Eilerson Dev. Corp. v. Selective Ins. Group Inc.

MEMORANDUM DECISION AND ORDER I. INTRODUCTION This is a declaratory judgment action between the insurance companies of a general contractor and its subcontractor after an accident at a construction site. The general contractor — Eilerson Development Corporation (“EDC”) — and its insurers — Amerisure Insurance Company and Amerisure Mutual Insurance Company (collectively, “Amerisure”) — brought third-party complaints against Selective Insurance Group, Inc., which insured the job’s subcontractor. See Dkt. Nos. 14 (“Amerisure Complaint”); 15 (“EDC Complaint”).¹ Now before the Court are motions for summary judgment filed by Selective and Amerisure. See Dkt. Nos. 43; (“Selective’s Motion”); 43-14 (“Selective’s Statement of Material Facts” or “Selective’s SMF”); 43-15 (“Selective’s Memorandum of Law”); 44 (“Amerisure’s Motion”); 44-16 (“Amerisure’s Statement of Material Facts” or “Amerisure’s SMF”); 44-17 (“Amerisure’s Memorandum of Law”). Selective and Amerisure oppose one another’s motions. See Dkt. Nos. 51 (“Selective’s Opposition”); 52-1 (“Amerisure’s Opposition”)². Each filed a reply. See Dkt. Nos. 56 (“Amerisure’s Reply”); 57 (“Selective’s Reply”). For the reasons discussed below, the Court grants in part and denies in part Selective’s Motion and denies Amerisure’s Motion in its entirety. II. BACKGROUND A. Factual History The following facts are undisputed, except where otherwise noted. 1. The Parties³ Hinsdale Road Group, LLC (“Hinsdale”) was a private equity group formed to develop a parcel of real estate in Camillus, New York. See Selective’s SMF 1; Dkt. No. 52 (“Amerisure’s Response to Selective’s Statement of Material Facts” or “Amerisure’s Response to Selective’s SMF”) 1. Cameron Group, LLC (“Cameron”) was engaged by Hinsdale to attract and retain tenants for the parcel of land. See Selective’s SMF 3; Amerisure’s Response to Selective’s SMF 3. Movie Tavern Theaters, LLC (“MTT”) leased the premises from Hinsdale, which remained the owner of the land. See Selective’s SMF 5; Amerisure’s Response to Selective’s SMF 5. EDC is a Virginia general contractor that, on or about August 7, 2015, entered into a contract with Hinsdale and MTT for the construction of the premises. See Amerisure’s SMF 1; Dkt. No. 54 (“Selective’s Response to Amerisure’s Statement of Material Facts” or “Selective’s Response to Amerisure’s SMF”) 1; see also Dkt. No. 44-2 (the “Prime Contract”). Amerisure issued a commercial general liability policy to EDC. See Selective’s SMF 63; Amerisure’s Response to Selective’s SMF 63; see also Dkt. No. 43-13 (the “Amerisure CGL Policy”). C&D Laface Construction, Inc. (“Laface”) is a subcontractor that contracted with EDC to perform the masonry, cast stone, and brick veneer work at the project site. See Selective’s SMF 7; Amerisure’s Response to Selective’s SMF 7; see also Dkt. No. 43-11 (the “Subcontract”). Selective issued a commercial general liability policy to Laface. See Selective’s SMF 35; Amerisure’s Response to Selective’s SMF 35; see also Dkt. No 43-12 (the “Selective CGL Policy”). Selective also issued an umbrella policy to Laface. See Selective’s SMF 48; Amerisure’s Response to Selective’s SMF 48.⁴ 2. The Incident and Underlying Lawsuit On November 5, 2015, a Laface employee named Shaun Atkinson was injured when he came into contact with a forklift. See Selective’s SMF