ESTATE CHIMNEY & FIREPLACE, LLC v. BURLINGTON INSURANCE COMPANY

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ESTATE CHIMNEY & :

FIREPLACE, LLC, : CIVIL ACTION

Plaintiff, :

:

v. :

:

IFG COMPANIES and :

BURLINGTON INSURANCE :

COMPANY, : No. 19-5374

Defendants. :

MEMORANDUM

Schiller, J. March 17, 2021

The Court is faced with an insurance coverage question about whether a duty to defend

exists when the factual allegations of the underlying litigation involve claims of faulty

workmanship. Estates1 Chimney & Fireplace, LLC performed inspections and replaced the chase

covers for numerous chimneys at the Huntingdon Brook Condominiums in Southampton,

Pennsylvania. The chase covers are pieces of metal that fit over the chimney chase to keep

environmental elements out. Some condo owners were not pleased with Estates Chimney’s work,

and they sued, claiming that their chimneys ceased working properly after the work had been

performed. Estates Chimney had a Commercial General Liability insurance policy (“the Policy”)

with the Burlington Insurance Company. After Estates Chimney was named as a defendant in three

separate lawsuits involving its work at the condos, it sought coverage from Burlington pursuant to

the Policy. Burlington denied coverage and Estates Chimney filed this lawsuit, seeking a

declaration that Burlington must defend and indemnify it against these three lawsuits. Both parties

1 For those reading closely, the Court will address later in this Memorandum why the caption lists

Plaintiff as “Estate Chimney”, but throughout the Memorandum the Court refers to Plaintiff as

“Estates Chimney”.

have filed motions for summary judgment.2 For the reasons that follow, the Court will grant

Burlington’s summary judgment motion and declare that Burlington owes Estates Chimney no

duty to defend against the three lawsuits filed against it.

I. STANDARD OF REVIEW

Summary judgment is appropriate when the admissible evidence fails to demonstrate a

genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Fed.

R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). When the moving

party bears the burden of persuasion at trial, it must identify evidence in the record establishing

the absence of a genuine factual issue. Nat’l State Bank v. Fed. Reserve Bank, 979 F.2d 1579,

1582 (3d Cir. 1992). When the moving party does not bear the burden of persuasion at trial, it

may meet its burden on summary judgment by showing that the nonmoving party’s evidence is

insufficient to carry its burden of persuasion. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24

(1986). Thereafter, the nonmoving party demonstrates a genuine issue of material fact if sufficient

evidence is provided to allow a reasonable finder of fact to find for the nonmoving party at trial.

Anderson, 477 U.S. at 248.

In reviewing the record, “a court must view the facts in the light most favorable to the

nonmoving party and draw all inferences in that party’s favor.” Shuman ex rel. Shertzer v. Penn

Manor Sch. Dist., 422 F.3d 141, 146 (3d Cir. 2005). The court may not, however, make credibility

determinations or weigh the evidence in considering motions for summary judgment. See Reeves

v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); see also Goodman v. Pa. Tpk.

2 Pursuant to the Court’s latest Scheduling Order, Burlington filed its motion to summary judgment

on January 5, 2021. Plaintiff did not file a summary judgment motion at that time. On January 19,

2021, the Court granted an extension of time until February 2, 2021 for Plaintiff to answer

Burlington’s motion. On February 2, 2021, Plaintiff filed its answer and cross-motion for summary

judgment. Plaintiff’s cross-motion for summary judgment should have been filed on January 5,

2021.

Comm’n, 293 F.3d 655, 655 (3d Cir. 2002). A court must apply the same standards to cross-

motions for summary judgment. Lawrence v. City of Phila., 527 F.3d 299, 310 (3d Cir, 2008).

II. DISCUSSION

The determinative question presented is clear. If the claims in the three underlying

complaints arise from faulty workmanship that caused no personal injury or property damage to

the property of a third-party, Burlington is entitled to a declaration that it owes no duty to defend

or indemnify Estates Chimney. If, however, the factual allegations from the plaintiffs in the

underlying lawsuits extend beyond faulty workmanship, or if the faulty workmanship caused

damage beyond the work product itself, Burlington is not entitled to the declaration it seeks.

The Court will begin with the legal framework that it must use to determine whether

Burlington has a duty to defend here. After laying out that framework, the Court will look at the

language of the policy to define the scope of coverage under that policy and then compare the

scope of that coverage to the allegations in the underlying complaints.

