Estate of Gregory Messenger v. Atain Insurance Company

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

ESTATE OF GREGORY MESSENGER, by UNPUBLISHED
PATRICIA J. L. MESSENGER, Personal December 26, 2019
Representative, and MAINS CONSTRUCTION
LLC,

Plaintiffs-Appellants,

v No. 344690
Oakland Circuit Court
ATAIN INSURANCE COMPANY, LC No. 2017-158286-CK

Defendant-Appellee,
and

BERKSHIRE AGENCY, INC.,

Defendant.

Before: MURRAY, C.J., and SAWYER and GLEICHER, JJ.

GLEICHER, J. (concurring).

Defendant Atain Insurance Company issued a commercial general liability (CGL)
insurance policy to plaintiff Mains Construction, LLC, a general contractor. Atain denied
coverage under the CGL policy and refused to indemnify Mains for a stipulated judgment in a
wrongful death action filed by the Estate of Gregory Messenger. The underlying facts are not in
dispute. Messenger was employed by a subcontractor, NBI Construction Services, Inc., as a
sheet metal fabricator and welder. Mains entered into a contract with a concrete manufacturing
company to reline a silo with steel plating. Mains subcontracted with NBI. Messenger died of
smoke inhalation when a fire broke out on the job site. His estate asserted negligence claims
against the concrete company and Mains, and an intentional tort claim against NBI.

Mains tendered its defense to Atain. Atain filed this action, seeking a declaration that it
owed no duty to defend or indemnify. The sole issue presented is whether the trial court
correctly granted summary disposition in Mains’ favor. Although I agree with the majority that
summary disposition was appropriate, I write separately.
 Mains’ CGL policy provides coverage for bodily injury, including death, “to which this
insurance applies.” Unfortunately for Mains, the policy as written applies to very few risks. Not
surprisingly, the policy contains a workers’ compensation exclusion, which excludes general
liability insurance coverage for Mains’ own employees. This exclusion makes sense, as
workers’ compensation damages are supposed to be covered under a workers’ compensation
insurance policy. The Atain policy also contains an “endorsement” modifying the workers
compensation exclusion. The “endorsement” actually operates as an expansive exclusion,
substantially limiting policy coverage by eliminating coverage for injuries to the employees of
Mains’ subcontractors attributable to Mains’ negligence.1

I concur with the majority’s conclusion that there is no coverage available under the
policy. The operative language of the “endorsement” excludes coverage when Mains’ jobsite
negligence injures virtually any worker on the jobsite. Relevant here and read in context, the
policy shields Atain from indemnifying Mains for “[b]odily injury to an . . . employee of any
subcontractor . . . arising out of and in the course of . . . service to any insured for which any
insured may be held liable as an employer or in any other capacity.” Messenger was the
employee of a subcontractor and was providing a “service” to Mains. Legally, Mains could be
held liable for its negligence in its “capacity” as the on-site general contractor. The exclusion
unambiguously eliminates coverage for that negligence.

What is covered? According to Atain, coverage exists only for bodily injuries to
passersby, delivery persons, architects or engineers, employees of another contractor, the site
owner, the site owner’s employees, and “people in a neighboring property.” Most construction
sites are closed or inaccessible to the public, rendering the risk of covered injuries rather small.
But according to the endorsement, Mains has no coverage for the most common risk it faces—a
lawsuit brought by an employee of a subcontractor arising out of its own negligence—as in this
case. So much for the “general” commercial liability policy Mains thought it had purchased for
approximately $4,000.

“Subcontractors supply the majority of labor on construction projects. If a subcontractor’s
employee is harmed during the course of working on a project, it is not unusual for a claim to
arise.” Bruner & O’Connor, Construction Law, § 11:308. “The owner and general contractor
are common targets.” Id. See also Atlantic Cas Ins Co v Paszko Masonry, Inc, 718 F3d 721, 724
(CA 7, 2013) (“[T]he vast majority of persons at such a site—and the persons most likely to be
injured there—are construction workers, employed by contractors or subcontractors. . . .”).

The Seventh Circuit observed in Atlantic Cas: “We don’t understand the attraction of an
insurance policy such as Atlantic’s that contains such a broad exclusion[.]” Id. at 725. The
liability insurance benefits afforded by the Atain policy are equally opaque. With the exclusion,
the policy’s narrow liability coverage renders it almost worthless. 2 This case—along with others

1
In contrast, the “coverage form” of the policy provides broad coverage for “those sums that the
insured becomes legally obligated to pay as damages because of ‘bodily injury’ . . . to which this
insurance applies.” The stated limit of liability is $1,000,000.00
2
Gilbert Mains, the owner of Mains Construction, LLC, likely thought he had coverage, as the
primary purpose of a commercial general liability insurance policy is general coverage for most
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construing the same language and reaching the same result, such as Certain Interested
Underwriters at Lloyd’s, London v Stolberg, 680 F3d 61 (CA 1, 2012)—offers a cautionary tale
for every party to a construction contract. Bruner explains:

Broadly-crafted employee exclusions depart from the original rationale
justifying the exclusion. The purpose of the exclusion is to avoid duplicative
coverage. Where the exclusion is broadly crafted to capture the employees of
construction participants who are not shielded from liability under the
jurisdiction’s workers’ compensation laws, the justification for the exclusion no
longer applies. Thus, where an additional insured, such as an owner or general
contractor, is denied coverage because the employee exclusion applies
notwithstanding the fact that the owner and general contractor are not shielded by
the workers’ compensation laws, the additional insured coverage does not achieve
one of its principal goals as the parties must now dispute liability and
responsibility for the injury. [Bruner & O’Connor, Construction Law, § 11:308.]

Policy provisions such as the one at issue here do not reduce tort litigation. Rather, they
realign the liability calculus such that those least able to police job safety on the site (such as a
property owner or an insurance agent) wind up bearing the burden of paying for the negligence
of the contractor, the party best suited to protect workers. Alternatively, the injured worker is
never adequately compensated.

/s/ Elizabeth L. Gleicher

foreseeable risks. Of course, Michigan law renders his reasonable expectations irrelevant.
Wilkie v Auto-Owners Ins Co, 469 Mich 41, 63; 664 NW2d 776 (2003).

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