MEMORANDUM OPINION
I. INTRODUCTION
Plaintiff Frederick Mutual Insurance Company (“Plaintiff’ or “Frederick”) brings this action
Presently before the Court is Plaintiffs Motion for Summary Judgment (“PI. Mot.”) (Doc. No. 59) and accompanying Memorandum of Law in Support of Plaintiffs Motion for Summary Judgment (“PI. Br.”) (Doc. No. 60); substantive responses with accompanying briefs of Defendants Dubinsky (“Dubinsky’s Br.”) (Doc. No. 67) and Ahatov and Kabildjanova (“Ahatov Br.”) (Doc. No. 68); and Frederick’s reply (“PI. Reply”) (Doc. No. 69). Defendant AAA has filed a non-substantive response stating that it does not oppose the relief requested by Frederick. (Doc. No'. 66.) Defendants Kieran and Concept have not responded.
II. FACTUAL AND PROCEDURAL HISTORY
We set out here the relevant proceedings leading up to the current litigation. We start with a brief discussion of the pending state action in the Philadelphia Court of Common Pleas; we then move to consider the worker’s compensation proceedings and end with a discussion of the particulars of this motion.
A. Philadelphia Court of Common Pleas Case
The present action seeking declaratory judgment is directly related to a pending state court action in the Philadelphia Court of Common Pleas, Ahatov et al., v. Kieran Cole Construction Inc., et al., Case No. 140900267 (Pa. Com. Pl.) (hereinafter, the “Phila. Suit”). There, Ahatov and Ka-bildjanova (Ahatov’s wife) assert tort claims arising out of a work site injury on February 12, 2013 suffered by Ahatov at a construction site located at 2301 Montrose Street, Philadelphia, Pennsylvania. Phila. Suit, Compl. at ¶¶ 9, 14.
On January 13, 2013, Dubinsky had purchased the property from Metro. (Dubin-sky Br. at 2.) Dubinsky then hired Concept as the general contractor to manage the construction of a house on the property. See Doc. No. 59-5, Pl.’s Exh. E, Building Agreement Between the Owners and the Contractor on Fee Phis Cost of Labor and Materials (“Builder’s Agreement”). While the Builder’s Agreement states that the matters were agreed upon on January 15, 2013, the document was not executed until August 7, 2013. (Id.) In any event, Concept promptly began work after January 15. By early February, Concept hired Tull, Aha-tov’s employer, as the HVAC contractor. Phila. Suit, Compl. at ¶ 4, 11. On February 12, 2013, Ahatov suffered a fall through an “unguarded hole” on the first floor to the concrete basement floor, sustaining serious injuries. (Id. at ¶ 14.) On September 1, 2014, after retaining counsel, Ahatov and Kabildjanova filed the underlying state action naming Kieran, Tull, Concept, AAA, Metro, Dubinsky, and John Doe A-J and John Doe Corporations A-J for (1) a failure to carry adequate workers’ compensation insurance, (2) negligence at the construction worksite, and (3) loss of consortium by Kabildjanova. (id. at ¶¶ 2-8, Count I, Count II, and Count III.) We understand This case to be awaiting trial.
B. Worker’s Compensation Benefits Proceeding
On January 8, 2014, Ahatov filed a petition for worker’s compensation benefits asserting that Concept was his employer at the time of the.accident; See Doc.-No. 59-2, PL’s Exh. B, Claim Petition for Benefits from Uninsured Employer-and the Uninsured Employers Guaranty Fund (‘W.C. Claim”). The matter was heard and on August 25, 2015, a final decision was rendered, holding that Concept was Ahatov’s “statutory employer” at the time of the accident and that Concept was therefore obligated to pay Ahatov’s worker’s com
C. Current Litigation
At the time of the incident, Concept and only Concept was the named insured on the Contractors Special Policy issued by Frederick. See Doc. No. 59-4, Pl.’s Exh. D, Contractors Special Policy (“Policy”). The Policy was purchased for a “one-shot” construction project and was issued for one year with an inception date of January 9, 2013. See Doc. No. 67-4, Def. Dubinsky’s-Exh. B, Builders Risk Coverage Declarations. Upon the filing of the underlying state action, Concept tendered its defense arid indemnity to Frederick. Frederick accepted the tender with a Reservation of Rights. See Doc. No. 60. Dubinsky also tendered to Frederick but Frederick rejected the tender asserting that it had no duty to defend or indemnify. See- Doc. No. 3, PL’s Exh. A, Case No. 2:16-cv-02234. Frederick now seeks an affirmation by way of declaratory judgment filed on April 27, 2016.” See Doc, No. 1. Specifically, Frederick seeks the entry of an order declaring that it has “no duty or obligation to. defend [or indemnify] Defendant Concept [or Defendant Dubinsky] and/or any other person or entity under the Policy with respect to claims asserted by Defendants Ahatov and Kabildjanova. in the underlying action.” Doc. No. 1; Doc. No. 1, Case No. 2:16-cv-02234.
III. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if there is no genuine issue of material fact and “the moving party is entitled to judgment as a matter of law,” Fed. R. Civ. P. 56(c). An issue is “genuine” if the evidence is such that, if-accepted, “a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
Under Pennsylvania law, the interpretation of an insurance contract is a question of law for the court to decide. Reliance Ins. Co. v. Moessner,
With respect to non-movánts who fail to respond to a motion for summary judgment, Federal Rule of Civil Procedure 56(e) explains that the court may: “(1) give an opportunity to properly support or address the fact; (2) consider the fact uridis-puted for purposes of the motion; (3) grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it; or (4) issue any other appropriate order.” The 2010 Advisory Committee Notes to subdivision (e) states that:
[S]ummary judgment cannot be granted by default even if there is a completefailure to respond to the motion, much less when an attempted response fails to comply with Rule 56(c) requirements. Nor should it be denied by default even if the movant completely fails to reply to a nonmovant’s response. Before deciding on other possible action, subdivision (e)(1) recognizes' that the court may afford an opportunity to properly support or address the fact. In many circumstances this opportunity will be the court’s preferred first step.
The Declaratory Judgments Act may be invoked by parties to an insurance contract to interpret their obligations under the contract. General Accident Ins. Co. v. Allen,
IV. DISCUSSION
Frederick makes two principal arguments. First, it asserts that the following three exclusions in the Policy between Frederick and Concept bar coverage for Concept: (1) exclusion 11, which bars coverage for bodily injury.of an employee that occurs in the course of employment; (2) exclusion 12, which bars coverage for bodily injury that should be covered under workers’ compensation insurance; and (3) the cross-liability exclusion. (PI. Br. at 9.) Second, it asserts that Dubinsky is also not owed coverage under the Frederick Policy as it is not an insured, an “additional insured”, or an insured under the Contractual Liability Coverage provision. ’ ’
A. The Policy
In this section we set out the relevant provisions that fit within the Policy, which the parties agree was in full force and effect on February 12, 2013 when Ahatov suffered his fall. We have reviewed the Policy as it pertains to Frederick’s obligations to Concept, its named insured, and also to Dubinsky who claims coverage. As applicable here, we pay particular attention to those “Commercial Liability Coverage Section[s]” for “Bodily Injury Liability/Property Damage Liability” and “Personal Injury/Advertising Injury Liability.” The “Bodily Injury Liability/Property Damage Liability” coverage provides a commitment by Frederick to “pay all sums which an ‘insured’ becomes legally obligated to pay as ‘damages’ due to ‘bodily injury’ or ‘property damage’ to which this policy applies.” Doc. No. 59-4, PL’s Exh. D, Policy, at 13. Under the “Personal Injury/Advertising Injury- Liability” coverage, Frederick commits to “pay all sums which an ‘insured’ becomes legally obligated to pay as.‘damages’ due to ‘per
Returning to the bodily injury liability coverage, payment for this kind of injury is excluded “if it occurs [to an “employee”] in the course of employment by the “insured”. (Id. at 19.) The Policy goes on to articulate that benefits are not available for any consequential injury to a spouse of an injured employee. (Id) The exclusion continues to articulate that it “applies where the ‘insured’ is liable either as an employer or in any other capacity; or there is an obligation to fully or partially reimburse the third party for ‘damages’ arising out of [a bodily injury occurrence].” (Id.) Similarly, the exclusion provides that Frederick does not pay for bodily injury where the “benefits are provided or are required to be provided by the ‘insured’ under workers’ compensation, disability benefits, occupational disease, unemployment compensation, or like law.” (Id.) (emphasis added). Frederick also notes the cross-liability exclusion in the Policy that precludes coverage for bodily injury to an insured. (Id. at 3.) We accept that Concept, as argued by Ahatov, believes that these exclusions do not apply. For the reasons we have set out within, we do not agree with Ahatov on this point as we find the language of the Policy to be straightforward, clear, unambiguous, and enforceable as written.