A. Pennsylvania Contract Interpretation

Under Pennsylvania law, interpretation of insurance contracts, including questions of

coverage, is a question of law for the court. 401 Fourth St., Inc. v. Investors Ins. Grp., 879 A.2d

166, 171 (Pa. 2005). The ultimate aim is to ascertain the intent of the parties as expressed by the

language of the contract. See id. The policy must be read as a whole and its meaning construed

according to its plain language. Frog, Switch & Mfg. Co., Inc. v. Travelers Ins. Co., 193 F.3d 742,

746 (3d Cir. 1999); see also Giancristoforo v. Mission Gas & Oil Prods., Inc., 776 F. Supp. 1037,

1041 (E.D. Pa. 1991) (“The policy must be construed as a whole, not in discrete units.”).

A court must enforce the clear and unambiguous language of the insurance policy. Med.

Protective Co. v. Watkins, 198 F.3d 100, 103 (3d Cir. 1999) (citing Standard Venetian Blind Co.

v. Am. Empire Ins. Co., 469 A.2d 563, 566 (Pa. 1983)). Moreover, a court should read the policy

to avoid ambiguities and give effect to all of its provisions. Id.; see also Little v. MGIC Indem.

Corp., 836 F.2d 789, 793 (3d Cir. 1987). If, however, the language of the policy is open to multiple

interpretations, it is ambiguous and must be construed against the insurer as the drafter of the

contract. Watkins, 198 F.3d at 103; see also Madison Constr. Co. v. Harleysville Mut. Ins. Co.,

735 A.2d 100, 106 (Pa. 1999). The insured has the burden of proving facts that bring its claim

within coverage, but the insurer bears the burden of proving that an exclusion or a limitation

applies to disclaim coverage. Koppers Co. v. Aetna Cas. & Surety Co., 98 F.3d 1440, 1447 (3d

Cir. 1996).

B. The Duty to Defend

At issue here is the insurer’s duty to defend, which is broader than the insurer’s duty to

indemnify. Frog, 193 F.3d at 746. The duty to defend is assessed by comparing the complaint to

the policy. See Gene’s Rest., Inc. v. Nationwide Ins. Co., 548 A.2d 246, 246-47 (Pa. 1988); United

Servs. Auto Ass’n v. Elitzky, 517 A.2d 982, 985 (Pa. Super. Ct. 1986); see also Erie Ins. Exch. v.

Costa Constr., LLC, No. 1516, 2015 WL 7111102, at *2 (Pa. Super. Ct. May 8, 2015) (“The

obligation of an insurer to defend an action against the insured is fixed solely by the allegations in

the underlying complaint.”). The factual allegations in the underlying complaint must be taken as

true and liberally construed in favor of the insured. Frog, 193 F.3d at 746 (citing Biborosch v.

Transamerica Ins. Co., 603 A.2d 1050, 1052 (Pa. Super. Ct. 1992)). The duty to defend arises if

“the allegations in the complaint . . . could potentially fall within the coverage of the policy.”

Victoria Ins. Co. v. Mincin Insulation Servs., Inc., Civ. A. No. 08-909, 2009 WL 2998144, at *2

(W.D. Pa. Sept. 15, 2009); see also Sphere Drake P.L.C. v. 101 Variety, Inc., 35 F. Supp. 2d 421,

427 (E.D. Pa. 1999). This rule applies even when the lawsuit is “groundless, false, or fraudulent.”

Britamco Underwriters, Inc. v. Weiner, 636 A.2d 649, 651 (Pa. Super. Ct. 1994); see also D’Auria

v. Zurich Ins. Co., 507 A.2d 857, 859 (Pa. Super. Ct. 1986) (“It is the face of the complaint and

not the truth of the facts alleged therein which determines whether there is a duty to defend.”).

When determining whether a complaint triggers coverage, the court focuses on the complaint’s

factual allegations, not the terminology used to name the causes of action. Markel Int’l Ins. Co. v.

2421 Salam, Inc., Civ. A. Nos. 08-1052 & 08-2484, 2009 WL 1220557, at *2 (E.D. Pa. Mar. 31,

2009) (citing Mut. Benefit Ins. Co. v. Haver, 725 A.2d 743, 745 (Pa. 1999)).

C. Scope of Coverage

Having explained the ground rules for insurance contract interpretation and the insurance

company’s duty to defend, the Court will turn to the coverage dispute here. Ultimately, the Court

must define the scope of the coverage under the insurance policy and then compare the scope of

the coverage to the allegations of the underlying complaint. See State Farm Fire & Cas. Co. v.

