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Nationwide Mutual Fire Insurance Company v. Wilbon

United States District Court, District Circuit

August 16, 2013

NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Plaintiff,
v.
JOAN WILBON, et al., Defendants.

OPINION

ROSEMARY M. COLLYER United States District Judge

Because the rear door of an apartment building was chained shut from the outside, residents could not escape quickly when a fire broke out. A child was killed and others were injured. The question presented here is whether the children’s injuries are covered by specific insurance policies. The parties have filed cross motions for summary judgment. Nationwide Mutual Fire Insurance Company issued two policies that covered various properties to the property manager, but because the apartment building and the management office were not listed as insured premises, there is no coverage here. Judgment will be entered in favor of the insurer.

I. FACTS

Sheba Alexander lived in an apartment at 3113 Buena Vista Terrace, S.E., Washington, D.C., with her three minor children. On February 4, 2011, an electrical outlet in the building caught fire, causing Ms. Alexander’s children to flee. The children attempted to leave through the rear door of the building, but could not get out because the door was padlocked from the outside. They then tried to leave through the building’s front door. Two of the children managed to get past the smoke and flames, but the third perished in the fire. The two children who escaped required medical treatment.

Joan Wilbon was appointed as the personal representative of the estate of the deceased child. Ms. Wilbon and Ms. Alexander filed suit in D.C. Superior Court against: the District of Columbia, Community Partnership for the Prevention of Homelessness (CPPH), Bailey Real Estate Holdings LLC, and Buena Vista Terrace LLC (Underlying Suit). See Am. Compl. [Dkt. 18], Ex. B (Wilbon v Dist. of Columbia, C.A. No. 0008700-11 (D.C. Super. Ct.) (Compl. filed Nov. 3, 2011)). Ms. Alexander and her children had been homeless and their housing was provided by the District of Columbia and CPPH. Buena Vista Terrace LLC (Buena Vista) owned the apartment building at 3113 Buena Vista where the fire took place, and Bailey Real Estate Holdings LLC (Bailey) managed the building. The Underlying Suit asserts claims for survival, wrongful death, and negligence due to the failure to maintain the apartment building in a reasonably safe condition, free of unreasonable hazards, and in compliance with all applicable codes.

Defendants claim that Bailey is covered by specific insurance policies issued by Nationwide Mutual Fire Insurance Company (Nationwide) and that Nationwide is obligated to defend and indemnify Bailey in the Underlying Suit. Nationwide asks for declaratory judgment that it has no duty to defend or indemnify Bailey in the Underlying Suit under the policies issued to Bailey. Am. Compl. ¶¶ 18-23.

To be sure, Nationwide insured Bailey pursuant to two policies. The first of these, “Policy 7634, ” is a Premier Businessowners Policy, number ACP BPHF 5123327634, effective from June 17, 2010 to June 17, 2011. Pl.’s Mot. for Summ. J. [Dkt. 24], Ex. 2 [Dkt. 24-4]. The Common Declarations of Policy 7634 identify the insured’s mailing address as Bailey’s office located at 1434 Park Road, NW, Washington D.C. The Common Declarations describe the insured business as “Apartment Building – Single BL.” Id. at 1. The Property Declarations list the addresses of various properties owned and/or managed by Bailey that are located in the District of Columbia and set forth coverage limits for each. The apartment building on Buena Vista Terrace is not listed. Policy 7634 also contains a Limitation of Coverage to Designated Premises Endorsement that provides:

This endorsement modifies Insurance provided under the following:
Premier Businessowners Liability Coverage Form
This insurance applies only to “bodily injury, ” “property damage, ” “personal and advertising injury, ” and medical expenses arising out of the ownership, maintenance or use of those premises that are shown in the Declarations, and your operations necessary or incidental to those premises.

Defs. Mot. for Summ. J. [Dkt. 23], Defs. Exs. [23-2], Ex. F at 55 (emphasis added).[1]

The second policy issued to Bailey by Nationwide, “Policy 7635, ” is a Premier Businessowners Policy, number ACP BPHF 5123327635, effective from June 22, 2010 to June 22, 2011. Pl.’s Mot. [Dkt. 24], Ex. 3 [Dkt. 24-5]. The substantive terms of Policy 7635 are identical to Policy 7634 in all relevant respects. The Common Declarations again identify the insured’s mailing address as the Park Road office and describe the insured business as an “Apartment Bldg[–]Sngl Bldg w/5 or more [residences].” Policy 7635 lists various covered properties in the Property Declarations but does not list the Buena Vista apartment building. Policy 7635 also contains a Limitation of Coverage to Designated Premises Endorsement identical to the one quoted above. See Defs. Exs., Ex. F.

Nationwide is currently defending both Buena Vista and Bailey in the Underlying Suit under the terms of a different insurance policy––number ACP BPHM 2404851807 (“Policy 1807”), issued to Buena Vista. Policy 1807 expressly lists the apartment building at 3113 Buena Vista Terrace as an insured property. The parties agree that Bailey is an additional insured under Policy 1807 for purposes of Nationwide’s duty to defend but not for purposes of the duty to indemnify. See Pl. Mot. for Summ. J. at 14.

Nationwide filed this suit seeking a declaratory judgment that it is not obligated to defend or indemnify Bailey in the Underlying Suit under Policies 7634 and 7635. The parties agree that no material facts are in dispute and Nationwide moves for summary judgment. Bailey, Buena Vista, Ms. ...


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