1

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

MUMFORD & MILLER CONCRETE, ) 

INC., )

)

Plaintiff, )

) C.A. No. N14C-06-160-RRC

v. )

 )

MARINIS BROS., INC., )

NAUTILUS INSURANCE COMPANY, )

JOHN L. BOONE, CHERYL BOONE, )

)

Defendants. )

Submitted: January 20, 2015

Decided: April 16, 2015

Upon Defendant Nautilus Insurance Company’s Motion for Judgment on the Pleadings 

Regarding Claims by Mumford & Miller Concrete, Inc. 

GRANTED.

Upon Defendant Nautilus Insurance Company’s Motion for Judgment on the Pleadings 

Regarding Cross-Claim Against Marinis Bros., Inc. 

GRANTED.

MEMORANDUM OPINION

Susan L. Hauske, Esquire, Tybout, Redfearn & Pell, Wilmington, Delaware, Attorney 

for Plaintiff Mumford & Miller Concrete, Inc.

Gary W. Alderson, Esquire, Elzufon Austin Tarlov & Mondell, P.A., Wilmington, 

Delaware, Attorney for Defendant Marinis Bros., Inc.

Marc S. Casarino, Esquire, White and Williams, LLP, Wilmington, Delaware, Attorney 

for Defendant Nautilus Insurance Company. 
2

Cynthia H. Pruitt, Esquire, Doroshow Pasquale Krawitz & Bhaya, Wilmington, 

Delaware, Attorney for Defendants John Boone and Cheryl Boone.

COOCH, R. J. 

I. INTRODUCTION

This declaratory judgment action, and cross claim asserting breach of 

contract, stems from a personal injury claim for injuries sustained while John 

Boone, a Plaintiff in the underlying action, was working as an employee of 

Defendant Marinis Bros., Inc. Mr. Boone suffered injuries when, while 

performing sandblasting work, he was allegedly struck and pinned beneath a piece 

of heavy machinery. Defendant Nautilus Insurance Company has filed a Motion 

for Judgment on the Pleadings regarding the Claims by Plaintiff Mumford & 

Miller Concrete, Inc. and a second Motion for Judgment on the Pleadings 

regarding the Cross-Claim against Defendant Marinis. The issue at the heart of 

both motions is whether the policy issued by Defendant Nautilus to Defendant 

Marinis provides coverage for each distinct set of claims. 

For the reasons set forth below, Defendant Nautilus Insurance Company’s 

Motion for Judgment on the Pleadings Regarding Claims by Mumford & Miller 

Concrete, Inc. is GRANTED. Defendant Nautilus Insurance Company’s Motion 

for Judgment on the Pleadings Regarding Cross-Claim against Marinis Bros., Inc. 

is GRANTED.

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Factual Background and Procedural History

The instant action, commenced by Plaintiff Mumford, “seeks a declaration 

that Defendant Nautilus is obligated to defend and/or indemnify [Plaintiff 

Mumford] in the underlying litigation[,]” and further seeks a declaration that 

Marinis breached the subcontractor agreement between Marinis and Mumford.1

The underlying action, John Boone, et al. v. Mumford & Miller Concrete, Inc., et 

al.,

2 alleges significant personal injuries sustained while Mr. Boone was working 

as an employee of Defendant Marinis, a subcontractor of Plaintiff Mumford and 

Miller.

 1 See generally Complaint for Declaratory Relief, D.I. #1 (Jun. 17, 2014).

2 C.A. No. N14C-03-036 RRC.
3

Defendant Nautilus contends that both motions should be granted in its favor 

as there is no coverage under the Policy it issued to Defendant Marinis for either 

claim at issue. Plaintiff Mumford argues that the Motion regarding the claims 

against it should be denied because the Policy issued by Nautilus provides 

coverage in this case. Defendant Marinis contends that the Motion regarding its 

cross claim should likewise be denied because the motion is untimely, but also 

because coverage exists for the claim. Defendants John and Cheryl Boone take no 

position on the motions and did not participate in the briefing.3

B. Relevant Insurance Contract Provisions:

Defendant Nautilus issued a Commercial General Liability Policy and an 

Excess Insurance Policy to Defendant Marinis (“the Policies”). At issue in this 

matter is interpretation of the primary CGL policy. The language of the primary 

policy issued by Defendant Nautilus to Defendant Marinis provides in pertinent 

part:

