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Truck Insurance Exchange v. BRE Properties12/29/2003
West Star Construction contracted with BRE Properties to work as a framing subcontractor on an apartment project. In the contract, West Star agreed to indemnify BRE against certain risks, and obtained a commercial general liability (CGL) policy covering itself and BRE. Later, a West Star employee was injured and sued BRE for negligence. BRE requested coverage from the insurer, and brought a contribution claim against West Star. West Star then presented the claim to the insurer, claiming that the policy provided coverage for its indemnity agreement.
The insurer filed a declaratory judgment action arguing that it did not owe coverage to either BRE or West Star. BRE and West Star appeal the trial court's summary judgment decision denying them coverage. We hold that the insurer is obligated to cover both BRE and West Star, and reverse.
I.
BRE was the general contractor on a construction project to build an apartment complex. It contracted with West Star to serve as its framing subcontractor. The agreement between BRE and West Star required West Star to obtain liability insurance coverage for its work on the project. West Star procured a CGL policy from Truck Insurance Exchange. This coverage listed BRE as an additional insured under the policy.
West Star also contracted in the agreement to indemnify BRE for West Star's own negligence:
8.1 To the fullest extent permitted by law, Subcontractor agrees to indemnify and hold harmless Contractor. . . . from and against all claims, damages . . . arising out of or resulting from the performance, or failure in performance, of Subcontractor's Work and obligations as provided in the Contract Documents, including any extra Work, and from any claim, damage, loss or expense which (1) is attributable to bodily injury, sickness, disease, death, injury to or destruction of tangible property (other than the Work itself) . . . and (2) is caused by any acts, omissions or negligence of subcontractor . . . .
8.2 In any and all claims against Contractor or any of its agents or employees by any employee of Subcontractor, anyone directly or indirectly employed by Subcontractor or anyone for which acts Subcontractor may be liable, the indemnification obligation under this Paragraph 8 shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for Subcontractor under Worker 's Compensation acts . . . .
(emphasis added).
An employee of West Star was injured while working on the construction site. He sued BRE, claiming that it was negligent in equipping and maintaining the work area. His claims against BRE were exclusively related to the physical injuries he suffered while working as an employee of West Star. BRE requested that Truck provide for its defense and provide coverage under the CGL policy.
BRE also brought a third party complaint against West Star, alleging that the worker 's injuries resulted from West Star's own 'negligent acts and/or omissions.' West Star requested that Truck provide coverage because its indemnification agreement with BRE created an 'insured contract' covered under the CGL policy.
Truck brought a declaratory judgment action, and successfully moved for summary judgment on the basis that both claims were excluded under the CGL policy's exceptions.
The Businessowners Liability Coverage Form (Contract) provides that Truck will cover ''bodily injury,' 'property damage,' 'personal injury,' or 'advertising injury' to which this insurance applies.'
The contract then excludes certain types of liabilities. One provision addressing contractual li
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