SPEARMAN, J.
¶ 1 In this insurance coverage case, we must decide whether Albert Boogaard, an injured named insured who contractually assumed the liability of the tortfeasor Northland Services, Inc. ("NSI"), is covered by his own comprehensive marine liability policy. Specifically, the question we must address is whether the policy's exclusion of coverage for liability assumed in a contract precludes coverage for Boogaard or whether there is coverage under the policy's exception for an "Insured Contract." We conclude that because Boogaard is not a "third person" under the "Insured Contract" clause, the exclusion applies, and the trial court properly granted summary judgment. Affirmed.
¶ 2 Two companies, Northland Services, Inc. ("NSI") and Naknek Barge Lines, LLC ("Naknek") retained ABCD Marine (through ABCD senior partner, Albert Boogaard) as an independent contractor to provide welding services. Boogaard provided welding services to NSI and Naknek at a marine terminal located on the Duwamish River beginning in 2000. According to the parties, NSI and Naknek are related to a third corporate entity, Northland Holdings, Inc., although the record is not clear as to the exact relationship between the companies.
¶ 3 ABCD hired Alliance Insurance ("Alliance") as an insurance broker. Alliance submitted a policy application on behalf of ABCD to International Marine Underwriters (IMU) insurance, and IMU issued a Comprehensive Marine Liability and Ship Repairers Legal Liability policy in April 2000. Alliance told IMU that ABCD did not have any written contracts with other parties and did not require any additional insureds on the policy.
¶ 4 In August 2001, Naknek sent ABCD a letter indicating that all of Naknek's contractors must provide commercial general liability insurance coverage of $1 million, and that the certificate of insurance "`must name and waive Naknek Barge Lines LLC and Northland Holdings Incorporated.'" According to Boogaard, he told Alliance about this letter. IMU, however, contends it never received a request to add any additional insured to the policy and as such, it simply renewed the policy without any significant changes over the following years: 2001, 2002, 2003, and 2004. The 2003-04 policy included no additional insured endorsements for any entity.
¶ 5 On September 29, 2004, ABCD (via its senior partner Boogaard) and NSI entered into a written "Access Agreement" (Agreement). The Agreement required ABCD to (1) defend and indemnify NSI for injuries to all persons arising out of ABCD's operations and/or use of NSI's property, and (2) obtain liability insurance that included an additional insured endorsement naming NSI as an additional insured on the policy:
It is undisputed that neither Alliance or IMU were ever informed of, or provided a copy of, the Agreement.
¶ 6 Boogaard was seriously injured by a forklift driven by a NSI employee on October 19, 2004. Alliance advised IMU of the accident in November 2004. When Alliance representative Tammy Hausinger spoke with the IMU claim manager Dave O'Laughlin about the accident, she agreed that there was no coverage for Boogaard's injuries under the IMU policy. In December 2004, for the first time, Ms. Hausinger asked IMU to add "Northland Services" as an additional insured to the policy. IMU made this change prospectively. The policy in effect at the time of Boogaard's injury included the following provisions:
The Declarations listed "ABCD Marine" as the named insured.
¶ 7 Boogaard sued NSI and Northland Holdings for his personal injuries. NSI and Northland counterclaimed for indemnity and for breach of the Agreement, which it alleged required Boogaard to include NSI as an additional
¶ 8 The trial court held a reasonableness hearing (after joining IMU as a party to the hearing). The court approved the settlement agreement as reasonable, awarding Boogaard a judgment of $600,000 against NSI (for his personal injury claim), and awarding NSI a judgment of $712,022.01 against Boogaard (indemnification for Boogaard's personal injury claim plus attorney fees and costs). IMU claims in its brief that ABCD and Boogaard demanded IMU pay that entire $712,022.01.
¶ 9 IMU brought a declaratory action against ABCD and Boogaard to determine coverage. ABCD and Boogaard filed an amended answer, making counterclaims against IMU for breach of insurance contract and for bad faith. They later amended the answer to include a "cross-claim" against Alliance for negligence.
¶ 10 ABCD and Boogaard appealed both the order dismissing IMU and the order dismissing Alliance. Before oral argument, however, ABCD, Boogaard and Alliance settled and jointly moved to dismiss that portion of the appeal. We granted the motion. As such, the only remaining issues on appeal relate to the trial court's dismissal of the claims against IMU.
¶ 11 ABCD and Boogaard argue that the trial court erroneously concluded there was no coverage under the IMU policy. For the reasons described herein, we disagree with ABCD and Boogaard, and affirm the trial court.
