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Federal Insurance Co. v. Gulf Insurance Co.3/8/2005
specifically written to be excess over this policy.
Hercules and Aqualon qualified as "insureds" under the Fireman's, Federal, and Gulf policies.
Pursuant to Hercules Purchase Order No. 4500169304, Sachs was to replace an electric pole at the Aqualon Facility. That purchase order also contained an indemnification provision, which provides in part:
[Sachs] shall indemnify, defend, and save [Aqualon] harmless from and against all liability, losses and expenses (including costs and attorney's fees) for any suit, claim, settlement, award or judgment... arising out of the failure of [Sachs] to comply with safety and security regulations, and out of any negligence on the part of [Aqualon], except to the extent such claim may be caused solely by the negligent act or omission of [Aqualon].
On August 16, 1999, Sachs employee Michael Ryals was electrocuted while working at the Aqualon Facility pursuant to the contract and purchase order between Sachs and Aqualon, and died as a result of this accident. Also as a result of the accident, the Occupational Safety and Health Administration (OSHA) issued a Citation and Notice of Penalty to Sachs in connection with its work under the contract and purchase order.
On October 10, 2001, the Circuit Court of St. Louis County approved a settlement of $3,500,000 to Mr. Ryals' wife and children in full release of Hercules, Aqualon, and Sachs. Federal paid $2,900,000 and Fireman's Fund paid $600,000 towards the court-approved settlement of the claim. There was no judicial determination that the accident was caused solely by the negligence of Aqualon or Hercules. The parties agree that the settlement was reasonable. While the settlement was being negotiated, Federal requested that Aqualon and Hercules contribute to the settlement, but both refused. During the settlement negotiations, Federal advised Gulf it would seek contribution from Gulf at a later date. Neither Aqualon nor Hercules contributed to the settlement.
Federal subsequently filed an Amended Petition for Contribution and Declaratory Judgment against Gulf to obtain contribution in the amount of $561,290, prejudgment interest, and a declaratory judgment on Gulf's obligation to contribute to the settlements. Gulf filed a motion for summary judgment based on its claim that the insurance payments to the settlement were made to satisfy Sachs' contractual obligation to hold harmless Aqualon and Hercules from any liability for personal injury or death of Sachs employees. Federal filed a cross-motion for summary judgment based on its claim that Gulf was responsible for 12/62 of the $2,900,000 settlement, or $561,290. The trial court granted Federal's motion and awarded Federal $561,290 and prejudgment interest. Gulf appeals.
DISCUSSION
We review the grant of summary judgment de novo. ITT Commercial Finance v. Mid-Am. Marine, 854 S.W.2d 371, 376 (Mo. banc 1993). When the underlying facts are not in question, disputes arising from the interpretation and application of insurance contracts are matters of law for the court. Southeast Bakery Feeds v. Ranger Ins. Co., 974 S.W.2d 635, 638 (Mo.App. 1998). In addition, summary judgment may properly resolve claims interpreting a contractual indemnification provision. Nusbaum v. City of Kansas City, 100 S.W.3d 101, 105 (Mo. banc 2003).
For its first point, Gulf contends that the trial court erred in finding that Federal was entitled to equitable contribution, because the rights and liabilities of Gulf and Federal were governed by the indemnity obligations of their respective insureds, in that Federal's insured, Sachs, had specifically agreed to assume the tort liability of Gulf's ins
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