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Century Surety Co. v. Continental Casualty Co.6/24/2005
AFFIRMING
BEFORE: GUIDUGLI AND TAYLOR, JUDGES; EMBERTON, SENIOR JUDGE.
Century Surety Company appeals from a declaratory judgment of the Warren Circuit Court, in which Century was held to be contractually bound to reimburse Continental Casualty Company in the amount $155,100.38, plus attorney fees and costs incurred in the defense of a personal injury claim. We affirm.
Both parties accepted the trial court's rendition of the essential facts and procedural history of the case and therefore, we adopt it our own:
FACTS AND PROCEDURAL POSTURE
The dispositive facts in this case are not in contention. On June 6, 2000, William Brown fell and was injured while visiting the Greenwood Mall in Bowling Green. The fall occurred at an amusement ride located in the concourse of the Mall. The amusement ride was owned and operated by Robinson's Kiddie Rides, LLC.
Following Brown's injury, he and his spouse brought a personal injury and loss of consortium suit against both Robinson's Kiddie Ridges ("Robinson's") and General Growth Properties, doing business as Greenwood Mall ("the Mall"). The action (01-CI-00559) was tried and a jury returned a verdict apportioning 15% of the fault to Robinson's resulting in a Judgment totaling $29,964.73. In addition, the Jury assigned 70% of the fault to the Mall resulting in a Judgment in the sum of $139,835.39. the remaining fault was assigned to Brown.
Robinson's was insured by the Petitioner, Century Surety Co., and the Mall was insured by the Respondent, Continental Casualty Co. Both insurance carriers satisfied the judgment entered against their insured with interest and costs. Continental incurred attorney's fees totaling $14,885.00 and costs totaling $379.99.
On July 5, 1999, Robinson's and the Mall executed a License Agreement allowing for the operation of an amusement ride by Robinson's in the Mall. The terms of the License Agreement required Robinson's, the licensee, to carry commercial general liability insurance naming the Mall, the licensor, as an additional insured. Robinson's acquired such insurance through Century.
The License Agreement entered into by Robinson's and the Mall contained an indemnification clause:
11. Starting on the date Licensee first commences the Business under this License, Licensee shall indemnify and hold Licensor, its managers, employees, agents, contractors, parents, subsidiaries and affiliates harmless from and against any and all claims, actions, liens, demands, expenses and judgments for loss, damage or injury to property or persons resulting or occurring by reason of the Licensee's construction activities under this License, or in any way connected with, the operation of the business, or otherwise arising from this License or Licensee's activities hereunder, including all costs, expenses and attorney's fees. License(sic) shall also indemnify Licensor for all costs, expenses and attorney's fees incurred by Licensor to enforce this indemnity.
The Robinson's insurance policy contained an "other insurance" provision. Century's policy provided that if other valid and collectible insurance is available to the insured, then Century's policy coverage is limited as follows:
a. This insurance is excess over any other insurance whether the other insurance is stated to be primary, pro rata, contributory, excess, contingent, or on any other basis; unless the other insurance is issued to the Named insured shown on the Declarations of this coverage Part and is written explicitly to apply in excess of the Limits of Insurance shown in the Declarations of this Coverage Part; Continental's policy al
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