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BITCO General Insurance Corp. v. Commerce And Industry Insurance Co.

United States District Court, W.D. Oklahoma

March 2, 2017

BITCO GENERAL INSURANCE CORPORATION f/k/a BITUMINOUS CASUALTY CORPORATION, Plaintiff,
v.
COMMERCE AND INDUSTRY INSURANCE COMPANY; NAVIGATOR'S INSURANCE COMPANY; and ALTERRA AMERICA INSURANCE COMPANY, Defendants.

          ORDER

          VICKI MILES-LaGRANGE UNITED STATES DISTRICT JUDGE.

         Before the Court is defendant Commerce and Industry Insurance Company's (“CIIC”) Motion for Partial Summary Judgment, filed April 19, 2016. On May 10, 2016, plaintiff BITCO General Insurance Corporation (“BITCO”) filed its response, and on May 17, 2016, CIIC filed its reply. Based upon the parties' submissions, the Court makes its determination.

         I. Introduction

         On August 4, 2012, a fire occurred in Payne County, Oklahoma where IPS Engineering, LLC (“IPS”), Global Pipeline Construction, LLC (“Global”), and Wilcrest Field Services, Inc. (“Wilcrest”) were working on a pipeline. Parnon Gathering, Inc. (“Parnon”)[1] owned the project and contracted with IPS to serve as general contractor. IPS subcontracted with Global to perform the welding work.[2] The fire allegedly caused damage to real and personal property and several lawsuits were filed in Payne County against IPS, Global, Wilcrest, and Parnon (“Underlying Lawsuits”).

         The contract between Global and IPS contains the following insurance requirements:

Insurance. The subcontractor [Global] and its permitted subcontractors shall carry and maintain during the performance of the Work the insurance coverages set forth on the attached Exhibit C.

         EXHIBIT C INSURANCE

Subcontractor shall provide and maintain the insurance set forth below during the performance of this Subcontract. ***
(b) Comprehensive or Commercial General Liability Insurance including contractual liability, covering liabilities assumed by Subcontractor hereunder, broad form property damage liability, additional insured and waiver of subrogation, contractors' protective, cross-liability and pollution liability provisions with a limit of not less than $1, 000, 000 per occurrence for bodily injury and property damage combined.
(f) Excess Liability Insurance covering in excess of the other liability coverages required herein with a limit of not less than $10, 000, 000 per occurrence for bodily injury and property damage combined.
Insurance in (b), (c), (d), (e) and (f) above shall be endorsed to include IPSE [IPS] and Owner [Parnon] as additional insureds.All policies of Insurance required above shall contain a waiver of subrogation in favor of IPSE and its directors, officers, employees, agents or invitees and Owner.

         Construction Subcontract, attached as Exhibit 16 to CIIC's Motion for Partial Summary Judgment and Supporting Brief, at APP 464, 469-70.

         BITCO issued policies numbered CLP 3564132 (primary) and CUP2591149B (excess), affording coverage to Global as a named insured. The BITCO excess policy defines “insured, ” in part, as:

Any person or organization not described in Paragraphs 2.a., 2.b., 2.c., 2.d. or 3 above which qualifies as an insured in any “underlying insurance.” However, that person ...

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