# Arch Insurance Company v. Berkley National Insurance Company

> District Court, S.D. West Virginia · June 24, 2019

URL: https://www.frixlaw.com/law-library/cases/10728362

## Case

- **Court:** District Court, S.D. West Virginia
- **Decided:** June 24, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

ARCH INSURANCE COMPANY, et al.,

Plaintiffs,

v. CIVIL ACTION NO. 2:15-cv-09203

BERKLEY NATIONAL INSURANCE
COMPANY, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER
This suit began as a declaratory action to declare the rights of the parties under
competing insurance obligations: the terms in the Master Supply Service Agreement
(“MSSA”) [ECF No. 92-3] and the Berkley Policies [ECF Nos. 92-5 and 92-6]. Not.
Removal [ECF No. 1]. In a published opinion, I found that “[t]he Berkley policy . . .
limits its coverage to “the lesser of: (a) the coverage and/or limits of this policy; or (b)
the coverage and/or limits required by [the MSSA].” 217 F. Supp. 3d 904, 914 (S.D.
W. Va. 2016). Consequently, I found that the policy’s coverage is limited to the lesser
terms provided by the MSSA. at 915.
Pending before the court are cross-motions for summary judgment [ECF
Nos. 190 and 192]. The remaining issue before the court involves the interpretation
of the indemnity provision in the MSSA. For the reasons that follow, the defendants’
Motion [ECF No. 192] is GRANTED and the plaintiff’s Motion [ECF No. 190] is
DENIED.
I. Background

HG Energy LLC (“HG”) operates oil and gas wells in West Virginia, and Stric-
Lan Companies LLC (“Stric-Lan”) provides certain well-site services for HG. HG and
Stric-Lan laid out this agreement for services in their Master Service and Supply
Agreement. MSSA [ECF No. 92-3]. In addition to the well-site services, the MSSA
requires Stric-Lan to procure insurance and name HG as an “additional insured”
under that insurance policy. at 8. The MSSA also establishes defense and
indemnity obligations under certain circumstances for both HG and Stric-Lan. at

10–11. Pursuant to its obligations under the MSSA, Stric-Lan contracted with
Berkley National Insurance Company (“Berkley”) to provide coverage and named HG
as an additional insured.
a. The Kunz Incident
This coverage dispute arises out of a personal injury lawsuit involving Stric-
Lan employee Tyler Kunz (“Kunz Litigation”). While working for Stric-Lan at the HG

site, Mr. Kunz lit a cigarette near a natural-gas hazard, resulting in an explosion and
significant injury to himself. Following his injury, Mr. Kunz sued HG and Stric-Lan,
alleging that HG was negligent in maintaining its workplace and that Stric-Lan was
liable under West Virginia’s deliberate intent statute. Pursuant to the terms of the
MSSA and insurance policy, HG sought defense in the Kunz Litigation from Stric-
Lan and Berkley. Both refused to defend or indemnify HG. As a result, Arch
Insurance Company (“Arch”) and Steadfast Insurance Company (“Steadfast”),
companies providing separate insurance policies for HG, paid for the defense and
settlement of the Kunz Litigation.

After Stric-Lan and Berkley refused to defend HG, Arch and Steadfast brought
this suit to determine (1) whether the Berkley insurance policy provided “additional
insured” coverage for HG in the Kunz Litigation and (2) whether the Berkley policy
provided primary, non-contributory coverage for the defense and settlement of the
Kunz Litigation.
b. November 11, 2016 Memorandum Opinion & Order
On May 31, 2016, and June 6, 2016, the parties cross-moved for summary

judgment, and on November 11, 2016, I ruled on those motions in a published opinion.
, 217 F. Supp. 3d 904 (S.D. W. Va.
2016). In that Memorandum Opinion and Order, I found that Berkley had an
obligation to cover claims “to the extent that such claims, losses, damages, injuries,
illnesses, or death are caused by the negligence (of any degree), strict liability, or
willful misconduct of the Contractor [Stric-Lan].” I also found that Stric-Lan and

