Bacon Construction Co., Inc.
Arbella Protection Insurance Company, Inc.
Providence County Superior Court (PC 16-2169) Associate
Justice Maureen B. Keough
Plaintiff: Peter H. Carroll, Esq.
Defendant: Lisa M. DeMari, Esq.
Present Suttell, C.J., Goldberg, Flaherty, Robinson, and
Maureen McKenna Goldberg Associate Justice.
case came before the Supreme Court on January 17, 2019, on
appeal from a grant of summary judgment in favor of the
defendant, Arbella Protection Insurance Company, Inc.
(Arbella or defendant). The plaintiff, Bacon Construction
Co., Inc. (Bacon or plaintiff), challenges the findings of a
Superior Court justice that Arbella is not contractually
obligated to provide insurance coverage to Bacon, which is
listed as an additional insured on the insurance policy at
issue. For the reasons set forth herein, we affirm the
judgment of the Superior Court.
material facts in this case are not in dispute. Bacon, having
been hired as the general contractor for a construction
project at the University of Rhode Island (the construction
project), subcontracted with U.S. Drywall (U.S. Drywall or
the insured) for structural work on the project. Pursuant to
the subcontract agreement (the subcontract), U.S. Drywall was
required to obtain a general liability insurance policy that
listed Bacon as an additional insured. U.S. Drywall complied
with this requirement by purchasing a commercial general
liability insurance policy from Arbella (the Arbella policy),
which included an endorsement naming Bacon as an additional
insured. The Arbella policy itself provided for defense and
indemnification costs to U.S. Drywall for its work on the
December 12, 2014, an employee of U.S. Drywall, Thiago
Almeida (Almeida), while performing work at the construction
project site, sustained severe injuries when he slipped on
ice and fell down a staircase. On June 25, 2015, Almeida
filed a complaint (the Almeida complaint) in Superior Court
against Bacon, alleging that Bacon's negligent acts were
the proximate cause of his injuries (the Almeida action).
Notably, although the Almeida complaint averred that he was
performing work in accordance with the subcontract, it
contained no allegations of negligence against his employer,
response to Almeida's claims, Bacon initially filed a
third-party complaint against U.S. Drywall, asserting that
U.S. Drywall was contractually obligated to defend and
indemnify Bacon; and, in an amended third-party complaint,
Bacon included a claim for breach of contract against U.S.
Drywall. However, on June 27, 2017, Bacon made what it
characterized as "a strategic legal decision" to
dismiss all claims in the suit, with prejudice, including
those against U.S. Drywall.
Bacon sought to recover indemnity and defense costs from U.S.
Drywall's commercial general liability insurer,
defendant, Arbella. Bacon alleged that, because the Arbella
policy named Bacon as an additional insured, Bacon is
entitled to indemnification. Arbella, however, took the
position that, "based on the additional insured
endorsements, Bacon would be an additional insured only with
respect to liability for bodily injury caused by our insured
acts or omissions." The additional insured endorsement
that is contained within the Arbella policy forms the
foundation of this appeal.
13, 2016, Bacon filed the present action seeking a
declaratory judgment that Arbella is contractually obligated
to indemnify and defend Bacon as an additional insured
relative to the Almeida action. Bacon subsequently moved for
summary judgment, arguing that, pursuant to the unambiguous
provisions of the Arbella policy, Bacon, as an additional
insured, is afforded the same coverage as U.S. Drywall.
Arbella filed an objection, along with a cross-motion for
summary judgment, countering that Arbella had no duty to
defend or indemnify Bacon as an additional insured because
the allegations against Bacon in the Almeida complaint fell
outside the scope of coverage provided by the Arbella policy.
Arbella asserted that Bacon is entitled to coverage only for
liability caused by U.S. Drywall's acts or omissions;
and, according to Arbella, because the Almeida complaint
alleges negligence solely against Bacon, Arbella is not
required to provide coverage with respect to the Almeida
26, 2017, the Superior Court justice heard arguments on both
motions and issued a bench decision in which she determined
that the Arbella policy is clear and limits additional
insured coverage to "that which was due, at least in
part, to U.S. Drywall's negligence." The hearing
justice further explicated that, after "looking at the
original complaint that contains only allegations against
Bacon only for Bacon's own negligence[, ]" as well
as "the insurance policy language, and the fact that
there is nothing here to suggest that any of these actions
could have been attributed to U.S. Drywall, [she did] not
believe the facts as presented would trigger the additional
insured coverage clause[.]" Arbella's cross-motion
for summary judgment was granted, and Bacon's motion for
summary judgment was denied. Judgment entered in favor of
Arbella on September 1, 2017. Bacon timely appealed.