JEFFREY ANDREWS v. DAVID M. JERUD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JEFFREY ANDREWS,

Plaintiff-Appellant,

v.

DAVID M. JERUD, LORAV

CONSTRUCTION, LLC, and

EASTERN SHORE CARPENTRY,

Defendants-Respondents,

and

ANDERSON WINDOWS, INC.,

Defendant.

______________________________________

ANDERSON WINDOWS, INC.,

Third-Party Plaintiff,

and

DAVID M. JERUD and LORAV CONSTRUCTION,

LLC,

Third-Party Plaintiffs-

Respondents/Cross-Appellants,

v.

EASTERN SHORE CARPENTRY,

Third-Party Defendant,

and

LIBERTY MUTUAL INSURANCE COMPANY,

Third-Party Defendant-

Cross-Respondent.

______________________________________

October 8, 2014

Argued June 2, 2014 Decided

Before Judges Ashrafi and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2967-09.

Gary F. Piserchia argued the cause for appellant (Parker McCay, P.A., attorneys; Mr. Piserchia, of counsel; Stacy L. Moore, Jr., on the briefs).

Richard J. Mirra argued the cause for respondents/cross-appellants David M. Jerud and LORAV Construction, LLC (Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys; Mr. Mirra, of counsel and on the briefs).

Todd A. Rossman argued the cause for cross- respondent Liberty Mutual Insurance Company (LeClairRyan, P.C., attorneys; Thomas C. Regan, of counsel and on the brief; Mr. Rossman, on the brief).

PER CURIAM

Plaintiff Jeffrey Andrews was injured delivering windows to a construction site. He appeals, challenging the grant of summary judgment to defendants/third-party-plaintiffs Dr. David M. Jerud and LORAV Construction, LLC.1 Defendants cross-appeal, contesting the grant of summary judgment to third-party defendant Liberty Mutual Insurance Company, which insured the truck plaintiff was driving. We affirm.

I.

In reviewing the grant of the motions for summary judgment, we "must accept as true all the evidence which supports the position of the party defending against the motion and must accord [that party] the benefit of all legitimate inferences which can be deduced therefrom." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (quotation marks omitted). Accordingly, we relate the facts as admitted by the parties and as proffered by plaintiff, based upon the deposition testimony and other documentary evidence, including his expert's report.2

Dr. Jerud is a periodontist, and had no training in construction. Jerud was building a home on a property he owned in Ventnor City (the Property), which he and his wife were planning to occupy. Jerud ordered and purchased the construction materials, was onsite almost every day, and coordinated the trades and contractors.

Jerud ordered windows from plaintiff's employer, Universal Supply Company (Universal). On December 26, 2007, using a Universal tractor-trailer, plaintiff and an assistant were delivering windows to the Property. Plaintiff had worked for Universal for two years and had delivered windows of this size on prior occasions.

Jerud was not onsite at the Property when plaintiff delivered the windows. Jerud testified that, when he placed the order with Universal, he was told in no uncertain terms that the windows would be left "curb side." According to plaintiff, Jerud instructed Eastern Shore Carpentry (ESC) to accept delivery of the windows from Universal and to assist Universal's employees in removing the windows from the truck.3

Upon arriving at the Property, plaintiff had a conversation with ESC personnel as to the means and methods of how the windows would be delivered. Plaintiff and the ESC personnel agreed that he would back the tractor-trailer onto the Property close to the house's front steps, where the windows would be unloaded.

Plaintiff was injured while in Universal's trailer. He and his assistant testified that the ESC personnel were also in the trailer, and that a window was dropped onto the back of plaintiff's legs during the unloading process.4

Plaintiff sued defendants alleging negligence. Defendants filed a motion for summary judgment. In opposing the motion, plaintiff pointed to the following evidence. Jerud had previously supervised building a house on the adjacent lot, and had formed his own construction company, LORAV.5 He had also been involved in the rehabilitation of several other properties, without hiring a general contractor. To save money building the home on the Property, Jerud did not hire a construction manager. Instead, Jerud served as the general contractor, hiring, paying, and contracting with the subcontractors.6 He got the construction permit and wrote "owner" as the name of the contractor. The owner of ESC testified that Jerud was the general contractor. Plaintiff's expert's report opined that the ESC personnel were careless in handling the window which fell on him, and that Jerud was the general contractor and failed to provide a safe work environment, adequate training, and sufficient supervision.

