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Bomasada Investment Group II, LLC, v. Nationwide Insurance Co.

United States District Court, D. South Carolina, Charleston Division

September 30, 2019

Bomasada Investment Group II, LLC, Plaintiff,
v.
Nationwide Insurance Co., Defendant.

          OPINION AND ORDER

          Bruce Howe Hendricks United States District Judge

         This matter is before the Court on Plaintiff Bomasada Investment Group II, LLC's (“Plaintiff” or “BIG II”) motion for partial summary judgment (ECF No. 34) and Defendant Nationwide Insurance Co.'s (“Defendant” or “Nationwide”) motion for summary judgment (ECF No. 66).[1] For the reasons set forth in this Order, Plaintiff's motion for partial summary judgment is denied and Defendant's motion for summary judgment is granted.

         BACKGROUND

         BIG II filed this declaratory judgment action seeking to recover a portion of the costs of defense incurred when it was sued in a construction litigation case. In 2014, BIG II was sued as the developer of a construction project known as the Bee Street Lofts (“the Project”). BIG II was the owner of the Project and engaged Hightower Construction Company, Inc. (“Hightower”) as general contractor. BIG II and Hightower entered into a prime agreement which provided, in relevant part:

§3.18 INDEMNIFICATION
§3.18.1 To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Owner, the Owner's general and limited partners, the Owner's partners, officers, directors, and shareholders, the Architect or Owner's consultants, and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorney's fees, arising out of or resulting from performance of the Work, to the extent caused by the negligent acts or omissions or breaches of contract of the Contractor, a Subcontractor, anyone directly or indirectly employed by them, or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this Section 3.18. This indemnification shall survive acceptance of the Work and completion or termination, with or without cause, of the Contract.

(ECF No. 34-1 & 34-2.) The Prime Agreement also required Hightower to secure liability insurance as follows:

§ 11.1 CONTRACTOR'S LIABILITY INSURANCE
§ 11.1.1 The Contractor shall purchase from and maintain in a company or companies lawfully authorized to do business in the jurisdiction in which the Project is located and acceptable to Owner, such insurance in the amounts indicated in the Agreement as will protect the Contractor and Owner from claims set forth below which may arise out of or result from Contractor's operations under the Contact and for which the Contractor may be legally liable, whether such operations be by the Contractor or by a Subcontractor or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable: . . .
5. claims for damages, other than to the Work itself, because of injury to or destruction of tangible property, including loss of use resulting therefrom; . . .
7. claims for . . . property damage arising out of completed operations to the full extent available under South Carolina Law; and 8. claims involving contractual liability insurance applicable to the Contractor's obligations under Section 3 .18. . . .
§ 11.1.2.1 The liability insurance required by this Article 11 shall include all major divisions of coverage and be on a comprehensive basis including: (1) Premises Operations (including XC/U as applicable); (2) Contractor's Protective; (3) Products and Completed Operations (to be maintained for five (5) years after Final Payment); (4) Personal Injury Liability with Employment Exclusion deleted or a separate Employment Practices Liability Policy; (5) Non-owned and hired motor vehicles automobile liability; (6) removal of the Care, Custody and Control exclusion; and (7) Umbrella Excess Liability. If Contractor cannot procure underground liability (XC/U) coverage, such coverage shall be procured and maintained by each Subcontractor responsible for structural support, structural rehabilitation and/or concrete work, and such coverage shall be in the limits required below, shall protect the interests of the Owner and the Owner's lenders in the Project and shall remain in effect for five (5) years after Substantial Completion of the Project. All insurance required by this Contract (whether procured by the Contractor or its Subcontractors), except Worker's Compensation, shall name the Owner as additional insured.
***
The insurance to be obtained by Contractor under this Section 11.1 shall be underwritten by a reputable insurance company acceptable to Owner. authorized to do business in the State of the Project, shall name Owner and any mortgagee identified by Owner as an additional insured and shall contain an endorsement ...

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