United States District Court, S.D. West Virginia.

NAUTILUS INSURANCE COMPANY, Petitioner,

v.

JOHNNY CLARK TRUCKING, LLC, et al., Respondents.

 

Civil Action No. 2:12–cv–06678.

Signed March 20, 2014.

 

Julie A. Warren, Matthew J. Perry, Lamp Bartram Levy Trautwein & Perry, Huntington, WV, for Petitioner.

 

S. Douglas Adkins, Cyrus & Adkins, William L. Mundy, Mundy & Associates, Huntington, WV, Clayton J. Fitzsimmons, Robert P. Fitzsimmons, Fitzsimmons Law Firm, Wheeling, WV, J. Rudy Martin, Jackson Kelly, Lynnette S. Marshall, Schuda & Associates, Robert B. Warner, Warner Law Offices, Charleston, WV, for Respondents.

 

MEMORANDUM OPINION AND ORDER

JOSEPH R. GOODWIN, District Judge.

*1 Pending before the court is petitioner Nautilus Insurance Company’s (“Nautilus”) Motion for Summary Judgment [Docket 32] and Johnny Clark, LLC’s (“Johnny Clark”) Cross Motion for Partial Summary Judgment [Docket 39]. For the reasons stated below, Nautilus’s Motion for Summary Judgment [Docket 32] is GRANTED and Johnny Clark’s Cross Motion for Partial Summary Judgment [Docket 39] is DENIED.

 

I. Background

 

A. The Underlying Incident

 

The facts underlying this federal action are the subject of a pending lawsuit (the “Qualls Lawsuit”) in the Circuit Court of Kanawha County, West Virginia. (See generally Kanawha Compl. [Docket 33–1] ). The lawsuit alleges that Mr. Qualls was driving a coal truck when the truck’s brakes failed. Due to the brake failure, Mr. Qualls struck a berm, which caused the truck to roll over. During the accident, Mr. Qualls was ejected from or attempted to exit the truck and was pinned down by the truck when it rolled over. Mr. Qualls was pronounced dead upon arrival of emergency medical services.

 

The Qualls Lawsuit alleges that at the time of his death, Mr. Qualls was employed by Medford Trucking, LLC (“Medford”). However, Mr. Qualls was hauling coal on behalf of Elk Run Coal Company, Inc. d/b/a Republic Energy (“Elk Run”), pursuant to a contractual agreement between Medford and Elk Run. The truck Mr. Qualls was driving was provided to Medford by Johnny Clark. (See generally Trucking Agreement [Docket 33–2] ).

 

B. Procedural Background of the “Qualls Lawsuit”

After the accident, respondent Nancy Lewis, administrator of Mr. Qualls’s estate, filed suit against the respondents Medford and Elk Run. (See generally Kanawha Compl. [Docket 33–1] ). In her complaint, Ms. Lewis alleges that Medford violated West Virginia law by knowingly exposing Mr. Qualls to unsafe working conditions and that Elk Run negligently failed to provide training, to inspect the truck, to maintain the road, and to provide a safe place to work. Subsequently, Medford filed a Third Party Complaint against Johnny Clark alleging that Johnny Clark was required to provide serviceable trucks. (See generally Third Party Compl. [Docket 33–3] ). Medford is also seeking contribution and indemnification pursuant to the Trucking Agreement between Johnny Clark and Medford. After Medford filed the Third Party Complaint, Ms. Lewis brought Johnny Clark into the Qualls Lawsuit. (See generally Rule 14 Compl. [Docket 33–4] ). She alleges that Johnny Clark was negligent for providing Medford a truck in an unsafe and inoperable condition.

 

C. Procedural Background for the Instant Declaratory Action

After Ms. Lewis added Johnny Clark as a defendant in the Qualls Lawsuit, the three respondents, Johnny Clark, Medford, and Elk Run, sought coverage under the policy at issue. At the time of the accident, Johnny Clark was insured by Nautilus through a Commercial General Liability Policy, which is designated as Policy No. NN007001 (the “Policy”). (See generally Policy [Docket 33–5] ). The Policy identifies Johnny Clark, LLC d/b/a Johnny Clark as the named insured. (See id.) Medford is identified as an additional insured. (See id.). On October 17, 2012, Nautilus filed the instant petition for declaratory judgment to resolve the scope of its insurance coverage liability towards the respondents. (See generally Pet. for Declaratory J. [Docket 1], at 4–5).

 

D. Overview of the Policy

*2 The Policy consists of three major portions: declarations, the commercial general liability coverage form, and coverage parts. The declarations portion includes, in relevant part, the Commercial General Liability Coverage Part Declarations and a Schedule of Forms and Endorsements. The Commercial General Liability Coverage Part Declarations states the limits of the Policy, the location and type of business the insured is engaged in, and a list of the classifications that have been applied to the Policy. These classifications are a Trucker classification, which modifies the Policy for the trucking business, and two classifications which incorporate Medford as an additional insured under the Policy. The Schedule of Forms and Endorsements functions like a table of contents and provides a list of every form and endorsement in the Policy, an endorsement being a short amendment to the standard terms of the Policy.

 

The Commercial General Liability Coverage Form provides, in relevant part, the standard terms for what coverage is provided and to whom, as well as providing the definition of technical words used in the Policy. Section II of the Commercial General Liability Coverage Form governs who is an eligible insured under the Policy. Specifically, individuals, partnerships, limited liability companies, and organizations “designated in the Declarations” (as Johnny Clark is) are insureds. (See Commercial General Liability Coverage Form (“CGL Coverage Form”) [Docket 33–5], at 8–9). Additionally, employees are insured for “acts within the scope of their employment” but not for bodily injury. (Id. at 9). Furthermore, Endorsement L803 provides that Medford is an insured under Section II with respect to liability for bodily injury, but “only for occurrences or coverages not otherwise excluded in the policy.” (See Endorsement L803 (06/07) [Docket 33–5] ).

 

In Section I of the Commercial General Liability Coverage Form, the Policy extends coverage to bodily injury “caused by an ‘occurrence’ that takes place in the coverage territory” and “during the policy period[.]” (CGL Coverage Form [Docket 33–5], at 1). However, this coverage does not apply to bodily injury “expected or intended from the standpoint of the insured” or bodily injury to “[a]n ‘employee’ of the insured arising out of … [e]mployment by the insured; or … [p]erforming duties related to the conduct of the insured’s business[.]” (Id. at 2). Additionally, the insurance does not apply to “[a]ny obligation of the insured under a workers’ compensation … law or any similar law.” (Id.). The coverage also does not extend to any contractual liability assumed by an insured unless the contract is an “insured contract,” which is defined as “[t]hat part of any other contract … under which you assume the tort liability of another party to pay for ‘bodily injury’ … to a third person or organization.” (Id. at 13). Finally, the coverage does not extend to bodily injury “arising out of the ownership, maintenance, use, or entrustment to others of any aircraft, “auto” or watercraft owned [by] any insured.” (Id. at 4). However, “[t]his exclusion does not apply to … [l]iability assumed under any ‘insured contract’ for the ownership, maintenance or use of aircraft or watercraft.” (Id. at 4).