COVERAGE A BODILY INJURY AND PROPERTY DAMAGE 

LIABILITY

1. Insuring Agreement

a. We will pay those sums that the insured becomes legally 

obligated to pay as damages because of bodily injury or 

property damaged in excess of the deductible or self-insured 

retention, if any, to which this insurance applies. We will have 

the right and duty to defend the insured against any suit 

seeking those damages. However, we will have no duty to 

defend the insured against any suit seeking damages for bodily 

injury or property damage to which this insurance does not 

apply. We may, at our discretion, investigate any occurrence 

and settle any claim or suit that may result.

b. This insurance applies to bodily injury and property damage 

only if:

(1) The bodily injury or property damage is caused by an 

occurrence that takes place in the coverage territory.4

The relevant definitions in the primary policy are as follows:

“Occurrence” means an accident, including continuous or repeated 

exposure to substantially the same general harmful conditions.

 3 See Ltr. from Cynthia H. Pruitt, Esquire, D.I. #27 (Dec. 9, 2014).

4 Nautilus Commercial Liability Policy Issued to Defendant Marinis Bros., Exhibit 1 to 

Defendant Nautilus’s Answer and Cross-Claim, D.I. #8 (Aug. 21, 2014).
4

“Bodily Injury” means physical injury, sickness, disease, mental 

anguish, or emotional distress, sustained by any person, including 

death resulting from any of these at any time.

“Property Damage” means (a) physical injury to tangible property, 

including resulting loss of use of that property . . . (b) loss of use of 

tangible property that is not physically injured . . . .5

The section of the blanket endorsement attached to the primary policy is 

listed here in relevant part:

SECTION III – WHO IS AN INSURED is amended to include as an 

insured, with respect to Coverage A, B, and D, any person(s) or 

organization(s) when you and such person(s) or organization(s) have 

agreed in a written contract or written agreement that such person(s) or 

organization(s) be added as an additional insured on your policy. Such 

written contract or written agreement must be in effect prior to the 

performance of your work which is the subject of such written contract 

or written agreement.

Such additional insured status applies only:

1. Under COVERAGE A BODILY INJURY AND PROPERTY 

DAMAGE LIABILITY and COVERAGE B PERSONAL AND 

AVERTISING INJURY LIABILITY for claims or suits resulting 

from:

a. Your work performed for such person(s) or organization(s) in 

the performance of your ongoing operations for the additional 

insured . . . .6

III. THE PARTIES’ CONTENTIONS

A. Defendant Nautilus’ Motion against Mumford & Miller:

i. Defendant Nautilus’ Contentions:

Defendant Nautilus argues that the Policies issued to Marinis Bros. by Nautilus 

trigger Nautilus’s duty to defend Mumford & Miller only if Mumford & Miller 

 5 Id.

6 Id.
5

qualifies as an “additional insured” under the Policies.7 Defendant Nautilus asserts

that the Additional Insured Blanket Endorsement provides coverage to Mumford & 

Miller “only if the allegations against Mumford & Miller in the Boone litigation 

resulted from Marinis Bros.’ work on the Project.”8

To determine whether the allegations against Mumford in the underlying 

case “resulted from” Marinis Bros.’ work, Defendant Nautilus argues this Court 

should follow two Delaware cases, Pacific Ins. Co. v. Liberty Mut. Ins. Co. and 

Premcor Ref. Grp., Inc. v. Matrix Serv. Indus. Contractors, Inc., cases that held

there must be “meaningful linkage” between two conditions imposed in an

insurance contract.9 Defendant Nautilus contends that in this case, there must be 

“meaningful linkage” between Marinis Bros.’ work on the Project and the 

allegations against Mumford and Miller in the Boone litigation, and further 

contends that here, there is no such meaningful linkage. 

