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Vermont Mutual Insurance Co. v. Cincinnati Specialty Underwriters Insurance Co.

United States District Court, D. Vermont

February 13, 2019

VERMONT MUTUAL INSURANCE COMPANY, Plaintiff,
v.
CINCINNATI SPECIALTY UNDERWRITERS INSURANCE COMPANY, Defendant.

          OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT (DOCS. 15 & 16)

          CHRISTINA REISS, DISTRICT JUDGE

         Plaintiff Vermont Mutual Insurance Company brings this action against Defendant Cincinnati Underwriters Specialty Insurance Company seeking a declaratory judgment as to which party is contractually obligated to provide primary coverage for a claim against Marcie and Scott Hawkins (the "Insureds") arising out of the death of a foster child at their East Montpelier, Vermont home.

         Pending before the court are Plaintiffs motion for summary judgment (Doc. 15) and Defendant's cross-motion for summary judgment (Doc. 16). Plaintiff asks the court for a declaratory judgment compelling the parties to pay a pro rata share of the claim based on their policy limits. Defendant seeks a declaratory judgment declaring Plaintiffs insurance policy primary coverage and its own policy excess coverage. On this basis, Defendant seeks a further declaration that it has no duty to defend the Insureds. After oral argument on December 28, 2018, the court took the matter under advisement.

         I. The Undisputed Facts.

         Plaintiff issued Homeowners Insurance Policy #HO17011903 (the "VMIC Policy") effective from July 31, 2016 through July 31, 2017 to the Insureds. The VMIC Policy contains an excess insurance clause entitled "Other Insurance - Coverage E -Personal Liability" which states: "This insurance is excess over other valid and collectible insurance except insurance written specifically to cover as excess over the limits of liability that apply in this policy." (Doc. 15-2 at 19.)

         Defendant issued "specialty lines" insurance policy #CSU0078301 (the "Cincinnati Policy") to the State of Vermont's Department for Children and Families, Family Services Division, ("DCF") effective from December 31, 2016 through December 31, 2017. The Cincinnati Policy identified the named insured as "Licensed Foster Parents of Department for Children & Families, Family Services Division." (Doc. 15-3 at 2.) The Cincinnati Policy also contains an excess insurance clause entitled "Other Insurance" which states:

         For Coverage A of this Coverage Part:

a. Excess Insurance
(1) If coverage is provided to any insured under any other valid policy for any loss resulting from any "claim[, "] then this policy will be excess of the amount of any deductibles, retentions and limits of liability under such other policy whether such policy is stated to be primary, contributory, excess, contingent or otherwise, unless such policy is written specifically as excess to this policy by reference of this policy number in such other policy Schedule or Declarations.
(2) When this insurance is excess, we will have no duty under Coverage A to defend any insured against any "suit" if any other insurer has a duty to defend that insured against that "suit[."] If no other insurer defends, we will undertake to do so, but we will be entitled to the insured's rights against those other insurers.
(3) When this insurance is excess over other insurance, we will pay only our share of the amount of the loss, if any, that exceeds the sum of:
(i) The total amount that all such other insurance would pay for the loss in the absence of this insurance; and
(ii) The total of all deductibles and self-insured amounts under all that other insurance.
(4) We will share the remaining loss, if any, with any other insurance that is not described in this Excess Insurance provision and was not bought specifically to apply in excess of the Limits of Insurance ...

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