Pengilly Masonry, Inc. v. Aspen Insurance UK Ltd.

MEMORANDUM AND ORDER

This is an action to collect on a judgment entered against defendant Aspen Insurance UK Limited’s (“Aspen”) insured, plaintiff Pengilly Masonry, Inc. (“Pengilly”), after Aspen failed to defend Pengilly in an underlying action for damages arising out of allegedly defective work performed by Pengilly at a public works project in Hayward, California. Ultimately, Pengilly entered into a settlement with the claimant, Mitchell Engineering (“Mitchell”), by which Pengilly agreed that it would not appear and contest the matter at trial in exchange for a covenant not to execute on the judgment by Mitchell.

Since this matter was filed, Aspen has admitted it had a duty to defend Pengilly in that action and has agreed to pay Pengilly’s reasonable and necessary defense costs incurred following tender of defense. By way of this motion, Pengilly seeks a declaration that the judgment entered against it is covered under its policy with Aspen, and that Aspen is liable for the amount of the judgment as damages for its breach of the duty to defend under the subject policy. Plaintiffs complaint alleges four causes of action: (1) declaratory relief on the duty to defend; (2)…