 

*3 The final portion of the policy, coverage parts, provides a series of endorsements which modify the Policy. The first relevant endorsement limits coverage to occurrences arising out of “designated operations.” (See Endorsement L240 (06/07) [Docket 33–5] ). Designated operations are defined as “only those operations performed by any insured that are described on the General Liability Coverage Part Declarations, the endorsements, or supplements of this insurance.” (Id.). The next relevant endorsement, as discussed before, adds Medford as an additional insured under the Policy. (See Endorsement L803 (06/07) [Docket 33–5] ). The last relevant endorsement is the Truckers Classification Description, which excludes the “operation, ownership, maintenance, use or entrustment to others of any ‘auto,’ “ but includes “Products and/or Completed Operations within the General Aggregate Limit.” (See Endorsement S187 (07/09) [Docket 33–5] ).

 

II. Legal Standard

To obtain summary judgment, the moving party must show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In considering a motion for summary judgment, the court will not “weigh the evidence and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Instead, the court will draw any permissible inference from the underlying facts in the light most favorable to the nonmoving party.   Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986).

 

Although the court will view all underlying facts and inferences in the light most favorable to the nonmoving party, the nonmoving party nonetheless must offer some “concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.” Anderson, 477 U.S. at 256. Summary judgment is appropriate when the nonmoving party has the burden of proof on an essential element of his or her case and does not make, after adequate time for discovery, a showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The nonmoving party must satisfy this burden of proof by offering more than a mere “scintilla of evidence” in support of his or her position. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or unsupported speculation, without more, are insufficient to preclude the granting of a summary judgment motion. See Felty v. Graves Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987); Ross v. Comm’ns Satellite Corp., 759 F.2d 355, 365 (4th Cir.1985), abrogated on other grounds, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

 

However, adequate time for discovery must be granted before the court can examine a motion for summary judgment. See Celotex, 477 U.S. at 322. Furthermore, “[w]hen the court overlooks the dispositive issue in a case and proceeds to decide a case summarily before discovery is concluded and before an order of discovery has been complied with, there has been a mistake and inadvertence and one that works an injustice.” White v. Investors Mgmt. Corp., 888 F.2d 1036, 1041 (4th Cir.1989). However, a “party may not simply assert in its brief that discovery was necessary and thereby overturn summary judgment[.]” Evans v. Tech. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir.1996). Federal Rule of Civil Procedure 56(d) (formerly Fed.R.Civ.P. 56(f)) provides that “a party opposing summary judgment may file an affidavit providing specific reasons that it cannot oppose a motion for summary judgment without the opportunity to conduct further discovery.” Thompson v. CDL Partners LLC, 378 F. App’x. 288, 293 (4th Cir.2010). In fact, “the failure to file an affidavit under [Rule 56(d) ] is itself sufficient grounds to reject a claim that the opportunity for discovery was inadequate.” Evans, 80 F.3d at 961 (quotation omitted).

 

III. Discussion

 

A. Maturity of Motion

 

*4 The respondents argue Nautilus’s motion for summary judgment is premature because it was filed approximately five months before the discovery deadline—August 5, 2013. However, Medford is the only party to explain the need for further discovery. In its response, Medford states that it intends to add parties to this case and discovery would be necessary after their addition. (See Mem. in Opp’n to Mot. for Summ. J. [Docket 40], at 5). However, as of the entry of this order, the April 5, 2013 deadline for joining new parties and the June 20, 2013 deadline for discovery requests have passed with no new parties added. In addition, the respondents have not filed new discovery requests since the motion for summary judgment was filed. No party indicates that any new evidence exists which might impact the interpretation of this insurance contract, nor can I conceive of any further evidence which would have a bearing on the legal interpretation of the contract. Furthermore, the parties concede in their briefing that there is no significant dispute as to the facts of the case.

 

Additionally, the Fourth Circuit places “great weight” on Rule 56(d) affidavits, which the respondents have not filed. Evans v. Tech. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir.1996). For example, in Thompson v. CDL Partners LLC, the Fourth Circuit acknowledged that adequate time had been provided for discovery when a motion for summary judgment had been filed five months prior to the discovery deadline. 378 F. App’x. 288, 294 (4th Cir.2010). In Thompson, the non-movant was provided with ample time to “either file a Rule [56(d) ] affidavit or attempt to take more discovery.” Id. Here, as in Thompson, the respondents have not filed a Rule 56(d) affidavit nor have they made any apparent effort to conduct further discovery since the filing of the motion for summary judgment. Therefore, I FIND that the petitioner’s Motion for Summary Judgment [Docket 32] is not premature.

 

B. Motions for Summary Judgment

As the choice of law for the instant case is not in dispute, and as the insurance contract at issue was made and is to be performed in West Virginia, I FIND that West Virginia law governs the interpretation of the insurance policy for the purposes of the following analysis. See Syl. Pt. 1, Mich. Nat’l Bank v. Mattingly, 212 S.E.2d 754 (W.Va.1975).

 

i. Nautilus’s Motion for Summary Judgment

Nautilus moves for summary judgment on the following issues: (1) whether some of the respondents are insureds, (2) whether the claims in the Qualls Lawsuit is covered by the Policy, and (3) whether it has a duty to defend and indemnify the respondents. I will discuss these issues as to each respondent in the following sections.

 

1. Extent of Coverage for Elk Run and Nautilus’s Duty to Defend or Indemnify Elk Run

Although the respondents seek to include Elk Run within the ambit of petitioner’s insurance coverage, no evidence has been proffered indicating why coverage extends to Elk Run. Upon examination of the Policy, it is clear that Elk Run is neither the named insured, as Johnny Clark is, nor is it identified as an additional insured, as Medford is. (See generally Policy [Docket 33–5] ). Furthermore, as there is no direct contract tying Johnny Clark to Elk Run, the provisions of the Policy governing coverage for insured contracts do not apply. Therefore, I FIND the Policy does not extend coverage to Elk Run and Nautilus does not have a duty to defend or indemnify Elk Run.

