¶ 1. Miller Brewing Company appeals from the trial court's grant of summary judgment, holding that Miller has no coverage under the insurance policy issued by Acuity, a mutual insurance company, to Selzer-Ornst Company, a general contractor hired by Miller, to which Miller was added as an "additional insured." Miller also appeals from the trial court's grant of declaratory judgment holding that neither J.F. Cook & Company, Inc., a subcontractor hired by Selzer-Ornst, nor its insurer, Milwaukee Mutual Insurance Company, is obligated to defend or indemnify Miller, also added as an "additional insured" to the Milwaukee Mutual policy, for the claims alleged in Thor C. Mikula's complaint against Miller, or any judgment resulting therefrom.
. ¶ 2. Miller contends that: (1) Acuity's additional insured endorsement covers Miller for liability arising out of Selzer-Ornst's ongoing operations; (2) the Mikula *718 complaint triggered Milwaukee Mutual's defense obligations to Miller under its additional insured endorsement in two different ways; and (3) J.F. Cook is contractually obligated to defend and indemnify Miller for the Mikula claim. Because we conclude that Miller is covered as an additional insured under both policies, and J.F. Cook has a duty to indemnify Miller for the Mikula claim, we reverse.
I. Background.
¶ 3. Miller contracted with Selzer-Ornst, a general contractor, for the installation of new windows and the performance of other improvements at Miller's Milwaukee brewery facility. As a condition of the construction contract, Selzer-Ornst was to have Miller added as an "additional insured" on its general liability insurance policy, which was issued by Acuity. It did so, and provided Miller with a Certificate of Insurance listing Miller as an additional insured on the policy. The policy provides, in .relevant part, as follows:
Who Is an Insured is amended to include as an insured any person or organization for whom you [Selzer-Ornst] are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy. Such person or organization [Miller] is an additional insured only with respect to liability arising out of your ongoing operations performed for that insured. A person's or organization's status as an insured under this endorsement ends when your operations for that insured are completed.
¶ 4. Selzer-Ornst subcontracted with J.F. Cook to replace the windows at the brewery. They similarly added Miller, pursuant to a contract, as an additional *719 insured on their policy. J.F. Cook's Milwaukee Mutual policy provides, in relevant part, as follows:
Each of the following is also an insured:
a. Any person or organization you [J.F. Cook] are required by a written contract, agreement, or permit to name as an insured, but only with respect to liability arising out of:
1. "your ongoing operations" performed for that insured at the location designated in the contract, agreement, or permit; or
2. premises owned or used by you.
J.F. Cook's contract with Selzer-Ornst also included the following indemnity clause:
The Sub-Contractor [J.F. Cook] shall indemnify and save harmless the Owner [Miller], the Architect, the Contractor [Selzer-Ornst] and their respective agents from any and all liability, payments and expenses of any nature for injury or death to any person, or persons, or for damage to any property, caused or alleged-t-o-have been caused by the Sub-Contractor, or incidental to the execution of work under this contract by the SubContractor, his agents or employees; and the SubContractor shall maintain from the beginning until the completion of his work policies of insurance satisfactory to the Contractor, covering the liabilities above mentioned, such as employers' liability insurance, public insurance, contingent insurance, etc.
(Strikethrough in original.)
¶ 5. On December 17, 2002, Mikula, an employee of J.F. Cook, was injured "while carrying out his job duties to replace industrial windows at [the] Miller [brewery,]" when the doors of a cargo elevator slammed together and crushed his left hand. On May 6, 2003, Mikula filed a complaint against Miller and ABC Insur- *720 anee Companies 1 alleging that Miller was negligent in failing to maintain the condition of its premises, to warn frequenters that a hazardous condition existed, and to take precautions or make provisions to protect against the hazard. The complaint also alleged that Miller violated Wisconsin's safe place statute, Wis. Stat. § 101.11, in that Miller failed to provide for the safety of the premises; the "premises were not as safe as its nature reasonably permitted" because of a condition for which Miller was responsible; and Miller had complete control over the premises, with actual or constructive knowledge of their "unsafe nature." Mikula alleged that this negligence and carelessness in maintaining the property were the direct and proximate causes of his injury.
