343 F. Supp. 3d 1
D.D.C.2018Background
- Cummings Properties (landlord) leased Suite 760 at 100 Trade Center to the Massachusetts Department of Revenue (DOR); lease required landlord to use reasonable efforts to remove snow/ice from entrances, sidewalks, and parking areas.
- DOR was the named insured on a commercial general liability policy (1/20/2013–1/20/2014); Cummings was listed as an additional insured "but only with respect to liability arising out of [DOR's] operations or premises owned by or rented to [DOR]," and the endorsement specifically identified Suite 760.
- On 1/30/2013 a DOR employee, Joyce Barresi, allegedly slipped and fell on ice in the building parking lot and sued Cummings in Massachusetts Superior Court for negligent maintenance of the parking lot.
- Cummings sought defense and indemnity from the insurer (Public Service Insurance Company, PSIC) under the additional-insured endorsement; PSIC refused, and Cummings filed this declaratory-judgment/breach-of-contract action in federal court.
- Central legal question: whether Barresi’s parking-lot claim "arises out of" DOR’s operations or the premises rented to DOR (Suite 760) such that PSIC owes a duty to defend and indemnify Cummings under the endorsement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether injury "arose out of" DOR's operations | Barresi was on-site to perform DOR work; but for DOR's office she would not have been there | Injury occurred while arriving; not connected to DOR's work or activities | Not covered — arriving at work is not DOR "operations" |
| Whether injury "arose out of" premises rented to DOR | Parking lot is appurtenant/common area and linked to Suite 760; thus claim arises from rented premises | Policy lists only Suite 760; DOR did not rent parking spaces; common-area injury not within rented-premises endorsement | Not covered — the endorsement identifies only Suite 760 and claim not sufficiently tied to rented premises |
| Duty to defend under the policy | Coverage triggered under either prong, so PSIC must defend | Endorsement is restrictive; neither prong applies, so no duty to defend | No duty to defend; therefore no duty to indemnify |
| Breach of contract claim against insurer | PSIC breached by refusing defense/indemnity | No breach because no coverage under endorsement | Claim dismissed; summary judgment for PSIC |
Key Cases Cited
- Poulis-Minott v. Smith, 388 F.3d 354 (1st Cir.) (summary-judgment genuine-dispute standard)
- Billings v. Commerce Ins. Co., 458 Mass. 194 (Mass. 2010) (insurer's duty to defend measured by policy, third-party complaint, and facts known to insurer)
- Nascimento v. Preferred Mut. Ins. Co., 513 F.3d 273 (1st Cir.) (matching complaint to policy for duty-to-defend analysis)
- Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass. 387 (Mass. 2003) (principles for interpreting additional-insured endorsements)
- Bagley v. Monticello Ins. Co., 430 Mass. 454 (Mass. 1999) (no duty to indemnify if duty to defend is not triggered)
- Merchants Ins. Co. of N.H. v. U.S. Fid. & Guar. Co., 143 F.3d 5 (1st Cir.) (distinguishing cases where injury "arose out of" active work)