 

2. Extent of Coverage for Johnny Clark and Medford

 

a. Johnny Clark

 

*5 In the Qualls Lawsuit, Medford has lodged a third party complaint against Johnny Clark for failure to provide serviceable trucks. Medford is also suing for contribution and indemnification pursuant to the Trucking Agreement. In addition, Ms. Lewis is suing Johnny Clark for negligence. Ms. Lewis alleges that Johnny Clark “negligently, recklessly and carelessly provid[ed] the Kenworth coal truck to Medford Trucking in an unsafe and inoperable condition [.]” (Rule 14 Compl. [Docket 33–4], ¶ 11). Thus, the claims arise out of Johnny Clark’s maintenance of the truck.

 

Nautilus claims the Policy’s “designated operations” definition and “auto” exclusion bars coverage for claims arising out of the insured’s maintenance of an automobile, and thus the Policy does not provide coverage for the claims against Johnny Clark. The respondents put forth four counterarguments in favor of coverage. First, the respondents claim that the “designated operations” definition is ambiguous, and therefore I should construe this provision in favor of coverage. Second, the respondents contend coverage is available under the Policy’s “products and/or completed operations” provision. Third, the respondents argue the Policy’s “insured contract” clause renders the Policy’s “designated operations” definition and “auto” exclusion inapplicable. Fourth, even if this definition and exclusion applies, the respondents assert that I should interpret the Policy according to their reasonable expectation of coverage, and thus find coverage exists in this case. As discussed below, the ambiguity in the “designated operations” clause is illusory. Furthermore, contrary to the respondents’ arguments, the Policy’s “products and/or completed operations” provision does not create coverage. In addition, the Policy’s definitions and exclusions apply, notwithstanding the applicability of the “insured contract” clause. Finally, the reasonable expectations doctrine does not create coverage.

 

i. “Designated Operations” Definition Bars Coverage

The Policy states it provides coverage for bodily injury and property damage. (See Policy [Docket 33–2] ). However, Endorsement L240 amends this grant of coverage. With respect to bodily injury, this endorsement limits coverage to bodily injury arising out of “designated operations”:

 

LIMITATION OF COVERAGE TO DESIGNATED OPERATIONS

This endorsement modifies insurance provided under the following:

 

COMMERCIAL GENERAL LIABILITY COVERAGE PART

 

A. The following exclusion is added to 2. Exclusions of Section I—Coverage A—Bodily Injury and Property Damage Liability, Coverage B—Personal And Advertising Injury Liability and Coverage C—Medical Payments:

 

This insurance does not apply to “bodily injury”, “property damage”, “personal and advertising injury” or medical payments arising out of, or in any way related to, operations performed by any insured or any person or organization for whom any insured may be legally or contractually responsible, unless such operations are “designated operations”.

 

*6 (Endorsement L240 (06/07) [Docket 33–5] ). Endorsement L240 defines “designated operations” as “only those operations performed by any insured that are described on the General Liability Coverage Part Declarations, the endorsements, or supplements of this insurance.” (Id. (emphasis added)).

 

The General Liability Coverage Part Declarations identifies Trucking as a designated operation. (See General Liability Coverage Part Declarations [Docket 33–5] ). Endorsement S187 amends the Trucking classification by establishing that the designated operation of Trucking “excludes the operation, ownership, maintenance, use or entrustment to others, of any ‘auto,’ “ while indicating that the coverage for Trucking only extends to “products and/or completed operations.” (Endorsement S187 (07/09) [Docket 33–5] ).

 

It is undisputed that the truck in this case falls under the definition of “auto.” Furthermore, it is undeniable that the “bodily harm” arose out of the ownership, maintenance, use, or entrustment of the truck. Therefore, pursuant to the Policy’s “designated operations” definition, the Policy would not cover the claims arising out of the Qualls Lawsuit.

 

ii. The “Auto” Exclusion Bars Coverage

Nautilus contends that the Policy’s “auto” exclusion bars coverage for the claims against Johnny Clark, which arose out of an vehicular accident. The Policy’s “auto” exclusion provides that

 

2. Exclusions

This insurance does not apply to:

 

….

 

g. Aircraft, Auto Or Watercraft

 

“Bodily injury” or “property damage” arising out of the ownership, maintenance, use or entrustment to others of any aircraft, “auto” or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and “loading or unloading.”

 

(CGL Coverage Form [Docket 33–5], at 3–4).

 

In the Qualls Lawsuit, Ms. Lewis and Medford allege that Johnny Clark failed to adequately maintain the truck and failed to provide a reasonably safe or serviceable truck to Medford. These claims clearly arise out of Johnny Clark’s maintenance, ownership, and entrustment of an automobile and therefore coverage for those claims is barred.

 

As discussed above, the respondents put forth four counterarguments in favor of coverage: (1) the “designated operations” definition is ambiguous, (2) the Policy’s “products and/or completed operations” provision creates coverage, (3) the “insured contract” clause prevents the application of the Policy’s definitions and exclusions, and (4) the reasonable expectations doctrine creates coverage.

 

iii. The “Designated Operations” Definition is Not Ambiguous

The respondents argue that the “designated operations” definition is ambiguous, and thus summary judgment is inappropriate. Goodman v. Resolution Trust Corp., 7 F.3d 1123, 1126 (4th Cir.1993) (Summary judgment is appropriate if “the contract is unambiguous on the dispositive issue[.]”). In Endorsement L240, “designated operations” is defined as “only those operations performed by any insured that are described on the General Liability Coverage Part Declarations, the endorsements, or supplements of this insurance.” (Endorsement L240 (06/07) [Docket 33–5] ). In another endorsement, the Truckers Classification, a limitation is provided for the types of coverage granted to trucking operations. (Endorsement S187 (07/09)[Docket 33–5] ). Johnny Clark claims that this classification conflicts with the Additional Insured Endorsement L803, which gives Medford Trucking the status of an additional insured under the Policy. On this endorsement, there is a space for a description of the work performed for Medford that was left blank.

 

*7 According to Johnny Clark, this absence of a description conflicts with the description of Johnny Clark as a trucking operation in the General Liability Coverage Part Declarations. Therefore, to resolve the inconsistency, the Policy should be “interpreted in a manner to include operations not otherwise excluded by the insurance policy and endorsements, including the Auto Exclusion and Truckers Classification.” (See Mem. in Supp. of Mot. to Dismiss or Stay Mot. for Summ. J. [Docket 38] at 17).

