United States District Court, D. Maryland
UNITED NATIONAL INSURANCE COMPANY A/S/O COUNCIL OF UNIT OWNERS PELICAN BEACH CONDOMINIUM, Plaintiff,
PENINSULA ROOFING COMPANY, INC.,  Defendant.
L. Russell, III United States District Judge
MATTER is before the Court on Defendant Peninsula Roofing
Company, Inc.'s (“Peninsula”) Motion for
Summary Judgment (ECF No. 12). The Motion is ripe for
disposition, and no hearing is necessary. See Local
Rule 105.6 (D.Md. 2016). For the reasons outlined below, the
Court will grant the Motion.
Beach Condominium Association (“Pelican Beach”),
Plaintiff United National Insurance Company's
(“United National”) insured, entered into a
contract (the “Contract”) with Peninsula to
replace the roof on its condominium building located at 13908
Wight Street, Ocean City, Maryland (the
“Work”). (Compl. ¶ 4, ECF No. 1). The Contract
consists, in relevant part, of two boilerplate American
Institute of Architects (“AIA”) documents:
Document A101™-2007 “Standard Form Agreement
Between Owner and Contractor where the basis of payment is a
Stipulated Sum” (“A101”), (Def.'s Mem.
Supp. Mot. Summ. J. [“Def.'s Mot.”] Ex. 5
[“A101”], ECF No. 12-5); and Document
A201™-2007 “General Conditions of the Contract
for Construction” (“A201”), (Def.'s
Mot. Ex. 6 [“A201”], ECF No. 12-6).
Contract contains four provisions relevant to this case.
First, the “Waivers of Subrogation” provision
(the “Waiver”), A201 § 11.3.7 provides, in
pertinent part: “The Owner and Contractor waive all
rights against [ ] each other . . . for damages caused by
fire . . . to the extent covered by property insurance
obtained pursuant to Paragraph 11.3 or other property
insurance applicable to the Work . . . .” (A201 §
11.3.7). Second, A201 § 11.3.1 provides, in
relevant part, that “the Owner shall purchase and
maintain . . . property insurance written on a builder's
risk ‘all-risk' or equivalent policy form.”
(Id. § 11.3.1). Third, § 188.8.131.52 further
provides that “[p]roperty insurance shall be on
‘all risk' or equivalent policy form and shall
include, without limitation, insurance against the perils of
fire.” (Id. § 184.108.40.206). Finally, §
11.3.5 states: “If during the Project construction
period the Owner insures properties, real or personal or
both, at or adjacent to the site by property insurance under
policies separate from those insuring the Project . . ., the
Owner shall waive all rights in accordance with the terms of
Section 11.3.7 for damages caused by fire or other causes of
loss covered by this separate property insurance.”
(Id. § 11.3.5).
to and during construction, Pelican Beach maintained a
commercial property insurance policy through United National.
(Joint Stip. of Facts ¶ 5). Pelican Beach did not obtain
a freestanding builder's risk or all-risk policy.
September 8, 2015, Peninsula began replacing the roof at
Pelican Beach. (Compl. ¶ 7). On January 13, 2016, while
Peninsula was working on the roof, a fire broke out in the
back of a Peninsula truck that was parked in a parking
structure underneath the condominium. (Joint Stip. of Facts
¶¶ 1-4). The source of the fire was a generator
located in the back of the truck that supplied electricity to
the tools Peninsula was using on the roof. (Id.
¶¶ 3-4). The fire caused more than $3, 000, 000.00
in property damage, which United National either “paid,
or expects to pay.” (Id. ¶ 7).
October 25, 2016, United National, as Pelican Beach's
subrogee, sued Peninsula. (ECF No. 1). The two-count
Complaint alleges negligence and breach of contract. (Compl.
¶¶ 20-37). United National seeks to recover the
approximately $3, 000, 000.00 in fire damages. (Id.
at 5, 7). On April 24, 2017, Peninsula filed a Motion for
Summary Judgment. (ECF No. 12). On June 26, 2017, United
National filed an Opposition. (ECF No. 19). Peninsula filed a
Reply on July 13, 2017. (ECF No. 20).
Standard of Review
reviewing a motion for summary judgment, the Court views the
facts in a light most favorable to the nonmovant, drawing all
justifiable inferences in that party's favor. Ricci
v. DeStefano, 557 U.S. 557, 586 (2009); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing
Adickes v. S.H. Kress & Co., 398 U.S. 144,
158-59 (1970)). Summary judgment is proper when the movant
demonstrates, through “particular parts of materials in
the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations
. . . admissions, interrogatory answers, or other materials,
” that “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a), (c)(1)(A).
Significantly, a party must be able to present the materials
it cites in “a form that would be admissible in
evidence, ” Fed.R.Civ.P. 56(c)(2), and supporting
affidavits and declarations “must be made on personal
knowledge” and “set out facts that would be
admissible in evidence, ” Fed.R.Civ.P. 56(c)(4).
motion for summary judgment is properly made and supported,
the burden shifts to the nonmovant to identify evidence
showing there is genuine dispute of material fact. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586-87 (1986). The nonmovant cannot create a
genuine dispute of material fact “through mere
speculation or the building of one inference upon
another.” Beale v. Hardy, 769 F.2d 213, 214
(4th Cir. 1985) (citation omitted).
“material fact” is one that might affect the
outcome of a party's case. Anderson, 477 U.S. at
248; see also JKC Holding Co. v. Wash. Sports Ventures,
Inc., 264 F.3d 459, 465 (4th Cir. 2001) (citing
Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir.
2001)). Whether a fact is considered to be
“material” is determined by the substantive law,
and “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.”
Anderson, 477 U.S. at 248; accord
Hooven-Lewis, 249 F.3d at 265. A “genuine”
dispute concerning a “material” fact arises when
the evidence is sufficient to allow a reasonable jury to
return a verdict in the nonmoving party's favor.
Anderson, 477 U.S. at 248. If the nonmovant has
failed to make a sufficient showing on an essential element
of her case where she has the burden of proof, “there
can be ‘no genuine [dispute] as to any material fact,
' since a complete failure of proof concerning an
essential element of the nonmoving party's case
necessarily renders all other facts immaterial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23