Berkley were obligated to provide primary, non-contributory coverage for the Kunz
Litigation, that Stric-Lan and Berkley had a duty to defend HG in the Kunz
Litigation, and that Stric-Lan and Berkley’s duty to indemnify was triggered.
, 217 F. Supp. 3d at 917.
On January 17, 2018, Steadfast and Arch were granted leave to file Plaintiffs’
First Supplemental and Amended Complaint for Declaratory Relief and Civil
Damages [ECF No. 142]. Among other things, the Amended Complaint seeks the
damages that Steadfast and Arch incurred in defending and resolving the Kunz
Litigation. Am. Compl [ECF No. 142]. On August 13, 2018, Steadfast settled its

claims with the defendants for the amount it paid to defend the Kunz Litigation, and
the court dismissed it from this case. On February 14, 2019, Arch, the only remaining
plaintiff, moved for summary judgment [ECF No. 190], seeking to recover the
$5,000,000 it advanced to settle the Kunz Litigation with interest as well as
attorney’s fees and costs. On February 14, 2019, Defendants Berkley and Stric-Lan
also filed a cross-motion for summary judgment [ECF No. 192]. The defendants argue
that the Kunz Litigation was settled purely for the negligence of HG and not Stric-

Lan. Moreover, they argue that because Stric-Lan did not contract to cover HG for
HG’s own negligence, the defendants are entitled to judgment as a matter of law.
Argument was heard on the Motions during the pretrial conference and additional
briefing was ordered. Both parties filed supplemental briefs, which the court has
considered. The parties’ second set of cross-motions for summary judgment are now
ripe for review.

II. Legal Standard
To obtain summary judgment, the moving party must show that there is no
genuine dispute as to any material fact and that the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). “Facts are ‘material’ when they
might affect the outcome of the case.” , 85 F. Supp. 3d 851, 857 (S.D.
W. Va. 2015) (quoting ,
597 F.3d 570, 576 (4th Cir. 2010)). “A genuine issue of material fact exists if . . . a
reasonable fact-finder could return a verdict for the non-movant.” ,
No. 2:12-1394, 2013 WL 2151235, at *2 (S.D. W. Va. May 16, 2013) (citations omitted);

, 952 F.2d 820, 824 (4th Cir. 1991) (“Disposition by summary
judgment is appropriate . . . where the record as a whole could not lead a rational
trier of fact to find for the non-movant.”). The moving party bears the burden of
showing that “there is an absence of evidence to support the nonmoving party's case.”
, 477 U.S. 317, 325 (1986).

In considering a motion for summary judgment, the court will not “weigh the
evidence and determine the truth of the matter.” ,
477 U.S. 242, 249 (1986). Instead, the court will draw any permissible inference from
the underlying facts in the light most favorable to the nonmoving party.
, 475 U.S. 574, 587–88 (1986). Summary
judgment is appropriate when the nonmoving party has the burden of proof on an
essential element of his or her case and does not make, after adequate time for

discovery, a showing sufficient to establish that element. , 477 U.S. at
322–23. The nonmoving party must satisfy this burden of proof by offering more than
a mere “scintilla of evidence” in support of his or her position. , 477 U.S. at
252. Conclusory allegations or unsupported speculation, without more, are
insufficient to preclude the granting of summary judgment. ,
731 F.3d 303, 311 (4th Cir. 2013).
“When faced with cross-motions for summary judgment, the court must review
each motion separately on its own merits ‘to determine whether either of the parties
deserves judgment as a matter of law.’” , 316 F.3d 516, 523

(4th Cir. 2003) (quoting 122 F.3d 58, 62 n.4
(1st Cir. 1997)). “When considering each individual motion, the court must take care
to ‘resolve all factual disputes and any competing, rational inferences in the light
most favorable’ to the party opposing that motion.” (quoting
, 100 F.3d 228, 230 (1st Cir. 1996)).
III. Discussion
a. Scope of Indemnity

