KICC-Alcan General, Joint Venture v. Crum & Forster Specialty Insurance Co.
KICC-Alcan General, Joint Venture v. Crum & Forster Specialty Insurance Co.
Opinion of the Court
ORDER RE CROSS MOTIONS FOR SUMMARY JUDGMENT
Before the Court are Defendant’s' and Plaintiffs Cross Motions for Summary Judgment, at Dockets 34 and 37, respectively. The motions are fully briefed,
BACKGROUND
The parties have largely stipulated to the relevant facts.
Plaintiff KICC-Alcan General (KICC) is an Alaskan joint venture that provides general contracting and construction management services. In May 2012, KICC entered a contract with the U.S. Army Corps of Engineers to-construct two buildings at Joint Base Elmendorf-Richardson.
As often happens, the project encountered a series of delays. Consequently, it was not substantially complete until April 2014 — over three months after the initially projected completion date.
The Superior Group then sued.
During the relevant period, KICC had insurance from Defendant Crum & Forster Specialty Insurance Company (Crum & Forster) which provided coverage for “ ‘damages’ ,.. because of a ‘wrongful act’ to which this insurance applies.”
Faced with the Superior Group’s lawsuit, KICC tendered the complaint to Crum & Forster, seeking defense and indemnity.
In the present suit, KICC asserts three causes of action: first, that Crum & Forster breached its duty to defend; second, that Crum & Forster breached its duty to indemnify; and third, Crum & Forster’s refusal to defend or indemnify breached its duty of good faith.
DISCUSSION
I. Jurisdiction
The Court has jurisdiction pursuant to 28 U.S.C. § 1382 because there is complete diversity of citizenship and the amount in controversy exceeds $75,000.
II. Standard for Summary Judgment
Federal Rule of Civil Procedure 56(a) directs a court to “grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The burden of showing the absence of a genuine dispute of material fact lies with the moving party.
When considering a motion for summary-judgment, a court views the facts in the light most favorable to the non-moving party and draws “all justifiable inferences” in the non-moving party’s favor.
III. Duty to Defend and Indemnify
The parties have stipulated to the facts material to KICC’s first and second causes of action; resolution of these issues presents a pure question of law. There are three distinct questions in this ease: First, did Crum & Forster breach its duty to defend? Second, if it did, does this breach alone render Crum & Forster liable for the amount of settlement? And third, without regard to whether Crum & Forster breached its duty to defend, must it indemnify KICC for the Superior Group claims?
Because an affirmative answer to the third question eliminates any need to separately consider either the first or second question, the Court will begin there.
A. The Policy
The parties agree that KICC’s claims and the insurance policy itself are governed by Alaska law in this diversity action. “The obligations of insurers are generally determined by the terms of their policies,”
The parties don’t dispute the terms of the insurance policy or how they fit togeth
What the parties do dispute is, first, whether the Superior Group’s claimed damages were caused by KICC’s “act, error or omission,” and second, whether that act or omission was “in the rendering or failure to render” professional services. The Court therefore examines the nature of the Superior Group’s claims.
B. The Superior Group Claims
As alleged in its complaint, the Superior Group entered into two lump-sum contracts with KICC.
The Superior 'Group did not allege that KICC failed to pay the lump-sum amount originally agreed to in the contracts.
C. Were the Superior Group claims covered under the policy?
KICC settled the Superior Group claims before trial. If all of the settled claims were in fact covered claims under the policy, then Crum & Forster is obliged to indemnify KICC for the liability arising from those claims — here, the amount of the settlement (if that settlement was both reasonable and nonfraudulent). Crum & Forster contends that KICC’s liability to the Superior Group is not covered under the policy because it is liability for breach of contract claims. KICC counters that the suit did not raise typical breach of contract claims because the Superior Group was seeking “additional compensation” to offset its “increased cost of performance allegedly caused by KICC-Alcan’s mismanagement.”
Coverage under the policy extended to damages caused by “an act, error or omission” in KICC’s “rendering or failure to render” its “functions ... that are related to [its] practice as a ... construction manager.”
The Superior Group’s complaint alleged that it had experienced “an increase in the cost of performance” as a result of various “delays, acceleration, and related impacts.”