Specifically, Defendant Nautilus argues that the fact that complaint in the 

Boone litigation neither names Marinis Bros. nor attributes any wrongdoing 

whatsoever to Marinis Bros. is fatal to a finding that there is “meaningful linkage.” 

Moreover, Defendant Nautilus argues that “Mr. Boone’s mere presence on the job 

site as an employee of Marinis Bros. does not create a meaningful linkage between 

Marinis Bros.’ work on the Project and the allegations against Mumford & 

Miller.”10

Because it argues there is no “meaningful linkage,” Defendant Nautilus argues

that Mumford & Miller cannot show that the allegations in the Boone litigation 

“resulted from” Marinis Bros.’ work as allegedly required by the contractual 

language of the Policies. Defendant Nautilus further argues that if Mumford & Miller 

cannot show that the allegations in the Boone litigation “resulted from” Marinis 

Bros.’ work, then Mumford & Miller cannot be considered an “additional insured,”

any duty to defend is not triggered, and this Court should deny coverage.11

ii. Plaintiff Mumford and Miller’s Contentions:

Plaintiff Mumford contends that it should be considered an “additional 

insured” under the Policies. Plaintiff agrees with Defendant Nautilus and argues that 

 7 Def. Nautilus’s Mot. for J. on the Pleadings Regarding Claims by Mumford & Miller Concrete, 

Inc. at 4, D.I. #25 (Dec. 3, 2014) (hereinafter “Def. Nautilus’s Mot. against Mumford”).

8 Def. Nautilus’s Mot. against Mumford at 4.

9 Pacific Ins. Co. v. Liberty Mut. Ins. Co., 956 A.2d 1246, 1257 (Del. 2008); Premcor Ref. Grp., 

Inc. v. Matrix Serv. Indus. Contractors, Inc., 2009 WL 960567, at *7-8 (Del. Super. Mar. 19, 

2009)

10 Def. Nautilus’s Mot. against Mumford at 2-7.

11 See id.
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coverage should be afforded to Mumford & Miller if the claim or suit resulted from 

Marinis Bros.’ work for Plaintiff Mumford. Plaintiff disputes Defendant Nautilus’s 

interpretation of Premcor, and argues that “[t]he omission of any allegations against 

Defendant Marinis does not preclude coverage in this matter.”12

Plaintiff argues further that both Premcor and Pacific can be distinguished on 

their facts because in both cases, the insurance contracts required a meaningful link 

between the additional insured and the named insured’s liability.13 Plaintiff contends

that here, unlike Premcor and Pacific, all that is required is a meaningful link 

between Defendant Marinis’s work on the project, irrespective of any link arising out 

of the March 8, 2012 incident, and the allegations against Plaintiff Mumford in the 

underlying complaint. Plaintiff argues that it is of no consequence that John Boone 

alleged no liability on the part of Defendant Marinis in the underlying complaint.

Finally, Plaintiff points out that per Premcor, the duty to defend and the duty to 

indemnify are distinct, and the factual record must be further developed before the 

issue of the duty to indemnify can be considered.14

B. Defendant Nautilus’ Motion against Marinis Bros.:

i. Defendant Nautilus’ Contentions:

Defendant Nautilus argues that Marinis is not entitled to coverage for the 

breach of contractual obligations claim brought against Marinis by Plaintiff 

Mumford in the declaratory action. Specifically, Defendant Nautilus argues that 

coverage only exists for bodily injury and property damage due to an occurrence. 