In my November 11, 2016 Memorandum Opinion and Order, I found that Stric-
Lan had a duty to indemnify HG under the MSSA, which was triggered by Stric-Lan’s
negligence through its employee, Mr. Kunz. , 217 F. Supp. 3d at 916–
17. Importantly, however, that holding did not resolve the scope of Stric-Lan’s
indemnity obligation. That is, the November 21, 2016 Order left open whether Stric-
Lan’s indemnity obligation is limited only to the negligence of Stric-Lan, giving it a

comparative negligence construction, or whether complete indemnity, including HG’s
negligence, is required if Stric-Lan is negligent to any degree. I will begin with the
language of the indemnity provision in the MSSA:
Contractor [Stric-Lan] shall defend, indemnify, hold
harmless, and release Company [HG] from and against any
and all claims, losses, damages, demands, causes of action,
suits, judgments and liabilities of every kind . . . brought or
asserted against Company by any party whomsoever . . .
[Stric-Lan], regardless of whether the Company
[HG] is negligent in part.

MSSA 10 (emphasis added). Thus, the first question that must be answered is
whether the MSSA sought to cover HG, the indemnitee, for the indemnitee’s own
negligence.
In Pennsylvania, “if parties intend to include within the scope of their
indemnity agreement a provision that covers losses due to the indemnitee’s own
negligence, they must do so in clear and unequivocal language. No inference from
words of general import can establish such indemnification.”
, 588 A.2d 1, 4 (Pa. 1991); , 66 A. 553, 557 (Pa.

1907). As the court in explained, assuming liability for the negligence of an
indemnified party “is so hazardous, and the character of the indemnity so unusual
and extraordinary, that there can be no presumption that the indemnitor intended to
assume the responsibility unless the contract puts it beyond doubt by express
stipulation.” (quoting , 66 A. at 557).
Interpreting nearly identical language, the Supreme Court of Pennsylvania

found that the language “to the extent that” was ambiguous and could not overcome
’s requirement that provisions that cover losses due to the indemnitee’s
own negligence must be in clear and unequivocal language.
, 795 A.2d 376, 380 (Pa. 2002). The contract provided that the indemnitor
agreed to indemnify and hold harmless the indemnitee
from and against claims, damages, losses and expenses,
including but not limited to attorney's fees, arising out of
or resulting from the performance of the Subcontractor's
Work under this Subcontract . . .
the Subcontractor's Sub
Subcontractors, anyone directly or indirectly employed by
them or anyone for whose acts they may be liable,
, 795 A.2d at 377 (emphasis added).
Indeed, the court found that “the clause provides indemnity only for the
amount of damage caused by the indemnitor’s negligence, and not for damages
attributable to the indemnitee’s negligence.” at 381. The provision does not state

that HG is “completely indemnified ‘when’ or ‘if’ [Stric-Lan] is negligent. Rather, it
states that [it is] indemnified ‘ ’ that [Stric-Lan] is negligent.” ,
795 A.2d at 380.1 Further, the purpose of such standard language in the insurance
industry is not to allow full indemnification for the negligence of the indemnitee as

1 Other courts have reasoned as follows:

“To the extent” can be read to mean “if”; that is, [indemnitor] is
required to indemnify [indemnitee] only “if” [indemnitor] is also found
negligent. Under that reading, “to the extent” is not inconsistent with
complete indemnification of [indemnitee], even for its own negligence,
as long as [indemnitor] is also negligent “to [some] extent.” But the
phrase also can be read to require [indemnitor] to indemnify
[indemnitee] only “to the extent” of [indemnitor’s] (or its sub-
contractors’) share of fault. Neither the “regardless of” phrase nor the
“to the extent” phrase answers the question whether such
indemnification would include [indemnitee’s] own share of fault. [The
provision] thus does not satisfy the required “unequivocal” expression
of intention to obligate [indemnitor] to fully indemnify [indemnitee] for
damages resulting from [indemnitee’s] own negligence.

