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Liberty Mutual wins construction death dispute


A Liberty Mutual Insurance Group unit prevailed in coverage litigation with another insurer over the death of a construction worker, with a federal appeals court affirming a lower court ruling.

A large concrete panel collapsed on and killed a worker while he was working on a construction site in New Kensington, Pennsylvania, according to Thursday’s ruling by the 3rd U.S. Circuit Court of Appeals in Philadelphia in Liberty Mutual Insurance Co. v. Penn National Mutual Casualty Insurance Co.

Liberty Mutual Insurance Co.’s insured, Pittsburgh-based Cost Co., was a masonry subcontractor on the project and Cost further subcontracted with Monongahela, Pennsylvania-based Pittsburgh Flexicore Co., Penn National’s insured, for the concrete panels.

The subcontract agreement contained a safety provision that said Flexicore was solely responsible for its employee’s health and safety and required it to obtain general liability insurance and name Cost as an additional insured.

The killed worker’s widow filed a wrongful death and survival action against defendants including cost and Flexicore, according to the ruling. After Penn National denied Cost’s request to defend and indemnify it, Liberty Mutual defended Cost, and Penn National defended Flexicore. The litigation was settled for an undisclosed amount.

Liberty Mutual then filed suit against Penn National in U.S. District Court in Pittsburgh seeking reimbursement for the sums it had paid to defend and indemnify Cost. Each insurer moved for summary judgment.

The district court ruled in Liberty Mutual’s favor and was affirmed by a unanimous three-judge appeals court panel.

“Penn National’s duty to defend was triggered because Cost qualified as an additional insured under the policy’s Completed Operations endorsement,” the panel’s ruling said. 

In addition, the district court properly concluded that because the underlying litigation involved “multiple claims against multiple defendants, covered by multiple insurers, the settlement made it impossible to determine the precise basis of Cost’s and Flexicore’s liability,” it said.

“Because such factual disputes cannot be decided in this multiparty, multiclaim case without factfinding” in the underlying litigation, Pennsylvania law “requires that Penn National’s duty to indemnify follows its duty to defend Cost,” the ruling said.

Attorneys in the case did not respond to requests for comment.





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