Thompson et al v. National Union Fire Insurance Company of Pittsburgh, PACross MOTION for Summary JudgmentD. Conn.January 6, 2017UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT JAMES THOMPSON, eta!., Plaintiffs, 3:14-CV-00259 (WWE) v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA., Defendant. JANUARY 6, 2017 PLAINTIFFS' CROSS-MOTION FOR SUMMARY .JUDGMENT Pursuant to Rule 56 of the Federal Rules of Civil Procedure and Rule 56 of the Local Rules of Civil Procedure, the plaintiffs respectfully submit this cross-motion for summary judgment against defendant National Union Fire Insurance Company of Pittsburgh, P.A. As is more fully set forth in the plaintiffs' memorandum in support of this cross-motion, and the plaintiffs' memorandum in opposition to the defendant's motion for summary judgment, the exclusion at issue in this case does not unambiguously void coverage for the defendant's insured. Under the well-established legal principle of contra proferentem, any ambiguous language in insurance policy exclusions must be interpreted against the insurer and in favor of the insured, such that the policy must be construed in a manner that affords coverage to the insured. Case 3:14-cv-00259-WWE Document 86 Filed 01/06/17 Page 1 of 3 WHEREFORE, the plaintiffs respectfully request that the Court grant their cross-motion for judgment as a matter of law. Respectfully submitted, THE PLAINTIFFS By: /Is// James J. Healy (ct28447l James J. Healy (ct28447) Cowdery & Murphy, LLC 280 Trumbull Street Hartford, CT 06103 (860) 278-5555 (860) 249-0012 Fax jhealy@cowderymurphy.com Joel T. Faxon Jason K. Gamsby Faxon Law Group LLC 59 Elm Street New Haven, CT 06510 (203) 624-9500 (203) 624-9100 Fax jfaxon@ faxonlawgroup.com jgamsby@faxonlawgroup.com - Their Attorneys - -2- Case 3:14-cv-00259-WWE Document 86 Filed 01/06/17 Page 2 of 3 CERTIFICATE OF SERVICE I hereby certify that on January 6, 2017, I caused a copy of foregoing to be filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the Court's electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Court's CMIECF System. /Is// James J. Healy (ct28447l James J. Healy Case 3:14-cv-00259-WWE Document 86 Filed 01/06/17 Page 3 of 3 UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT JAMES THOMPSON, eta!., Plaintiffs, 3: 14-CV -00259 (WWE) v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA., Defendant. JANUARY 6, 2017 PLAINTIFFS' MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY .JUDGMENT The plaintiffs respectfully submit this memorandum in support of their cross-motion for summary judgment against defendant National Union Fire Insurance Company of Pittsburgh, P.A. For the reasons set forth in the plaintiffs' memorandum in opposition to the defendant's motion for summary judgment, Endorsement 7 does not unambiguously exclude coverage.1 Because both Connecticut2 and Georgia3 law require that ambiguous language in insurance policy exclusions 1 For the sake of efficiency and the ease of reference, the plaintiffs will not repeat the arguments in its memorandum in opposition to the defendant's motion for summary judgment. Instead, the plaintiffs hereby incorporate the arguments made in, and supporting materials submitted along with, the memorandum in opposition, as if fully set forth herein. 2 See. e.g., Israel v. State Farm Mut. Auto. Ins. Co., 259 Conn. 503,512 (2002) ("Because we conclude that the policy language is ambiguous, the doctrine of contra proferentem properly is applicable. Thus. we must construe the policy in a manner that affords coverage.") (emphasis added); R.T. Vanderbilt Co., Inc. v. Cont'l Cas. Co., 273 Conn. 448,464-65 (2005) ("The existence of both a narrow and a broad definition of the term suit imports an ambiguity into the meaning of the [policy] term . . . . Because two equally reasonable definitions ofthe term suit exist, the broad definition must, in preference, be adopted because it will sustain the claim and cover the loss.") (citations omitted); Allstate Ins. Co. v. Barron, 269 Conn. 394, 406 (2004) ("[W]hen the words of an insurance contract are, without violence, susceptible of two equally reasonable interpretations, Case 3:14-cv-00259-WWE Document 86-1 Filed 01/06/17 Page 1 of 4 be interpreted against the insurer and in favor of the insured, and there are reasonable interpretations of Endorsement 7 that provide for coverage, the plaintiffs are therefore entitled to coverage. Judgment as a matter of law should enter for the plaintiffs accordingly. Conclusion For the foregoing reasons, the plaintiffs respectfully request that their cross-motion for that which will sustain the claim and cover the loss must, in preference, be adopted.") (quotations and alterations omitted); S & S Tobacco & Candy Co .. Inc. v. Greater New YorkMut. Ins. Co., 224 Conn. 313, 320 (1992) (because "alternate readings of a clause in an insurance clause [were] equally plausible," such that "endorsement [did] not unambiguously limit ... coverage, in all instances, .. . any ambiguity contained therein is traditionally construed against the insurer and in favor of insurance coverage"); Beach v. Middlesex Mutual Assurance Co., 205 Conn. 246, 251 ( 1987) (where insurer offered "plausible" interpretation of policy term and insured offered an "an alternate reading [that was] equally reasonable ... that [was] sufficient" to affirm judgment for insured). 