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Mikula v. Miller Brewing Co.4/12/2005
Miller Brewing Company appeals from the trial court's grant of summary judgment, holding that Miller has no coverage under the insurance policy issued by Acuity, A Mutual Insurance Company, to Selzer-Ornst Company, a general contractor hired by Miller, to which Miller was added as an "additional insured." Miller also appeals from the trial court's grant of declaratory judgment holding that neither J.F. Cook & Company, Inc., a subcontractor hired by Selzer-Ornst, nor its insurer, Milwaukee Mutual Insurance Company, is obligated to defend or indemnify Miller, also added as an "additional insured" to the Milwaukee Mutual policy, for the claims alleged in Thor C. Mikula's complaint against Miller, or any judgment resulting therefrom.
Miller contends that: (1) Acuity's additional insured endorsement covers Miller for liability arising out of Selzer-Ornst's ongoing operations; (2) the Mikula complaint triggered Milwaukee Mutual's defense obligations to Miller under its additional insured endorsement in two different ways; and (3) J.F. Cook is contractually obligated to defend and indemnify Miller for the Mikula claim. Because we conclude that Miller is covered as an additional insured under both policies, and J.F. Cook has a duty to indemnify Miller for the Mikula claim, we reverse.
I. BACKGROUND.
Miller contracted with Selzer-Ornst, a general contractor, for the installation of new windows and the performance of other improvements at Miller's Milwaukee brewery facility. As a condition of the construction contract, Selzer-Ornst was to have Miller added as an "additional insured" on its general liability insurance policy, which was issued by Acuity. It did so, and provided Miller with a Certificate of Insurance listing Miller as an additional insured on the policy. The policy provides, in relevant part, as follows:
Who Is an Insured is amended to include as an insured any person or organization for whom you [Selzer-Ornst] are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy. Such person or organization [Miller] is an additional insured only with respect to liability arising out of your ongoing operations performed for that insured. A person's or organization's status as an insured under this endorsement ends when your operations for that insured are completed.
Selzer-Ornst subcontracted with J.F. Cook to replace the windows at the brewery. They similarly added Miller, pursuant to a contract, as an additional insured on their policy. J.F. Cook's Milwaukee Mutual policy provides, in relevant part, as follows:
Each of the following is also an insured:
a. Any person or organization you [J.F. Cook] are required by a written contract, agreement, or permit to name as an insured, but only with respect to liability arising out of:
1. "your ongoing operations" performed for that insured at the location designated in the contract, agreement, or permit; or
2. premises owned or used by you.
J.F. Cook's contract with Selzer-Ornst also included the following indemnity clause:
The Sub-Contractor [J.F. Cook] shall indemnify and save harmless the Owner [Miller], the Architect, the Contractor [Selzer-Ornst] and their respective agents from any and all liability, payments and expenses of any nature for injury or death to any person, or persons, or for damage to any property, caused or alleged to have been caused by the Sub-Contractor, or incidental to the execution of work under this contract by the Sub-Contractor, his agents or employe
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