Defendant Nautilus argues further that a breach of contractual obligation falls 

within neither the definition for bodily injury nor property damage. Finally, 

Defendant Nautilus contends that the alleged breach of contract is not an 

“occurrence” under Delaware law.15

ii. Defendant Marinis Bros.’ Contentions:

Defendant Marinis contends that the Policies provide coverage, but argues that 

the coverage determination is not ripe for decision. Defendant Marinis argues that 

 12 Pl.’s Resp. to Def. Nautilus Ins. Co.’s Mot. For J. on the Pleadings Regarding Claims by 

Mumford & Miller at ¶ 8, D.I. #28 (Dec. 10, 2014) (hereinafter “Pl. Mumford’s Resp.”).

13 See Tr. of Oral Arg. at 17-19, D.I. #40 (Feb. 3, 2015). Plaintiff argues alternatively that “at the 

very minimum, there is a question of fact as to whether a meaningful link exists between 

Defendant Marinis’ work and the underlying claims. . . .” Pl. Mumford’s Resp. at ¶ 12. 

14See Tr. of Oral Arg. at 21-26; See also Pl. Mumford’s Resp. at ¶¶ 9, 11.

15 See Mot. for J. on the Pleadings against Marinis Bros. at ¶¶ 7-8, D.I. #26 (Dec. 3, 2014)
7

facts critical to the coverage determination are still unknown, and as a result the 

Court should deny the Motion.16 Defendant Marinis alternatively argues that 

although the claim was brought as a breach of contract claim, because the claim was 

brought as the result of the bodily injury claim in the underlying action, coverage 

should be provided.17

IV. STANDARD OF REVIEW

“After the pleadings are closed but within such time as not to delay the trial, 

any party may move for judgment on the pleadings.”18 “On such a motion, the 

Court must accept all the complaint's well-pled facts as true and construe all 

reasonable inferences in favor of the non-moving party.”19 “The standard for a 

motion for judgment on the pleadings is ‘almost identical’ to the standard for a 

motion to dismiss.”20 The Court will grant a motion for judgment on the pleadings 

“when no material issues of fact exist, and the moving party is entitled to judgment 

as a matter of law.”21

V. DISCUSSION

A. Nautilus’ Motion for Judgment on the Pleadings against Plaintiff 

Mumford & Miller:

The motion against Plaintiff Mumford centers around two issues – first, the 

duty to defend, and second, the duty to indemnify. It is well settled under Delaware 

law that the determination of any duty to indemnify is “determined upon the facts that 

are revealed during discovery or are ultimately [] presented at trial.”22 Conversely, 

determination of the duty to defend is made at the earliest practicable time, to 

“establish as early as possible the parties that will be responsible for the litigation of 

the case.”23 This Court declines to consider any issues regarding any duty to 

indemnify at this time, and now takes up the duty to defend.

 16 See Def. Marinis Bros. Resp. to Mot. for J. on the Pleadings against Marinis Bros., D.I. #32 

(Dec. 30, 2014). 

17 See Tr. of Oral Arg. at 57.

18 Del. Super. Ct. Crim. R. 12(c).

19 Blanco v. AMVAC Chem. Corp., 2012 WL 3194412, at *6 (Del. Super. Aug. 8, 2012).

20 Id.

21 Velocity Exp., Inc. v. Office Depot, Inc., 2009 WL 406807, at *3 (Del. Super. Feb. 4, 2009).

22 Premcor, 2009 WL 960567, at *12 (Del. Super. Jan. 8, 2009) (citing Pike Creek Chiropractic 

Ctr., P.A. v. Robinson, 637 A.2d 418, 421 (Del. 1994)).

23 Premcor, 2009 WL 960567, at *6 (citing Amer. Ins. Group v. Risk Enter. Mgmt. Ltd., 761 

A.2d 826, 829 (Del. 2000));
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For this Court to decide whether a duty to defend exists, the Court must 

compare the language of the complaint to the language of the insurance contract at 

issue.24 The Delaware Supreme Court in Pacific Ins. Co. v. Liberty Mutual Ins. 