¶ 6. Miller tendered its defense to Acuity, seeking coverage as an additional insured under Selzer-Ornst's general liability policy. Acuity agreed to defend Miller, and also retained separate counsel to challenge coverage. Acuity moved for summary judgment, "seeking a ruling that it does not provide free liability insurance coverage to Miller ... when an employee of a subcontractor[,] J.F. Cook[,] is injured by a negligent condition *721 left by an additional insured (Miller) absent any negligence of the general contractor (the insured, Selzer-Ornst)." Acuity also filed a counterclaim against Mikula and a cross claim against Miller "on the basis that Miller is not an additional insured on Selzer-Ornst's CGL policy." (Emphasis in original.) Thus, Acuity sought the "dismissal of all claims against it on the grounds that it does not provide coverage for Miller."
¶ 7. Before Acuity's motion for summary judgment was decided, Miller filed a third party complaint against Milwaukee Mutual and J.E Cook. 2 First, Miller claimed that, based on the indemnity language in the subcontract between J.F. Cook and Selzer-Ornst, J.F. Cook has a contractual obligation to indemnify and hold Miller harmless for Mikula's injuries arising out of his work on Miller's premises. Second, Miller claimed that, pursuant to the insurance policy issued to J.F. Cook, Milwaukee Mutual must defend and indemnify Miller as an additional insured for the claims asserted by Mikula.
¶ 8. Shortly thereafter, the trial court granted Acuity's motion for summary judgment, concluding that the Acuity policy provides no coverage for Miller, and dismissing all claims against Acuity with prejudice. The trial court reasoned:
The injuries to the Plaintiff are not attributable to any negligence arising out of Selzer-Ornst's replacement of windows or other work at the Miller Brewing facility. The Plaintiff was injured by an elevator door at Miller's facility. Under this circumstance, Miller is not entitled *722 to coverage under the additional. .. insured clause of the CGL policy issued to Selzer-Ornst. Miller has argued that it expected it would be protected from personal injury claims that arose out of the work it contracted for with Selzer-Ornst. However, the injury to the Plaintiff did not arise out of Selzer-Ornst's on-going operations performed for Miller. It did not arise out of something Selzer-Ornst did or did not do or one of its subcontractors did or did not do. Rather, something happened ... with the elevator door at the Miller Brewing facility. For some reason the elevator door allegedly was not properly functioning. Selzer-Ornst had no control or responsibility for the maintenance of the elevator door. It is not reasonable to expect coverage when the injury was because of a malfunctioning elevator door on the property of the Miller facility, the additional insured. The complaint does not allege that Selzer-Ornst somehow created the hazard. The Court cannot find that there was a reasonable expectation of coverage under the facts presented in this case.
¶ 9. A couple of months later, J.F. Cook and Milwaukee Mutual filed a motion for declaratory judgment. In the motion, they argued that Miller is not an additional insured with regard to Mikula's allegations: "Mikula's injuries were not caused by his work or J.F. Cook's operations at the Miller Brewing site, but rather by a condition of the Miller Brewing premises. The fact that Mikula's work happened to be sited at Miller Park [sic] was not causally connected to the injury, or to Miller's maintenance of its premises[.]" Thus, they sought a declaration from the court indicating that Milwaukee Mutual has no obligation to defend or to indemnity Miller.
¶ 10. They also argued that J.F. Cook's indemnity agreement does not require it to defend Miller. They insisted that the indemnity agreement requires J.F. *723 Cook to indemnify Miller and Selzer-Ornst for liability arising out of J.F. Cook's "actual fault" and for matters " 'incidental to the execution of...' its work at Miller Brewing[,]" and that neither applies here. They also asserted that since the indemnity agreement "does not specifically or unequivocally express any intent that J.F. Cook indemnify Miller for its own negligence [,]" Miller's claim for indemnity should be denied for that reason alone.
¶ 11. The trial court granted J.F. Cook and Milwaukee Mutual's motion for declaratory judgment, concluding:
It is not alleged that plaintiffs injuries resulted from any negligence by J.F. Cook. Plaintiffs injuries are not attributable to any negligence arising out of J.F. Cook's ongoing operations performed for Miller. The Plaintiff was injured by an elevator door at Miller's facility.
This Court has reviewed the cases cited by each party in support of its interpretation of this policy clause under this fact situation, and I am persuaded by the cases cited by J.F. Cook that hold that there must be some causal connection to the injury before there will be coverage under the provision. Such an interpretation would appear to focus on the risk for which coverage had been afforded... .
Within the four corners of the complaint, liability is alleged to have arisen solely by Miller's negligence, not J.F. Cook's. The injuries to plaintiff occurred while he was performing duties for J.F. Cook, but did not arise out of the operation of J.F. Cook.