Each of these allegations contends that KÍCC’s management of the project caused the Superior Group to incur increased costs. The Superior Group claimed that KICC was obligated to pay for those increased costs. The underlying complaint plainly alleged damages (in the amount of the Superior Group’s increased costs) that were “because of’ KICC’s actions as a construction manager.
But the Superior Group’s complaint sought damages only for contract- - and quasi-contract claims. And professional liability coverage, Crum & Forster asserts, “is not a guarantor of a policyholder’s con
Crum & Forster argues in its reply that “[t]he fact that the Superior Group incurred additional costs in order to comply with the construction schedule set by KICC-Alcan does not transform the Underlying Lawsuit from a breach of contract action into a negligence case.”
Crum & Forster’s primary support for its position is not the policy language, but the Ninth Circuit’s decision — applying Alaska law — in Bell Lavalin.
In Bell Lavalin, the coverage turned on facts as determined by a jury. Bell Lava-lin, the insured, was a general contractor and construction manager that won a contract to design and build oil tanks. Bell Lavalin then subcontracted with Conam Alaska for construction services and materials. When the project fell behind schedule, the parties disputed how long an extension was warranted. With work 87% complete, and Bell Lavalin unwilling to grant an additional extension, Conam Alaska walked off the job. Conam Alaska then sued Bell Lavalin for breach of contract and other claims.
Although the work was 87% complete when Conam Alaska ceased performance, at that point Bell Lavalin had paid Conam Alaska only 48% of the contract price. Conam Alaska sought payment for the val
Bell Lavalin sued its insurer for indemnity. The relevant policy provision covered “damages” that “arise[] out of’ the insured’s performance as a project manager and are “caused by an error, omission or negligent act.”
In a footnote, the Ninth Circuit also noted that “the second requirement” — that the liability “arise out of’ Bell Lavalin’s professional services — “fails for the same reason” as the causation element. Specifically, the Ninth Circuit concluded that Bell Lavalin’s liability “did not arise out of Bell Lavalin’s ‘performance of professional service for others,’ ” but instead “arose out of Bell Lavalin’s receipt of professional services from Conan.”
In Crum & Forster’s view, Bell Lavalin determines the outcome of this ease. It maintains that just as Bell Lavalin did not “cause” the damages to Conam Alaska, so too KICC did not “cause” the damages to the Superior Group. According to Crum & Forster, this is so because “[t]he insured’s obligation to pay sums owed under a contract is imposed by the contract; it is not created by any wrongful act of the insured.”
Certainly this case bears some resemblance to Bell Lavalin. The policy provision at issue here provides coverage for
But the underlying lawsuits were not similar. The Superior Group was seeking, as KICC describes it, “additional compensation” beyond the lump-sum amount previously agreed to. Unlike the subcontractor in Bell Lavalin, the Superior Group could prevail only if it showed that KICC had wrongly failed to grant an extension or otherwise caused it to incur additional costs. If KICC had done nothing wrong, then the Superior Group would be entitled only to the lump-sum amount on the face of the contract — an amount it had already received and which it was not seeking. In Bell Lavalin, the subcontractor had a claim against the general contractor without regard to any action or omission on the part of the general contractor. Here, by contrast, the subcontractor had a claim — if at all — only because of the general contractor’s actions or omissions. KICC’s liability arose from the settlement of that claim; thus the liability was “caused” by KICC’s act or omissions, satisfying the third element.
And these damages did “arise out of’ KICC’s professional services. The specific policy language in this regard is somewhat different than in Bell Lavalin. There, the policy required that the liability “arise[] out of the performance of professional services for others.”
Here, as discussed above, the Superior Group’s damages were caused by an act or omission of KICC. The “second element” requires only that those acts or omissions be “in the rendering” of KICC’s professional services. The Superior Group’s entire complaint is directed toward KICC’s alleged mismanagement of the project— either by failing to properly account for the initial delays, failing to communicate essential information to the Superior Group, or causing crowding on the work-site by demanding too many subcontractors add additional labor. Each of these is an act or omission “in the rendering” of KICC’s functions as a construction manager.
Finally, the Court considers Crum & Forster’s policy arguments.
For these reasons, the Court concludes as a matter of law that the Superior Group’s claims against KICC, and the resultant settlement of those claims, were covered by the Crum & Forster policy, and that Crum & Forster thus had a duty to indemnify KICC.
