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Sawyer v. Westchester Fire Insurance Company11/20/2002
e plans and specifications provided by the State and the decision to remove the lighting was solely the State's. This summary judgment was affirmed by the Court of Appeal in an unpublished opinion issued May 14, 1997.
Insurance Policies
On the date of the accident, MCM was the named insured on a policy of general liability insurance issued by respondent St. Paul Fire and Marine Insurance Company for the period December 31, 1992 to December 31, 1993, with limits of $1 million each occurrence and a general aggregate of $2 million. As provided by its contract with MCM, the State was named as an additional insured by endorsement to the policy with limits of $500,000 for a single limit bodily injury , property damage plan. The additional insured endorsement was on a standard form prescribed by the State, and not drafted by St. Paul, and provided as follows:
"The company will pay on behalf of the additional insured all sums which the additional insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this endorsement applies, caused by an occurrence and arising out of (1) operations designated in item 3 of the schedule[ ] performed for the additional insured by or on behalf of the contractor designated in item 4 of the schedule or (2) acts or omissions of the additional insured in connection with his supervision of such operations, and the company shall have the right and duty to defend any suit against the additional insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company's liability has been exhausted by payment of judgments or settlements."
The additional insured endorsement also contained the following exclusions (c) and (h):
"This endorsement does not apply:
"(c) to bodily injury or property damage arising (1) from the sole negligence of the additional insured or its officers and employees or (2) out of any act or omission of the additional insured or any of its officers or employees, other than supervision of work performed for the additional insured by or on behalf of the designated contractor; . . .
"(h) to bodily injury or property damage arising solely out of the preparation or approval by or on behalf of the additional insured of maps, plans, opinions, reports, designs, surveys or specifications."
The State tendered defense of the underlying actions to MCM on May 25 and 31, 1994. MCM then forwarded the complaints and tender letters, along with its own cover letters, to St. Paul on May 27 and June 3, 1994. By letter dated August 16, 1994, St. Paul requested the State to produce a complete copy of the contract between the State and MCM. The State did so on August 23, 1994. By letter dated October 5, 1994, St. Paul informed the State that it did not have enough information to accept or deny the tender and invited the State to submit any additional information to support the tender. According to St. Paul, the State did not do so even though it typically pursued its tenders of defense aggressively.
International Insurance Company issued an umbrella liability policy, which was subsequently novated to respondent Westchester Fire Insurance Company, excess of the St. Paul primary policy. The Westchester policy had limits of $15 million general aggregate and a self-insured retention in the amount of $10,000. It is undisputed that
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