United States District Court, S.D. Indiana, Indianapolis Division
For WESTFIELD INSURANCE COMPANY, Plaintiff: Mark R. Smith, SMITH FISHER MAAS HOWARD & LLOYD, P.C., Indianapolis, IN.
For THE TRAVELERS INDEMNITY COMPANY OF AMERICA, Defendant: John Carl Trimble, Lewis S. Wooton, LEWIS WAGNER LLP, Indianapolis, IN.
For JODI BONDY, TIMOTHY BONDY, Defendants: James L. Lowry, KENDALL WOOD LOWRY & KESSINGER, Danville, IN.
ENTRY ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
Hon. Tanya Walton Pratt, United States District Judge.
This matter is before the Court on cross-motions for summary judgment filed by Westfield Insurance Company's (" Westfield" ) (Filing No. 42) and The Travelers Indemnity Company of America's (" Travelers" ) (Filing No. 51). The dispute in this case arises from an underlying Management Agreement between Hokanson Companies, Inc. (" Hokanson" ) and Prestwick KJ, LLC (" Prestwick" ), which established Hokanson as the property manager of Prestwick's property located at 5230 and 5250 East U.S. Highway 36, Danville, Indiana (" the Property" ). The case is based on an underlying lawsuit brought by Defendants Jodi Bondy (" Ms. Bondy" ) and Timothy Bondy (collectively the " Bondys" ) after Ms. Bondy allegedly slipped and fell on ice at the Property. The parties' cross-motions dispute which insurance carrier, Westfield or Travelers, is responsible for the defense and payment of the Bondys' claims. For the reasons set forth below, Westfield's motion is DENIED and Traveler's motion is GRANTED.
The parties have stipulated to certain facts (Filing No. 43), which the Court presents below. On November 29, 2006, Prestwick hired Hokanson under the Management Agreement to serve as the real estate manager for the Property. The Management Agreement was renewed through and including January 25, 2011. In June 2010, Travelers issued its Building Pac Policy No. I-680-5115L097-TIA-10 to Prestwick with effective dates of coverage of June 25, 2010 to June 25, 2011. In December 2010, Westfield issued its Commercial Package Policy No. TRA 3 420 078 to Hokanson with effective dates of coverage of December 1, 2010 to December 1, 2011. Ms. Bondy allegedly slipped on ice at the front entrance to Family Fun Fitness, a tenant of the Property, on January 25, 2011. At the time of the accident the Management Agreement was in full force, the Travelers policy was in full force, and the Westfield policy was in full force. On April 3, 2012, the Bondys filed their complaint for negligence against Hokanson in Hendricks County Circuit Court.
The Court finds the following additional facts are undisputed. The Management Agreement set forth the duties and responsibilities of both Prestwick and Hokanson. Hokanson was to manage the Property in Prestwick's best interest, perform duties customarily performed by managing agents, and efficiently and economically manage the Property in a manner equal to the standard of competent building managers in Indianapolis, Indiana. Further, Hokanson agreed to:
indemnify, defend, and save [Prestwick] harmless from all liability, including expenses of defense, arising from any action taken or admitted to be taken by [Hokanson], its officers, agents or representatives, in the negligent performance of its duties under this Management Agreement or otherwise relating to, arising out of, or connected with [Hokanson's] breach of this Agreement.
Filing No. 1-1, at ECF p. 2. The Management Agreement also imposed an insurance obligation on Prestwick:
[Prestwick] shall carry, at its expense, liability insurance covering liability for property damage and personal injury or death arising from the ownership and operation of the [Property], which insurance shall operate for the benefit of
[Prestwick], as insured, and [Hokanson] as additional insured, against such claims and liability which may be incurred in the ownership, management and operation of the Buildings. A certificate of such insurance shall be supplied to [Hokanson]. The amount of such insurance shall be such reasonable amount as [Prestwick] shall determine. As used in this subparagraph, the term [Hokanson] will include any legal entity owned and controlled by [Hokanson] which may be the employer of employees engaged in the operation and maintenance of the [Property].
Filing No. 1-1, at ECF p. 3. As stated above, Prestwick secured a policy, under which Hokanson was a secondary insured, with Travelers. Hokanson also secured its own policy with Westfield.
Following the Bondys' lawsuit on April 9, 2012, Hokanson notified Travelers and requested that Travelers undertake the defense and indemnification of Hokanson. On April 16, 2012, Westfield tendered the defense and indemnification of Hokanson to Travelers. Travelers refused to undertake the defense of Hokanson, so Westfield hired a law firm to defend against the Bondys' lawsuit pursuant to a reservation of rights under the Westfield ...