D. Duty to defend
Under Alaska law, an insurer’s duty to defend and its duty to indemnify are separate and distinct contractual responsibilities.
E. Damages
An insurer that breaches the duty to defend is liable for the insured’s post-tender defense costs.
IV. Bad Faith
The Court has determined that Crum & Forster was obligated to both defend and indemnify KICC. KICC contends that Crum & Forster’s refusal to do so was in bad faith, entitling KICC to additional damages. To establish a bad faith claim against an insurer, the insured must show at least “that the insurer’s actions were objectively unreasonable under the circumstances.”
KICC contends that “Crum & Forster offers no reasonable justification for denying the benefits promised by the Policy, and it acted in reckless disregard because of its lack of any reasonable basis for denying the claim.”
CONCLUSION
For the foregoing reasons, IT IS ORDERED that:
• Crum & Forster’s Motion for Summary Judgment at Docket 34 is GRANTED IN PART and DENIED IN PART. The Court denies the motion as to KICC’s first and second causes of action, and grants the motion as to KICC’s third cause of action. The Court finds that Crum & Forster did not breach its duty of good faith.
• KICC’s Motion for Summary Judgment at Docket 37 is GRANTED IN PART and DENIED IN PART. The Court grants the motion as to KICC’s first and second causes of action, and denies the motion as to KICC’s third cause of action. The Court finds that Crum & Forster breached its duty to defend and that it breached its duty to indemnify KICC for the Superior Group damages.
This order resolves only the issues of liability, and does not establish the amount of damages. The parties are therefore ORDERED to file a joint status report and proposed schedule for discovery and pretrial motions within 28 days of this order.
. Docket 38 (Pl.’s Opp.); Docket 39 (-Def.’s Reply); Docket 41 (Def.’s Opp.); .Docket 43 (Pl.’s Reply).
. See Docket 45 (Hr’g Mins.).
. See Docket 35 (Statement of Stipulated Facts); Docket 36 (Add’l Statement' of Stipulated Facts).
. Docket 35 at 2, ¶ 1.
. Docket 35 at 2, ¶¶ 3-6. KICC contracted directly with Superior Plumbing & Heating and with Haakenson Electric. Superior subsequently subcontracted with Alaska §>heet Metal.
. Docket 35-1 at 142.
. Docket 35-1 at 193.
. See Docket 35 at 2, ¶¶ 7-8.
. Docket 35-5 at 29, ¶ 13;
. Docket 35-5 at 31, ¶ 21.
. See Docket 35-2 at 1 through Docket 35-5 at 14.
. See Laurence Schor & Aaron P. Silberman, Equitable Adjustments and Claims, in Federal Government Construction Contracts 437, 438 (2d ed. 2010) ("An REA is both a request and a negotiation. The contractor must not only submit its request but also persuade the [contracting officer] to grant it.”).
. See Schor & Silberman, supra note 12, at 438. The Superior Group would also have had to show the amount of its damages.
. Docket 35-2 at 6.
. See Docket 35-5 at 22-23 (Sept. 30, 2014 ltr. from S. Lane Tucker to Heath Martin).
. See Docket 35-5 at 27 (Compl).
. Docket 35-5 at 31,- ¶ 18.
. See Docket 35-5 at 32-34. This in fact amounted to four claims, one against the required construction bond (Count I), one for each of the two subcontracts between the Superior Group and KICC (Counts II and III), and one for quantum meruit (Count IV).
. Docket 35-5 at 33, ¶¶ 34, 37,
. Docket 35-5 at 34, ¶¶ 41, 43.
. Docket 35-5 at 73, ¶ 1(a).
. Docket 35-5 at 67, ¶ 43.
. Docket 35-5 at 66, ¶ 32.
. This formulation comes from inserting the policy definitions for "wrongful act” and "professional services” into the coverage provision: the policy covers “damages or cleanup costs because of [an act, error or omission in the rendering or failure to render {those functions performed for others by you or by others on your behalf that are related to your practice as a consultant, engineer, architect, surveyor, laboratory or construction manager}] to which this insurance applies.”