Moreco Constr., Inc., 171 F. Supp. 3d 373, 377 (E.D. Pa. 2016).

Here, the Policy includes the following language:

a. 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 a right and

duty to defend the insured against any ‘suit’ seeking those damages.

b. 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’.

(Def.’s Mot. for Summ. J Ex. 1 [Policy].) The Policy defines “occurrence” as “an accident,

including continuous or repeated exposure to substantially the same general harmful conditions.”

(Id.)

Burlington’s argument for disclaiming coverage here is simple: “Under Pennsylvania law,

claims based upon faulty workmanship are not covered under a commercial general liability (CGL)

policy.” (Def.’s Br. in Supp. of Its Mot. for Summ. J. [Def.’s Br.] at 13.) According to Burlington,

“all claims asserted against Estates Chimney & Fireplace, LLC in the Underlying Lawsuits stem

from Estates Chimney & Fireplace, LLC’s allegedly defective workmanship.” (Id. at 14.) The

insurance company also claims that the only damages asserted in the underlying lawsuits are

expenses to remedy the deficiencies to the chimney caps that Estates Chimney installed. (Id. at

15.)

To determine the scope of coverage under the Policy, Burlington relies heavily on

Kvaerner Metals Division of Kvaerner U.S., Inc. v. Commercial Union Insurance Co.,

908 A.2d 888 (Pa. 2006). In Kvaerner, the Pennsylvania Supreme Court considered the meaning

of the word “occurrence,” which that policy defined as “an accident, including continuous or

repeated exposure to substantially the same or general harmful conditions.” 908 A.2d at 897.

Kvaerner had entered into an agreement with the Bethlehem Steel Corporation to design and

construct a coke oven battery. Id. at 891. A number of problems were discovered with the coke

oven battery, and Bethlehem Steel sued Kvaerner for breach of contract and breach of warranty.

Id. Kvaerner notified its insurance carrier, which disclaimed coverage because the policy only

covered property damage caused by an occurrence. Id. at 897. The court concluded that a claim

reliant on faulty workmanship was not an occurrence under the insurance policy because there was

no accident. Id. at 899. An accident requires a fortuitous event, which does not cover faulty

workmanship. Id. at 898. Therefore, there was no duty to defend against a lawsuit that alleged only

property damage from poor workmanship to the work product itself. Id. at 900.

It is not merely faulty workmanship that is not covered. “[F]orseeable acts which tend to

exacerbate the damage, effect, or consequences caused ab initio by faulty workmanship also

cannot be considered sufficiently fortuitous to constitute an ‘occurrence’ or ‘accident’ for the

purposes of an occurrence-based CGL policy.” Nationwide Mut. Ins. Co. v. CPB Int’l, Inc., 562

F.3d 591, 597 (3d Cir. 2009). To illustrate this point, Burlington also relies heavily on a recent

case in which it was involved, The Burlington Insurance Company v. Shelter Structures, Inc., Civ.

A. No. 19-4857, 2020 WL 5292076 (E.D. Pa. Sept. 4, 2020). In that case, a Swiss company

contracted with Shelter to design and construct a steel-frame, fabric-covered hangar to store an

airship. Id. at *1. After construction was completed, the hangar was designed and built, but in

2019, it collapsed due to wind and destroyed the airship it housed. Id. The underlying breach of

contract and negligence lawsuit alleged that the hangar had both design and construction defects.

Id. At the time of the incident, Shelter had a commercial general liability policy with Burlington.

Burlington denied coverage and sought a declaration that it had no duty to defend or indemnify.

The court concluded that no duty to defend existed because the underlying litigation alleged

only faulty workmanship, and that allegations of faulty workmanship did not fit within the

definition of “occurrence” to be covered under the insurance policy. Id. at *5. Because the

underlying complaint contended that the hangar failed in winds far below what was required by

the building code, “the failure of the hangar was the foreseeable result of the alleged faulty

workmanship, which is not an occurrence under Pennsylvania law.” Id. The court also rejected the

insured’s argument that an occurrence transpired because the property of a third-party was

damaged. Regardless, the underlying complaint still had to allege that the damage was caused by

an “occurrence” as defined by the insurance policy. Id. at *6.

Under Pennsylvania law, for an occurrence to trigger coverage under the policy, the

underlying complaint must allege something besides faulty workmanship against a contractor or

subcontractor. This is true even if the allegations are couched in terms of negligence, breach of

contract, or breach of warranty. See State Farm Fire & Cas. Co. v. Brighton Exteriors, Inc., Civ.