, 911 A.2d 72, 80 (N.J. Super. Ct. App. Div. 2006).
long as the indemnitor is 1% negligent; rather, the purpose is “to protect parties who
are not named insureds from exposure to vicarious liability for acts of the named
insured.” , 562 F. Supp. 800, 803 (E.D. Pa. 1983) (“In this

kind of provision, the risks have not been increased or altered, for the insurer is only
insuring the additional insureds against vicarious liability for acts of the named
insured.”).2 This interpretation is bolstered by the fact that the MSSA contains
identical, reciprocal provisions for indemnification between HG and Stric-Lan.
MSSA 10 MSSA 12. Having reciprocal provisions adds support to the
finding that each was responsible for its own negligence: Assuming both parties were
negligent to any degree, if HG is indemnified for Stric-Lan’s negligence, Stric-Lan

would be able to turn around and seek indemnification for HG’s negligence.
The plaintiff argues that the clause “regardless of whether or not such
claim . . . is caused in part by” HG implies that indemnification encompasses the
indemnitee’s negligence. But the court in found that the exact clause “merely
[clarified] that any contributory negligence by [the indemnitee] [would] not bar . . .
indemnification for damages due to [the indemnitor’s] negligence.” at 380;

RESTATEMENT (THIRD) OF TORTS 3d § 22 (AM. LAW INST. 2000) (requiring that in order
to be entitled to indemnification, an indemnitee “not [be] liable except vicariously for
the tort of the indemnitor”).

2 Furthermore, as the court in explained, a “comparative negligence construction” would not
render the indemnity provision meaningless because the clause would entitle the indemnitee to
additional amounts that contribution would not otherwise provide; e.g., an additional means of
recovery, attorney’s fees and expenses, and recovery for not only the negligence of Stric-Lan, but also
the negligence of any parent company, heirs, successors and assigns, subsidiaries and affiliates, all
contractors and subcontractors, and Stric-Lan’s agents, directors, officers and employees.
, 795 A.2dat 381–82 MSSA 7.
The plaintiff next argues that a similar contract provision in
, 619 A.2d 285 (Pa. 1992), is controlling. In
, the court found that the indemnity provision “clearly and unequivocally”

provided for indemnity, even for the indemnitee’s own negligence. , 619 A.2d
at 288. That language reads as follows:
[Indemnitor] shall indemnify and hold harmless
[Indemnitee] and their agents and employees from and
against all claims, damages, losses and expenses including
attorneys’ fees arising out of or resulting from the
performance of the Work, provided that any such claim,
damage, loss or expense (a) is attributable to bodily injury,
sickness, disease or death, or to injury to or destruction of
tangible property (other than the Work itself) including the
loss or[sic] use resulting therefrom,

, 619 A.2d at 286–87 (emphasis added). The plaintiff also argues that the
language in the MSSA is distinguishable from because unlike ’s
provision, the MSSA does not include the phrase “but only.” I find, however, that the
absence of the phrase “but only” does not change the meaning between the MSSA and
the provision in . What does matter is the inclusion of the phrase “to the extent”:
“[T]he provision [in ] did not contain the ‘to the extent’ limitation . . . , but
rather simply provided for indemnification for damages ‘caused in whole or in part
by’ the indemnitor’s negligence.” , 795 A.2d at 380 n.4. Like , the provision
here plainly includes the limiting clause “to the extent.”
In its supplemental brief, the plaintiff cited additional cases for the proposition
that Stric-Lan agreed to indemnify HG for HG’s own negligence, but those cases are
easily distinguishable. First, the plaintiff cites an indemnity agreement from
, No. 3485, 2013 WL 8596456 (Pa. Ct. Com. Pl., May 13, 2013).
The plaintiff cited a significant portion of the indemnity agreement in , which

admittedly has similar language. Yet, what the language in included that
was absent in the MSSA is this: “The [indemnitor] also agrees to indemnify
[indemnitee] from liability for [indemnitee’s] negligence . . . .” at *3. Second, the
plaintiff relies on , 293 F. Supp. 2d 986 (N.D. Iowa 2003).
, however, was applying Illinois law and the disputed contract language did
not contain the limiting “to the extent” language, which was determinative in .
at 997. Lastly, the plaintiff cites , No.