Next, the relevant provisions raised by Dubinsky, who is seeking coverage, are the “Additional Insured Owners, Lessees, or Contractors (Automatic Status)” provisions, the “Contractual Liability” provisions, and the “Exclusions That Apply to Bodily Injury, Property Damage, Personal Injury, and/or Advertising Injury.” The “Additional Insured Owners, Lessees, or Contractors (Automatic Status)” coverage provides that an additional insured may be added to the insured’s Policy when the insured and a person or organization have agreed in a “written contract or agreement that such person or organization be added to [its] policy as an additional insured.” (Id. at 4.) The “Contractual Liability” coverage is offered as supplemental coverage and commits Frederick to pay for bodily injury liability assumed in a contract or agreement “under which [the insured] assume[s] tort liability to pay ‘damages’ because of ‘bodily injury* ... Tort liability means a liability that would be imposed by law in the absence of any contract or agreement.” (Id. at 14.) However, this grant of coverage is an exception to the Policy’s contractual liability exclusion, which provides that Frederick is not committed to paying for bodily injury liability “which is assumed by the ‘insured’ under a contract or an agreement.” (Id. at 17.) Under the Policy, this exclusion does not apply to situations “covered under Contractual Liability 'Coverage [the supple
B. Whether Coverage Is Owed to Concept Under The Policy
In this section, we analyze whether the Frederick Policy provides coverage to Concept. We begin by setting out Frederick’s arguments for why coverage is not owed to Concept, examine Ahatov’s defenses, and provide our analysis of the issue. We ultimately find that Concept is. not covered under the Policy.
1. Frederick’s Position
Frederick argues that coverage is- not available under the Policy ‘for the benefit of an employee, here Ahatov, where the Policy “clearly and unambiguously bar[s] coverage from applying where the insured is the employer of the plaintiff and/or if the insured was required to provide worker’s compensation benefits to the plaintiff by law.” (PL Br. at 9.) Frederick specifically points to exclusion 11, exclusion 12, and the cross-liability exclusion of the Policy. Exclusions 11 and 12 provide in relevant part:
11. ‘We” do not pay for:
a. “bodily injury” or “personal injury” to an “employee” of the “insured” if it occurs in the course of employment by the “insured”, or
b. “consequential injury” to a spouse, child, parent, brother, or sister of such injured “employee”
This applies where the “insured” is liable either as an employer or in any other capacity; or there is an obligation to fully or partially reimburse a third party for “damages” arising out of paragraph ll.a. or ll.b. above.
This exclusion does not apply to liability assumed by the “insured” under a contract covered under Contractual Liability Coverage.
12. We” do not pay for “bodily injury” ... if benefits, are provided or are required to be provided by the “insured” under a workers’ compensation, disability benefits, or occupational disease, unemployment compensation, or like law.
Doc. No. 59-4, Pl.’s Exh. D, Policy, at 19. Frederick contends that Pennsylvania courts have recognized such exclusion clauses as valid, enforceable, and unambiguous. (Pl. Br. at 9.) Frederick points to Inman v. Nationwide Mutual Insurance Company,
To find otherwise would encourage employers to ignore their obligation to obtain workers’ compensation insurance and rely on their general liability policy.... Such a result would create an imbalance in procurement of insurance and compound confusion and enforceability of the comprehensive basic social policy enunciated by the [Workers’ Compensation] Act.
Frederick asserts that because Concept was Ahatov’s statutory employer, it was obligated pursuant to the Pennsylvania Workers’ Compensation Act to provide workers’ compensation benefits to Ahatov. (PI. Br. at 11.) Frederick points to the Workers’ Compensation Judge’s decision issued on August 26, 2015, holding that Concept was “legally obligated pursuant to the Pennsylvania’s Worker’s Compensation Act to pay benefits to the Claimant, as the statutory employer of the Claimant.”
Frederick contends that the cross-liability exclusion also excludes coverage to Concept. (Id.) The cross-liability exclusion provides: “ 'We’ do not pay for ‘bodily injury’ (or ‘personal injury’, if provided by the Commercial Liability Coverage) to ah ‘insured.’” (PI. Br. at. 4; see Doc. No. 59-4, PL’s Exh. D, Policy, at 3.) Plaintiff explains that the Frederick Policy defines an “insured” as including employees of Concept, ' as it provides: “ ‘Insured’ also include: (h) ‘your’ ‘employees’, for acts within the scope of their employment by ‘you’ ...” Doc. No! 59-4, Pl.’s Exh. D, Policy, at 10. Frederick argues that Ahatov’s judicial admission that Concept was his employer in the Workers’ Compensation Claim Petition, as well as the Judge’s ruling that Ahatov was a statutory employee of Concept, “places (Ahatov] squarely within the Policy definition of an insured.” (PI. Br. at 13-14.) As such, Frederick argues that because Ahatov is an “insured” under the Policy, the cross-liability exclusion bars any coverage from being owed. (PI. Br. at 14.)