A. No. 14-3987, 2015 WL 894419, at *5 (E.D. Pa. Mar. 2, 2015). If an occurrence triggers

coverage, then a question arises as to the scope of coverage defined by “bodily injury” or “property

damage.” (Policy.) When faced with deciding the scope of coverage, an important factor is whether

the faulty workmanship damaged the insured’s product or the project on which the insured worked;

damages to “other property completely distinct from and unconnected to the insured contract” may

still be covered. Id. However, third-party property damage is insufficient—by itself—to trigger

coverage in the absence of an occurrence, as defined by the Policy. See Sapa Extrusions, Inc. v.

Lib. Mut. Ins. Co., 939 F.3d 243, 256 (3d Cir. 2019).

Clearly, the scope of coverage under the Policy does not extend to faulty workmanship,

regardless of the legal claims used to seek redress for that faulty workmanship. How far does the

faulty workmanship limitation extend? The Pennsylvania Superior Court has recently recognized

that coverage is not barred merely by “the fact that liability is based on failure to properly perform

contractual duties . . . where the claim is for damage to property not supplied by the insured and

unrelated to what the insured contracted to provide.” Pa. Mfrs. Indem. Co. v. Pottstown Indus.

Complex LP, 215 A. 3d 1010, 1015 (Pa. Super. Ct. 2019). Rather, a claim for damages from

improper performance of contractual obligations is not an “occurrence” if “the only property

damaged is the product or property that the insured supplied or on which it worked or the damages

sought are for the insured’s failure to deliver the product or perform the service it contracted to

perform.” Id.

Ultimately, what these cases demonstrate, is that for coverage to exist here, Plaintiff must

be able to point to some unforeseeable, fortuitous event. It will not be enough for Plaintiff to merely

show that the condo owners alleged damage to property beyond the chimney caps upon which it

worked. If Estates Chimney caused foreseeable damage through its alleged faulty workmanship,

those damages would still fail to come within the scope of the Policy because they were not alleged

to have been caused by an “occurrence” as defined by the Policy.

The Court will now turn to the allegations in the underlying actions to determine whether

a duty to defend exists here.

D. Allegations in the Underlying Actions

1. Carboni Complaint

Patricia and Frank Carboni filed a complaint against Estates Chimney and Fireplace

seeking damages for breach of the Unfair Trade Practices and Consumer Protection Law and

“breach of warranties of workman like construction.” (Def.’s Mot. for Summ. J. Ex. 2 [Carboni

Compl.].) The record includes no additional information about the Carboni’s claims.

2. Liggio Complaint

Paul Liggio sued Estates Chimney & Fireplace and Association Management Consultants

in the Bucks County Court of Common Pleas, asserting that “Defendants caused permanent

damage to the chimney and fireplace system in his residence.” (Def.’s Mot. for Summ. J. Ex. 3

[Liggio Compl.] ¶ 1.) Liggio’s collective action asserts that Estates Chimney was hired to replace

the chase covers for every chimney in the Huntingdon Brook Community. (Id. ¶¶ 8, 16.) Estates

Chimney replaced the chimney caps to 231 residentials units in the Huntingdon Brook

Community. (Id. ¶ 18.) “The work performed was sloppy and negligent.” (Id. ¶ 19.) After

completing the work, Estates Chimney noted that a large number of the chimney systems had

failed inspection and that all of those chimneys were unsafe and needed to be condemned because

they were originally built in violation of code. (Id. ¶¶ 20-23.) Liggio sued Estates Chimney for

breach of fiduciary duty, negligence, breach of implied warranty, violations of the Home

Improvement Act and the UPTCPL for, among other things, failing to apply for and receive legal

work permits, damaging property, and performing sloppy and defective work. (Id. ¶¶ 53, 59, 64-

67, 70, 75.)

3. Toll Complaint

Bruce and Robert Toll similarly sued Estates Chimney, Association Management

Consultants Corporation, as well as the Huntingdon Brook Community Association and its Board

of Directors stemming from the work of Estates Chimney. According to the Toll Complaint,

Estates Chimney was hired to replace the chase covers of the chimneys in homes at the

Huntingdon Brook Development. (Def.’s Mot. for Summ. J. Ex. 4 [Toll Compl.] ¶ 17.)

