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Nautilus Insurance Co v. Triple C Construction

January 6, 2011

NAUTILUS INSURANCE CO., PLAINTIFF,
v.
TRIPLE C CONSTRUCTION, INC., DEFENDANT.



The opinion of the court was delivered by: Kugler, United States District Judge:

NOT FOR PUBLICATION (Doc. No. 7)

OPINION

Plaintiff Nautilus Insurance Company ("Nautilus") issued Defendant Triple C Construction, Inc. ("Triple C") a general liability insurance policy that does not cover injuries to employees. Triple C was subsequently sued by a worker injured at a worksite. Nautilus brought this action against Triple C seeking a declaratory judgment that it is not obligated under the insurance policy to indemnify or defend Triple C against the injured worker's claims. Nautilus now moves this Court for default judgment because Triple C failed to respond to the Complaint. For the reasons discussed below, the Court grants Nautilus' motion for default judgment.

I.BACKGROUND

Nautilus issued Triple C a general liability insurance policy that was effective from September 14, 2007 to September 14, 2008 (the "Policy"). (Ex. D to Pl.'s Cmpl.). In April 2010, Vander Teixeira sued Triple C and several other construction companies in the Superior Court of New Jersey. Teixeira alleges that in April 2008, he was "working for 3 Brothers Construction" at a worksite in Brigantine, New Jersey. (Ex. C to Aff. of Robert J. Cosgrove dated July 29, 2010 ("Cosgrove Aff."), ¶ 15). Triple C contracted with 3 Brothers Construction and other contractors to perform work at the worksite. According to Teixeira, he was injured when he inadvertently touched the trigger of a pneumatic nail gun, which fired a nail striking him in the stomach and penetrating his abdomen. Teixeira alleges that Triple C, 3 Brothers Construction, and other contractors were jointly responsible for safety at the worksite. He claims that they disabled the "contact trip mechanism" on the nail gun and generally failed to provide a safe worksite. (Id. ¶ 21). Teixeira claims that all the contractors "acted with intentional, wanton and willful disregard for [his] health, safety, and rights." (Id. ¶ 31T). He asserts a negligence claim against Triple C and seeks compensatory and punitive damages.

Triple C sent Nautilus a copy of Teixeira's complaint and requested that Nautilus provide coverage pursuant to the Policy. Nautilus retained counsel to defend Triple C subject to certain restrictions. Specifically, Nautilus informed Triple C that it "reserve[d] the right to withdraw from [Triple C's] defense upon appropriate written notification to [Triple C] if [at] any time it becomes apparent that none of the damages being claimed by the plaintiffs are covered by this policy." (Ex. G to Cosgrove Aff.). Nautilus subsequently instituted this action against Triple C for a declaratory judgment that it does not have a duty under the Policy to defend or indemnify Triple C regarding Teixeira's negligence claim.

Pursuant to the Policy, Nautilus agreed to the following:

We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages. However, we will have no duty to defend the insured against any "suit" seeking damages for "bodily injury" or "property damage" to which this insurance does not apply. We may, at our discretion, investigate any "occurrence" and settle any claim or "suit" that may result.

(Ex. F to Cosgrove Aff., at 13). The Policy further provides:

This insurance applies to "bodily injury" and "property damage" only if:

(1) The "bodily injury" or "property damage" is caused by an "occurrence" that takes place in the "coverage territory";

(2) The "bodily injury" or "property damage" occurs during the policy period; . . .

(Id.). The Policy defines "occurrence" as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." (Id. at 26). Nautilus does not deny that Teixeira's injuries occurred within the "coverage territory."*fn1

The Policy includes various exclusions and limitations on liability. First, it does not provide coverage if Triple C "expected or intended" the "bodily injury" or "property damage." (Id. at 14). Second, the Policy does not apply "to a person, whether or not an 'employee' of any insured, if benefits for the 'bodily injury' are payable or must be provided under a workers' compensation or disability benefits law or a similar law." (Id. at 19). Third, the Policy does not cover expenses related to "bodily injury" to an "'employee' of any insured arising out of and in the course of . . . employment by any insured . . . or . . . [p]erforming duties related to the conduct of any insured's business." (Id. at 35). The employee-exclusion applies "[w]hether any insured may be liable as an employer or in any ...


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