VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond, on Thursday, the 21st day of
April, 2011.
Uniwest Construction, Inc., et al. Appellants,
against Record No. 091495
Circuit Court No. CL-2008-5909
Amtech Elevator Services, Inc.,
n/k/a ABM Amtech, Inc., et al. Appellees.
Amtech Elevator Services, Inc.,
n/k/a ABM Amtech, Inc., et al. Appellants.
against Record No. 091496
Circuit Court No. CL-2008-5909
Uniwest Construction, Inc., et al. Appellees.
Federal Insurance Company Appellant,
against Record No. 091521
Circuit Court No. CL-2008-5909
Amtech Elevator Services, Inc.,
n/k/a ABM Amtech, Inc., et al. Appellees.
Upon a Petition for Rehearing
By unanimous opinion issued September 16, 2010, this Court
affirmed in part and reversed in part the judgment of the Circuit
Court of Fairfax County against Amtech Elevator Services, Inc.,
n/k/a ABM Amtech, Inc. (“Amtech”), ABM Industries, Inc., and AIU
Insurance Company (“AIU”) and remanded the case for further
proceedings. 280 Va. 428, 446, 699 S.E.2d 223, 232 (2010).
Thereafter, Uniwest Construction, Inc. (“Uniwest”), and Federal
Insurance Company filed petitions for rehearing requesting the
Court to consider “whether the underlying claims by Bruce and
Stinson gave rise to ‘liability arising out of operations conducted
by [Amtech] or on [Amtech’s] behalf’ ” and to “request that the
Court make clear that a finding of ‘relative liability’ is not
required with respect to E-7; instead, the finding on remand with
respect to E-7 should be whether Uniwest’s ‘liability [arose] out
of operations conducted by [Amtech] or on [Amtech’s] behalf.’ ”
(Alterations in original.) By order entered January 18, 2011, the
Court granted the petitions.
The questions presented by the petitions for rehearing were
not reached by the circuit court because it erroneously determined
that Uniwest was not an insured under Subdivision E-7 of Amtech’s
commercial umbrella insurance policy from AIU. 1 Because the circuit
court did not decide the scope or extent of liability under
Subdivision E-7, the Court remands the matter “for consideration of
the legal and factual efficacy” of the questions presented in the
petitions for rehearing. 2 Burwell's Bay Improvement Ass'n v. Scott,
277 Va. 325, 332, 672 S.E.2d 847, 851 (2009) (remanding for
consideration of preserved questions preempted by the circuit
court’s erroneous holding on a threshold question).
1
Uniwest is an insured under both Subdivision E-4 and
Subdivision E-7 of the policy. 280 Va. at 445, 699 S.E.2d at 232.
2
The Court expresses no opinion as to whether relative
liability is relevant to Subdivision E-7.
2
The Court withdraws Part II(D) of its opinion of September 16,
2010. On remand the circuit court shall determine the extent of
Amtech’s liability to Uniwest for its failure to defend and
indemnify Uniwest. 3 The court also shall determine whether and to
what extent AIU is liable under Subdivision E-4 and Subdivision E-
7, consistent with this Court’s opinion of September 16, 2010, as
amended, and this order. If the court determines that Uniwest and
its insurers are entitled to an award of damages, consideration of
such damages shall include both Uniwest’s settlement with Bruce and
Stinson and the cost of Uniwest’s defense in the lawsuit leading to
that settlement for which Amtech and AIU are liable, to the extent
such costs have not yet been paid by Amtech and its insurers.
This order shall be published in the Virginia Reports and
shall be certified to the said circuit court.
A Copy,
Teste:
Patricia L. Harrington, Clerk
3
The question of Amtech’s liability is settled: “Amtech [had]
a duty to defend and indemnify Uniwest,” 280 Va. at 443, 699 S.E.2d
at 231, “to the extent caused in whole or in part by negligent acts
or omissions of” Amtech. Id. at 433, 699 S.E.2d at 225.
3