UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CREDIT GENERAL INSURANCE
COMPANY,
Plaintiff-Appellant,
No. 00-1305
v.
ABATECO SERVICES, INCORPORATED,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-99-516)
Argued: December 7, 2000
Decided: March 28, 2001
Before WILKINS, MICHAEL, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
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COUNSEL
ARGUED: Deborah Shea O'Toole, COWAN & OWEN, P.C., Rich-
mond, Virginia, for Appellant. David Allen Hearne, OUTLAND,
GRAY, O'KEEFE & HUBBARD, Chesapeake, Virginia, for Appel-
lee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Credit General Insurance Company (CGIC) filed this diversity suit
against its insured, Abateco Services, Inc. (Abateco), seeking a decla-
ration that the insurance policy does not provide Abateco coverage for
its expenses in repairing a fire-damaged building. Abateco counter-
claimed, seeking a declaration that CGIC is obligated to reimburse
Abateco for its expenses. The parties filed cross-motions for summary
judgment, and the district court granted Abateco's motion. CGIC
maintains on appeal that Abateco breached a condition precedent to
coverage and that, in any event, the loss is not covered under the pol-
icy. We conclude that the district court was correct in deciding that
CGIC waived the condition precedent and that the policy's operations
exclusion does not apply. We also conclude that there is a material
factual issue of whether Abateco was negligent, and negligence is
necessary for coverage in this case. Accordingly, we affirm in part,
vacate in part, and remand for further proceedings on the negligence
issue.
I.
Abateco is a Virginia corporation that specializes in asbestos
removal. Abateco is insured by CGIC, an Ohio corporation, under a
commercial liability insurance policy. Abateco entered into a subcon-
tract with Virtexco Corporation (Virtexco), a general contractor that
was renovating military housing for the Navy in Chesapeake, Vir-
ginia. As subcontractor Abateco was responsible for the removal of
paint and asbestos at two units of a housing complex.
Roger Cornell was Abateco's superintendent on duty at the work
site. On March 20, 1998, after Cornell and the other Abateco workers
left for the day, a fire broke out, damaging the two housing units. On
March 23 Abateco notified CGIC of a potential claim arising out of
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the fire, and on March 30 CGIC acknowledged receipt of the claim.
The Navy conducted an investigation into the cause of the fire and
issued a report in May 1998. Cornell (the Abateco supervisor) told
Navy investigators in March 1998 that he had "locked the doors" at
both units at the end of the work day, shortly before the fire. How-
ever, the Navy report noted that the fire department, when it arrived
to fight the fire, found that the front door to one of the units was
unlocked. The report concluded, "The cause of the fire is suspicious.
All causes such as electrical, mechanical, chemical, smoking material,
and natural causes were systematically eliminated." The Navy subse-
quently instructed Virtexco to rebuild the fire-damaged units and to
continue its work under the contract. Virtexco, in turn, told Abateco
to perform the repair work at its expense or face termination of the
subcontract.
CGIC was aware of these events. It had received a copy of the
Navy's fire investigation report, and it knew that the Navy had
demanded that the contractor rebuild the damaged units. Meanwhile,
CGIC had hired Lindsey Morden Claims Services, Inc. (Lindsey Mor-
den) to conduct its own fire investigation. Lindsey Morden concluded
that "there is no negligence on the part of Abateco Services." On
July 29, 1998, CGIC notified the Navy, Virtexco, and Abateco that it
was "deny[ing] any payment in this matter." CGIC denied coverage
on the ground that the fire was neither accidental nor caused by any
negligence on the part of its insured, Abateco.
Abateco completed the repairs to the fire-damaged units at its own
expense. On March 25, 1999, Abateco wrote CGIC, demanding that
CGIC reimburse it for the repair costs in the amount of $191,671.70.
CGIC based its demand on a March 15, 1999, letter written by Cor-
nell, its supervisor. In this letter Cornell said that at the time the fire
occurred, he was not checking at the end of each work day to make
sure that the front and kitchen doors to the units were locked. Accord-
ing to Cornell, "The only door locked and checked daily was the
garage door. The kitchen and side/front entrance doors were only
checked when the containment was originally constructed," which
was well before the fire. In its March 1999 demand to CGIC for reim-
bursement, Abateco asserted that Cornell's failure to lock all doors
constituted negligence, and therefore the fire loss was covered under
the insurance policy.
