CGU/Hawkeye Security Insurance v. Oasis Las Vegas Motor Coach Park, L.P.

MEMORANDUM *

Nevada law governs our interpretation of Walchop’s insurance policies. We “construe the terms of an insurance policy in their plain and ordinary sense and from the viewpoint of one not trained in law.” Vitale v. Jefferson Ins. Co., 116 New 590, 5 P.3d 1054, 1057 (2000) (per curiam) (citing Nat’l Union Fire Ins. Co. v. Reno’s Executive Air, Inc., 100 Nev. 360 , 682 P.2d 1380, 1382 (1984) (per curiam)). Any ambiguity in an insurance policy “must be construed against the insurer and in favor of the insured.” Id. An insurer’s policy restrictions and exclusions must “clearly and distinctly communicate[ ] to the insured the nature of the limitation.” Id.

The ‘Work Performed Exclusion” contained in Walchop’s insurance policies excludes coverage for damage to the concrete pads resulting from Walchop’s own work but not from the work of a “subcontractor,” a term not defined in the policies. As recognized by the district court, the term is not defined by any applicable Nevada statute either. Black’s Law Dietionary defines a “subcontractor” as one “who is awarded a portion of an existing contract by a contractor.” Black’s Law Dictionary 1155 (7th ed. 2000); see also…

dissenting.

I respectfully dissent.

In my view, Ready Mix was a supplier and deliverer of materials, not a “subcontractor.” The fact that a materialman supplies a product that is blended to specifications does not turn the materialman into a subcontractor. Simply put, a company, that mixes batches of concrete and dumps them at the work sites is a supplier of materials and is not performing enough of the construction contract to be a “subcontractor.”

The facts on which the district court relied are relevant to this question, see, e.g., United States v. Aetna Cas. & Sur. Co., 981 F.2d 448 (9th Cir.1992), and I agree with its analysis. Therefore, I would affirm.