 

It would be inappropriate to construe the Policy in this way when there is no real ambiguity about the meaning of designated operations. The General Liability Coverage Part Declarations is one of the first pages in the policy and one of the most prominent. (See General Liability Coverage Part Declarations [Docket 33–5] ). On this page, Trucker and Additional Insured are clearly listed as separate classifications along with references to the relevant endorsements. Although they both modify the Policy, they do so in different ways. There is no conflict between Medford being listed as an insured and Trucking being included as a designated operation. Furthermore, even if there were a conflict between these endorsements, it is entirely unclear why this conflict would mandate striking out the “auto” exclusion, as the respondents contend. The “auto” exclusion is a provision contained in the main body of the policy and one not modified by either of the endorsements in question.

 

iv. The Policy’s “Products and/or Completed Operations” Provision Does Not Grant Coverage

Even if the “designated operations” definition is unambiguous, the respondents observe that the designated operation of Trucking provides coverage for “products and/or completed operations.” The respondents argue that the truck constituted a completed operation once maintenance was complete and Medford had assumed control of the truck. According to the respondents, even though the Trucking classification, a “designated operation,” excludes coverage for bodily injury arising from the use of an automobile, the Policy provides coverage because the bodily injury arose from work that was completed.

 

However, the definition of “products and/or completed operations” does not include bodily injury “arising out of … the transportation of property, unless the injury or damage arises out of a condition in or on a vehicle not owned or operated by you, and that condition was created by the ‘loading or unloading’ of that vehicle by any insured[.]” (CGL Coverage Form [Docket 33–5], at 14 (emphasis added)). As there are no allegations that Johnny Clark did not own or operate the truck or that the condition was created by loading or unloading, this coverage clearly cannot apply to the issue at hand.

 

v. The “Designated Operations” Definition and “Auto” Exclusion Apply, Notwithstanding the Applicability of the “Insured Contract” Clause

The respondents also argue that the “designated operations” definition and “auto” exclusion are inapplicable due to the Policy’s “insured contract” clause. The relevant provisions state the following:

 

2. Exclusions

*8 This insurance does not apply to:

 

….

 

b. Contractual Liability

 

“Bodily injury” or “property damage” for which the Insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages:

 

….

 

(2) Assumed in a contract or agreement that is an “insured contract,” provided the “bodily injury” or “property damage” occurs subsequent to the execution of the contract or agreement.

 

….

 

“Insured Contract” means:

 

….

 

[A contract] … under which you assume the tort liability of another party to pay for “bodily injury” or “property damage” to a third party or organization.

 

(CGL Coverage Form [Docket 33–5], at 2, 13).

 

The Policy excludes coverage for damages from bodily injury where the insured contractually assumes the bodily injury liability of a third party. (Id.). The “insured contract” clause prevents the application of the “contracts liability” exclusion if the damages arise from an “insured contract.” (Id.).

 

As previously mentioned, pursuant to the Trucking Agreement, Johnny Clark agreed to defend and indemnify Medford for any liability “arising out of or incident to the performance” of the Trucking Agreement. (Trucking Agreement [Docket 33–2], Art. 9). Through this agreement, Johnny Clark assumed the tort liability of Medford, and therefore the Trucking Agreement qualifies as an “insured contract.” The parties do not dispute this fact.

 

According to the respondents, because Johnny Clark assumed Medford’s liability pursuant to an “insured contract,” the “contract liability” exclusion does not apply. Because this exclusion does not apply, the respondents claim there is coverage for the claims against Johnny Clark, regardless of other exclusions in the Policy that might limit the scope of coverage.

 

Although the “contract liability” exclusion does not apply, the Policy may still not cover the claims arising from the Qualls Lawsuit. The absence of an exclusion from coverage, or the presence of an exception to an exclusion, does not create coverage. See generally Syl., Helfeldt v. Robinson, 290 S.E.2d 896 (W.Va.1981) (holding that exception to exclusionary clause did not create coverage where the policy contained other exclusions clearly precluding coverage). Thus, absence of the “coverage liability” exclusion is irrelevant.

 

This interpretation is also consistent with the principle that an insurance “contract must be considered as a whole, effect being given, if possible, to all parts of the instrument.” Syl., Clayton v. Nicely, 182 S.E. 569 (W.Va.1935). For example, the “auto” exclusion states that

 

2. Exclusions

This insurance does not apply to:

 

….

 

g. Aircraft, Auto Or Watercraft

“Bodily injury” or “property damage” arising out of the ownership, maintenance, use or entrustment to others of any aircraft, “auto” or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and “loading or unloading.”

 

*9 ….

 

This exclusion does not apply to:

 

….

 

(4) Liability assumed under any “insured contract” for the ownership, maintenance or use of aircraft or watercraft ….

 

(CGL Coverage Form [Docket 33–5], at 3–4). If the “auto” exclusion did not otherwise apply to insured contracts, there would be no reason to provide another exception for instances when the insured contractually assumes liability arising from the use of an aircraft or watercraft. Accordingly, I FIND that the Policy’s definitions and exclusions apply, notwithstanding the applicability of the “insured contract” clause.FN1

 

FN1. The respondents also argue the Endorsements that define “insured contract” are ambiguous. (See Endorsements L216 (07/09), L216 (06/07), and S002 (07/09) [Docket 33–5] ). Each endorsement provides a separate, inconsistent replacement definition for the definition of “insured contract” provided in Section V of the Policy. Respondents argue that the conflicting definitions should be construed in favor of the insured against the insurer. However, the ambiguity between these different provisions is not relevant to the disposition of this case. The plaintiffs encourage viewing these endorsements in the light most favorable to them, making the Trucking Agreement an insured contract, and Nautilus does not dispute that interpretation. Rather, Nautilus acknowledges the contract as insured under the Policy. (See Reply in Supp. of Mot. for Summ. J. [Docket 49], at 3). Therefore, this ambiguity is not relevant to a dispositive issue in this case.

 

vi. The Reasonable Expectations Doctrine Does Not Create Coverage

Finally, the respondents put forward a claim of coverage under a theory of reasonable expectations. The respondents argue that restricting the coverage under the Policy would “nullify the purpose of indemnification” as agreed to in the Trucking Agreement between Medford and Johnny Clark. (Mem. in Supp. of Cross Mot. for Partial Summ. J. [Docket 41], at 16). Pursuant to the Trucking Agreement, Johnny Clark was to defend and indemnify Medford for any liability “out of or incident to the performance of” the Trucking Agreement. (Trucking Agreement [Docket 33–2], Art. 9).

