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Stickovich v. City of Cleveland8/2/2001
Cleveland's defenses, including: (1) that Cleveland was protected by sovereign immunity for emergency bridge repairs, upon which the City prevailed by summary judgment before the first trial judge; (2) that ICC committed an intentional tort and proximately caused the employees' injury, as found to support the VSSR award; (3) that the crane manufacturer and/or lessor's conduct in providing an uninsulated crane without adequate warning was tortious and proximately caused any injury; and (4) that Cleveland was not negligent and did not proximately cause any injury or damages.
By settling without proceeding to the bench trial, Commercial Union seeks to enhance its opportunity to contest coverage without regard to the facts of the underlying case supporting either the claims or defenses. Nothing in Zavarella supports this conclusion. The unique facts of Zavarella revealed to a legal certainty that no recovery could be made under the CGL policy. Because the injured employee had exhausted (and lost) all his legal claims against his employer (the subcontractor and named insured) and because no other party raised tort claims against it, no further liability could arise from its work within the meaning of the endorsement. As a result, the only possible liability that could arise in the case was against the general contractor (the additional insured) for its own negligence.
As noted above, the case at bar is readily distinguishable. The workers did not exhaust (or lose) their claims against ICC, their employer and the named insured, and other claims were pending against it. Moreover, Cleveland raised defenses of sovereign immunity, ICC's VSSR violation, and the responsibility of other parties, which were not involved in Zavarella. Unlike in Zavarella, because legal recourse against ICC existed and the additional insured's defenses were supported, we cannot say as a matter of law that any liability did not arise out of ICC's work.
To the contrary, ICC was already found to have violated several specific safety requirements by operating the crane boom within two to three feet of overhead electrical wires in violation of published regulations. And such violation was also found to have been the proximate cause of Stickovich's injury . State ex rel. Newman v. Industrial Comm'n, supra.
Commercial Union has not shown that the trial court improperly applied the additional insured endorsement to cover Cleveland for its own negligence in violation of R.C. 2305.31 as argued in its assignment of error. The claims arose out of, that is, flowed from or had its origin in ICC's work, including the selection, staffing, location, and operation of the crane, which were within its exclusive contractual control. Cleveland contracted for a finished product, namely, replacement of the bridge, and did not control the equipment, manner, or methods used by ICC to conduct the work, and there has never been any allegation that it did.
ICC selected the crane and located it on the site. The record unambiguouslyshows that ICC never requested Cleveland do anything to the electrical wires thereafter. ICC moved the crane when no one from Cleveland was on site, and did not request any change to the wires after it decided to operate the crane in close proximity to them. ICC thereafter directed its unlicensed crane operator, who had been drinking alcohol at lunch, to operate it in violation of safety regulations. There is no evidence that Cleveland had knowledge of this situation, let alone participated in it. In short, the allegations of Cleveland's own negligence were essentially its failure to prevent the negligence of others.
Unlike Commercial Union, we cannot assume that the trial court
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