2. Ahatov’s Response and the Court’s Analysis
We found Defendants Ahatov and Ka-bildjanovas’ (hereinafter, “Ahatov”) re
a. Ambiguous and Confusing
Upon a careful reading of the Policy, and understanding its simple structure of providing coverage grants and then setting out exclusions, we conclude that these provisions related to workers’ compensation (exclusions 11 and 12) and the cross-liability exclusion clearly and unambiguously preclude coverage to Concept. We begin, as we must, by acknowledging that: “[a]n insurer who disclaims its duty to defend based on a policy exclusion bears the burden of proving the applicability of the exclusion.” Erie Ins. Co. v. Muff,
Frederick has accepted that it has the burden to prove the applicability of the relevant exclusions. We conclude that it has met this burden and has provided persuasive case law to support its position. TJie plain meaning of. exclusion 11 precludes coverage for bodily injuries, suffered by employees in the course of their employment by the insured. Doc. No. 59-4, Pl.’s Exh. D, Policy, at 19. It is undisputed that the “insured” in this context is Concept. While. Ahatov was reportedly employed by Tull, the subcontractor, his entitlement to benefits, unfulfilled by Tull’s failure to secure workers’ compensation insurance, kicks up to Concept as the general contractor. See Doc. No. 59-3, Pl.’s Exh. C, W.C. decision. Further, Aha-tov is the “employee” of Concept given his judicial admission in the Workers’ Compensation Claim Petition and the Workers’ Compensation Judge’s ruling that he was Concept’s statutory employee.
We also conclude that the plain meaning of exclusion 12 precludes coverage for bodily injury where, as here, the insured was required under the Pennsylvania Workers’ Compensation Act to have workers’ compensation insurance but failed to do so. Doc. No. 59-4, Pl.’s Exh. D, Policy, at 19. Concept is thus barred under this exclusion. Inman provides clear reasoning:
To find otherwise would encourage employers to ignore their obligation to obtain workers’ compensation insurance and rely on their general liability policy ... Such a result would create an imbalance in procurement of insurance and compound confusion and enforceability of the comprehensive and basic social policy enunciated by the [Workers’ Compensation] Act.
Inman,
We also conclude that Frederick met its burden by establishing that the cross-liability provision clearly and unambiguously precludes coverage for bodily injury to an insured. The cross-liability exclusion provides: “ We’ do not pay for ‘bodily injury’ (or ‘personal injury’, if provided by the Commercial Liability Coverage) to an ‘insured’.” Doc. No. 59—4, PL’s Exh. D, Policy, at 3. The Policy defines an “insured” to include “(h) ‘your’ ‘employees’, for acts within the scope of their employment by ‘you’ ...” (Id. at 10.) Ahatov’s judicial admission that Concept was his employer in the Workers’ Compensation Claim Petition and the Workers’ Compensation Judge’s ruling that he was a statutory employee of Concept control here. See Doc. No. 59-2, PL’s Exh. B, W.C. Claim; Doc. No. 59-3, PL’s Exh. C, W.C. Decision. As an employee of Concept, Ahatov was an “insured” under the Policy. The cross-liability exclusion, therefore, precludes coverage to him for any bodily injury.
Ahatov’s response demonstrates his frustration that the Policy fails to provide Concept a benefit that he can use, even though the exclusions take into account that the workers’ compensation regime has already provided him with substantial benefits—payment of his medical expenses and lost wages. He complains that there is no signature on the Policy, that it was not certified,
b. Adhesion
The Third Circuit explains that “insurance policies are often adhesion contracts prepared by the insurer on its own forms, [so] ambiguities in the policy should be resolved against the insurer and not against the policy holder.” Treasure Craft Jewelers, Inc. v. Jefferson Ins. Co. of N.Y.,
c. Statutory Employer
■ Finally, we also reject Ahatov’s argument, which he characterizes as workers’ compensation immunity. (Ahatov Br. .at 14.) Ahatov asserts that while the UEGF paid benefits to Ahatov because Tull and Concept did not hold workers’ compensation insurance, UEGF now holds a lien for proceeds that are received from the underlying state suit. (Ahatov Br. at. 14-15.) Ahatov contends that this is unfair because Tull and Concept.should not benefit from a rule intended to.protect injured workers. (Id. at 15.) Specifically, Ahatov finds it is unfair that Concept and Tull have to pay nothing to him and that the UEGF.can take any proceeds that he receives in the underlying claim. (Id.) We find this argument unpersuasive. Pennsylvania has a policy in place to protect injured workers when employers fail to obtain workers’ compensation insurance, and those benefits have afforded Ahatov over $200,000 in benefits from the UEGF.