After hearing arguments, the Law Division judge granted defendants' motion for summary judgment on December 14, 2011. Plaintiff's motion for reconsideration was denied on October 10, 2012. The court issued a final order of disposition on July 29, 2013. Plaintiff appeals.

II.

Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). Under Brill, supra, 142 N.J. at 540, "a determination of whether there is a 'genuine issue' of material fact that precludes summary judgment requires the [court] to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Because "appellate courts 'employ the same standard [of review] that governs the trial court,'" we review these determinations de novo, and the "trial court rulings 'are not entitled to any special deference.'" Henry v. N.J. Dept. of Human Servs., 204 N.J. 320, 330 (2010). We must hew to that standard of review.

Here, there are disputed issues of fact about what arrangements Jerud made with the ESC personnel, what role the ESC personnel played in unloading the windows, and whether Jerud was serving as the general contractor rather than merely the property owner. "Although there appear to be genuine issues as to [these facts], they are not material to the determination in this case and formed no part of the basis for the judgment rendered. Therefore summary judgment was proper." Scatuorchio v. Jersey City Incinerator Auth., 14 N.J 72, 95 (1953); see Pressler & Verniero, Current N.J. Court Rules, comment 2.1 on R. 4:46.2 (2015 ed.) ("[T]he movant is entitled to judgment if . . . the adverse party . . . has not demonstrated the existence of a dispute whose resolution in his favor will ultimately entitle him to judgment."); see also Brill, supra, 142 N.J. at 129 ("a non-moving party cannot defeat a motion for summary judgment merely by pointing to any fact in dispute"). Summary judgment is appropriate even accepting plaintiff's version of these disputes.

The trial court found that "the law is clear that whether a property owner or a general contractor, defendant Jerud did not have a duty to direct and control the 'operational' means and methods that his subcontractors used to accomplish their work." The court cited Mavrikidis v. Petullo, 153 N.J. 117 (1998). In Mavrikidis, our Supreme Court reaffirmed "'the long settled doctrine that ordinarily where a person engages a contractor, who conducts an independent business by means of his own employees, to do work not in itself a nuisance . . . he is not liable for the negligent acts of the contractor in the performance of the contract.'" Id. at 131 (quoting Majestic Realty Assocs., Inc. v. Toti Contracting Co., 30 N.J. 425, 430-31 (1959)); accord Baboghlian v. Swift Elec. Supply Co., 197 N.J. 509, 518 (2009). Under this doctrine, ordinarily "the party contracting out the work, be it a landowner or a general contractor, 'is not liable for injuries to employees of the [sub]contractor resulting from either the condition to the premises or the manner in which the work is performed.'" Muhammad v. N.J. Transit, 176 N.J 185, 199 (2003) (quoting Wolczak v. Nat'l Electric Prod. Corp., 66 N.J. Super. 64, 71 (App. Div. 1961)).

"The premise underlying that approach is that a general contractor 'may assume that the independent contractor and [its] employees are sufficiently skilled to recognize the dangers associated with their task and adjust their methods accordingly to ensure their own safety.'" Tarabokia v. Structure Tone, 429 N.J. Super. 103, 113 (App. Div. 2012), certif. denied, 213 N.J. 534 (2013). Thus, even assuming Jerud was the general contractor that status does not itself make defendants liable for injuries to plaintiff.

However, "certain exceptions to the general principle have come to be accepted. Thus, a general contractor may be liable for a subcontractor's negligence where he retains control of the manner and means of doing the work contracted for." Ibid. (citing Muhammad, supra, 176 N.J. at 198). "A general contractor may also be liable where he knowingly engages an incompetent subcontractor[.]" Ibid. (citing Majestic, supra, 30 N.J. at 431). Plaintiff invokes these exceptions.

First, plaintiff argues that Jerud retained control over the subcontractors at the site. Plaintiff claims that if Jerud did not like the subcontractor's methods, he would tell them how to do a particular project or what technique to use. However, plaintiff's claim is mistakenly based on testimony describing the control and instruction provided by ESC's owner, not Jerud.