*724 Regarding the indemnification issue, I understand that the subcontract contained several provision[s] regarding Miller's defense and indemnityL] . . .
... It is clear from case law that J[.]F. Cook could contract to indemnify Miller for its own negligence. However, in order to do so, there must be [a] clear and unequivocal statement to that effect in the agreement. ... In the present contract there is no such clear and unequivocal statement of intent. J.F. Cook has no duty to indemnify Miller for injury alleged from its own negligence.
Miller now appeals.
II. Analysis.
¶ 12. In an appeal from the entry of summary judgment, this court reviews the record
de novo,
applying the same standard and following the same methodology required of the trial court under Wis. Stat. 802.08.
See Green Spring Farms v. Kersten,
¶ 13. "A decision to grant or deny declaratory relief falls within the discretion of the circuit court."
Milwaukee Dist. Council 48 v. Milwaukee County,
¶ 14. Indeed, the construction or interpretation of an insurance policy presents a question of law to which we apply
de novo
review.
Hull v. State Farm Mut. Auto. Ins. Co.,
¶ 15. "The words of an insurance policy are to be given their common and ordinary meaning."
Danbeck v. American Family Mut. Ins. Co.,
A. Miller is covered by the additional insured endorsement of the Acuity policy.
¶ 16. Miller contends that the additional insured endorsement extends liability coverage to Miller with *726 out regard to "fault." It argues that the phrase "arising out of' is generally considered to be "broad, general and comprehensive," and requires only "some causal relationship" between the injury and the risk for which coverage is provided. "Ongoing operations," on the other hand, has not been defined by Wisconsin case law, but Miller argues that its common dictionary definition is appropriate — "ongoing" means "being actually in process" or "continuing," and "operations" refer to "the act, process, or method of operating" or "a process of actions that is part of a series in some work." (Citations in brief omitted.) Thus, Miller contends that the question becomes "whether Miller's liability for Mikula's claim arises out of Selzer-Ornst's ongoing operations."
¶ 17. As such, Miller insists that" [f] or purposes of Acuity's endorsement language, Mikula's injury 'grows out of and 'flows from' the window replacement project Selzer-Ornst did for Miller, during which it hired J.E Cook." J.F. Cook's work, and specifically Mikula's activities, Miller argues, was integral to Selzer-Ornst's work for Miller. Therefore, Miller contends that the additional insured endorsement covers Mikula's claim against Miller.
¶ 18. Miller goes on to argue that, at a minimum, the policy is reasonably susceptible to Miller's interpretation, and even if Acuity presents an equally plausible interpretation, the policy would be ambiguous and should be construed in favor of coverage. Furthermore, as there is no Wisconsin law on point, Miller contends that the overwhelming majority of courts from other jurisdictions have found coverage under additional insured provisions without regard to fault.
¶ 19. Acuity argues that the legal issue is: "absent (a) any negligence or (b) even a presence by Selzer-Ornst at the area of the accident, whether 'liability *727 arising our of your [Selzer-Ornst's] ongoing operations performed for that [additional] insured' exists when an employee (Mikula) of a subcontractor (J.F. Cook) is injured by a negligent condition left by Miller." Acuity contends that it does not. It argues that "Selzer-Ornst's .. . 'ongoing operations' were not being performed when J.F. Cook's... employee was walking through Miller's facility[,]" and absent any negligence on Selzer-Ornst's behalf, the additional insured endorsement does not apply.
¶ 20. Acuity argues that several cases from other jurisdictions have concluded that the purpose of an additional insured endorsement is to protect the additional insured from being liable for the negligence of the named insured. It essentially asserts that the "connection" between the injury and Selzer-Ornst's "ongoing operations" is too tenuous, that adopting "but for" causation is unreasonable, and that no reasonable person would expect coverage under these circumstances. Moreover, Acuity contends that "Miller should not be allowed to escape responsibility for a condition Miller solely created and controlled. Miller should not be allowed to pass off its responsibility to innocent contractors who have no ability to control every negligent condition Miller fails to maintain on its premises." Acuity insists that it is not objectively reasonable to expect the policy to provide coverage for "anything and everything" that happened on Miller's premises. We disagree with Acuity's underlying premise. The question here is whether Miller is covered as an additional insured under Selzer-Ornst's policy for claims resulting from a J.F. Cook employee's injury that occurred while the employee was performing the work J.F. Cook was *728 hired by Selzer-Ornst to do in furtherance of its contract with Miller. We conclude that it is.
