United States District Court, E.D. Missouri
For Thunder Basin Coal Company, L.L.C., Plaintiff: Laura J. Spencer, LEAD ATTORNEY, Dennis E. O'Connell, BRYAN CAVE LLP, St. Louis, MO.
For Zurich American Insurance Company, Defendant: Anna M. Wenzel, Bradley J. Baumgart, Larry D. Fields, LEAD ATTORNEYS, Eric J. Aufdengarten, KUTAK ROCK, LLP, Kansas City, MO; Laura J. Spencer, LEAD ATTORNEY, BRYAN CAVE LLP, St. Louis, MO.
For National Union Fire Insurance Company of Pittsburgh, PA, Defendant: Laura J. Spencer, LEAD ATTORNEY, BRYAN CAVE LLP, St. Louis, MO; Matthew J. Fink, PRO HAC VICE, LEAD ATTORNEY, Charles A. Hafner, PRO HAC VICE, BATES CAREY NICOLAIDES LLP, Chicago, IL; Michael D. Cerulo, LEAD ATTORNEY, BATY AND HOLM. P.C., St. Louis, MO.
For The Travelers Indemnity Company of America, The Travelers Property and Casualty Company of America, Defendants: Jonathan Ryan Shulan, LEAD ATTORNEY, ARMSTRONG TEASDALE, LLP, St. Louis, MO; Laura J. Spencer, LEAD ATTORNEY, BRYAN CAVE LLP, St. Louis, MO; Laurence R. Tucker, LEAD ATTORNEY, ARMSTRONG TEASDALE, LLP, Kansas City, MO.
MEMORANDUM AND ORDER
CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE.
In this insurance coverage dispute a mine owner seeks to be considered an additional insured on policies issued to one of its contractors. Two workers injured in a crane accident on the property have sued the mine owner in Wyoming. The insurance policies were issued to a contractor who did work on the site before the men were injured. The contractor's policies say they will cover as an additional insured another party with whom the contractor had a " written contract requiring insurance." The mine owner asserts that its construction agreement is such a contract, but the Wyoming court has already ruled that the contractor's work where the men were injured was not performed as part of that agreement, so there can be no coverage on that basis. But I agree that a separate document between the two, called " Terms and Conditions," meets the requirement of a written contract requiring insurance, so the plaintiff is an additional insured under the policies. Because other issues remain in the case, however, I am not entering judgment at this time.
Plaintiff Thunder Basin Coal Company L.L.C. operates the Black Thunder Mine located in Wyoming. Thunder Basin built a new facility for transporting coal from the mine. In September of 2007, Thunder Basin hired Earth Works Solutions, Inc. to do some of the work associated with a rail line extension of a rail line as part of the new facility. The written construction agreement required Earth Works to name Thunder Basin as an additional insured on its primary and excess liability insurance policies. In November 2007, Earth Works signed a Thunder Basin document called " Terms and Conditions," which also contained an insurance provision. Earth Works obtained its commercial general liability (CGL) policy from defendant Travelers Indemnity Insurance Company of America, and obtained the commercial excess liability insurance policy from defendant Travelers Property and Casual Company of America.  Thunder Basin asserts that it is an additional insured under these policies and that Travelers must defend and indemnify it in two personal injury lawsuits filed in Wyoming.
During the construction project, Thunder Basin also asked Earth Works to prepare the ground at a site where a crane would be used, referred to as the Bent 4 pad. It is undisputed that this work was not within the scope of work contemplated
by the original construction agreement, but the parties disagree as to whether the work was nevertheless done as part of that agreement, either under a later-issued change order or an amended contract. Earth Works did the Bent 4 pad work during March and April 2008. A crane being used at the site collapsed on May 31, 2008, injuring workers Andrew Milonis and Federico Salinas. Milonis filed suit in Wyoming against Earth Works, Thunder Basin, and the company that owned the crane. Salinas also sued Thunder Basin. Both suits allege that Thunder Basin contracted with Earth Works to construct the Bent 4 pad and that the negligent construction of the pad caused the plaintiffs' injuries. These are the suits for which Thunder Basin seeks coverage as an additional insured.
The United States District Court for the District of Wyoming, where the Milonis case is pending, has ruled that the construction agreement between Thunder Basin and Earth Works did not give rise to any duties by Earth Works to the Milonis plaintiffs, because the construction agreement, as a matter of contract interpretation, did not apply to the work Earth Works' did on the Bent 4 pad.  Palmer ex rel. Milonis v. Lampson Int'l, LLC, No. 11-CV-199-J, slip op., (D. Wyo. Oct. 15, 2012).
The Insurance Policies
Several provisions of the policies Travelers issued to Earth Works relate to coverage for an additional insured. The CGL policy contains an endorsement covering additional insureds:
1. WHO IS AN INSURED - (Section II) is amended to include any person or organization that you agree in a " written contract requiring insurance" to include as an additional insured on this Coverage Part, but:
a) Only with respect to liability for " bodily injury," " property damage" or " personal injury" ; and
b) If, and only to the extent that, the injury or damage is caused by acts or omissions of you or your subcontractor in the performance of " your work" to which the " written contract requiring insurance" applies. The person or organization does not qualify as an additional insured with respect to the independent acts or omissions of such person or organization.
(Doc. #1-4, at 24) (emphasis added). It also defines a " written contract requiring insurance" :
" Written contract requiring insurance" means that part of any written contract or agreement under which you are required to include a person or organization as an additional insured on this Coverage Part, provided that the " bodily injury" and " property damage" occurs and the " personal injury" is caused by an offense committed:
a. After the signing and execution of the contract or agreement by you;
b. While that part of the contract or agreement is in effect; and
c. Before the end of the policy ...