On August 24, 2016, Judge Mary L. Cooper of the U.S. District Court for the District of New Jersey issued an opinion declining to extend professional liability coverage afforded under a commercial general liability policy to an additional insured for its employee's maritime personal injury claims.
Joseph Collick, an employee of Weeks Marine, Inc., filed suit against Weeks Marine when he was injured on its marine construction project. Collick was employed as a dockbuilder by Weeks Marine to rebuild a pier at the Earle Naval Weapons Station. The Navy required Weeks Marine to have an on-site certified safety professional, and Weeks Marine contracted with Haztek, Inc. to provide safety services. Collick fell from a piece of pre-cast concrete, which was suspended by Weeks Marine’s crane barge, to a lower level of the pier and sustained serious injuries. Collick asserted Jones Act, Longshore and Harbor Workers’ Compensation Act (“LHWCA”), and general maritime law unseaworthiness claims against Weeks Marine. In turn, Weeks Marine commenced an action against Evanston Insurance Company seeking coverage as an additional insured under Evanston’s policy issued to Haztek for the claims asserted by Collick.
Evanston’s commercial general liability policy included a professional liability endorsement, which provided coverage under certain circumstances for an insured’s legal liability arising out of the provision of professional services. As defined by the policy, professional services included an insured’s services as a construction manager. Evanston’s policy also contained several exclusions precluding coverage for claims arising out of an insured’s liability under any workers’ compensation law, an insured’s ownership, maintenance or use of a watercraft, and injury to an insured’s employee. Evanston and Weeks Marine filed cross-motions for summary judgment on the coverage provided to Weeks Marine under the policy.
Evanston argued that no coverage exists for Collick’s claims against Weeks Marine by virtue of the policy’s exclusionary provisions. Specifically, Evanston maintained that 1) the policy’s workers’ compensation exclusion prohibits coverage for Collick’s LHWCA claims; 2) the vehicle exclusion precludes coverage because Collick sued Weeks Marine in its capacity as a vessel owner; and 3) the employer’s liability exclusion bars coverage for Collick’s claims since they arise out of his employment with Weeks Marine.
Weeks Marine argued that under the professional liability endorsement an employee is one who provides professional services for Weeks Marine. Further, Weeks Marine contended that Collick, a dockbuilder, did not perform services related to Weeks Marine’s role as the project’s construction manager. Therefore, Weeks Marine claimed that the employer’s liability exclusion was inapplicable to Collick’s claims since he allegedly did not fall within the professional liability endorsement’s definition of an employee.
Weeks Marine further argued that Collick’s § 905(b) claim under the LHWCA is not similar to a workers’ compensation act claim because those claims require proof of negligence to recover. Lastly, Weeks Marine asserted that the policy’s vehicle exclusion did not apply because any alleged unsafe condition would have existed on the pier and not Weeks Marine’s crane barge.
Ruling in favor of Evanston and dismissing Weeks Marine’s claim for additional insured coverage, Judge Cooper found that the LHWCA generally sets forth a statutory scheme for an award of no-fault workers’ compensation benefits, and Collick’s LHWCA claims arise out of Weeks Marine’s obligation to provide workers’ compensation such that the policy’s workers’ compensation exclusion applied to Collick’s LHWCA claims. Judge Cooper also held that the policy’s vehicle exclusion precluded coverage for Collick’s claims against Weeks Marine because Collick alleged that Weeks, as a vessel owner, failed to provide safe working conditions aboard the Weeks Marine crane barge and its appurtenances and that the vessel was unseaworthy.
Finally, Judge Cooper also found that the policy’s employer’s liability exclusion prohibited coverage for Collick’s claims against his employer, Weeks Marine, because Collick’s employment as a construction worker fell within the scope of Weeks Marine’s professional services – construction management – that Weeks Marine provided to the Navy.
This decision is significant because even if a commercial general liability policy is endorsed to provide coverage for professional services in the context of marine operations, the commercial general liability policy’s standard exclusions will apply to prohibit coverage for an employee’s personal injury claims under the LHWCA, Jones Act and general maritime law.
Marty McLeod and David Saltaformaggio represented Evanston. The case is Joseph Collick v. Weeks Marine, Inc., et al., No. CIV.A. 08-5120.