. See Docket 35-5 at 105 (Mar. 19, 2015 email from Edward G. Rhone to Joan Erickson). Mr. Rhone was acting as KICC’s insurance agent.
. See Docket 35-5 at 107 (Apr. 9, 2015 email from Joan Erickson to Edward G. Rhone). The parties do not agree on the facts in this regard, see Docket 37 at 6 n.1, but this issue is immaterial to the Court’s resolution of the motions.
. Docket 35-5 at 111 (June 9, 2015 Itr. from Patrick Hughes to Edward G. Rhone).
. See Docket 35-5 at 117 (Settlement Agreement).
. See Docket 1 (Compl.) at 5-6.
. See Docket 34 (Crum & Forster’s Mem.) at 10; Docket 48 (Joint Mot. to Stay) at 2.
. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
. Id.
. Id. (citing First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)).
. Id. at 255, 106 S.Ct. 2505 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)).
. Flores v. City of San Gabriel, 824 F.3d 890, 897 (9th Cir. 2016) (citing Ctr. for Bio-Ethical Reform, Inc. v. L.A. Cty. Sheriff Dep't, 533 F.3d 780, 786 (9th Cir. 2008)).
. Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
. Id. at 249, 106 S.Ct. 2505.
. As explained below, this is so because the duty to defend is broader than the duty to indemnify. The Court addresses the bad faith claim separately below.
. State Farm Fire & Cas. Co. v. Bongen, 925 P.2d 1042, 1045 (Alaska 1996) (quoting Bering Strait Sch. Dist. v. RLI Ins. Co., 873 P.2d 1292, 1294 (Alaska 1994)).
. State Farm Mut. Auto. Ins. Co. v. Dowdy, 192 P.3d 994, 998 (Alaska 2008) (citing Allstate Ins. Co v. Falgoust, 160 P.3d 134, 138 (Alaska 2007)).
. Dowdy, 192 P.3d at 998 (citing Falgoust, 160 P.3d at 139).
. Id. (citing Falgoust, 160 P.3d at 138).
. As detailed above, this scope is determined by inserting policy definitions into the relevant coverage provision. See supra pages 871-72 (quoting Docket 35-5 at 73, ¶ 1(a); Docket 35-5 at 67, ¶ 43; Docket 35-5 at 66, ¶,32).
. Docket 35-5 at 29, ¶¶ 10, 12. Although the underlying complaint does not state that the contracts were for lump sums, the complaint attached each contract as an exhibit.
... Docket 35-5 at 29, ¶ 13.
. Docket 35-5 at 30, ¶ 15.
. Docket 35-5 at 30, ¶ 16.
. Docket 35-5 at 30-31, ¶ 18.
. Docket 35-5 at 31, ¶ 21.
. One Superior Group entity, Alaska Sheet Metal, had earlier sought $162,000 from KICC which it alleged it was owed under the terms of the contract. See Docket 35-5 at 31, ¶ 23. So far as the Court can discern, the Superior Group was not seeking damages for that amount jn its lawsuit. See Docket 35-5 at 35, ¶ A.
. Docket 35-5 at 31, ¶ 24 (emphasis added),
. Docket 35-5 at 33, ¶ 32; see also Docket 35-5 at 33, ¶ 37.
. Docket 35-5 at 33, ¶ 33; see also Docket 35-5 at 33,.¶ 38.
. Docket 37 at 11.
. As detailed above, this scope is determined by inserting policy definitions into the relevant coverage provision. See supra pages 871— 72 (quoting Docket 35-5 at 73, ¶ 1(a); Docket 35-5 at 67, ¶ 43; Docket 35-5 at 66, ¶ 32).
. See Docket 35-5 at 117 (Settlement)
. See, e.g,, Lee R. Russ & Thomas F. Segalla, 14 Couch on Insurance 3d § 205:74 (2005).
. Docket 35-5 at 31, ¶ 21.
. Docket 35-5 at 30, ¶ 15.
. Docket 35-5 at 30, ¶ 16.
. Docket .35-5 at 30-31, ¶ 18.
. Docket 34 at 12.
. Docket 39 at 7.
. Docket 37 at 11.
. Docket 44 at 8.
. Docket 39 at 5-6.