Co. detailed the test to apply when making coverage determinations such as this 

one:

The test is whether the underlying complaint, read as a whole, 

alleges a risk within the coverage of the policy. Determining 

whether an insurer is bound to defend an action against its insured 

requires adherence to the following principles: (1) where there is 

some doubt as to whether the complaint against the insured alleges 

a risk insured against, that doubt should be resolved in favor the 

insured; (2) any ambiguity in the pleadings should be resolved 

against the carrier; and (3) if even one count or theory alleged in 

the complaint lies within the policy coverage, the duty to defend 

arises.25

In short, the policies trigger Nautilus’s duty to defend if Mumford and Miller 

qualifies as an “additional insured” under the policies. There is no dispute between 

the parties that the insurance contract, discussed supra, provides coverage for 

Mumford and Miller as an “additional insured” if a) there is a written agreement 

that Mumford be added as an additional insured to Marinis Bros.’ policies, and b) 

that the allegations against Mumford in the Boone litigation “resulted from” 

Marinis’ work on the project. There is similarly no dispute that Marinis Bros. 

added Mumford and Miller as an additional insured on the policy issued by

Nautilus, so the Court need only decide if the allegations against Plaintiff Mumford 

in the Boone litigation “resulted from” Marinis’ work on the project.26

The phrase “resulted from” is not only unambiguous, but synonymous with 

phrases such as “arising out of.” The Delaware Supreme Court in Pacific

interpreted the phrase “arising out of,” in the context of insurance policies, “to 

require some meaningful linkage between the two conditions imposed in the 

contract.”27 The Court in Pacific further explained that phrases such as ‘arising out 

of,’ ‘flowing from,’ or ‘done in connection with,’ all require “some causal 

connection to the injuries suffered, but [do] not require proximate cause in the 

 24 Premcor, 2009 WL 960567, at *6; See also Westfield Ins. Co., Inc. v. Miranda & Hardt 

Contracting & Bldg. Servs., L.L.C., 2015 WL 1477970, at *2 (Del. Super. Mar. 30, 2015).

25 Pacific Ins. Co. v. Liberty Mut. Ins. Co., 956 A.2d 1246, 1254–55 (Del.2008) (quoting Am. Ins. 

Group v. Risk Enter. Mgmt., Ltd., 761 A.2d 826, 829 (Del.2000)).

26 See Certificate of Liability Insurance, Jun. 29 2011, Exhibit C to Mumford & Miller 

Complaint, D.I. #1 (Jun. 17, 2014).

27 Pacific, 956 A.2d at 1257.
9

legal sense.”28 This Court finds it reasonable to conclude that the phrase “resulted 

from,” when found in an insurance contract, should require the same meaningful 

linkage. 

Again, case law is instructive regarding the methods by which this Court 

might or might not find meaningful linkage. In Pacific, the Delaware Supreme 

Court explained that meaningful linkage can be established by examining the 

theories of liability set forth in the underlying complaint.

29 The Court further 

explained that it could find a meaningful link by examining allegations of the 

underlying complaint and drawing inferences between those allegations.30 Plaintiff 

Mumford argues that this Court should find that there is enough evidence in the 

Complaint to show meaningful linkage between the allegations against Plaintiff 

Mumford in the Boone litigation and Marinis’ work on the project, but this Court 

disagrees. 

In Premcor, this Court held although not dispositive of the duty to defend 

issue, the fact that the policy holder was not named as a defendant in the 

underlying complaint alone is fatal to a potential additional insured’s ability to 

establish meaningful linkage.31 As a result, the Court disagrees with Plaintiff’s 

contention that it is inconsequential that Mr. Boone failed to name Defendant 

Marinis in the Complaint. Plaintiff Mumford makes a valiant effort to distinguish 

the instant facts from Pacific and Premcor and argues that because the contract 

language is distinct in this case, coverage should be provided. While the Court 

agrees with Plaintiff’s contention that the insurance contract language differs, it 

cannot ignore the holding in Premcor, and finds that Marinis’ failure to be named 