12–2139, 2013 WL 272485 (E.D. Pa. Jan. 24, 2013). The issue in , however,
was whether the indemnitor was liable for the negligence. at *3.
Indeed, the court found that the indemnitor’s argument that it was not liable for the
indemnitee’s own negligence was “correct and non-controlling.”
As such, and consistent with the vast majority of courts interpreting nearly
identical indemnity provisions with “to the extent” language, I FIND that “the clause

provides indemnity only for the amount of damage caused by the indemnitor’s
negligence, and not for damages attributable to the indemnitee’s negligence.” ,
795 A.2d at 381; , 741 N.E.2d 390,
393–94 (Ind. App. 2000); ,
527 N.W.2d 79, 81 (Mich. Ct. App. 1995);
, 884 S.W.2d 722, 724–25 (Mo. Ct. App. 1994);
, 371 N.W.2d 644, 646 (Minn. App. 1985).
b. Indemnity for the Kunz Litigation

The next issue I must decide is whether and to what extent HG is entitled to
indemnification for Stric-Lan’s fault when settling the Kunz Litigation. Considering
that the case settled without a jury apportioning negligence between the defendants,
at first glance it would seem impossible to determine what that apportionment may
have been. Here, however, I need not determine apportionment. There are several
dispositive facts that allow me to find as a matter of law that HG is not entitled to
indemnification for settling the Kunz Litigation.

In West Virginia, “[i]n any action for damages, the liability of each defendant
for compensatory damages shall be several only and may not be joint.” W. Va. Code
Ann. § 55-7-13c(a). “Each defendant shall be liable only for the amount of
compensatory damages allocated to that defendant in direct proportion to that
defendant’s percentage of fault . . . .” Importantly, “[t]his section does not affect,
impair or abrogate any right of indemnity or contribution arising out of any contract

or agreement or any right of indemnity otherwise provided by law.” § 55-7-13c(f).
The plaintiff argues that while Stic-Lan’s immunity bars recovery from Mr.
Kunz, Stric-Lan specifically agreed to indemnify HG “even though one or more
members of [Stric-Lan] may be protected from direct suit by state workers’
compensation laws.” MSSA 9. The plaintiff also argues that Stric-Lan could still be
negligent even though it is immune from liability, which it argues would trigger the
indemnification provision. The plaintiff goes on to argue that it settled on behalf of
Stric-Lan because it would have been attributed with Stric-Lan’s negligence at trial.
But none of those arguments change the fact the Stric-Lan’s fault could not be

attributed to HG under § 55-7-13c,
First, HG would have been “liable only for the amount of compensatory
damages allocated to [HG] in direct proportion to [HG’s] percentage of fault.” § 55-
7-13c(a). Second, “[t]he fault allocated . . . to an immune defendant [such as Stric-
Lan]. . . may not be allocated to any other defendant.” § 55-7-13c(g). Third, Mr.
Kunz sued HG for HG’s negligence; he did not sue HG on a theory of vicarious liability
for Stric-Lan’s negligence. Simply put, HG could not be attributed with Stric-Lan’s

negligence.
This is true whether or not Stric-Lan was included on the verdict form. The
defendants argue that HG stipulated at the Kunz Litigation’s final pretrial
conference that Stric-Lan would not be on the verdict form. The plaintiff argues that
those “statements were based on the mistaken belief that the law prevented Stric-
Lan from being placed on the verdict from because it was dismissed from the lawsuit.”

