Court reaffirms Markel unit's duty to defend in cell tower deathPosted On: Oct. 22, 2019 2:08 PM CST
A federal district court has refused to reconsider its ruling that a Markel Corp. unit has a duty to defend a telecommunications company and one of its officers in connection with a cell tower worker’s death.
The U.S. District Court in Tampa, Florida, also refused to reconsider its ruling that a determination as to whether Markel unit Evanston Insurance Co. has a duty to indemnify the defendants is not ripe for review, according to Monday’s ruling in Evanston Insurance Co. v. Jack Boone et. al.
On July 8, 2013, Namon Smith and Zachary Roberts were working on a cell tower when Mr. Smith, who was not properly secured to the tower, fell and struck Mr. Roberts, which caused Mr. Roberts to fall more than 200 feet to his death to the ground below. Mr. Smith, whose estate is not a party to the dispute, also died in the accident.
Mr. Roberts’ widow, Kayla Roberts, filed suit against Sarasota, Florida-based telecommunications firm Monarch Towers Inc. and company officer Mr. Boone, among other defendants, in state court charging vicarious liability and negligence claims against the defendants. The litigation is ongoing.
Litigation ensued as to Evanston’s obligations under the commercial general liability policy it had issued to Monarch, which filed for bankruptcy in 2014.
In an August decision, the District Court issued rulings in the case, including that Evanston has a duty to defend Monarch and Mr. Boone in the state court action, and that a determination as to whether Evanston has a duty to indemnify Monarch and Mr. Boone is not ripe for review.
The court said it would not reconsider these rulings in Monday’s decision. Evanston contends there is no duty to defend Monarch and Mr. Boone because the CGL policy provides an exclusion for coverage for bodily injury to Monarch’s employees and its leased employees, and Mr. Roberts fell into one of these categories, said the ruling.
However, “this Court found that the employee/leased employee exclusion might not apply, and therefore, Evanston has a duty to defend Monarch and Boone,” said the ruling.
There are allegations in the state court complaint that Mr. Roberts was employed by another company and not leased to Monarch, “and in such action there would be no coverage,” said the ruling.
Although Evanston relies on substantial evidence that tends to corroborate this, “the actual facts do not control the duty to defend; the allegations in the state court complaint control,” said the ruling, in denying Evanston’s motion to reconsider its conclusion Evanston has a duty to defend Monarch and Mr. Boone.
The court also reaffirmed its ruling that the issue of whether Evanston has a duty to indemnify Monarch and Mr. Boone is not ripe for review.
“Assuming arguendo that Evanston is correct that this Court has the discretion to resolve the indemnification issue at this time, the court declines to exercise its discretion to do so,” said the ruling.
Evanston’s attorney had no comment while Ms. Roberts’ attorney could not be reached.
In September, a federal appeals court overturned a lower court ruling in favor of Evanston in a case involving a $49.5 million jury verdict, holding its policy’s dishonesty exclusion did not apply.