An excess and surplus lines insurer is not obligated to defend or indemnify a concrete company in a subcontractor worker’s falling death because of a policy exclusion, says a federal district court.

Filiberto Herrera was performing roof work as an employee of Downers Grove Illinois-based Donaly Roofing Inc. in June 2014 when he fell to his death through a hole in the roof that was covered by an unsecured and unmarked sheet of plywood, according to Friday’s ruling by the U.S. District Court in Chicago in Atlantic Casualty Insurance Co. v. Damian Concrete Inc.; Maria Valdez, Summit Design & Building L.L.C., and Laura Herrera, individually and as Special Administrator in the Estate of Filiberto Herrera, Defendants.

Chicago-based Summit Design & Build had a contract to perform work on a construction project in Chicago, and had contracted with Chicago-based Damian to work on the project, with each in charge of, and in control of, activities involved in the project’s construction and maintenance. All the defendants in the lawsuit are alleged to have been negligent in connection with Mr. Herrera’s death.

Damian’s insurer, Goldsboro, North Carolina-based Atlantic Casualty Insurance Co., a unit of Strickland Insurance Group Inc., filed suit in U.S. District Court in Chicago seeking a declaratory judgment it was not obligated to defend or indemnify the company in the subsequent  underlying lawsuit. Damian’s counsel did not appear at a show cause hearing in this case, and so Atlantic’s motion was considered unopposed by the court.

Atlantic contended the allegations in the case fell within the policy’s contractor exclusion and the court agreed. “In relevant part” the exclusion provides that there is no coverage for “bodily injury” to any “‘contractor” for which “any insured may become liable in any capacity,’” said the ruling.

It is “clear that under the plain terms of the Policy’s exclusion provision that Filiberto Herrera’s injury is excluded from coverage in this matter,” said the ruling in holding Atlantic had no duty to defend nor indemnify Damian as well as Summit in the litigation.

Earlier this year, Cincinnati Insurance Co. prevailed over a Fairfax Financial Holding Ltd. unit in a coverage dispute involving the death of a worker who fell through a hole in a tractor supply store’s vestibule attic.