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06-2473 - Mt. Hawley Insurance Company v. Total Building Systems, Inc.


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06-2473 - Mt. Hawley Insurance Company v. Total Building Systems, Inc.
July 14, 2008
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ORDER that Pla Mt. Hawley Insurance Co.'s Motion for Summary Judgment 92 is GRANTED only to the extent that it seeks a declaration that it owes no defense or indemnification under the CONTRACTORS - CONDITIONS OF COVERAGE endorsement. The Motion is otherwise DENIED. FURTHER ORDERED that Dft Total Building Systems, Inc.'s Motion for Summary Judgment 100 is GRANTED to the extent that it seeks to avoid denial of coverage under the RESIDENTIAL DEVELOPMENT &CONDOMINIUM exclusion and rejection of Pla's request for rescission of theinsurance policy. The Motion is otherwise DENIED. FURTHER ORDERED that, upon entry of the declaratory judgment filed herewith, the Clerk shall terminate this action. Signed by Judge Neil V Wake on 7/14/08.(KMG)
July 14, 2008
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DECLARATORY JUDGMENT - IT IS ORDERED, ADJUDGED, AND DECREED that: 1. For purposes of this Declaratory Judgment, the following words have the following meanings: a. "Plaintiff's Policy" means Plaintiff's Policy No. MGL0135695, with a policy term running from April 23, 2003 to April 23, 2004. b. "Underlying Action" means Civil Cause No S-0300-CV-20060083 in the Superior Court of Arizona, Coconino County. 2. Plaintiff Mt. Hawley Insurance Co. is not obligated under Plaintiff's Policy to defend or indemnify Defendant Total Building Systems, Inc., or to pay any judgment or award of damages in the Underlying Action. 3. Plaintiff's Policy does not provide coverage for the claims made by Linthicum Constructors, Inc., against Defendant Total Building Systems, Inc., in the Underlying Action. 4. Plaintiff Mt. Hawley Insurance Co. is entitled to the declarations in paragraphs 2 and 3 above because the coverage that otherwise would apply with respect to the claims in the Underlying Action was voided by Defendant Total Building Systems, Inc.'s failure to meet the ContractorsConditions of Coverage endorsement of Plaintiff's Policy. 5. Plaintiff Mt. Hawley Insurance Co. is not absolved from any duty to defend or to indemnify Defendant Total Building Systems, Inc., in the Underlying Action, by virtue of the ExclusionResidential Development &Condominiums endorsement in Plaintiff's Policy. 6. Plaintiff Mt. Hawley Insurance Co. is not entitled to rescission of Plaintiff's Policy on the ground of the development being misunderstood as a hotel or on the ground of it being a residential development. Signed by Judge Neil V Wake on 7/14/08. (KMG, )