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Stickovich v. City of Cleveland8/2/2001
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Finally, Kemmeter also expressly recognized that the mere assertion of a negligence claim is not sufficient to preclude coverage. Even if a construction indemnity agreement facially violated R.C. 2305.31, id. at 413, recovery was nevertheless permissible if the injury arose out activities within the contractor's contractual control.
In the case at bar, Cleveland contracted for a completed product, namely, the bridge. ICC was an independent contractor free to select the tools and methods to complete its task. Cleveland did not control or specify the manner of performance by ICC or its employees. Cleveland did not control ICC's selection of an uninsulated crane, did not control ICC's selection of an unlicensed operator, did not control ICC's location of the crane, and did not control ICC's operation of the crane in knowing violation of safety regulations. See Cleveland Codified Ordinance Sections 185.23, 185.24, and 185.25; Contract Paragraphs B-8, B-9, B-10, and C-5.
Before the project began, Cleveland gave ICC notice that ICC had to comply with O.A.C. 4121:1-3-07. (Notice to Bidders Para. 6.) ICC selected the crane, used it without incident, and moved the crane when no one from Cleveland was on the site. ICC did not request that Cleveland do anything to the wires after moving the crane. ICC directed its unlicensed crane operator after he had been drinking alcohol at lunch to operate the crane in violation of the O.A.C. safety regulations. There is no evidence that Cleveland had knowledge of this dangerous situation, let alone participated in it. ICC's operation of the crane in violation of these regulations was already determined to be the proximate cause of one employee's injury in the context of his VSSR claim against ICC. In short, the workers' injuries arose from ICC's operation of the crane on the project.
Scope of Liability Insurance Contract
Allegations of Negligence
We are required to construe and apply the terms of the liability insurance contract in light of the pleadings and evidence in this case. The liability insurance contract, through the additional insured endorsement, provides coverage for liability arising out of your [ICC's] work. Commercial Union did not draft the endorsement to contain any express exclusion or limitation for allegations of negligence made against the additional insured. It contends nevertheless that the liability insurance contract should be construed as if it contained such an exclusion or limitation because it would otherwise violate public policy.
Even if Commercial Union had properly raised this affirmative defense, however, it did not satisfy its burden of proving that liability insurance coverage violated public policy in the case at bar. For the reasons set forth above, Commercial Union has not shown that liability insurance coverage violates public policy even if it were construed to cover Cleveland's alleged negligence.
Liability insurance contracts routinely provide coverage for an insured's own negligence. Moreover, even if coverage were limited to exclude Cleveland's own negligence, Commercial Union has not shown the trial court construed its endorsement to provide coverage for actionable negligence by Cleveland, which caused the workers' injuries.
Simply stated, an allegation of negligence against an additional insured in a complaint does not categorically preclude an insurer's duty to defend or pay under a liability insurance contract. Unlike the above cases recognizing coverage, Zavarella did not even cite the allegations in the complaint for which coverage was sought. For example, Lewis v. Ohio Edison, supra, involved both an insurance policy and an
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