 

“With respect to insurance contracts, the doctrine of reasonable expectations is that the objectively reasonable expectations of applicants and intended beneficiaries regarding the terms of insurance contracts will be honored even though painstaking study of the policy provisions would have negated those expectations.” Syl. Pt. 8, Nat’l Mut. Ins. Co. v. McMahon & Sons, Inc., 356 S.E.2d 488 (W.Va.1987). Although West Virginia has adopted the reasonable expectations doctrine for insurance policy ambiguities and has even extended it to clear and unambiguous language, when exclusionary language is conspicuous and “disclosed to the insured by a table of contents” the reasonable expectations doctrine does not apply. Compare Consol. Coal Co. v. Boston Old Colony Ins. Co., 508 S.E.2d 102 (W.Va.1998) (adopting doctrine of reasonable expectations for ambiguous policy language) and Am. Equity Ins. Co. v. Lignetics, Inc., 284 F.Supp.2d 399 (N.D.W.Va.2003) (extending doctrine of reasonable expectations to clear and unambiguous language) with Luikart v. Valley Brook Concrete & Supply, Inc., 613 S.E.2d 896 (2005) (establishing criteria for limiting doctrine of reasonable expectations).

 

In this case, as in Luikart, each of the endorsements has a large conspicuous heading indicating its modification of the Policy. Furthermore, the Schedule of Forms and Endorsements is the same type of table that the Luikart court recognized as a table of contents. Beyond this, the expectations of Johnny Clark and Medford do not rise to a sufficiently reasonable level to trigger the doctrine. Although the two parties agreed to get insurance to cover all claims arising against Medford, the terms of the Trucking Agreement list four separate types of required insurance: Employer’s liability, Commercial General liability, Automobile liability, and Umbrella liability. (See Trucking Agreement [Docket 33–2], at 12). As the Policy is solely a Commercial General Liability policy and the parties expressly contemplated multiple sources of coverage, it is not reasonable for them to expect automotive injury coverage to derive from this Policy. Therefore, I FIND that there is no coverage for the claims against Johnny Clark.

 

b. Medford

*10 It is undisputed that Medford is an additional insured under the Policy and entitled to general liability coverage. The respondents argue that this general liability coverage extends to all liability indemnified by Johnny Clark in the Trucking Agreement even beyond the coverage available for Johnny Clark. Respondents cite Maxum Indem. Co. v. Westfield Ins. Co. in support of the proposition that Nautilus is liable for Johnny Clark’s indemnification of Medford, including the deliberate intent claims. No. 2:10–cv–00428, 2011 WL 289270 (S.D. W. Va. Jan 25, 2011) (Copenhaver, J.).

 

The respondents’ reliance on this case is misplaced. Maxum was a suit brought to determine the limits of a contractual indemnification clause; specifically, whether the Named Insured’s indemnification of an Additional Insured included claims going beyond mere negligence. Id. at *6. In Maxum, the insurance company settled with the relevant parties and sued for reimbursement to the extent that the Named Insured was not required to indemnify the other parties. Id. at *4. That case focused on the analysis of the contract between the insured parties and not on the scope of the underlying insurance policy, unlike this case where the only question at issue is the extent of the Policy’s coverage. In other words, the court had to analyze the indemnification agreement to determine if the Named Insured had an obligation to indemnify the Additional Insured. If the Named Insured did not have an obligation to indemnify, the Insurer could seek reimbursement for funds expended in the settlement on behalf of the Additional Insured.

 

A significantly more relevant case is Tidewater Equip. Co., Inc. v. Reliance Ins. Co., a Fourth Circuit case in which the court reviewed the extent to which an insurance policy covered additional insureds. 650 F.2d 503 (1981). Tidewater cites the well-established proposition that the rights of additional insureds are “limited by the terms and conditions of [the insurance policy.]”   Id. at 506. Stated differently, “the additional insured enjoys the full benefits of the policy, despite any restrictions contained in a separate contractual agreement with the insured, as well as being subject to all policy exclusions.” 9 Couch on Ins. § 126:7 (3d rev. ed.2008). Of course, this principle is subject to the plain text of the policy. If it is clear on the face of the policy that different coverage was meant to apply to the Named Insured and any Additional Insureds, that interpretation will hold. See, e.g., Seabulk Offshore, Ltd. v. Am. Home Assur. Co., 377 F.3d 408 (4th Cir.2004). However, this Policy and all of its endorsements use the terms “any insured” or “insured under Section II -Who is An Insured” to make it clear that all restrictions and benefits within the policy apply both to Named Insureds and Additional Insureds. Therefore, I FIND that Medford is covered to the same extent that Johnny Clark is covered by the Policy. For some of the same reasons that there is no coverage for Johnny Clark, there is no coverage for Medford.

 

3. Nautilus’s Duty to Idemnify and Defend Medford and Johnny Clark

*11 The duty to defend is broader in scope than the duty to indemnify. If any allegation made against the insured is reasonably susceptible of coverage under the insurance policy, then the insurer still has a duty to defend all of the claims. Syl. Pt. 5, Tackett v. Am. Motorist Ins. Co., 584 S.E.2d 158 (W.Va.2003). However, as shown in the above analysis, because all claims in this suit arise out of a fatal vehicular accident and the policy expressly and clearly forgoes any coverage for liability arising from the use, maintenance, or ownership of an automobile, there are no claims remaining in the suit susceptible of coverage under the Policy. Therefore, I FIND that Nautilus has no duty to defend Johnny Clark or Medford against any current claims in the underlying state court lawsuit.

 

ii. Johnny Clark’s Cross Motion for Partial Summary Judgment

Johnny Clark seeks partial summary judgment in its favor and asks this court to rule that Nautilus has a duty to defend Johnny Clark in the Qualls Lawsuit. As discussed above, none of the claims in the Qualls Lawsuit are covered by the Policy and thus Nautilus has no duty to defend Johnny Clark. Accordingly, Johnny Clark’s Cross Motion for Partial Summary Judgment [Docket 39] is DENIED.

 

IV. Conclusion

As there are no ambiguities as to dispositive issues, no genuine issues of material fact, and adequate time for discovery has been allotted in this case, I FIND that this case is appropriate for summary judgment. Furthermore, pursuant to the above reasoning, I FIND Nautilus has no duty to defend or indemnify Elk Run, Medford, or Johnny Clark. As the Policy does not provide coverage for the claims in this case, regardless of whether any respondent is an insured under the Policy, I decline to address Nautilus’s claim that Johnny Clark, LLC is separable from Johnny Clark and is not an insured under the policy. Therefore, I GRANT Nautilus’s Motion for Summary Judgment [Docket 32]. Johnny Clark’s Cross Motion for Partial Summary Judgment [Docket 39] is DENIED.

 

The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party.

Court of Appeals of Georgia.

BRUCE

v.