Apparently, there was a disagreement over whether work to the chimneys was necessary. (Id. ¶¶

19-20.) Over the objection of residents, Estates Chimney “performed work on the Properties that

involved replacing the chase covers and chimney caps of Plaintiffs’ homes.” (Id. ¶ 23.) After the

work was completed however, issues with the chimneys were uncovered; those issues rendered

the fireplaces unsafe to use and “the only solution available . . . was to board up the chimneys or

install electric fireplaces.” (Id. ¶¶ 25-26.) When a second company was hired to inspect the work

of Estates Chimney, it determined that “the safety issues identified with the fireplace used were

caused by Estates installing an improper chimney cap.” (Id. ¶ 29.) The complaint further alleges

that Estates Chimney failed to fix the issues and that as a result, the plaintiffs would be required

to retain and pay third-parties to fix the chimney caps and chimneys. (Id. ¶¶ 32, 34, 36.) The

replacement of the chimney caps led to the chimneys being inoperable. (Id. ¶ 49.) The plaintiffs

sued Estates Chimney for breach of contract for “improperly replacing the chimney caps.” (Id. ¶

43.) The complaint also includes claims for negligence “by planning for and performing the

replacement of the chimney caps . . . after being informed that such replacement would not be

Code compliant and would make them unsafe to operate.” (Id. ¶ 48.) Finally, the plaintiffs sued

Estates Chimney for alleged violation of the UTPCPL, breach of implied warranties, and trespass.

The trespass claim against Estates Chimney alleges that the company was specifically prohibited

from entering the plaintiffs’ properties; nonetheless, Estates Chimney entered the properties

without permission and replaced the chimney caps. (Id. ¶¶ 68-73.)

E. Comparing Scope of Coverage to Allegations

The dispute here is whether the factual allegations preclude coverage because the

allegations are built upon nothing but faulty workmanship. The Court concludes that Burlington

has no duty to defend given the record before it.

The Carboni complaint is rather sparse as it consists of a single paragraph. Nonetheless,

the gravamen of the Carboni complaint is that faulty workmanship caused damage to the Carboni’s

property. There are no factual allegations that would support the inference that the damage was

the result of a fortuitous event.

The Liggio and Toll complaints are significantly more detailed, and the Court’s conclusion

regarding the duty to defend is the same. According to the allegations in the underlying lawsuits,

Estates Chimney performed sloppy work when replacing the chimney covers. It is foreseeable

that faulty workmanship when capping chimneys could lead to damage to the chimney itself and

ultimately render the fireplace unusable. Based on the current state of the law, the allegations that

Estates Chimney improperly installed the chimney cap is not as an occurrence under the Policy,

even if the actual chimney caps were not damaged. Because the damage to property was entirely

foreseeable based on the work that Estates Chimney was performing, there is no insurance

coverage. Plaintiff does not point to any accident that allegedly occurred that led to damage. The

factual allegations all stem from faulty workmanship. The law is clear in Pennsylvania that such

allegations do not afford coverage under the language of the Policy.

Plaintiff takes issue with Defendant’s characterization that the underlying lawsuits include

claims only for defective work. Plaintiff notes that “defendant’s own expert has opined the work

performed by plaintiff was not defective. Further, both the Liggio and Toll Complaints contained

claims for consequential damages. Thus, the basis of the denial was not supported by the record.”

(Pl.’s Mem. of Law in Opp’n to Def.’s Mot. for Summ. J. and In Supp. of Pl.’s Cross-Mot. for

Summ. J. [Pl.’s Opp’n] at 5.) Plaintiff also notes that the underlying lawsuits here all involve

“specific allegations of negligence.” (Id. at 6.)

None of these arguments are availing. First, this Court must decide coverage issues based

on the four corners of the complaint against the insured, not the opinion of an expert, even if that

expert opined that Estates Chimney did quality work that complied with all laws and regulations.

This is a coverage dispute, the outcome of which cannot be decided by extrinsic evidence that

addresses the merits of the underlying claims. “In Pennsylvania, courts follow the ‘four corners

rule,’ considering only the allegations in the complaint in the underlying action.” Northridge Vill.,

LP v. Travelers Indem. Co. of Conn., Civ. A. No. 15-1947, 2017 WL 3776621, at *5 (E.D. Pa.

Aug. 31, 2017); see also Lenick Constr., Inc. v. Selective Way Ins. Co., 737 F. App’x 92, 94 (3d

Cir. 2018) (“We liberally construe and accept as true all factual allegations against the insured,

but we may not stray outside the four corners of the complaint against the insured or consider

extrinsic evidence.”)