3
On July 20, 1999, CGIC filed this action, seeking a declaration that
it is not obligated under the insurance policy to cover Abateco's loss.1
1
Abateco counterclaimed, seeking the opposite, a declaration that it
was entitled to insurance coverage for the repair costs. After both par-
ties moved for summary judgment, they filed a stipulation of facts.
Among other things, the parties stipulated that"unknown individuals"
had entered the housing units and started the fire.
CGIC argued that Abateco was not entitled to coverage because it
had failed to obtain CGIC's consent before incurring the costs of
repair. CGIC's consent was a condition precedent to coverage under
the policy.2 Abateco responded that CGIC had waived compliance
2
with the condition precedent by denying the claim. CGIC also main-
tained that the loss was not a covered "occurrence" because there was
no "accident."3 Finally, the insurance company argued that the loss
3
was excluded from coverage for two other reasons: (1) because
Abateco had contractually assumed liability and (2) because the loss
arose out of Abateco's operations.4 4
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1 Before CGIC had filed suit, Virtexco, on behalf of Abateco, had sub-
mitted a claim to the Navy Contracting Officer, seeking reimbursement
for the cost of repairing the fire-damaged units. The Navy issued a deci-
sion denying the claim, and an appeal was filed with the Armed Services
Board of Contract Appeals.
2 Section IV(2)(d) of the policy provides, "No insureds will, except at
their own cost, voluntarily make a payment, assume any obligation, or
incur any expense, other than for first aid, without our consent."
3 Section I(1)(b) of the policy provides, "This insurance applies to
`bodily injury' and `property damage' only if . . . [t]he `bodily injury' or
`property damage' is caused by an `occurrence' that takes place in the
`coverage territory' . . . ." Section V(9) defines "occurrence" as "an acci-
dent." CGIC claimed that there was no "accident" because the Navy
report concluded that the fire was of suspicious origin.
4 Section I(2)(b) of the policy excludes from coverage that property
damage "for which the insured is obligated to pay damages by reason of
the assumption of liability in a contract or agreement." Section I(2)(j)(5)
states that the insurance does not apply to property damage to "[t]hat par-
ticular part of real property on which [the insured's] contractors or sub-
contractors . . . are performing operations if the`property damage' arises
out of those operations."
4
The district court analogized the condition precedent in this case to
a policy provision requiring the filing of a proof of loss. Under Vir-
ginia law if an insurance company denies liability and refuses to pay
a claim, it waives the right to insist upon the insured's filing of a
proof of loss. Likewise, the district court concluded that by denying
liability, CGIC had waived compliance with the condition precedent.
It would have been useless for Abateco to attempt to get CGIC's con-
sent to incur the repair costs because CGIC had already refused to pay
the claim.
The district court also rejected CGIC's other arguments. It con-
cluded that the loss was an "occurrence" under the policy because the
fire was caused by an "accident," that is, Cornell's "negligen[ce] in
failing to secure the premises." Furthermore, the district court held
that neither of the policy exclusions relied upon by CGIC are applica-
ble. According to the district court, Abateco did not assume liability
under section I(2)(b) of the policy, see supra note 4, by reason of its
subcontract with Virtexco. Abateco had to repair the units to avoid
being held in default under its subcontract. In addition, the district
court concluded that the operations exclusion in section I(2)(j)(5) of
the policy, see supra note 4, did not release CGIC from its obliga-
tions. According to the court, the fire damage did not arise out of
Abateco's operations since the fire started after all of the workers had
left for the day. Based on the above reasoning, the district court
granted Abateco's motion for summary judgment. CGIC appeals.
II.
We review a grant of summary judgment de novo. See Marshall v.
Cuomo, 192 F.3d 473, 478 (4th Cir. 1999). Summary judgment is
appropriate when "there is no genuine issue as to any material fact"
and "the moving party is entitled to a judgment as a matter of law."
