WI Court of Appeals rules additional insured persons covered for their own negligence.

Byline: David Ziemer

An additional insured endorsement in a CGL policy applies, even when the claim arises solely from the alleged negligence of the additional insured, the Wisconsin Court of Appeals held on April 12.

Miller Brewing Company contracted with Selzer-Ornst Company, a general contractor, for the installation of new windows and other improvements at Miller's Milwaukee brewery facility. As a condition of the construction contract, Selzer-Ornst had to add Miller as an "additional insured" on its CGL insurance policy, which was issued by Acuity.

Selzer-Ornst did so, and provided Miller with a Certificate of Insurance listing Miller as an additional insured on the policy. The policy provides, in relevant part, as follows: "Who Is an Insured is amended to include as an insured any person or organization for whom you [Selzer-Ornst] are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy. Such person or organization [Miller] is an additional insured only with respect to liability arising out of your ongoing operations performed for that insured. A person's or organization's status as an insured under this endorsement ends when your operations for that insured are completed."

Selzer-Ornst subcontracted with J.F. Cook, Inc., to replace the windows at the brewery. They similarly added Miller, pursuant to contract, as an additional insured on their policy. J.F. Cook's policy with Milwaukee Mutual Insurance Company provides, in relevant part, as follows:

"Each of the following is also an insured:

1. Any person or organization you [J.F. Cook] are required by a written contract, agreement, or permit to name as an insured, but only with respect to liability arising out of:

1. 'your ongoing operations' performed for that insured at the location designated in the contract, agreement, or permit; or

2. premises owned or used by you."

J.F. Cook's contract with Selzer-Ornst also included the following indemnity clause: "The Sub-Contractor [J.F. Cook] shall indemnify and save harmless the Owner [Miller], the Architect, the Contractor [Selzer-Ornst] and their respective agents from any and all liability, payments and expenses of any nature for injury or death to any person, or persons, or for damage to any property, caused by the Sub-Contractor, or incidental to the execution of work under this contract by the Sub-Contractor, his agents or employees; and the Sub-Contractor shall...