In fact, there was no evidence that defendants "retain[ed] control of the manner and means of doing the work contracted for." Ibid. Rather, Jerud testified that he was on the site "[l]ooking at what was done" and "to coordinate the trades." ESC's owner admittedly "determine[d] the means and methods of how [ESC's] work was performed."

This evidence is insufficient to impose liability on defendants. The immunity of a general contractor or landowner "'[is not] disturbed by the exercise of merely such general superintendence as is necessary to insure that the subcontractor performs his agreement[.]'" Muhammad, supra, 176 N.J. at 199 (quoting Wolczak, supra, 66 N.J. Super. at 71); accord Tarabokia, supra, 429 N.J. Super. at 113. Liability is "not warranted where the . . . 'supervisory interest relates [only] to the result to be accomplished, not to the means of accomplishing it.'" Mavrikidis, supra, 153 N.J. at 135 (quoting Majestic, supra, 30 N.J. at 431).

Moreover, even under plaintiff's version of events, defendants did not control the means or methods of how the windows were unloaded. Plaintiff asserts Jerud instructed ESC to accept delivery of the windows from Universal and to assist Universal's employees in removing the windows from the truck. However, no evidence shows Jerud instructed either Universal or ESC personnel on how to remove the windows. To the contrary, plaintiff and ESC personnel discussed and decided the means and methods of how the windows would be delivered.

Defendants thus did not engage in "direct interference which proximately cause[d] injury to the employees of the subcontractor." Wolczak, supra, 66 N.J. Super. at 71; see Muhammad, supra, 176 N.J. at 197. We recognize that if a general contractor or landowner generally retains control of the manner and means of doing the work, he "'is responsible for the negligence of the independent contractor even though the particular control exercised and its manner of exercise had no causal relationship with the hazard that led to the injury[.]'" Mavrikidis, supra, 153 N.J. at 135. As set forth above, however, defendants did not retain such control.

Second, plaintiff asserts that the ESC personnel were not trained in lifting heavy materials such as these windows. Plaintiff's expert opined that Jerud should have "select[ed] contractors that were competent with respect to job safety." However, "to prevail against the principal for hiring an incompetent contractor, a plaintiff must show that the contractor was, in fact, incompetent or unskilled to perform the job for which he/she was hired, that the harm that resulted arose out of that incompetence, and that the principal knew or should have known of the incompetence." Basil v. Wolf, 193 N.J. 38, 68 (2007). Plaintiff has failed to proffer any evidence that defendants knew ESC was incompetent. See Cassano v. Aschoff, 226 N.J. Super. 110, 114 (App. Div. 1988). Moreover, "[t]he fact that a contractor is negligent or incompetent in the manner in which he performs a particular job does not mean that he is incompetent generally." Ibid. Thus, plaintiff has failed to establish either exception to the doctrine barring liability.

In denying rehearing, the trial court rejected plaintiff's claim that summary judgment was barred by Alloway v. Bradlees, Inc., 157 N.J. 221 (1999). In Alloway, the Court held that a general contractor was held liable for an injury to a subcontractor's employee by looking to "the foreseeability of harm, the relationship between the parties, and the opportunity and capacity to take corrective action[.]" Id. at 233. Notably, "the [general] contractor had unsuccessfully tried to fix the truck that caused the plaintiff's injury and failed to warn her of the danger it posed and of which the [general] contractor was well aware." Tarabokia, supra, 429 N.J. Super. at 117 (citing Alloway, supra, 157 N.J. at 227). Further, "the principal of the subcontractor was also one of the general contractor's employees," and "this relationship gave the general contractor 'both the opportunity and capacity . . . to exercise authority and control over the equipment of [the subcontractor] if safety concerns were implicated.'" Id. at 115 (quoting Alloway, supra, 157 N.J. at 233).