For the aforementioned reasons, we conclude that Frederick’s policy precludes
C, Whether Coverage Is Owed to Michael Dubinsky Under the Policy
We now consider whether the Frederick Policy provides coverage to Dubinsky. We begin by setting out Frederick’s arguments for why coverage is not owed, examine Dubinsky’s responses, and provide our analysis. We ultimately find that coverage is not available to Dubinsky for the underlying sfyte court claims.
1. Frederick’s Position
Frederick asserts that it has no duty to defend or indemnify. Dubinsky. (PL Br. at 14.) Frederick first notes that Dubinsky is not a named insured and does not fall ■within any policy definition of an insured. (Id.; see Doc. No. 59-4, Pl.’s Exh. D, Policy, at 10-11.)
Frederick then notes Dubinsky’s argument that he should be deemed an “Additional Insured” under a policy amendment entitled: “Additional Insured Owners, Lessees, or Contractors—Automatic Status.” (Pl.;Br. at 14; Doc. No. 59-4, PL’s Exh. D, Policy, at 4.) Frederick points out, however, that this argument fails in that one can become an additional insured only if: ■
2. Undér Definitions, the definition of “insured” is amended to include as an additional insured any person or organization for whom “you” are performing operations when “you” and that person or organization have agreed in a written contract or agreement that such person or organization be added to “your” policy as an additional insured.
(Id.) (emphasis added). Frederick argues that “the most basic requirement to obtain this status [additional insured] has not been satisfied here.” (PL Br. at 14.) Frederick points to the Builder’s Agreement, which sets out certain rights and obligations between the parties but is silent on the question of whether Dubinsky has rights as an additional insured.-(Id.) Frederick notes that the Builder’s Agreement was not even executed until August 2013, some six months after the accident. (Pl. Br. at 14-15.) Frederick argues that there was no written contract in place at the time of the accident and thus Dubinsky does not qualify as an “additional insured.” (PL Br. at 15.)
Frederick then considered the “Supplemental Coverage” of the Commercial Liability Coverage Section of the Policy, which provides:
CONTRACTUAL LIABILITY
1. We cover “bodily injury” ... liability which is assumed under the following contracts or agreements:
f. any part of any other contract or agreement relating to. the conduct of “your” business ... under-which "you” assume tort liability to pay "damages” because of “bodily injury” ... Tort liability means a liability that would be imposed by law in the absence of any contract or agreement.
Doc. No. 59-4, PL’s Exh. D, Policy, at p. 14 (emphasis added). This supplemental coverage could be said to come into play if Concept assumed liability for damages based upon Dub-bisk/s conduct. This coverage, Frederick explains, is an exception to the Policy’s Contractual Liability exclusion, which provides:
1. “We” do not pay for “bodily injury” .... liability which is assumed by the “insured” under a contract or an agreement. ; -
This exclusion does not apply to:
b. “bodily injury” ... covered under Contractual Liability Coverage, provided that the “bodily injury” ... occurs, after the effective date of the contract or agreement.
Moreover, Plaintiff argues that even “if coverage was owed to Concept under the Contractual Liability provision, it would not apply here because the wording of the indemnity clause and the procedural posture of the claims preclude such an outcome.” (Id.) Frederick asserts that the indemnity clause in the contract between Concept and Dubinsky does not require Concept, as an indemnitor, to provide a defense for Dubinsky. (Id.) The indemnity clause in the agreement provides: “The builders [Concept] shall indemnify the owner [Dubinsky] in respect of all claims, damages or expenses payable in consequence to any injury to any employee, workman, nominee, invitee, while in or upon the same premises....” Doc. No. 59-5, PI. Exh. E, Building Agreement Between the Owners and the Contractor on Fee Plus Cost of Labor and Materials (“Builder’s Agreement”). Further, Plaintiff explains that the clause “only requires indemnification for liability imposed upon Dubinsky (the owner) for Concept’s (the builder’s) negligence—it does not impose upon Concept Development an obligation to indemnify Dubinsky for Dubinsky’s own negligence.” (Id.) Frederick points to the Ruzzi v. Butler Petroleum Co., 527 Pa. 1,
The law has been well settled in the Commonwealth for 87 years that if parties intend to include within the scope of their indemnity agreement a provision that covers losses due to the indemni-tee’s own negligence, they must do so in clear and unequivocal language. No inference from words or general import can establish such indemnification.