as a party ends the meaningful linkage analysis.32

In addition to the fact that Marinis was not named as a Defendant in the 

underlying complaint (undoubtedly because the exclusivity provision in the 

Workers Compensation Act prevents an injured worker from bringing a direct 

action against the worker’s employer), the underlying complaint does not allege 

that Boone’s injuries resulted from Marinis’ work or otherwise attribute any 

wrongdoing to Marinis. Rather, the underlying complaint unambiguously alleges 

that Boone’s injuries were “caused solely and exclusively by the negligence and 

carelessness of [Mumford & Miller Concrete, Inc., Aecom, Inc., Aecom Technical 

Services, Inc., Aecom Consult, Inc., and Aecom USA, Inc.]”33 There are no direct 

 28 Id. at 1257, n. 42 (citing Fed Ins. Co. v. Tri-State Ins. Co., 157 F.3d 800, 804-05 (10th Cir. 

1998)).

29 See Pacific, 956 A.2d at 1257; See also Premcor, 2009 WL 960567, at *8.

30 See id; See also Premcor, 2009 WL 960567, at *8 (explaining holding of Pacific). 

31 Premcor, 2009 WL 960567, at *8. 32 See Complaint, Boone, et al. v. Mumford & Miller Concrete, Inc. et al., C.A. No. N14C-03-036 

RRC, D.I. #1 (Mar. 5, 2014) (hereinafter “Boone Complaint”).

33 Boone Complaint at ¶¶ 22-24.
10

allegations of wrongdoing on Marinis’s part, and this Court declines to infer any 

such allegations.

As a result, this Court, looking at the underlying complaint on its face and 

applying the well-established test articulated in Pacific and the holding of 

Premcor, finds that a covered risk has not been alleged that would trigger the duty 

to defend. For these reasons, Defendant Nautilus’s Motion for Judgment on the 

Pleadings against Mumford & Miller is GRANTED.

B. Nautilus’ Motion for Judgment on the Pleadings against Defendant 

Marinis Bros.

Defendant Nautilus argues that no coverage should be afforded to Marinis for 

the breach of contractual obligations claim brought against it by Mumford and Miller 

in the instant declaratory action. Defendant Marinis asserts coverage was provided 

under the Policy, but could not point to a specific provision of the Policy warranting 

coverage.

34 Defendant Marinis then advanced the alternative argument at oral 

argument that coverage should be provided because the breach of contract claim was 

brought as a result of the bodily injury claim in the underlying action. Thus, Marinis 

argued, because a bodily injury claim would be covered, it follows that the breach of 

contract claim should be covered.35

Having reviewed the complaint, and considering all reasonable inferences, the

Court finds the breach of contract claim advanced by Plaintiff Mumford against 

Defendant Marinis in the complaint for declaratory judgment is unambiguously 

excluded by the Policy. The plain language of the policy provides coverage for 

bodily injury and for property damage, but coverage for a breach of contract claim is 

simply not provided. Moreover, Defendant’s argument that coverage should be 

provided because the breach of contract claim stems from the bodily injury claim in 

the underlying action is too attenuated to trigger the duty to defend. This Court finds 

that there has been no covered risk alleged, and thus no duty to defend is triggered. 

Defendant Nautilus’s Motion for Judgment on the Pleadings against Defendant 

Marinis Bros. is GRANTED.

CONCLUSION

For the reasons stated above, Defendant Nautilus Insurance Company’s Motion 

for Judgment on the Pleadings Regarding Claims by Mumford & Miller Concrete, Inc.

 34 See generally Def. Marinis Bros. Resp. to Mot. for J. on the Pleadings against Marinis Bros. 

D.I. #32 (Dec. 30, 2014).; See also Tr. of Oral Arg. at 51-2 (citing to Policy as a whole). 

35 See Tr. of Oral Arg. at 57.
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is GRANTED. Defendant Nautilus Insurance Company’s Motion for Judgment on the 

Pleadings Regarding Cross-Claim against Marinis Bros., Inc. is GRANTED.

IT IS SO ORDERED.

______________________

 Richard R. Cooch, R.J.

oc: Prothonotary