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An insurer is entitled to disclaim coverage for bodily injury under a liability policy’s “injury to contractors and employees” exclusion where an employee alleged he was working for a contractor on a renovation project at the time of fall from scaffolding, according to a recent decision issued by the Philadelphia Court of Common Pleas.

In Tartaglia v. Certain Underwriters at Lloyd’s, London, the insured property owner allegedly retained a general contractor to perform drywall and insulation work at the premises. The plaintiff in the underlying tort action, who claimed he was employed as a general laborer for the contractor, filed suit against the owner after he was allegedly injured while performing work at the premises. Certain Underwriters denied coverage based upon the policy’s exclusion for bodily injury to any employee of any contractor hired by any insured. The insured contested the insurer’s position and filed a declaratory judgment action. 

In opposition to Certain Underwriters’ motion for judgment on the pleadings, the insured alleged that the injured plaintiff was not an employee and was not injured while performing work at the property. Given what he claimed were disputed facts, the insured urged the court to deny the motion. 

In granting Certain Underwriters’ motion, the motion judge followed longstanding Pennsylvania insurance law mandating that an insurer’s duty to defend is governed by the four corners of the underlying allegations, regardless of their merit. Since the claim as set forth in the tort complaint must be taken as true for purposes of coverage, the court held that the allegations fell squarely within the scope of the exclusion.  The court dismissed the insurance lawsuit, holding that Certain Underwriters had no duty to defend or indemnify the insured.

Clark & Fox attorneys John Clark, Michael Savett and Eric Nulty represented Certain Underwriters in the lawsuit.