Monday, January 14, 2019

US District Court holds that slip and fall in parking lot does not arise out of building tenant's operations or premises

Cummings Properties leased an office suite to the Massachusetts Department of Revenue.  The lease required Cummings to use reasonable efforts to ensure that snow and ice are removed from the parking lot.

A DOR employee sued Cummings, alleging that she slipped and fell on ice in the parking lot of the building in which the DOR office suite was located. Cummings sought coverage under a commercial general liability policy issued to the DOR by Public Service Insurance Company (PSIC).  Cummings was an additional insured on the policy "but only with respect to liability arising out of [DOR's] operations or premises owned by or rented to [DOR]."  The additional insured endorsement identified the DOR's office suite as the location for which Cummings was an additional insured.

In Cummings Properties, LLC v. Public Service Ins. Co., __ F.Supp. 3d __, 2018 WL 6171878 (D. Mass.), the United States District Court for the District of Massachusetts held that the loss was not covered under the policy.

First, the court held that the DOR employee's injuries did not arise out of the DOR's "operations."  "Arriving in the parking lot and walking to work has nothing to do with  DOR's operations."

Second, the court held that the employee's injuries did not arise out of premises rented to the DOR.  The court pointed out that the additional insured endorsement identified the office suite as the insured location.  The DOR did not rent the parking lot or any parking spaces; the lot was a common area maintained by Cummings.  "The mere fact that Barresi was injured in a common area while en route to the rented premises does not automatically make her claim one arising out of the rented premises."

Although not discussed in the decision, it is worth noting that  regardless of whether or not it is an additional insured on the DOR's policy, Cummings almost certainly has coverage for the claim under its own general liability policy.  Indeed, it is likely that Cummings' general liability insurer, not Cummings itself, is pursuing coverage from PSIC.  If both policies provide coverage, then how much of the loss each pay (up to their policy limits) will be determined by their "other insurer" clauses. 

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