3 See. e.g., Georgia Farm Bureau Mut. Ins. Co. v. Meyers, 548 S.E.2d 67, 69-70 (Ga. Ct. App. 2001) (affirming denial of summary judgment to insurer and grant of summary judgment to insurer where exclusion was ambiguous because "the trial court properly construed the contract to provide coverage"); Auto-Owners Ins. Co. v. Parks, 629 S.E.2d 118, 121 (Ga. Ct. App. 2006) (affirming summary judgment for insured because, inter alia, "to the extent that there is any ambiguity in how to define [policy term], the ambiguity must be interpreted against [the insurer] and in favor of [the insured] because an insurance policy is construed liberally to provide coverage") (quotations and alterations omitted); Peachtree Cas. Ins. Co. v. Kim, 512 S.E.2d46, 48 (Ga. Ct. App. 1999) (affirming summary judgment in favor of insured where exclusion was "subject to more than one reasonable interpretation which require[d] that it be interpreted in favor of the insured"); Lumbermens Mut. Cas. Co. v. Plantation Pipeline Co., 447 S.E.2d 89, 90, 93 (Ga. App. 1994) (affirming trial court decision that granted insured's cross-motion for summary judgment, which had been premised on insured's contention that "exclusions were not applicable and that [insured] was entitled to coverage for this claim under the policy," because the exclusion was "ambiguous in describing the items for which coverage was barred [and] [t]herefore, the trial court was obligated to construe it more favorably toward finding coverage"); Am. Aviation & Gen. Ins. Co. v. Georgia Telco Cr. U., 223 F.2d 206,210 (5th Cir. 1955) (applying Georgia law) ("Whether the policy clearly means what the [insured] contends, or is so ambiguous that it should be construed in favor ofthe . . . insured, the result follows that the judgment [as a matter of law for the insured] should be and is [a]ffirmed."). See also Ga. Code§ 13-2-2(5) ("If the construction is doubtful, that which goes most strongly against the party executing the instrument or undertaking the obligation is generally to be preferred."). -2- Case 3:14-cv-00259-WWE Document 86-1 Filed 01/06/17 Page 2 of 4 summary judgment be granted. Respectfully submitted, THE PLAINTIFFS By: /Is// James J. Healy (ct28447) James J. Healy ( ct2844 7) Cowdery & Murphy, LLC 280 Trumbull Street Hartford, CT 06103 (860) 278-5555 (860) 249-0012 Fax jhealy@cowderymurphy.com Joel T. Faxon Jason K. Garnsby Faxon Law Group LLC 59 Elm Street New Haven, CT 06510 (203) 624-9500 (203) 624-9100 Fax jfaxon @faxonlawgroup.com jgarnsby@faxonlawgroup.com - Their Attorneys - -3- Case 3:14-cv-00259-WWE Document 86-1 Filed 01/06/17 Page 3 of 4 CERTIFICATE OF SERVICE I hereby certify that on January 6, 2017, I caused a copy of foregoing to be filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the Court's electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Court's CM/ECF System. /Is// James J. Healy Cct28447) James J. Healy Case 3:14-cv-00259-WWE Document 86-1 Filed 01/06/17 Page 4 of 4 UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT JAMES THOMPSON, et al., Plaintiffs, v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA., Defendant. 3:14-CV-00259 (WWE) JANUARY 6, 2017 PLAINTIFFS' LOCAL RULE 56(a)(l) STATEMENT IN SUPPORT OF PLAINTIFFS' CROSS-MOTION FOR SUMMARY JUDGMENT Pursuant to Rule 56(a)(1) of the Local Rules of Civil Procedure, the plaintiffs submit the following material facts as to which the there is no genuine issue to be tried: 1. Neither Endorsement 7 nor any other provision of the policy defines the term "wrap- up." See Def. Ex. 1. 2. Neither Endorsement 7 nor any other provision of the policy defines the phrase "similar rating plan." See Def. Ex. 1. 3. The plain meaning ofthe term "wrap-up" encompasses "a brief final summary, as of the news" or "[a] concluding or final action," or "bring[ing] to a conclusion" or "settl[ing] finally or successfully," for example, in the conclusion of a business deal, or generally to "summarize" or "sum up" something "to bring [it] to usu[ally] a successful conclusion." See Pl. Ex. B. Case 3:14-cv-00259-WWE Document 86-2 Filed 01/06/17 Page 1 of 4 4. The defendant's witness most knowledgeable about documents related to the interpretation of Endorsement 7 testified that he does not know what the phrase "similar rating plan" means. See Goldstein Depo., Pl. Ex. C, pp. 16-17. 5. Defendant's Exhibit I, which the defendant refers to as "Bluewater Lawsuit," does not use the phrase "wrap-up." Def. Ex. I. 6. Bluewater's partial CCIP did not include builder's risk insurance, provided partial insurance coverage to some, but not all, subcontractors, and did not provide the level of coverage that was mandated by the owner for the project. See Johnson Aff., Pl. Ex. D, '!['![ 10-11; Def. Ex. 2, '![ 35. 7. One of the defendant's Rule 30(b)(6) witnesses testified that "Workers' Compensation would not be part of what [he] would consider to be the commonly accepted defmition of a wrap-up .... " Hay Depo., Pl. Ex. F, p. 73 (emphasis added). 8. Bluewater's CCIP included workers' compensation coverage. See Johnson Aff., Pl. Ex. D, '