Second, the mere fact that the plaintiffs in the underlying litigation may have sought

consequential damages does not mean that the factual allegations in the underlying complaint

constituted an “occurrence.” Rather, the holding in Kvaerner has been extended to the foreseeable

results of the insured’s faulty workmanship. See Zurich Am. Ins. Co. v. Century Steel Erectors

Co., L.P., Civ. A. No. 19-998, 2020 WL 2065465, at *10 (W.D. Pa. Apr. 14, 2020)

(“Consequential damages are reasonably foreseeable. It is reasonably foreseeable that faulty

workmanship on structural concrete could result in partial collapse of the garage.”).

Third, it is the factual allegations, not the legal terminology used in the complaint, that

determines whether a duty to defend arises. See Nationwide Mut. Ins. Co. v. CPB Int’l, Inc., 562

F.3d at 598-99; see also Specialty Surfaces Int’l, Inc. v. Cont’l Cas. Co., 609 F.3d 223, 231 (3d

Cir. 2010) (“Faulty workmanship, even when cast as a negligence claim, does not constitute [a

fortuitous event]; nor do natural and foreseeable events like rainfall.”); Westfield Ins. Co. v.

Bellevue Holding Co., 856 F. Supp. 2d 683, 694 (E.D. Pa. 2012).

The Court concludes that the allegations in the underlying lawsuits fail to include the

required fortuitous event necessary to qualify as an “occurrence” under the Policy. All of the

underlying lawsuits rely on Estates Chimney’s purported faulty workmanship, regardless of the

legal terminology used in the underlying lawsuits or the damages alleged. Accordingly, there is

no “occurrence” as defined in the Policy, so there is no duty to defend.

Having determined that there is no duty to defend against the underlying lawsuits, there is

no duty to indemnify either. See Sapa Extrusions, 939 F.3d at 250 (“[B]ecause the duty to defend

is ‘broader’ than the duty to indemnify, if a court determines that the former does not exist, neither

does the latter.”).

F. Is Estate Chimney the Proper Party?

Lastly, the Court will very briefly address Burlington’s argument that Plaintiff is not an

insured under the Policy because the name of the insured on the Policy is Estates Chimney &

Fireplace, LLC, and the party sued in the three underlying lawsuit is Estates Chimney & Fireplace,

LLC, but the caption here lists Plaintiff as Estate Chimney & Fireplace, LLC. (Def.’s Mem. at

20-22.) Defendant argues that because of a missing “s,” Estate Chimney & Fireplace, LLC is not

a named insured and it lacks standing to assert the rights of the true insured, Estates Chimney &

Fireplace, LLC. See Def.’s Opp’n to Pl.’s Cross-Mot. for Summ. J. at 21 (“Here, the Named

Insured . . . is ‘Estates Chimney & Fireplace, LLC”. The [Policies] were not issued to the Plaintiff,

Estate Chimney & Fireplace, LLC. Further, the [Policies] do not reference Estate Chimney &

Fireplace, LLC. As such, based on the plain language of the [Policies], the Plaintiff, Estate

Chimney & Fireplace, LLC, the entity seeking coverage in this instant matter, is not an insured

under the [Policies].).)

The Court believes that this is an argument about nothing. The Court trusts that the parties

have not wasted over a year in litigation—as well as judicial resources—unsure of what entity is

actually insured. Moreover, as Burlington notes, the record is clear from Plaintiff’s discovery

responses that the entity seeking coverage is Estates Chimney & Fireplace, LLC. Burlington

cannot escape a legal duty over a missing “s”.

Burlington’s argument is reminiscent of a famous Seinfeld episode. George Costanza tried

to avoid losing at Trivial Pursuit to the Bubble Boy by noting that the Trivial Pursuit card included

a typo. When the Bubble Boy answered what should have been the victory-clinching final

question of the game that it was the Moors who invaded Spain in the Eighth Century, George

responded, “I’m sorry, the card says Moops.” But of course, the Bubble Boy had it right: “there’s

no Moops.” (Id.) This may burst Burlington’s bubble, but its argument about the proper insured

is itself a trivial pursuit best described as “a little out there.”3

III. CONCLUSION

The Court concludes that Burlington owes Estates Chimney no duty to defend or to

indemnify it against the three underlying lawsuits.4 Defendant’s motion for summary judgment is

therefore granted and Plaintiff’s is denied. An Order consistent with this Memorandum will be

docketed separately.

3 Of course, the Court cannot explain why, throughout this entire litigation, Plaintiff did not take

fifteen minutes to amend the caption.

4 The Court expresses no opinion on the merits of any of the underlying cases filed against

Estates Chimney. This Memorandum only addresses the coverage issue before it.