Here, unlike Alloway, Jerud had no such "special relationship" with Universal or ESC. Id. at 117. Further, unlike the general contractor in Alloway, Jerud had no "'actual knowledge'" of and "had not helped to create the dangerous condition." Id. at 114-15, 117 (quoting Alloway, supra, 157 N.J. at 232). No evidence has been proffered that Jerud was aware of the method ultimately chosen by plaintiff or the ESC employees to transfer the windows. Further, Jerud was absent from the job site and did not have "'the opportunity and capacity to take corrective action.'" Id. at 115 (quoting Alloway, supra, 157 N.J. at 233).

Thus, plaintiff's case, like Tarabokia, poses "a very different factual scenario" from Alloway. Id. at 117. As in Tarabokia, there was no evidence the general contractor had removed from the "subcontractors the responsibility for ensuring the safety of their own workers," knew of the dangerous method used by the subcontractor's employee, or "affirmatively contribute[d] to create the harm." Id. at 117-18; see Slack v. Whalen, 327 N.J. Super. 186, 194 (App. Div.) (similarly distinguishing Alloway), certif. denied, 163 N.J. 398 (2000). Accordingly, defendants are not liable under Alloway.

Plaintiff also cites a case which relied on Alloway, Costa v. Gaccione, 408 N.J. Super. 362, 368, 373-74 (App. Div. 2009). In Costa, the property owner had some construction experience, acted as his own general contractor, hired subcontractors, purchased the materials, frequented the home construction site, and oversaw the workplace. Id. at 365-66, 374-75. However, in Costa the injury occurred on allegedly defective makeshift scaffolding on the work site. Id. at 364-67. Because general contractors can owe a duty "to assure safety on the work site," we found the property owner "could at least be found jointly liable with others sharing control of the locus of the accident." Id. at 369, 374.

Costa is distinguishable. Plaintiff's injury did not occur because of the condition of the work site, as in Costa. Rather, plaintiff's injury occurred in Universal's truck. Plaintiff claims his injury occurred because of how Universal and ESC employees performed their work. Even if a landowner or general contractor has a duty to ensure the safety of the premises where work is performed, generally "neither is under a duty to protect an employee of an independent contractor or subcontractor from hazards created by the performance of the contracted work." Pfenninger v. Hunterdon Cent. Reg'l High School, 338 N.J. Super. 572, 581 (App. Div. 1999), aff'd as modified, 167 N.J. 230 (2001); see Kane v. Hartz Mountain Industries, Inc., 278 N.J. Super. 129, 140 (App. Div. 1994), aff'd o.b., 143 N.J. 141 (1996); see also Muhammad, supra, 176 N.J. at 197.

Plaintiff cites cases involving the Construction Safety Code, N.J.A.C. 12:108-1.1 to -27.18 (1977), and OSHA regulations. However, the Construction Safety Code was repealed in 1978. 10 N.J.R. 258 (June 8, 1978). Moreover, Alloway held that an OSHA violation "without more does not constitute the basis for an independent or direct tort remedy." Alloway, supra, 157 N.J. at 236; Tarabokia, supra, 429 N.J. Super. at 112, 120; Slack, supra, 327 N.J. Super. at 195-96. In any event, "there is no indication in the record that an OSHA investigation was conducted or that OSHA violation notices were issued to any entity working on the construction project." See Tarabokia, supra, 429 N.J. Super. at 120. Indeed, plaintiff's expert failed to identify any particular OSHA violation.

Finally, plaintiff argues that his expert's report precluded summary judgment because it showed that Jerud was a general contractor and had a legal duty to plaintiff. However, even assuming Jerud was the general contractor, we have not found that defendants had a legal duty to plaintiff under the decisions of the Supreme Court and this court. "The issues of whether a defendant owes a legal duty to another and the scope of that duty are generally questions of law for the court to decide." Robinson v. Vivirito, 217 N.J. 199, 208 (2014). Therefore, the expert's report does not change our conclusion that summary judgment was appropriate on plaintiff's claims against defendants. See Tarabokia, supra, 429 N.J. Super. at 110-11, 119-21 (upholding summary judgment despite the opinion of plaintiff's experts that the general contractor had a duty to a subcontractor's employee).

III.

Defendants cross-appeal from the grant of summary judgment to Liberty Mutual, the commercial automobile insurance carrier that insured Universal's truck. Defendants filed a third-party complaint, seeking a declaratory judgment that Liberty Mutual was obligated to provide insurance coverage to them under the loading and unloading doctrine. The court granted Liberty Mutual's motion for summary judgment on September 21, 2011, and denied defendants' motion for reconsideration on December 14, 2011. We affirm.

