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Daniel T. Mazzoli and Emma J. Mazzoli v. Marina District Development Company

April 11, 2011

DANIEL T. MAZZOLI AND EMMA J. MAZZOLI,
PLAINTIFF,
v.
MARINA DISTRICT DEVELOPMENT COMPANY, LLC, D/B/A BORGATA HOTEL CASINO & SPA, YATES-TISHMAN, REGIONAL SCAFFOLDING & HOISTING CO., INC., AND COMMERCE RISK CONTROL SERVICES DEFENDANTS;
MARINA DISTRICT DEVELOPMENT COMPANY, LLC, D/B/A BORGATA HOTEL CASINO & SPA, YATES-TISHMAN, THIRD-PARTY PLAINTIFFS,
v.
SELECTIVE INSURANCE COMPANY OF AMERICA, AND APG INTERNATIONAL, INC., THIRD-PARTY DEFENDANTS;
SELECTIVE INSURANCE COMPANY OF AMERICA, FOURTH-PARTY PLAINTIFF,
v.
LIBERTY INTERNATIONAL UNDERWRITERS, INC., LIBERTY MUTUAL INSURANCE COMPANY, TRAVELERS PROPERTY CASUALTY INSURANCE COMPANY, AND ADMIRAL INSURANCE COMPANY FOURTH-PART DEFENDANTS.



The opinion of the court was delivered by: Honorable Joseph E. Irenas

OPINION

IRENAS, Senior District Judge:

This matter comes before the Court on the cross-motions for summary judgment of Third-Party Defendant/Fourth-Party Plaintiff Selective Insurance Company of America ("Selective") and Fourth-Party Defendant Liberty International Underwriters, Inc. ("LIU"). For the reasons set forth below, Selective's Motion will be denied in full and LIU's Motion will be granted in part and denied in part.*fn1

I.

Although the procedural history of this case is quite complex, the underlying dispute is exceedingly common. LIU has discontinued its defense and indemnification of Defendant/Third-Party Plaintiff Yates-Tishman, and Selective seeks a declaration that LIU must return to that defense and indemnification.

The underlying action stems from a construction-related accident that occurred on December 20, 2007, involving Plaintiff Daniel T. Mazzoli. (Motion for Summary Judgment as to Liberty International Underwriters, Inc. (Selective's Mot.) p. 4) Mazzoli was a glazier employed by Third-Party Defendant APG International, Inc. ("APG"), and allegedly fell while attempting to install exterior glass on an expansion project for Defendant/Third-Party Plaintiff Marina District Development Company, LLC d/b/a Borgata Hotel Casino & Spa ("Borgata"). (Id.)

At the time of the accident, APG was a glazier subcontractor on the construction project and Regional Scaffolding & Hoisting Co., Inc. ("Regional Scaffolding") was the scaffolding subcontractor. Each of APG and Regional Scaffolding was required by Defendant Yates-Tishman, the general contractor for the project, to maintain general liability insurance (Selective's Mot. p. 5) Such insurance was also required to include coverage for Borgata and Yates-Tishman as additional insureds.*fn2

In order to satisfy this requirement, APG entered into a commercial general liability policy with Selective (the "Selective Policy") and Regional Scaffolding entered into a commercial general liability policy with LIU (the "LIU Policy").*fn3

Mazzoli, together with his wife, filed a Complaint in this Court on February 6, 2008, alleging negligence by Borgata and Yates-Tishman.*fn4 On May 14, 2008, Yates-Tishman filed a Third-Party Complaint against APG, Selective, Regional Scaffolding and LIU. The Third-Party Complaint sought contractual indemnification from either or both APG and Regional Scaffolding, as well as coverage as an additional insured under either or both the Selective Policy and the LIU Policy.

In July 2008, LIU, Regional Scaffolding and Yates-Tishman settled their dispute, with LIU agreeing to assign counsel to defend Yates-Tishman in the underlying action and to prosecute third-party claims against Selective and APG.*fn5 (Id. at 6) Pursuant to this agreement, Yates-Tishman's third-party complaint against LIU and Regional Scaffolding was dismissed. (Id.)

On December 10, 2008, LIU accepted Borgata's tender of coverage claim for additional insured coverage under the LIU Policy. (Id.)

On June 4, 2009, Selective wrote to LIU in an attempt to resolve Borgata and Yates-Tishman's Third-Party Complaint against itself and APG, its insured. (Selective's Mot. p. 7) Selective offered to accept the tender for additional insurance coverage on behalf of Borgata and Yates-Tishman, and to share the defense and indemnity costs on a pro-rata basis with LIU. (Id.) This offer was rejected on July 15, 2009. (Id.)

In response to this rejection, Selective filed a Fourth-Party Complaint on December 2, 2009, seeking a declaration that Selective, LIU, Travelers (Yates-Tishman's insurer) and Liberty Mutual Insurance Company (Commerce Risk's insurer) owe a co-primary duty to defend Borgata and Yates-Tishman, and that Selective, LIU, Travelers and LMIC owe a co-primary duty to indemnify Borgata and Yates-Tishman.

On January 15, 2010, LIU and Selective began negotiations of a settlement between them and their respective insureds. The parties' accounts of these ...


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