Fed. R. Civ. P. 56(c). Any doubts as to the existence of a genuine
issue of material fact will be resolved against the moving party. See
Langham-Hill Petroleum Inc. v. S. Fuels Co., 813 F.2d 1327, 1329
(4th Cir. 1987); Girard v. Gill, 261 F.2d 695, 697 (4th Cir. 1958).
Before entering summary judgment, a court must be certain that based
on the record in front of it, there is no disputed issue of material fact.
See Stiltner v. Beretta U.S.A. Corp., 74 F.3d 1473, 1478 (4th Cir.
5
1996); Para-Chem S., Inc. v. M. Lowenstein Corp. 715 F.2d 128, 132
(4th Cir. 1983).
We are satisfied that there is no factual dispute with respect to two
of the issues decided by the district court: that CGIC waived compli-
ance with the policy's condition precedent and that the policy's opera-
tions exclusion does not apply. We are also satisfied that the district
court reached the correct result in granting summary judgment to
Abateco on these two issues, and to that extent we affirm on the rea-
soning of the district court. See Credit Gen. Ins. Co. v. Abateco
Servs., Inc., No. 3:99CV516 (E.D. Va. Feb. 25, 2000). We conclude,
however, that there is a material factual dispute relating to whether
the fire loss was covered under the insurance policy.
Abateco's insurance coverage extends to property damage that is
caused by an "occurrence," which is defined as an "accident." An "ac-
cident" generally includes an insured's negligence but excludes an
insured's intentional acts. See 14 Lee R. Russ & Thomas F. Segalla,
Couch on Insurance § 201:6 (3d ed. 2000). Abateco claims that Cor-
nell's negligence in failing to secure the doors to the units is the "oc-
currence" that entitles it to insurance coverage for the fire loss. But
Abateco is not entitled to a full award of summary judgment unless
Abateco can establish that there is no dispute of fact as to Cornell's
negligence.
Cornell's (or Abateco's) negligence is relevant for another reason.
The insurance policy contains an exclusion for those losses which the
insured is obligated to pay "by reason of the assumption of liability
in a contract or agreement." This exclusion serves to deny coverage
in those cases where an insured agrees to hold harmless or indemnify
a third party. See 9 Couch on Insurance § 129:30. The district court
concluded that this exclusion does not apply to Abateco because
Abateco did not assume liability under its subcontract with Virtexco.
We do not have to go that far, however. The exclusion, by its terms,
is inapplicable if the insured would be liable for the loss "in the
absence of the contract or agreement." In other words, "the exclusion
does not destroy coverage for the insured's own negligence, even that
stemming from the insured's negligent performance of a contract." 9
Couch on Insurance § 129:30. If Abateco's negligence caused the fire
loss, it would be liable for repairing the housing units regardless of
6
whether its subcontract required it to assume liability for fire loss.
Therefore, if Abateco could show that it was negligent, CGIC would
not be able to raise the exclusion as a bar to insurance coverage.
Abateco relies on Cornell's March 15, 1999, letter to establish its
negligence. CGIC, however, did not stipulate or agree that Cornell
failed to secure the doors to the units. Rather, CGIC pointed out to
the district court and to us that Cornell had made inconsistent state-
ments about what he did. On the one hand, Cornell told Navy investi-
gators in March 1998 that he had "locked the doors" at both units. On
the other hand, one year later in his March 15, 1999, letter supporting
his employer's demand to the insurance company, Cornell said: "The
only door locked and checked daily was the garage door. The kitchen
and side/front entrance doors were only checked[well before the fire]
when the containment was originally constructed." There might be an
explanation for the apparent inconsistency in Cornell's statements,
but the inconsistency is too material to ignore at the summary judg-
ment stage, particularly since it was noted by CGIC in the district
court.
For the foregoing reasons, we conclude that Abateco is not entitled
to complete summary judgment because a genuine issue of material
fact remains--whether Cornell was negligent in failing to secure the
doors to the housing units. Accordingly, we vacate the district court's
entry of complete summary judgment in favor of Abateco and remand
for further proceedings on the issue of negligence.
AFFIRMED IN PART, VACATED
IN PART, AND REMANDED
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