Frederick argues that because the Builder’s Agreement contains no language whereby Concept agreed to indemnify Du-binsky for the Dubinsky’s own negligence, “as a matter of law, the indemnity clause can only apply to require Concept Development to indemnify Dubinsky for liability imposed upon Dubinsky for Concept Development’s negligence.” (PI. Br. at 17.) Plaintiff asserts that the underlying state action only includes claims for Dubinsky’s direct active negligence, not claims seeking to impose liability upon Dubinsky vicariously for the conduct of Concept. (Id.) Frederick points out that all of the claims Ahatov asserts against Dubinsky are assertions of Dubinsky’s direct negligence and not assertions seeking to hold him liable for Concept’s negligence. (PI. Br. at 18.) Accordingly, Frederick contends that indemnity is not owed to Dubinsky under the Builder’s Agreement clause and thus, no coverage is owed under Frederick’s Policy. (Id.)
2. Dubinsky’s Response
Dubinsky rejects Frederick’s argument. First, he asserts that Concept specifically purchased the Frederick Policy for the
Dubinsky next argues that at a minimum, he is owed a defense as the duty to defend is broader than the duty to indemnify. (Id.; citing Kvaerner Metals Div. of Kvaerner U.S., Inc. v. Commercial Union Ins. Co.,
Finally, Dubinsky argues that Frederick was wrong to disclaim coverage for contractual liability. (Dubinsky Br. at 4.) He explains that in the Builder’s Agreement, Concept agreed to secure insurance and indemnify him for any bodily injury claims that occurred during the construction of his home. (Id.) Dubinsky asserts that while Frederick argues the Builder’s Agreement was executed after the. incident occurred (and for this reason is invalid), the contract, “by, its terms, confirms and ratifies the agreement between CD and Mr. Dubinsky entered into when the policy went into effect on January 9, 2013.” (Id.) We reject this argument. The Contractual Liability coverage is provided as a Supplemental Coverage (as opposed to Principal Coverage) under the Frederick Policy. See Doc. No. 59-4, PL’s Exh. D, Policy, at p. 14. It provides a grant of coverage for “bodily injury” liability that is assumed under “any part of any .... contract or agreement relating to the conduct of [the insured’s] business ... under which [the insured] assume[s] tort liability to pay ‘damages’ because of ‘bodily injury’.” (Id.) While Dubinsky argues that he is owed coverage under this provision because Concept agreed to indemnify him. for any bodily injury claims in the Builder’s Agreement, we find no. support for this assertion. See Dubinsky Br. at 4. The indemnity clause in the Builder’s Agreement provides: “The builders shall indemnify the owner in respect of all claims, damages or expenses payable in consequence to any injury to any employee, workman, nominee, invitee, while in or upon the same premises....” We find that the ■ plain meaning of this clause only requires indemnification for liability imposed upon Dubinsky by Concept’s negligence, not liability imposed upon Dubinsky for Dubin-skjfs own negligence. See Doc. No, 59-5, PI. Exh. E, Builder’s Agreement. As the court in Ruzzi explained, “if the parties intend to include within the scope of their indemnity agreement a provision that covers losses due to the. indemnitee’s own negligence, they must do so in clear and unequivocal language.” Ruzzi,
We grant summary judgment in favor of Frederick as to the claims arising out of the February 12, 2013 accident involving Ahatov. The Policy exclusions with respect to workers’ compensation coverage and cross liability preclude these claims. We also conclude that Dubinsky has not only failed to establish the benefits as a named insured or additional insured under the Policy, but also failed to prove that the Policy’s Contractual Liability Coverage covers him. For the reasons set out above, we entered our Order on March 31, 2017, granting Plaintiffs Motion for Summary Judgment, (Doc. No. 74.)