GEORGIA–PACIFIC, LLC.

Georgia–Pacific, LLC

v.

Lincoln General Insurance Company et al.

 

Nos. A13A1874, A13A1806.

March 27, 2014.

 

Larry Christopher Stewart, for Appellant.

 

Alan L. Newman, Alpharetta, for Appellee.

 

BRANCH, Judge.

*1 Malcolm Bruce was injured when he fell off a loaded truck owned by his employer, Annett Holdings, Inc. d/b/a TMC Transportation (“TMC”), at a facility in Monticello, Georgia, owned and operated by Georgia–Pacific, LLC. On appeal from a grant of summary judgment to Georgia–Pacific in Bruce’s personal injury suit, Bruce argues in Case No. A13A1874 that questions of material fact remain as to both Georgia–Pacific’s negligence and Bruce’s contributory negligence. On appeal from a grant of summary judgment to TMC and its insurer, Lincoln General Insurance Company, in Georgia–Pacific’s third-party action, Georgia–Pacific argues in Case No. A13A1806 that TMC and Lincoln have a duty to defend Georgia–Pacific as to Bruce’s claims. We find no error and affirm in both cases.

 

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” (Citations and punctuation omitted.) Walker v. Gwinnett Hosp. System, 263 Ga.App. 554, 555, 588 S.E.2d 441 (2003). A trial court’s grant of summary judgment is reviewed de novo on appeal, construing the evidence in the light most favorable to the nonmovant. Ethridge v. Davis, 243 Ga.App. 11, 12, 530 S.E.2d 477 (2000).

 

Case No. A13A1874

Construed in favor of Bruce, the record shows that on October 15, 2007, Bruce, a TMC employee, drove one of the company’s flatbed tractor-trailers to Georgia–Pacific’s Monticello plant to pick up a load of wood paneling. Bruce had been a commercial truck driver for more than 20 years, and had been driving flatbed trailers, a job which often required him to cover and secure loads, for at least six months. Bruce himself testified that an entirely flat surface on top of a load was “very rare,” and that every load was uneven “to some extent.”

 

While Bruce waited in a break room, a Georgia–Pacific employee loaded the trailer with a variety of paneling, resulting in an uneven surface on the top of the load. After the Georgia–Pacific employee had finished loading the trailer, Bruce, who was responsible for inspecting, covering, and securing the load, climbed onto the trailer and began covering it with Visqueen, a translucent plastic sheeting supplied in 4–foot rolls by Georgia–Pacific for the purpose of protecting wood products from moisture. According to Bruce, Georgia–Pacific required its contractor truckers to apply Visqueen, and Bruce had previously and successfully wrapped a load with Visqueen at the same Georgia–Pacific facility. Georgia–Pacific’s own employees were forbidden to climb on or secure loaded trailers.

 

From his position on top of the load, Bruce unrolled, cut and unfolded the Visqueen, crawling along the top of the load as he did so, leaving a foot or two uncovered at the front and the rear to stand on. Bruce got down from the front, completed wrapping the sides of the load with Visqueen, and tied down the corners. Bruce then began covering the load with the first of two tarpaulins, one from the back towards the front and the second, overlapping the first, from the front towards the back. He crawled across the back of load on his hands and knees unrolling the 4–foot–wide first tarp, which was still folded, until its edge was lying a few feet past the middle of the load. Bruce then got up off his hands and knees and was bending over in the process of unfolding and throwing a portion of the first tarp over the edge of the load when he stepped into a space within the load, lost his balance, and fell off the trailer. The Georgia–Pacific forklift operator who had loaded the trailer and who responded to Bruce’s fall testified that as he lay on the ground, Bruce exclaimed that he “[couldn’t] believe [that he] did this,” that he had “been driving a truck for 20–something years,” and that he “[couldn’t] believe [that he was] that stupid” as to fall off his own trailer. Treatment of Bruce’s injuries required him to be airlifted to a hospital.

 

*2 On February 9, 2009, Bruce filed his first complaint against Georgia–Pacific, which Bruce voluntarily dismissed in December of the same year. On March 17, 2010, Bruce filed this renewal action. In June 2011, Georgia–Pacific moved for summary judgment, which the trial court granted after a hearing. This appeal followed.

 

1. Bruce first argues that the trial court erred when it granted summary judgment to Georgia–Pacific because the company had not implemented Occupational Safety and Health Administration (OSHA) regulations requiring fall protection for workers applying Visqueen to trailers in or next to a building. We disagree.

 

[1] A cause of action for negligence requires “(1) [a] legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty.”   Bradley Center v. Wessner, 250 Ga. 199, 200, 296 S.E.2d 693 (1982).

 

On appeal, plaintiffs have cited only their OSHA expert’s deposition, at which the expert cited 29 CFR 1910.132(d) and 1926.501,FN1 as supporting a conclusion that Georgia–Pacific was obligated to provide fall protections to Bruce. Plaintiffs argue both that the regulations themselves are evidence of a legal duty owed to them by Georgia–Pacific and that Georgia–Pacific’s failure to enforce these OSHA regulations gives rise to a cause of action for breach of that duty undertaken for the benefit of the injured person. See, e.g., Dupree v. Keller Industries, 199 Ga.App. 138, 141(1), 404 S.E.2d 291 (1991), citing OCGA § 51–1–6 (an injured party may recover for a breach of duty if he suffers damage thereby and if the duty is imposed by law for the benefit of the injured person).

 

As a preliminary matter, the OSHA regulations cited by plaintiffs as giving rise to a legal duty on Georgia–Pacific’s part do not provide that the owner of a truck loading dock like the one at issue here is obligated to provide fall protections to any person working on a trailer there. 29 CFR 1910.132(d) sets out only a general standard that an employer “shall assess the workplace to determine if hazards are present, or are likely to be present, which necessitate the use of personal protective equipment,” and that if such hazards exist, the employer shall select and have the employee use personal protection equipment. Such general admonitions cannot overcome evidence introduced by Georgia–Pacific showing that as OSHA itself interprets 29 CFR 1926.500 et seq., “walking-working surfaces” requiring fall protection devices do not include tractor-trailers. According to OSHA, “fall protection is not required for employees who are on vehicles and trailers when,” as here, “the employee must be on the vehicle or trailer to perform his or her duties,” in which case “there is typically no feasible means of providing fall protection.” See Pruitt Corp. v. Ga. Dept. of Community Health, 284 Ga. 158, 664 S.E.2d 223 (2008) (courts should defer to an administrative agency’s “interpretation of statutes it is charged with enforcing or administering and the agency’s interpretation of rules and regulations it has enacted to fulfill the function given it by the legislative branch”); Upper Chattahoochee Riverkeeper, Inc. v. Forsyth Cty., 318 Ga.App. 499, 502, 734 S.E.2d 242 (2012) (“the interpretation of a statute or regulation is a question of law”). Likewise, fall protections described in 29 CFR 1926.501, which on their face apply to “construction,” do not apply here because the loading of a tractor-trailer does not involve construction. See Cleveland Elec. Illuminating Co. v. OSHA Review Comm., 910 F.2d 1333, 1336(II) (6th Cir.1990) (“an operation will be considered ‘construction’ [for purposes of OSHA] only if the work is performed on, or in close proximity to, [a] construction site”) (citation and punctuation omitted).