¶ 21. The phrase "arising out of' has been construed broadly — "commonly understood to mean originating from, growing out of, or flowing from, and require [s] only that there be some causal relationship between the injury and the risk for which coverage is provided[,]"
Lawver v. Boling,
¶ 22. With these definitions in mind, a common sense reading of the relevant language in the additional *729 insured endorsement — "[s]uch person or organization [Miller] is an additional insured only with respect to liability arising out of your [Selzer-Ornst's] ongoing operations performed for that insured" — indicates that Miller is an additional insured with regard to Mikula's claims. That is, Selzer-Ornst hired J.F. Cook to perform certain tasks as part of the ongoing operations Selzer-Ornst was performing for Miller. It was alleged in the complaint and, in fact, it was stipulated, that Mikula, a J.F. Cook employee, was in the course of his work when injured. Thus, Miller's liability "arose out" of Selzer-Ornst's ongoing operations. Nothing in the language of the policy indicates that Miller's coverage as an additional insured with respect to "liability arising out of [Selzer-Ornst's] ongoing operations" is limited solely to the liability Miller might be exposed to as a result of Selzer-Ornst's negligence. The language is very broad.
¶ 23. Acuity argues that the connection between Mikula's injuries and Selzer-Ornst's ongoing operations is too tenuous, citing
Pro Con Construction, Inc. v. Acadia Insurance Co.,
¶ 24. We have also reviewed the other cases cited by Acuity from foreign jurisdictions concluding that the purpose of an additional insured endorsement is to protect the additional insured from the negligence of the named insured, not its own.
See, e.g., Davis v. LTV Steel Co.,
¶ 25. However, it appears that the majority of cases conclude otherwise. While the language found in all of these policies may not be verbatim — they may use the words "your work" instead of "your ongoing operations," for example — those differences are fairly immaterial to the overall question at hand. On the point of contention, whether coverage is intended and should be provided when there is no negligence alleged on behalf of the named insured, the cases, reach the same conclusion — there need not be negligence alleged against the named insured for the additional insured to be covered.
¶ 26. In
Marathon Ashland Pipe Line LLC v. Maryland Casualty Co.,
¶ 27. If the Acuity policy intended to exclude coverage for liability arising from the additional insured's own negligence, it should and could have spelled out as much.
See Swift Energy,
¶ 28. Moreover, we observe, without deciding, that should the endorsement cover only the additional insured's vicarious liability for the tortious acts of the named insured, one could argue that that coverage would be essentially illusory. That is, should the additional insured be held vicariously liable, it would presumably have an action for indemnity against the tortfeasor regardless of whether it was "covered" as an additional insured, thus rendering the additional insurance coverage essentially illusory.
See, e.g., Marathon Ashland Pipe Line,
Where the additional insured is held no more than vicariously liable for the acts of the named insured, the additional insured would have an action for indemnity against the primary wrongdoer. ’Thus, an endorsement that provides coverage only for the additional insured's vicarious liability may be illusory and provide no coverage at all.' In this light, it is obvious that additional insureds expect more from an endorsement clause than mere protection from vicarious liability.
Id. (citation omitted).
¶ 29. Thus, regardless of how other jurisdictions have interpreted policy language identical or similar to that of Acuity's policy, though the majority of the cases *734 tend to support our analysis, the essential inquiry boils down to what the reasonable entity in the position of the insured understands the language to mean. The reasonable interpretation of this broad language indicates that the additional insured is covered for liability flowing from the named insured's ongoing process of work performed for the additional insured. Here, it would be reasonable for the additional insured to expect coverage for Mikula's injury arising out of Selzer-Ornst's ongoing operations for Miller Brewing pursuant to its contract.
B. Miller is covered by the additional insured endorsement of the Milwaukee Mutual policy.
¶ 30. The Milwaukee Mutual policy, to which Miller was added as an additional insured, utilizes almost identical language as that of the Acuity policy: "liability arising out of. . . 'your [J.F. Cook's] ongoing operations' performed for that insured [Miller] at the location designated in the contract, agreement, or per-mite.]" We are satisfied that the interpretation of this language leads to the same result as the Acuity policy language. J.F. Cook, Mikula's employer, was a subcontractor of Selzer-Ornst performing work for Miller at the Miller Brewery facility. Mikula was injured in the course of his work for J.F. Cook. Miller's liability, therefore, arose of out of J.F. Cook's ongoing operations.