Notes
. The Court consolidated Case No. 2:16-cv-02234 with the current case, Case No. 2:15-cv-2285, in response to a motion filed by Frederick. (Doc. No.-33.) In the - earlier case, Case No. 2:15-cv-2285; Frederick brought a claim against AAA, Ahatov, Kabildjanova, Concept, Dubinsky, Tull, Kieran, and Metro, specifically seeking a declaratory judgment that it had no duty to defend or indemnify Concept under the Frederick insurance policy in the underlying tort action.' See Doc. ’No." 1. On'December 18, 2015, Frederick filed a! Motion to Dismiss Dubinsky as it was 'unable to
. The underlying action refers to the state tort personal injury claims brought by Ahatov and Kabildjanova against Concept, Dubinsky, and others in the Philadelphia Court of Common Pleas. See infra Section II.A.
. Both Kieran and Concept were served but failed to retain counsel to offer any opposition. Kieran was served on May 15, 2015. See Doc. No. 6, A default judgment was entered on July 30, 2015 against it for a failure to file a timely responsive pleading. See Doc. No. 10 and accompanying default entry.
We expand briefly with respect to Concept as the relief sought has more significant implications for Concept given its status as the named insured under the Frederick Policy. The Supreme Court of the United States has confirmed that "[i]t has been the law for the better part of two centuries ... that a corporation may appear in federal courts only through licensed counsel.” Rowland v. California Men’s Colony,
We note that Concept’s principal (Michael Friedman) was properly served on November 6, 2015. See Doc. No. 15. Concept failed to file a timely response or pleading leaving Frederick to file a Motion for Entry of Default Against Defendant Concept. See Doc. No. 18. The record next shows a letter from Friedman to the Court, docketed on March 9, 2016, explaining that he was only recently informed about the case (from Frederick's counsel) and requested time to obtain counsel. See Doc. No. 20. On that same day, the Court denied Frederick's motion and instructed Concept to notify the Court within 20 days of that order “that counsel has been retained to represent [the] corporation." Doc. No. 21. On April 25, Friedman sent a letter to the Court explaining that he was unable to retain representation "due to [his] extremely limited financial resources.” Doc. No. 28. On May 4, 2016, the Court sent a letter to Friedman providing:
Please be advised that I am unable to give you any advice or guidance concerning this case. I will tell you that you have been properly served, therefore, Concept Development Group, Inc. is a party to, and will be bound by the results in the case before me. Because Concept Development is a corporation, you cannot proceed in this case without the representation of an attorney. Your interests would be best served by retaining legal counsel.
Doc. No. 29. Despite the notice, Concept failed to retain counsel. We conclude that
. With respect to Concept, we note that it failed to obtain, counsel and respond to the summary judgment motion in' a timely manner. In accordance with Rule 56(e)(1), the Court provided additional time for Concept to show cause as to whether Frederick’s motion was unopposed and whether Frederick was entitled to the relief requested. See Doc. No. 61. As Concept failed again to' appear in this case through counsel and to, respond to the summary judgment motion, the Court holds the discretion .to "grant, summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it.” Fed. R. Civ. Pro. 56. For the reasons discussed in this Memorandum Opinion, we grant Frederick’s motion. In so doing, we take into account the robust opposition presented by Ahatov—the party who has the most significant interest in seeing that Frederick's motion is denied.
. Plaintiff cites to additional cases that resulted in the same conclusion. See, e.g., State Auto. Mut. Ins. Co. v. Christie, 802 A.2d 625, 626-28 (Pa. Super. 2002); Nautilus Ins. Co. v. Gardner,
. The Judge’s decision found Concept to be a "statutory employer” under Section 302(b) of the Workers’ Compensation Act (see Doc. No, 59-3, Pl.’s Exh. C. W.C. Decision, at 20), which provides:
Any employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employe[e] or contractor, for the performance upon such premises of a part of such employer's regular business entrusted to that employee or contractor, shall be liable for the payment of compensation to such laborer or assistant un.less such hiring employe[e] or contractor, if primarily liable for the payment of such-compensation, has secured the payment thereof as provided for in this act. Any employer or his insurer who shall become liable hereunder for such compensation may recover the amount thereof paid and any necessary expenses from another person if the latter is primarily liable therefor[e].
. No appeal was filed in the workers’ compensation case thus making the ruling final.
"Adjudications by worker’s compensation judges in Pennsylvania are afforded collateral estoppel/res judicata effect, barring re-litigation of the issues decided in the worker's compensation forum by those same parties in a later civil action.” Grant, 608 A.2d at 1055 .