 

*3 [2] More fundamentally, and as we held in Dupree, the relevance of OSHA regulations “in a particular case … depend[s] on the relationship of the parties.” 199 Ga.App. at 141(1), 404 S.E.2d 291. Specifically, OSHA imposes a duty of care only “between an employer and its employees,” and “[i]f a defendant owes no legal duty to the plaintiff, there is no cause of action in negligence.” Id. at 141–142(1), 404 S.E.2d 291, citing 29 USC § 651 et seq.FN2 Georgia courts have thus concluded that a company cannot be held liable for a violation of OSHA regulations unless it is bound to enforce such regulations for the safety of its own employees. In Boyd v. Packaging Corp. of America, 292 Ga.App. 281, 664 S.E.2d 277 (2008), for example, this Court held that because an injured construction worker was the employee of an independent contractor, neither the crane operator involved in moving the heavy steel plates that injured the worker nor the crane operator’s employer owed any duty of care to the injured worker. Id. at 283(1), 664 S.E.2d 277.

 

[3] Given the undisputed evidence in this case that Georgia–Pacific’s employees were forbidden to climb on or secure loaded trailers, Georgia–Pacific had no obligation to provide protection for falls from such trailers to its own workers at the Monticello facility. It follows that it owed no such duty to employees of other companies working at that facility. See Boyd, 292 Ga.App. at 283(1), 664 S.E.2d 277 (affirming grant of summary judgment to owner of paper mill where accident occurred); Dupree, 199 Ga.App. at 142(1), 404 S.E.2d 291 (OSHA regulations did not establish any common-law duty running from a past owner of a hydraulic punch press to “remote users” including a worker employed by the purchaser of the press).

 

[4] 2. The trial court’s grant of summary judgment to Georgia–Pacific was also proper because undisputed facts show that Bruce had knowledge of the hazard posed by the uneven load surface equal or superior to any knowledge the company may or should have had of that hazard.

 

[5][6] “[I]n order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.” Robinson v. Kroger Co., 268 Ga. 735, 736, 748–749(2)(b), 493 S.E.2d 403 (1997). “The crux of a premises liability case is the owner’s superior knowledge of the hazard; thus, a plaintiff’s actual, subjective awareness of the hazard precludes a recovery under this theory.” (Footnote omitted.) Carroll v. Ga. Power Co., 240 Ga.App. 442, 443–444(1), 523 S.E.2d 896 (1999) (citing Robinson, supra). In Carroll, for example, a plaintiff was injured in a fall from a ladder allegedly in violation of OSHA standards set out in 29 CFR § 1910 for its lack of a safety cage at the top of the ladder. This Court concluded not only that the subject regulation did not apply, but also that when the plaintiff knew that the ladder he had climbed had no safety cage and that all ladders run out of rungs, his knowledge of any hazard was equal or superior to the defendant’s and should have led him to take additional care as he approached the top of the ladder. Carroll, 240 Ga.App. at 443–445(1), (2), 523 S.E.2d 896. As this Court has also noted, “ ‘no danger is more commonly realized or risk appreciated, even by children, than that of falling.’ ” O’Neal v. Sikes, 271 Ga.App. 391, 392, 609 S.E.2d 734 (2005), quoting Riley v. Brasunas, 210 Ga.App. 865, 867(1), 438 S.E.2d 113 (1993).

 

*4 Here, Bruce’s own testimony established that at the time he fell, he knew that tractor-trailer loads such as the one he was attempting to cover were almost always uneven. Bruce’s own testimony also established that he crossed over the uneven load while successfully unrolling, cutting and unwrapping the Visqueen before he attempted to cover the back part of the load with the first tarp, during which attempt he fell. Under these circumstances, which showed both that Bruce had superior knowledge of any hazard posed by the uneven load and that he failed to take due care for his own safety, summary judgment was properly granted to Georgia–Pacific. See Delk v. Quiktrip Corp., 258 Ga.App. 140, 141–142, 572 S.E.2d 676 (2002) (affirming grant of summary judgment where plaintiff did not contest that she had actual knowledge of raised gas caps at gas station, and where she had “safely traversed a similar path through the traffic and across the alleged hazard under the same conditions” just before her injury).

 

Case No. A13A1806

[7] 3. In this companion appeal from the grant of summary judgment to TMC and Lincoln, Georgia Pacific argues that Lincoln owed a duty to defend Georgia–Pacific against Bruce’s claims as an additional insured of TMC’s policy. We disagree.

 

The relevant facts are not in dispute. On the date of Bruce’s fall, TMC was operating under a contract carriage agreement to haul freight for Georgia–Pacific. Paragraph 7 of the agreement provides in relevant part:

 

(b) [TMC] agrees to assume all risks growing out of or occurring in the performance of this Agreement by [TMC], its agents or employees for … any death or injury to any person or persons, whether or not employed by TMC, … occurring during the performance of this Agreement or upon the premises where this Agreement is being performed, except when caused by the negligence of [Georgia–Pacific], its agents and employees.

 

(c) [TMC] further agrees, and it hereby binds itself, at its own sole cost and expense, to defend, save harmless and indemnify [Georgia–Pacific] from and against any and all manner of suits, claims, judgments, demands, costs, attorneys’ fees, charges, debts, dues, liabilities, and payments of money of any sort … on account of injury to or the death of persons or loss of or damage to property in any manner whatsoever, arising out of or predicated upon the operations of trucks of or by [TMC], its agents or employees, … or the transportation and handling of goods by [Georgia–Pacific], its agents or employees, … provided that this hold harmless and indemnity shall not apply to the extent that the action giving rise to the claim was caused by any act or omission of [Georgia–Pacific].

 

(Emphasis supplied.)