¶ 31. Milwaukee Mutual and J.F. Cook similarly argue, however, that there is no causal relationship between J.F. Cook's operations and Mikula's injury. They insist that "Mikula's injuries were not caused by his work or J.F. Cook's operations at the Miller Brewing site, but rather by a condition of the Miller Brewing premises." However, as Milwaukee Mutual and J.F.
*735
Cook acknowledge, proximate cause is not necessary here. What is required is "some causal relationship between the injury and the risk for which coverage is provided."
See Lawver,
¶ 32. Because we conclude that Miller is covered as an additional insured under this prong of the endorsement, we need not address the second prong, which covers the additional insured for "liability arising out of premises owned or used by you [J.F. Cook]."
C. J.F. Cook has a duty to indemnify Miller.
¶ 33. As noted, J.F. Cook's subcontract with Selzer-Ornst also included the following indemnity provision:
The Sub-Contractor [J.F. Cook] shall indemnify and save harmless the Owner [Miller], the Architect, the Contractor [Selzer-Ornst] and their respective agents from any and all liability, payments and expenses of any nature for injury or death to any person, or persons, or for damage to any property, caused or allegedrto-have been- caused by the Sub-Contractor, or incidental to the execution of work under this contract by the Sub-Contractor, his agents or employees; and the Sub-Contractor shall maintain from the beginning until the completion of his work policies of insurance satisfactory to the Contractor, covering the liabilities above mentioned, such as employers' liability insurance, public insurance, contingent insurance, etc.
(Emphasis added; strikethrough in original.) On the *736 basis of this language, Miller asserts that J.F. Cook is contractually obligated to defend and indemnify Miller for the Mikula claim. Miller argues that although the general rule is that indemnity agreements are to be strictly construed, one exception to that general rule applies here, yielding the result that J.F. Cook shall indemnify Miller for its own alleged negligence.
¶ 34. "Generally, contracts providing for indemnification in the case of the indemnitee's negligence are considered valid and not contrary to public policy."
Herchelroth v. Mahar,
¶ 35. There are exceptions, however, to this general rule. One such exception provides that absent clear and unequivocal language indicating as much, "if it is clear that the purpose and unmistakable intent of the parties in entering into the contract was for no other reason than to cover losses occasioned by the indemnitee's own negligence, indemnification may be afforded."
Id.
at 63-64;
see also Herchelroth,
¶ 36. Similarly, here, when the two provisions are taken together, J.F. Cook's agreement to purchase additional insurance and to
indemnify and save harmless the Owner [Miller]... from any and all liability, payments and expenses of any nature for injury or death to any person, or persons, or for damage to any property, caused by the SubContractor, or incidental to the execution of work under this contract by the Sub-Contractor, his agents or employees!,]
evidences J.F. Cook's intent to indemnify and hold Miller harmless even though Miller may be negligent. An agreement to purchase insurance indicates an intention to affect the burden of covering the cost of liability that may arise, and considered in combination with an agreement to "indemnify and save harmless" a party from "any and all liability" for injury or death or "for damage to any property" "caused by the Subcontractor" or "incidental to the execution of work," evidences a clear intent to indemnify the party for all liability, including that resulting from the indemnitee's own alleged negligence. The contract evinces no other purpose for the inclusion of both agreements. Thus, as *738 Mikula's injury was, at the very least, "incident to the execution of work," J.F. Cook must indemnify Miller. Accordingly, we reverse.
By the Court. — Judgments reversed.
Notes
Mikula used the "ABC Insurance Companies" moniker to designate, pursuant to Wis. Stat. § 807.12 (2003-04), the unknown insurance companies that issued policies to Miller for claims such as those set forth in his complaint.
Moreover, West Bend Mutual Insurance Company was also a plaintiff in the case, insofar as they paid worker's compensation benefits for the injuries sustained that are the subject of this lawsuit. For simplicity, as neither Mikula nor West Bend are parties to this appeal, we will refer to the plaintiffs as "Mikula" only.
All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.
It appears that Miller mistakenly named Unitrin Preferred Insurance Company, instead of Milwaukee Mutual, as J.F. Cook's insurer in this matter, but it was presumably corrected at some point later in the proceedings.
Moreover, the Supreme Court of New Hampshire court did not refer to the general contractor's own alleged negligence as a basis for concluding that it was not covered as an additional insured with regard to claims of the injured employee.
Interestingly,
G.E. Tignall & Co. v. Reliance National Insurance Co.,