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FabArc Steel Supply5/20/2005
is also undisputed that it provided FabArc with a copy of the certificate of insurance listing FabArc and Shimizu as additional insureds, which FabArc accepted as satisfactory.
With respect to the implications of Zurich's refusal to provide FabArc with coverage, CCSI argues that the outcome of the federal litigation on the issue of coverage "does not affect the merits of the issue of whether CCSI met its contractual insurance obligation to name FabArc as an additional insured."
We conclude that genuine issues of fact remain with respect to whether CCSI was obligated to name FabArc as an additional insured "without exception(s)" under its liability insurance policies, including whether such coverage was to be primary as opposed to only excess. FabArc admitted in its memorandum of law in opposition to CCSI's motion for a summary judgment that if FabArc ultimately prevails against Zurich in its federal declaratory-judgment action, FabArc's claim against CCSI alleging breach of the contractual duty to procure insurance "may be moot." Conversely, FabArc argued that should it not prevail, and the ultimate ruling in the federal declaratory-judgment action be that Zurich provides no coverage to it, then "FabArc's claim against CCSI for failure to provide insurance will be ripe since the complete primary coverage required by the FabArc/CCSI subcontract (which incorporates all the provisions of the Shimizu/FabArc contract) will have been breached by CCSI."
Because CCSI has not carried its burden of demonstrating the absence of any genuine issues of material fact as to this issue, a summary judgment as to the issue was not in order. Accordingly, we reverse the summary judgment entered in favor of CCSI as to this aspect of FabArc's third-party complaint against CCSI and remand the case.
Conclusion
We affirm the denial of FabArc's motion for summary judgment, there being contractual ambiguities not resolved by applicable rules of contract construction. We reverse the summary judgment for CCSI to the extent it disposed of FabArc's claim for indemnity under the allegation provision as to the Sanchez lawsuit and to the extent it disposed of FabArc's claim alleging breach of contract to procure insurance. As to those aspects of FabArc's third-party claim, unresolved contractual ambiguities preclude a summary judgment. We remand this cause for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Nabers, C.J., and See, Stuart, and Bolin, JJ., concur.
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