 

Paragraph 8 of the agreement also provided that TMC would “obtain and maintain insurance covering the risks incident to” the agreement and that TMC “shall cause [Georgia–Pacific] to be named as an additional insured” on TMC’s commercial liability and automobile liability policies. The insurance policy duly issued by Lincoln to TMC defined an “additional insured” as an entity “as designated in the endorsements,” but “only to the extent that the insured ”—that is, TMC—“is obligated by a covered contract to reimburse, hold harmless or indemnify the additional insured(s).” (Emphasis supplied.) An endorsement to the same policy identified Georgia–Pacific as an “additional insured” on the policy, but also noted that coverage was extended to Georgia–Pacific “as respects the trucking operations of the insured [TMC], but only with respect to occurrences arising out of the negligence of [TMC and] its agents, servants or employees.” (Emphasis supplied.)

 

*5 As a preliminary matter, we reject Georgia–Pacific’s assertion that the absence of the words “duty to defend” from the final and exculpatory clause of Paragraph 7(c) means that the clause applies only to TMC’s responsibilities to hold harmless and to indemnify. When the exculpatory clause refers to “this hold harmless and indemnity,” it clearly refers to the paragraph’s aforementioned responsibility “to defend, save harmless and indemnify” Georgia–Pacific. See OCGA § 13–2–2(4) (provisions of a contract must be read as a whole and in conjunction with one another). We also reject Georgia–Pacific’s reading of Paragraph 8 and the endorsement adding it as an additional insured as abrogating the underlying policy’s bar to a duty to defend for claims caused by Georgia–Pacific’s own negligence. Although Georgia–Pacific is an additional insured under the Lincoln policy, and although the endorsement includes liabilities incurred during TMC’s own “trucking operations,” the policy limits Lincoln’s provision of coverage to Georgia–Pacific as “only to the extent that the insured”—that is, TMC—“is obligated by a covered contract to reimburse, hold harmless or indemnify” Georgia–Pacific, and TMC is not so obligated as to claims arising from Georgia–Pacific’s own negligence.

 

[8][9] More important, the complaint before us asserts negligence only as to Georgia–Pacific and its employees acting within the scope of their employment, and TMC’s carriage agreement excludes any duty to defend or indemnify Georgia–Pacific as to claims arising from Georgia–Pacific’s own negligence. We are mindful of the well-established rule that

 

[i]f the facts as alleged in the complaint even arguably bring the occurrence within the policy’s coverage, the insurer has a duty to defend the action…. [T]o excuse the duty to defend the petition must unambiguously exclude coverage under the policy, and thus, the duty to defend exists if the claim potentially comes within the policy. Where the claim is one of potential coverage, doubt as to liability and insurer’s duty to defend should be resolved in favor of the insured.

 

(Citation, punctuation and footnote omitted.) BBL–McCarthy, LLC v. Baldwin Paving Co., 285 Ga.App. 494, 497–498(1)(a), 646 S.E.2d 682 (2007). We also note Georgia–Pacific’s citation to this Court’s predecessor to one of our Supreme Court’s decisions as support for its argument that Lincoln has a duty to defend Georgia–Pacific from Bruce’s claims. See Ryder Integrated Logistics v. BellSouth Telecommunications, 277 Ga.App. 679, 627 S.E.2d 358 (2006), rev’d on other grounds, Ryder Integrated Logistics v. BellSouth Telecommunications, 281 Ga. 736, 737, 642 S.E.2d 695 (2007).FN3 As we noted in Ryder, however, those parties’ written agreement extended comprehensive general liability (CGL) coverage to “any person or organization” for whom Ryder was obligated to obtain coverage for any “liability arising out of your operations.” Id. at 684(3), 627 S.E.2d 358; see also BBL–McCarthy, 285 Ga.App. at 496, 646 S.E.2d 682 (enforcing insurer’s duty to defend where subcontract specified subcontractor’s duty to defend against all claims “arising out of the performance of the [s]ubcontractor’s work”).

 

*6 Unlike the broad “arising out of your operations” language seen in these cases, however, the carriage agreement before us requires TMC to obtain insurance only as to “the risks incident to this Agreement,” not including liability for claims “caused by the negligence of [Georgia–Pacific],” just as it excludes any duty on the part of Lincoln to defend, hold harmless or indemnify claims “caused by any act or omission of [Georgia–Pacific].” In light of these unambiguous contract terms, the trial court did not err when it concluded that Lincoln had no duty to defend Georgia–Pacific as to Bruce’s claims, which allege negligence only by Georgia–Pacific employees. See United Parcel Svc. v. Colt Security Agency, 296 Ga.App. 815, 816(2), 676 S.E.2d 22 (2009) (affirming grant of summary judgment to insurer as to its duties to defend and indemnify plaintiff delivery company when injured security guard’s complaint contained no allegations of negligence against anyone other than delivery company’s employees); City of Atlanta v. St. Paul Fire & Marine Ins. Co., 231 Ga.App. 206, 208–209(2), 498 S.E.2d 782 (1998) (where “no claim covered by the policy was asserted” by a plaintiff, who had “failed to apprise the insurer of facts which would bring the claims within the coverage,” the insurer “justifiably refused the duty to defend” that plaintiff as to those claims) (citation omitted).

 

Judgments affirmed.

 

DILLARD and McMILLIAN, JJ., concur.

 

FN1. 29 CFR 1910.132(d) provides that an employer

 

shall assess the workplace to determine if hazards are present, or are likely to be present, which necessitate the use of personal protective equipment (PPE). If such hazards are present, or likely to be present, the employer shall: (i)[s]elect, and have each affected employee use, the types of PPE that will protect the affected employee from the hazards identified in the hazard assessment; (ii)[c]ommunicate selection decisions to each affected employee; and, (iii)[s]elect PPE that properly fits each affected employee.

 

29 CFR 1926.501(b)(1) provides that “[e]ach employee on a walking/working surface (horizontal and vertical surface) with an unprotected side or edge which is 6 feet (1.8 m) or more above a lower level shall be protected from falling by the use of guardrail systems, safety net systems, or personal fall arrest systems.”

 

FN2. According to the federal legislation itself, OSHA should not

 

be construed to supersede or in any manner affect any workmen’s compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.

 

(Emphasis supplied.) 29 USC § 653(b)(4).

 

FN3. Our Supreme Court reversed this Court’s determination that Ryder’s insurer had a duty to defend and indemnify BellSouth up to the limits of Ryder’s comprehensive general liability policy, with Ryder “liable for any deficiency,” 277 Ga.App. at 686–687(4), 627 S.E.2d 358, for reasons including that “Ryder did not, under the laws of this State, agree to indemnify BellSouth for BellSouth’s sole negligence.” 281 Ga. at 740, 642 S.E.2d 695.