to obtain and maintain their own commercial general liability insurance, but that addendum also required each entity to name the other as an additional insured under its own policy. Alstom secured such insurance from the plaintiff, and BVCI purchased its coverage from the defendant. CT Page 10678 The consortium agreement further provided that, if a third party sued either member of the consortium and the claim emanated from work allocated to the other member under the consortium agreement, the member who was responsible for that work shall have its insurance carrier operate as the primary carrier for the other member.
The Liberty Mutual policy obtained by BVCI excludes coverage for an additional insured unless the claim against that additional insured arose out of the work which fell within the scope of that member’s responsibility as delineated by the consortium agreement. Also, that policy excluded coverage for injury arising from negligent architectural, engineering, or design services. The policy defines such services to include supervisory or inspection activities performed as part of architectural or engineering activities.
It is well established that an insurer’s duty to defend grows from the allegations propounded in the complaint and is independent of whether those allegations are probable or frivolous. Flint v. Universal Machine Company, 238 Conn. 637, 646 (1996). If the complaint against the insured “sets forth a cause of action within the coverage of the policy, the insurer must defend.” Id. 646-47.
Section II.N.2.a of the Liberty Mutual policy issued to BVCI covered Alstom, even though Alstom also had its own insurance issued by the plaintiff as long as the consortium agreement mandated BVCI to provide such coverage. As noted above, Appendix 4 of that agreement compelled BVCI to afford Alstom with insurance coverage under BVCI’s policy for claims against Alstom arising from BVCI’s negligent performance of work allocated to BVCI under the agreement. Thus, the question for the court to resolve devolves into one of whether any allegation in the personal injury cases ascribes liability to Alstom which appears to arise from the conduct of BVCI in executing its assigned work under the consortium agreement.
The parties concur that, under the consortium agreement, Alstom was responsible for the engineering work and overall supervision of the construction of the generators, while BVCI was responsible for its actual construction. It should be noted that the two decedents and two of the other injured workmen were BVCI employees.
The factual allegations of the complaints are very similar and state that the generator tower under construction caved after BVCI employees decided to remove bracing. The allegations against Alstom include specifications of negligence charging Alstom with failing to instruct and supervise BVCI employees properly and with failing to provide a safe work CT Page 10679 premises. Clearly, the allegations against Alstom stem from the construction activity of BVCI. Therefore, unless the allegations of the underlying complaint set forth claims which clearly fall within the professional services exclusion, the defendant has a duty to defend Alstom.
The professional services clause excludes coverage for bodily injury arising out of the rendering or failure to render service with respect to providing engineering, architectural, or surveying services to others. These services include “supervisory and inspection activities performed as part of any related architectural or engineering activities.”
The underlying complaints contain allegations that Alstom negligently supervised the planning, work, efforts, and performance of BVCI so as to provide a safe workplace. On their face, these allegations are not limited to supervisory functions with respect to architectural or engineering compliance. They are broad enough to embrace claims of general project supervision and safety in the workplace.
The underlying complaints “need not negate each and every exclusion within a policy in order to trigger a contractual obligation to defend.”Schwartz v. Stevenson, 37 Conn. App. 581, 585 (1995). It is sufficient to invoke the duty to defend if the complaint sets forth allegations which “appear to bring the claimed injury within the policy coverage.” Id. In other words, if the controlling complaint, on its face, asserts a claim which appears to fall within the coverage, the insurer incurs a duty to defend even though it is unclear from that complaint whether an exclusion might or might not apply. The court concludes that the personal injury complaints in the present case come under this description.
Therefore, the plaintiff’s motion for summary judgment is granted, and the defendant’s motion is denied.
Sferrazza, J. CT Page 10680