. Frederick supplemented the record with a certified copy of the Policy on March 24, 2017. See Doc. No. 73, Exh.’s 1-3.
. The Artisans Declarations simply sets out the forms and endorsements which are contained within the Policy. It does identify the dates of coverage.
.Ahatov provides a list of terms that he believes do not have plain meaning in the Policy and argues that it is especially difficult for Friedman- and Dubinsky to understand them as neither had English as their first language. (Ahatov Br. at 8-9.) This argument fails. Some of the terms listed are defined in the “Definitions” section of the policy—including, the terms "employee”, "insured”, and “additional insured.” One of the "confus
. Ahatov argues that the Contractual Liability Coverage is also confusing and ambiguous but we reserve a fuller discussion on this provision to Section IV.B. We do, however, set out a few comments here. First, Ahatov fails to provide much (or clear) detail as to why or how the Policy provisions contradict each other. See Ahatov. Br. at 10—11. While he states that the language of the Supplemental Coverage is contrary to the language of the exclusion, he gives no explanation as to how this is the case. See id, at 11. Second, Ahatov argues that the provisions are confusing because the paragraphs are pages apart and typed in columns but again, we fail to see how this establishes that the provisions are confusing and ambiguous. See id.; see also Seidenberg v. Mutual Life Ins. Co. of New York,
. We note that there were other potential remedies available to Ahatov and Concept here. Specifically, claims could have been pursued (given proper standing) against the insurance broker for not clarifying the coverage under the Policy. The broker presumably knew the Policy concerned a construction project and that workers’ compensation insurance was required under the law. However, even if such clarification was given and Concept had acquired workers', compensation insurance, Ahatov would still only have received the benefits that he has already obtained from the UEGF.
. Ahatov also unpersuasively argues that coverage is owed to Concept because Friedman had the "reasonable expectation” of' coverage. However, as discussed earliér, we reject this argument because this case is not decided upon what the insured mistakenly believed to be true but rather what the Policy unambiguously states.
. Ahatov malees one, final argument that we will not discuss in detail. He asserts that the relationship between Dubinsky and Friedman was actually that of joint venturers and not that of a property owner and general contractor. Contrary to counsel’s statement at the oral argument- that this theory was raised in the underlying state complaint, a review of the complaint shows otherwise. As the statute of limitations has passed on such a claim, and the workers’ compensation judge already established that the relationship between the two was that of property- owner and general contractor, we will not address this argument any further. We also fail to see how it effects our coverage analysis.
. Dubinsky "does not dispute the factual averments in the Motion regarding the terms, conditions and exclusions in the Policy at issue in this matter. It is also undisputed that the Policy was in full force and effect at the
. While Dubinsky does not direcdy argue that he is an “insured” under the Policy, we note that the Policy lists nine different ways in which one can become an "insured” but none apply to Dubinsky. See Doc. No. 59-4, Pl.’s Exh. D, Policy, Contractor’s Liability Coverage Section, Definitions, No. 8 "insured”, at 10-11.
. While this defense was not raised, we note that the oral agreement allegedly made on January 15, 2013 (which was later executed as the written Builder’s Agreement on August 7, 2013) is. not enough to qualify as a "written contract or agreement”, as required by the Frederick Policy. The Third Circuit has held that while the argument may be made that the term “written contract or agreement” is ambiguous in that it could be interpreted to mean "written contract or (any written or oral) agreement,” the only reasonable interpretation is "written contract or (written) agreement” as the word “written” modifies both "contract” and "agreement”. Quincy Mut. Fire Ins. Co. v. Imperium Ins.
.Dubinsky also contends that: ”[s]o as to not render the Policy illusory, given that coverage to [Concept] was denied under the "Employee” exclusion, Mr. Dubinsky should be deemed an Additional Insured under the Policy and should be afforded coverage.” (Du-binsky Br. at 4.) We find this argument merit-less as Dubinsky has offered no authority to , support such a statement. We suffice it to say that for the reasons mentioned earlier, Dubin-sky does not qualify as an "additional insured” under Frederick’s Policy.
. ' Specifically, Ahatov brought the following claims against all defendants, including Du-binsky, for: (1) a failure to carry adequate workers’ compensation insurance, (2) 'negligence at the construction worksite, and (3) loss of consortium by Kabildjanova.
. While Frederick also set out the exclusion (in the principal coverage) to Contractual Liability Coverage and the exception to the exclusion, we stop our analysis here. As Dubinsky has failed to establish his protection under the