. The policy contains an exclusion for ‘‘liability for which the insured is obligated to pay 'damages' by reason of the assumption of liability in a contract or agreement.” Although Crum & Forster initially pointed to this clause when it first denied coverage, it does not refer to it in its briefing to the Court. Such provisions exclude coverage for "assumed liability," which is "liability originally incurred by a third party but then taken on by another; it is not liability incurred by a contract breach.” 9A Couch on Insurance § 129.33, at 129-163 (2015 ed.).
. Bell Lavalin v. Simcoe and Erie Gen. Ins. Co., 61 F.3d 742 (9th Cir. 1995).
. Id. at 746.
. Id. at 744.
. See Conam Alaska v. Bell Lavalin, Inc., 842 P.2d 148, 152 (Alaska 1992) (the final appeal in the underlying case).
. Bell Lavalin, 61 F.3d at 745.
. Conam Alaska, 842 P.2d at 157.
. Bell Lavalin, 61 F.3d at 746.
. Id. at 746.
. Id.
. Id. (emphasis in original).
. Id. at 746 n.3.
. Docket 34 at 16 (emphasis in original) (citing Bell Lavalin, 61 F.3d at 746).
. Docket 34 at 14.
. Docket 35-5 at 73, ¶ 1(a).
. Docket 35-5 at 67, ¶ 43.
. Docket 35-5 at 66, ¶ 32.
. Bell Lavalin, 61 F.3d at 746.
. See Docket 35-5 at 67, ¶ 43.
. See Docket 39 at 6.
. See Docket 34 at 17-19.
. Docket 34 at 17 (quoting August Entm’t v. Phila. Indem. Ins. Co., 146 Cal.App.4th 565, 52 Cal.Rptr.3d 908, 920 (2007)).
. Sauer v. Home Indem. Co., 841 P.2d 176, 180 (Alaska 1992).
. Attorneys Liab. Prot. Soc'y, Inc. v. Ingaldson Fitzgerald, P.C., 370 P.3d 1101, 1111-12 (Alaska 2016).
. State, Dep’t of Transp. & Pub. Facilities v. State Farm Fire & Cas. Co., 939 P.2d 788, 792 (Alaska 1997) (citing Afcan v. Mut. Fire, Marine and Inland Ins. Co., 595 P.2d 638, 645 (Alaska 1979)).
. CHI of Alaska, Inc. v. Employers Reinsurance Corp., 844 P.2d 1113, 1115 (Alaska 1993) (citing Afcan, 595 P.2d at 638 and National Indem. Co. v. Flesher, 469 P.2d 360, 366 (Alaska 1970)).
. See, e.g., Brannon v. Continental Cas. Co., 137 P.3d 280, 284 n.11 (Alaska 2006) ("We have repeatedly observed that the duty to defend is separate from and broader than the duty to indemnify.”).
. Because the Court had concluded that the claims were covered, it does not reach the issue of the extent to which an insurer that breaches its duty to defend may be liable for a subsequent settlement in the underlying case irrespective of the extent of coverage under the policy. See Docket 37 at 12; Docket 39 at 12.
. See Afcan, 595 P.2d at 646
. Grace v. Ins. Co. of N. Am., 944 P.2d 460, 468 n.20 (Alaska 1997) (citing Afcan, 595 P.2d at 646-47).
. Lockwood v. Geico Gen. Ins. Co., 323 P.3d 691, 697 (Alaska 2014). The Alaska Supreme Court has not further defined the elements of a bad faith claim. See id. (citing Hillman v. Nationwide Mut. Fire. Ins. Co., 855 P.2d 1321, 1323 (Alaska 1993)). But this Court has identified two elements; (1) that the insurer "lacked a reasonable basis for denying coverage” and (2) that the insurer "had knowledge that no reasonable basis existed to deny the claim or acted in reckless disregard for the lack of a reasonable basis for denying the claim.” See United States v. CNA Fin. Corp., 168 F.Supp.2d 1109, 1124 (D. Alaska 2001).
.Docket 37 at 15.
Reference
- Full Case Name
- KICC-ALCAN GENERAL, JOINT VENTURE, an Alaskan joint venture v. CRUM & FORSTER SPECIALTY INSURANCE COMPANY, INC., a Delaware corporation
- Cited By
- 4 cases
- Status
- Published