Liberty Mutual's policy provided that it would "pay all sums an 'insured' legally must pay as damages because of 'bodily injury'" resulting from the "use of a covered 'auto,'" and that it had the "duty to defend any 'insured' against a 'suit' asking for such damages."7 An "'insured'" included the named insured and "[a]nyone else while using with your permission a covered 'auto,'" but excluded "[a]nyone other than your 'employees' . . . while moving property to or from a covered 'auto.'"

However, every owner of a New Jersey motor vehicle must maintain insurance coverage for "liability imposed by law for bodily injury, death and property damage sustained by any person arising out of the ownership, maintenance, operation or use of a motor vehicle." N.J.S.A. 39:6B-1(a). "That the concept of 'use of a vehicle' includes the acts of loading and unloading the vehicle is well settled." Kennedy v. Jefferson Smurfit Co., 147 N.J. 394, 398 (1997); see Jaquez v. Nat'l Cont'l Ins. Co., 178 N.J. 88, 100 (2003).

Indeed, New Jersey "courts have long recognized 'that the obligation to provide coverage in a loading and unloading accident arises from statute and therefore cannot be limited by contract.'" Potenzone v. Annin Flag Co., 191 N.J. 147, 152-53 (2007) (quoting Ryder/P.I.E. Nationwide, Inc. v. Harbor Bay Corp., Inc., 119 N.J. 402, 407 (1990) (citing Bellafronte v. Gen. Motors Corp., 151 N.J. Super. 377 (App. Div.), certif. denied, 75 N.J. 533 (1977))). Accordingly, under the loading and unloading doctrine, the exclusion in Liberty Mutual's policy is "void as contrary to the omnibus automobile statute," and the "policy should be read as if that clause were not part of the policy." Id. at 149, 155.

Liberty Mutual concedes that the Universal truck was a covered auto, that unloading the windows was a use of the truck, and that the policy covers loading and unloading. Liberty Mutual argued, and the trial court found, that defendants were not involved in the unloading of the windows.

Because New Jersey courts look to the "'complete operation' of loading" and unloading, "'all that is required to establish coverage is that the act or omission which resulted in the injury was necessary to carry out the loading or unloading.'" Kennedy, supra, 147 N.J. at 399-401 (emphasis omitted). "[T]he critical issue is whether" defendants' alleged acts or omissions were "an integral part of the [un]loading activity, and thus covered under the 'use' provision." Id. at 401.

To decide that issue, we examine plaintiff's pleadings and his expert's report and testimony. "[T]he determination of an insurer's duty to defend requires review of the complaint with liberality to ascertain whether the insurer will be obligated to indemnify the insured 'if the allegations are sustained.'" Abouzaid v. Mansard Gardens Assocs., LLC, 207 N.J. 67, 79 (2011). The duty to defend "may also be triggered by 'facts indicating potential coverage that arise during the resolution of the underlying dispute.'" Id. at 81.

In his original and amended complaints, plaintiff alleged that defendants "controlled, directed, supervised, undertook, and/or participated in unloading the windows," and that defendants were negligent by "failing to keep the premises and/or property in a safe condition," "failing to supervise their employees or workers," and "failing to properly follow proper material handling procedures." Plaintiff's expert opined that Jerud, as the general contractor, failed "to assure that safe means and methods were provided to perform the assigned work," and failed "to provide adequate training, supervision, and inspections." The expert also surmised that ESC personnel lost control of the window because ESC failed to use "safe means and methods for the materials handling task being performed, such as a hand truck . . . or sufficient numbers or strength [of] personnel . . . properly trained and supervised." The expert testified that Jerud should have supplied a hand truck.

Plaintiff's allegation that defendants failed to keep the premises in a safe condition is inadequate to justify coverage. As the Supreme Court has noted, our cases consistently deny loading and unloading coverage "when the injury occurred as a result of negligent upkeep of, or defects on, the premises." Kennedy, supra, 147 N.J. at 401-02 (citing cases); see also Craggan v. Ikea United States, 332 N.J. Super 53, 68 (App. Div. 2000); Greentree Assocs. v. U.S. Fidelity & Guar. Co., 256 N.J. Super. 382, 386 (App. Div. 1992); Lesniakowski v. Amerada Hess Corp., 225 N.J. Super. 416, 426-28 (App. Div. 1988).

