Download as PDF

Back to Opinions Page

MAINE SUPREME JUDICIAL COURT                                              Reporter of Decisions

Decision:       2003 ME 6

Docket:         Cum-02-392

Argued:         November 13, 2002

Decided:        January 15, 2003

Panel: SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, CALKINS, and

LEVY, JJ.

v.

ACADIA INSURANCE CO.

CLIFFORD, J.

         [¶1]  American Protection Insurance Company, a Kemper Insurance Company (Kemper), appeals from a summary judgment entered in the Superior Court (Cumberland County, Crowley, J.).  Kemper contends that the court erred in its conclusion that the contract in dispute is unambiguous and that Acadia is entitled to judgment.  Kemper argues that the contract is unambiguous in its favor or, in the alternative, that if the contract is ambiguous, then the undisputed extrinsic evidence resolves the ambiguity in its favor.  Finding no error, we affirm the Superior Court’s judgment.

         [¶2]  In 1998, the Bureau of General Services (BGS) and the Department of Corrections began planning to construct the Northern Maine Juvenile Facility in Charleston (Project).  BGS and the Department requested that the Division of Risk Management, a division of BGS responsible for insurance matters, set up an Owner-Controlled Insurance Program (OCIP) for the Project.[1]  The Department and BGS contracted with Granger Northern to be the general contractor for construction of the new facility.  The provisions of the OCIP, described in the Contractor’s Insurance Requirements, became part of the contract signed with Granger Northern.  Granger Northern entered into a subcontract agreement with Accidental Anomalies pursuant to which Accidental Anomalies agreed to furnish structural steel to the Project and furnish and install metal fabrications at the Project.  The Contractor’s Insurance Requirements were also incorporated into the contract between Granger Northern and Accidental Anomalies.  Reliance Insurance Company originally provided the workers’ compensation insurance for OCIP covered work.  Acadia provided workers’ compensation coverage for Accidental Anomalies for work not covered by the OCIP.

         [¶3]  Subsection 1.1 of the Contractor’s Insurance Requirements provides that the OCIP insurance “covers the Owner, Contractor and Subcontractor of all tiers, but not excluded entities as defined herein.”  (Emphasis added.)  Subsection 2.3 defines “excluded entities” to mean “vendors, suppliers, fabricators, material dealers, drivers and others who merely transport, pick up, deliver or carry materials, personnel, parts or equipment or any other items or persons to or from the Project site who are excluded from the OCIP.”[2]  (Emphasis added.)

         [¶4]  Subsection 1.1 provides that “[e]ven if Contractor and Subcontractors are insured in an O.C.I.P., they must purchase the insurance in Subsection 3.8.” Subsection 3.8 is entitled “Contractor-Provided Insurance Necessary for the work, but Outside the O.C.I.P.” Subsection 3.8.6 describes the type and amount of workers’ compensation coverage that subcontractors must have to cover “operations away from the Project site of the Contractor or Subcontractor.”  (Emphasis in original.)  In contrast, subsection 2.3 states that those who qualify as excluded entities under subsection 2.3 must provide insurance required by subsection 3.9.  Subsection 3.9.1 describes the type and amount of workers’ compensation coverage required to cover “work at the Project site.” 

         [¶5]  Subsection 3.1 lists the kinds of insurance provided by the Owner, in this case the State, when the Owner awards a contract and provides an OCIP. Subsection 3.2 describes the workers’ compensation coverage provided by the Owner and states that such insurance “will cover operations of the Owner, Contractor and Subcontractors of all tiers performed in connection with the work at the Project site.  This insurance is primary for all occurrences at the Project site.”  (Emphasis added.)

         [¶6]  The subcontract agreement between Granger Northern and Accidental Anomalies also includes Exhibit C, which defines the scope of work that Accidental Anomalies would be responsible for on the Project.  According to Exhibit C, Accidental Anomalies was to do the following:  “Furnish, F.O.B. jobsite, all Structural Steel complete and without exception” and “[f]urnish and fully install all Metal Fabrications complete and without exception.”  (Emphasis added.)

         [¶7]  On August 25, 2000, Wayne Gurschick, an employee of Accidental Anomalies, was injured while unloading steel columns at the Project.  At the time the accident occurred, Gurschick was delivering and unloading steel that was to be used by another subcontractor.  Gurschick had intended to perform field verification work to aid in Accidental Anomalies’ onsite installation after delivering the steel, but was injured before he could do so.  The injuries Gurschick incurred in the accident required medical services, including surgery, and he had to miss time from work.  Because the injury occurred during the course of his employment with Accidental Anomalies, he was entitled to collect workers’ compensation.

[¶8]  By the summer of 2000, Reliance was in financial difficulties, so Reliance, Kemper, and the Department entered into a Novation Agreement on September 5, 2000, pursuant to which Kemper agreed to assume all of Reliance’s rights and obligations under the policies regarding the Project.  Despite the Novation Agreement, Reliance began to pay workers’ compensation benefits to Gurschick on November 16, 2000.  As of March 2002, Gurschick had received workers’ compensation benefits of $3008.19 for wage replacement and $45,035.75 for his medical expenses.  These benefits were originally paid by Reliance; the payments were then assumed by Kemper. Gurschick has continuing medical expenses and permanent restrictions caused by his injury, and he will likely be entitled to future workers’ compensation benefits.[3]

[¶9]  In July of 2001, Kemper filed a complaint for declaratory judgment and damages requesting that the court find Acadia responsible for the workers’ compensation payments to Gurschick.  Both parties moved for summary judgment.  Entering a summary judgment for Acadia, the court found that the language of the Subcontract Agreement between Granger Northern and Accidental Anomalies, and the Contractors’ Insurance Requirements under the OCIP to be unambiguous.  Citing language from subsections 2.1 and 2.3, the court found that “a subcontractor is at all times a covered entity under the O.C.I.P. unless that subcontractor is an