Judge: Policy doesn't cover defendants in McDonald's wrongful death suit

BLUEFIELD – A federal judge has ruled for Bituminous Casualty Corp., deciding it had no duty to provide insurance coverage in a wrongful death lawsuit that stemmed from the death of a Bluefield sanitation worker.

On April 3, U.S. District Judge David A. Faber, of the Southern District of West Virginia, granted Bituminous Casualty’s motion for summary judgment. His decision has been appealed by Mulvey Construction and its liability insurer.

Mulvey was hired by McDonald’s to construct a restaurant in Bluefield and entered into a subcontract agreement with DCI/Shires, which agreed to place Mulvey and McDonald’s on its insurance policy issued by Bituminous Casualty.

The “insured contract” provision in the policy provides coverage to the insured, not third parties, Faber wrote.

“Even assuming that the subcontract between Mulvey and DCI is an insured contract within the definition of the Bituminous Policy, it does not make Mulvey an additional insured under that policy,” Faber wrote.

“Rather, it only obligates Bituminous to provide coverage to DCI for any damages DCI incurs as a result of the subcontract.”

DCI was hired to construct a retaining wall and other work on the McDonald’s project.

On Jan. 3, 2003, there was a complaint of a sewage line break at the McDonald’s site, and Robert Blevins responded.

Blevins worked for the Sanitation Board of the City of Bluefield and was killed while replacing the sewer pipe in a trench.

A section of concrete roadway and dirt sidewall fell on him. His wife, Rebecca Ann, filed a wrongful death lawsuit in Mercer County Circuit Court against McDonald’s, Mulvey, DCI and others.

The amended complaint alleged that the failure of the retaining wall caused the break in the sewer line.

Mulvey and McDonald’s requested Bituminous to assume their defense in the lawsuit, and Bituminous declined. The company said Mulvey and McDonald’s were not additional insureds on the policy.

One Beacon Insurance Company paid the settlement that was eventually reached with Blevins. In 2007, it and Mulvey filed suit against Bituminous.

Bituminous, meanwhile, said the insurance agent Brown & Brown failed to name Mulvey as an additional insured under the policy.

Mulvey and One Beacon have appealed the ruling to the U.S. Court of Appeals for the Fourth Circuit.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.