Plaintiff's remaining allegations are also inadequate to support defendants' demand for coverage. As Liberty Mutual notes, LORAV had no employees, and no Jerud employee was present during the unloading. See Lesniakowski, supra, 225 N.J. Super. at 426-27 (finding no coverage where "no employee of Amerada was involved in the loading operation, and no negligence claim was asserted against any Amerada employee").

Similarly, even assuming Jerud was the general contractor, it is undisputed he was not present and did not supervise the ESC employees. Plaintiff alleged that this constituted negligent supervision, but we found similar allegations inadequate to justify coverage in Greentree. There, the plaintiff had been injured while refueling a subcontractor's bulldozer from the subcontractor's truck, which we treated as a loading and unloading accident. Greentree, supra, 256 N.J. Super. at 384-85. The plaintiff sued the general contractor, alleging that it negligently supervised the construction site. The general contractor sought a declaratory judgment of coverage by the subcontractor's vehicle insurer. Ibid.

We rejected the general contractor's claim that coverage could be based on an allegation that it failed to supervise the loading and unloading process. We reasoned that the general contractor's "negligent omission would not amount to involvement in the refueling operation. In fact, the allegation is that [the general contractor] was not involved at all." Id. at 389. If the general contractor "was liable because it failed to direct the refueling operation, then it was liable because it negligently kept itself unconnected to the operation. The absence of such a connection precludes a finding that [the general contractor] used the [subcontractor's] vehicles." Ibid. "Coverage exists only when there is a use of the vehicles." Id. at 388.

In support of our holding in Greentree, we noted that other jurisdictions similarly ruled that a general contractor will not be treated as using vehicles unless it asserts "active or actual control . . . over the guidance or operation of the vehicles." Ibid. We pointed out that "[i]nsurance coverage questions are not controlled by tort liability concepts. Thus, whether [the general contractor] was guilty of a negligent omission does not bear on the question whether it was 'using' the [subcontractor's] trucks." Id. at 387. Finally, we stressed that "sound policy counsels against overstretching the reach of loading and unloading coverage." Id. at 389. To extend coverage to the general contractor "'would reallocate the ultimate financial risk of the [general contractor's] negligence to the truck driver's insurance company,'" removing the general contractor's financial incentive to avoid negligence. Ibid.

We follow Greentree and reject defendants' arguments that their alleged non-involvement constituted "use" of the truck triggering coverage under the truck's insurance. The loading and unloading doctrine "is not intended to insure all defendants against all claims arising from any accident in any way incident to loading/unloading irrespective of causation, that is, irrespective of the defendant's actual involvement with the insured vehicle itself." Pisaneschi v. Turner Const. Co., 345 N.J. Super. 336, 343 (App. Div. 2001); see Ryder/P.I.E. Nationwide, supra, 119 N.J. at 409.

Affirmed.

1 Eastern Shore Carpentry and Andersen Windows have been dismissed from the litigation. Accordingly, we will refer to Jerud and LORAV collectively as "defendants."

2 We merely note defendants' contrary version in footnotes.

3 Jerud asserted that he arranged for ESC to pick up the windows from the curb and take them into the house.

4 The ESC personnel testified that they were on the porch receiving the windows, that plaintiff instructed them not to go on the trailer, and that plaintiff removed two spring bars which held the windows in place, causing the windows to fall on him.

5 Jerud testified that he formed LORAV solely to get homeowners' insurance for the adjacent lot, and that LORAV was not involved in the construction on the Property. However, ESC's owner testified that he contracted with Jerud and LORAV for the construction on the Property and the adjacent lot.

6 Jerud asserted that he was acting solely as the property owner.

7 Although the trial court's ruling that defendants legally need not pay damages to plaintiff moots defendants' claim for indemnification, defendants claim that Liberty Mutual had a duty to defend them at least until that ruling, and should reimburse their legal fees.