¶ 12 ABCD and Boogaard contracted with NSI specifically to indemnify NSI for any and all injuries caused by NSI. On that issue, the Agreement is clear that ABCD and Boogaard were "responsible for all bodily and personal injuries to all persons arising out of or resulting from [their] operations and/or use of the Property, including bodily and personal injuries to [their] own employees[.]" Likewise, they were to "indemnify and hold harmless (including costs and legal fees) NSI of and from all losses, damages, claims and suits for bodily and personal injury" and the indemnification agreement "includes all claims and suits against NSI by any employee (present or former) of [ABCD/Boogaard.]"
¶ 13 Exclusion 2 of the IMU policy generally excludes from coverage such contractual assumptions of liability. ABCD and Boogaard contend the Agreement, however, is an "Insured Contract" under the IMU policy, which would bring ABCD's contractual assumption of NSI's liability outside of exclusion 2. An "insured contract" under the IMU policy means:
ABCD and Boogaard claim that because they contracted in the Agreement to indemnify NSI for any and all claims against NSI, they
¶ 14 IMU does not disagree that the Agreement is an Insured Contract. It contends only that Boogaard is not covered by the exception because he is not a "third person" as that term is used in the Insured Contract clause. Neither party cites to relevant caselaw in support of their respective positions as to the meaning of the term "third person" in this context.
¶ 15 A Cowan employee (George Shaffer) slipped and fell on ice when delivering a trailer to Linens N Things. He sued Linens N Things, who in turn filed a third-party complaint against Cowan, alleging Cowan had agreed to indemnify. Id. at 371. Cowan tendered to Harleysville, but Harleysville denied coverage, refusing to defend or indemnify. Cowan defended itself and obtained summary judgment in its favor. Cowan then filed a declaratory judgment action against Harleysville. One of the issues was whether the contract between Cowan and Linens N Things was an Insured Contract that would bring Cowan's agreement to indemnify outside of the general exclusion of contractual assumptions of liability.
¶ 16 Harleysville did not dispute that the indemnification agreement was an Insured Contract, but it claimed that Shaffer was not a "third person" with respect to Cowan because he was an employee of Cowan. The Fourth Circuit rejected this argument, holding the question of whether one is a "third person" should be answered from the frame of reference of the liable party:
Id. at 373. Here, although Boogaard was not an employee of NSI, he nevertheless had a first party relationship with it because both Boogaard and NSI were parties to the Agreement. Moreover, as a general partner of the named insured on the policy at issue here, Boogaard was also a first party as to IMU. Thus, unlike the injured party in Cowan, Boogaard is not a "third person" to the Agreement or to the insurance policy. Therefore, the Insured Contract exception does not apply to him and Exclusion 2 of the IMU policy precludes coverage for Boogaard and ABCD's contractual assumption of NSI's liability. The trial court did not err in granting summary judgment.
¶ 17 ABCD and Boogaard also argue the trial court should be reversed because
¶ 18 From the faulty premise that Cronn was employed by Northland Holdings and/or Naknek, ABCD and Boogaard then argue Northland Holdings and/or Naknek were additional insured based two certificates issued by Alliance for the 2001-02 and 2002-03 policies. As IMU points out, however, "the purpose of issuing a certificate of insurance is to inform the recipient thereof that insurance has been obtained; the certificate itself, however, is not the equivalent of an insurance policy." Postlewait Const., Inc. v. Great American Ins. Companies, 106 Wn.2d 96, 100-01, 720 P.2d 805 (1986). Indeed, each certificate indicates that it "is issued as a matter of information only and confers no rights upon the certificate holder. This certificate does not amend, extend or alter the coverage afforded by the policies below." Additionally, it is undisputed that Alliance was ABCD and Boogaard's agent, not IMU's agent. ABCD and Boogaard's claim that Alliance was granted "permission" from IMU to add additional insured endorsements is not supported by the citations to the record.
¶ 19 Moreover, ABCD and Boogaard never submitted in opposition to IMU's summary judgment motion any policies actually showing NSI, Northland Holdings, or Naknek were additional insureds.
¶ 20 Boogaard and ABCD also argue the trial court erred by failing to reform the insurance policy to add NSI as an additional insured. We disagree. "To support a reformation of contract, there must be a showing of either fraud or mutual mistake." Rocky Mt. Fire & Cas. Co. v. Rose, 62 Wn.2d 896, 902, 385 P.2d 45 (1963). As is described above, ABCD and Boogaard made no showing of fraud or mutual mistake. There is no evidence in the record showing IMU intended to cover NSI as an additional insured.
¶ 21 Finally, even though the parties stipulated to the dismissal of the bad faith and breach of insurance contract claims without prejudice, and even though ABCD did not appeal that order, ABCD appears to argue in various portions of its brief on appeal that IMU committed bad faith. The bad faith claims are not at issue here, however, and as such, we decline to address those arguments.
¶ 22 Affirmed.
WE CONCUR: DWYER, C.J., and SCHINDLER, J.