Pl.’s Resp. 11 [ECF No. 193]. Regardless, the statutory language is plain: “Each
defendant shall be liable only for the amount of compensatory damages allocated to
that defendant in direct proportion to that defendant’s percentage of fault, and a
separate judgment shall be rendered against each defendant for [its] share of that
amount.” W. Va. Code Ann. § 55-7-13c(a). Moreover, the statutory scheme specifically
accounts for parities and nonparties when determining fault: “In assessing
percentages of fault, the trier of fact shall consider the fault of all persons who
contributed to the alleged damages regardless of whether the person was or could
have been named as a party to the suit.” § 55-7-13d(a)(1). “In all instances where

a nonparty is assessed a percentage of fault, any recovery by a plaintiff
.”
§ 55-7-13d(a)(3) (emphasis added).
Thus, if Stric-Lan on the verdict form, its negligence would have been
deducted from any recovery and not attributed to HG. If Stric-Lan on the
verdict form, HG would still be attributed only with its own negligence. § 55-7-
13c(a) (“Each defendant shall be liable only for the amount of compensatory damages

allocated to that defendant
.”). Thus, HG could be held liable only for its own fault.
Second, the indemnification provision itself compels such a finding because it
would not cover the only remaining claim in the complaint. The “duty to indemnify
requires an inquiry into whether there was actual coverage for the underlying claim.”
, 721 A.2d 56, 64 (Pa. Super. Ct. 1998). The

only claim remaining in the Kunz Litigation at the time of settlement was against
HG for its direct, not vicarious, liability. As discussed earlier, HG’s own negligence is
not covered by the indemnity provision in the MSSA. Thus, because there was no
coverage for the only remaining claim—that is, because Stric-Lan is not required to
indemnify HG for HG’s own negligence—HG is not entitled to indemnification for the
negligence claim Mr. Kunz brought against it.
Lastly, HG is not entitled to indemnification for the damages caused by Mr.
Kunz’s negligence even though he was an employee of Stric-Lan. Any judgment would
have already included a deduction for Mr. Kunz’s negligence, leaving the only possible

recovery solely against HG. W. Va. Code Ann. § 55-7-13c(c) (“If the plaintiff’s fault
is less than the combined fault of all other persons, the plaintiff’s recovery shall be
reduced in proportion to the plaintiff’s degree of fault.”). Under West Virginia’s
comparative negligence law, a plaintiff assigned 50% fault or more would be barred
from recovery. , 256 S.E.2d 879 (W. Va. 1979).
Here, two outcomes existed: either Mr. Kunz would be attributed less than 50%
and his recovery would have been reduced by his fault, or Kunz is attributed 50% or

more, and he would have been prevented from recovering anyway. In neither scenario
would HG have been responsible for Stric-Lan’s (its employee’s) negligence.
Furthermore, while it is conceivable that Arch was paying for Mr. Kunz’s injuries as
his de facto self-insurer, the indemnification provision requires Stric-Lan to
indemnify HG only for claims “brought or asserted against” HG. MSSA 10 ([Stric-
Lan] shall . . . indemnify . . . [HG] from and against any and all

[HG] . . . .”) (emphasis added). The claim against HG in the Kunz
Litigation was a negligence claim for maintaining an unsafe work environment; there
was not a claim against HG for Stric-Lan’s negligence. Accordingly, no indemnifiable
claim was “brought or asserted against” HG.
Being no genuine issue of material fact, I FIND that the defendants are
entitled to judgment as a matter of law.
IV. Conclusion
Accordingly, the defendants’ Motion for Summary Judgment [ECF No. 192] is
GRANTED and the plaintiff's Motion [ECF No. 190] is DENIED. The pending
motions in limine [ECF Nos. 203, 204, 205, 206, 207, 208, 209, 210 & 211] are
DENIED AS MOOT. The court DIRECTS the Clerk to send a copy of this
Memorandum Opinion and Order to counsel of record and any unrepresented party.

ENTER: June 24, 2019
G
ee STATES DISTRICT JUDGE

16

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10728362. Public record. Not legal advice.