Insurer asked to provide defense in lawsuit from worker who fell 40 feet onto beam during construction

By Nicholas Malfitano | Jul 3, 2018

PHILADELPHIA – An underlying personal injury action has a construction company seeking indemnification and defense from the Penn National and Travelers insurance companies in a separate, federal court lawsuit.

Plaintiff Allied World National Assurance Company of Boston filed suit in the U.S. District Court for the Eastern District of Pennsylvania on June 25 versus Penn National Mutual Insurance Company of Harrisburg and Travelers Property Casualty Company of America, of Hartford, Conn.

On March 18, 2016, Brian Scollon and Kathleen Scollon filed a lawsuit in the Philadelphia County Court of Common Pleas against Frankford Valley Foundation for Literacy II, Tacony Academy Charter School, McGregor Industries, Inc., BSI Construction, LLC and BSI Consulting, LLC.

The suit was in connection with injuries Mr. Scollon, an ironworker, sustained when he fell from a column about 40 feet above the ground and struck a beam during his fall at a construction project. Scollon sought damages related to a variety of full-body injuries he suffered in that accident, and for negligence on several counts relating to failing to protect workers on that job site.

The discovery deadline for the Scollons’ lawsuit has passed and it set to begin for trial on Sept. 10.

FVF and McGregor entered into a written contract where McGregor would indemnify and hold harmless, BSI/CM from all claims and damages for personal injuries – even with respect to alleged negligence not attributable to McGregor, and requires McGregor name BSI as an additional insured on the commercial general liability policy.

Allied World issued a commercial general liability policy to BSI, spanning March 2, 2015 to March 2, 2016 and with limits of $1 million for each occurrence and $2 million aggregate.

Penn National issued a commercial general liability policy insuring McGregor Industries, Inc., spanning Oct. 1, 2014 to Oct. 1, 2015 and with limits of $1 million for each occurrence and $2 million general aggregate.

Travelers issued an umbrella liability policy also insuring McGregor, spanning Oct. 1, 2014 to Oct. 1, 2015 and with limits of $15 million per each occurrence and aggregate.

Meanwhile, the April 6, 2015 accident to Scollon took place within the coverage periods of all three policies – Penn National was marked as “Insurer A” and Travelers as “Insurer B”.

After being put on notice of the lawsuit, Penn National advised the plaintiff’s third-party administrator that it was prepared to offer a conditional defense and indemnity for the defendants in the Scollon lawsuit, subject to “reservation of rights” – such as waiver of conflict and one counsel representing all parties, in addition to the defense and indemnification being ended if independent negligence was found to be responsible for Scollon’s accident, and not caused by McGregor.

However, when Travelers was contacted regarding the Scollon lawsuit, it said though BSI may be entitled to indemnification and defense pending a reservation of rights and Travelers had no duty or obligation to defend BSI.

Neither Penn National or Travelers cited any Employer Liability Exclusion in these matter, the instant suit claims.

The plaintiff is seeking BSI to be considered an insured under the Travelers Policy to whom Travelers owes coverage with respect to the underlying lawsuit; that Travelers has a duty to indemnify BSI with respect to any and all damages found or levied against BSI in the underlying lawsuit, including but not limited to legal costs, pre-judgment interest and delay damages, in excess of the Penn National Policy limits and up to and including the Travelers Policy Limits; any coverage Allied World may owe BSI is excess to all coverage Travelers owes BSI with respect to the underlying lawsuit and in the event the retained limit of the Travelers’ Policy is exhausted, Travelers also owes BSI a duty to defend BSI in the underlying lawsuit.

The plaintiff is represented by Andrew P. Moore of Andrew Moore & Associates, in Abington.

The defendants have not yet secured legal counsel, according to court records.

U.S. District Court for the Eastern District of Pennsylvania case 2:18-cv-02658

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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