Int'l Marine Underwriters v. Abcd Marine
267 P.3d 479
Wash. Ct. App.2011Background
- IMU issued a comprehensive marine liability policy to ABCD Marine (Boogaard as senior partner); policy initially contained no additional insured endorsements.
- ABCD/Boogaard entered into an Access Agreement with NSI in 2004 to indemnify NSI and to procure insurance naming NSI as additional insured with limits of $1,000,000 and a waiver of subrogation.
- The Agreement required ABCD/Boogaard to defend NSI for bodily injuries arising from ABCD/Boogaard operations and to indemnify NSI for such injuries.
- Boogaard was injured in 2004 by a NSI employee; IMU later advised there was no coverage for Boogaard under the IMU policy, then added NSI as an additional insured prospectively in December 2004.
- The 2004 IMU policy contained an exclusion for bodily injury or property damage for which the insured assumes liability in a contract, but allowed an insured contract exception for liability assumed under an insured contract.
- Boogaard and ABCD sought coverage under the insured contract exception, arguing the Agreement was an insured contract and that Boogaard, as a named insured/partner, was not a “third person.”
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the insured contract exception excludes coverage for Boogaard. | ABCD/Boogaard contend the Agreement is an Insured Contract bringing it outside exclusion 2. | IMU concedes the Agreement is an Insured Contract but argues Boogaard is not a third person. | Exclusion 2 applies; Boogaard is not covered as a third person. |
| Whether Boogaard (as a first-party with NSI) qualifies for Insured Contract exception. | Boogaard, as a general partner and first party to the contract and policy, is within the insured contract. | Boogaard is not a third person; insured contract exception does not apply to him. | Boogaard is not a third person; insured contract exception does not apply. |
| Whether NSI being named as additional insured affects coverage. | NSI should be treated as an additional insured and covered under the policy. | Certificates show NSI is not an insured under IMU's policy; Alliance certificates were informational, not policy amendments. | NSI is not an additional insured under the IMU policy for coverage of Boogaard's claim. |
Key Cases Cited
- Cowan Systems, Inc. v. Harleysville Mut. Ins. Co., 457 F.3d 368 (4th Cir. 2006) (third-person framing of insured contract exception to determine coverage)
- Truck Ins. Exch. v. BRE Properties, Inc., 81 P.3d 929 (Wash. Ct. App. 2003) (addressed insured contract and third-person concepts in Washington)
- Rocky Mt. Fire & Cas. Co. v. Rose, 385 P.2d 45 (Wash. 1963) (reformation of contract requires fraud or mutual mistake)
- Postlewait Const., Inc. v. Great American Ins. Companies, 720 P.2d 805 (Wash. 1986) (certificate of insurance is information only; does not amend policy)
- Cowan Systems, Inc. v. Harleysville Mut. Ins. Co., 457 F.3d 368 (4th Cir. 2006) (analysis of 'third person' under insured contract)