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ATOFINA Petrochemicals12/16/2005
A&B Builders, Inc. was hired to erect steel for construction on premises owned by ATOFINA Petrochemicals, Inc. (Fina). An A&B employee, Larry Don Wisdom, was injured unloading steel for A&B on Fina's property. When Wisdom sued Fina and others for negligence, Fina requested coverage and a defense as an additional insured under A&B's comprehensive general liability policy. Although the trial court granted summary judgment in Fina's favor, the court of appeals determined that Fina was not an additional insured at the time of the accident, and further, that coverage for Wisdom's claims against Fina was barred by a policy exclusion. Because we conclude Fina was an additional insured and coverage was not excluded, we reverse the court of appeals' judgment and reinstate the judgment of the trial court.
A&B carried workers' compensation coverage and comprehensive general liability insurance provided by Continental Casualty Company. Because A&B was generally required to add the premises owner to its coverage when working at various sites, the liability policy contained an additional insured endorsement as follows:
IF YOU ARE REQUIRED TO ADD ANOTHER PERSON OR ORGANIZATION AS AN ADDITIONAL INSURED ON THIS POLICY UNDER A WRITTEN CONTRACT OR AGREEMENT CURRENTLY IN EFFECT, OR BECOMING EFFECTIVE DURING THE TERM OF THE POLICY, AND A CERTIFICATE OF INSURANCE LISTING THAT PERSON, OR ORGANIZATION, AS AN ADDITIONAL INSURED HAS BEEN ISSUED, THEN WHO IS AN INSURED (SECTION II) IS AMENDED TO INCLUDE AS AN INSURED THAT PERSON, OR ORGANIZATION (CALLED "ADDITIONAL INSURED").
On August 12, 1997, A&B submitted to Fina a written construction proposal, which included a commitment to provide insurance to Fina as the premises owner. The proposal stated:
A&B Builders, Inc. is pleased to offer our proposal to furnish labor, tools, material (not furnished by Fina), equipment, insurance and supervision to complete steel erection for the [Administration-Laboratory Building and Locker Room].
On the same day, Fina orally accepted the proposal and created purchase requisitions referencing purchase order numbers for the job in accordance with the proposal. Fina's representative faxed the purchase requisitions to A&B before A&B started work. Also on August 12, A&B's representative immediately requested a certificate of insurance naming Fina as an additional insured from an authorized representative in A&B's parent company's insurance department. Based on Fina's oral acceptance of the proposal and faxed copies of the purchase requisitions, A&B began work at Fina's site on August 14. The certificate of insurance issued on August 18. Hard copies of Fina's purchase orders, which purported to "contain the entire agreement between the parties hereto" and did not mention insurance, subsequently issued August 22 and 25.
On the first day of the job, August 14, Wisdom was injured. Following the accident, Wisdom sued Fina and two other defendants for personal injury, alleging his injuries were caused "by the total negligence and carelessness of Defendants." Specifically, Wisdom alleged Fina was negligent: "1. In failing to properly supervise; 2. In issuing a permit to unload unbanded steel with a forklift; 3. In failing to supply a cherry picker for unloading the unbanded steel; 4. In rushing the unloading process and demanding that A&B proceed to unload unbanded steel without proper equipment; 5. In failing to supply a safe workplace; and 6. In allowing an unsafe activity on its premises." Refusing to provide coverage or a defense for Fina, Continental intervened in the suit to recover medical expenses and workers' compensation benef
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