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UNITED STATES DISTRICT COURT 

Northern District of Indiana 

Fort Wayne Division 

WESTFIELD NATIONAL 

 INSURANCE COMPANY 

 Plaintiff 

v. Case No.: ____________________ 

TIPPMANN PROPERTIES, INC. 

9009 Coldwater Road 

Fort Wayne, IN 46825 

And 

AIG SPECIALTY INSURANCE 

COMPANY 

c/o Indiana Department of Insurance 

311 West Washington Street 

Suite 300 

Indianapolis, IN 46204 

And 

LIBERTY MUTUAL FIRE 

INSURANCE COMPANY A/S/O 

DIETZ & WATSON, INC. 

 c/o Corporation Service Co. 

251 East Ohio Street 

Suite 500 

Indianapolis, IN 46204 

And 

TRAVELERS INDEMNITY COMPANY 

OF AMERICA A/S/O MILK INDUSTRY 

MANAGEMENT CORP. AND DAIRY 

FARMERS OF AMERICA, INC. 

c/o Corporation Service Co. 

251 East Ohio Street 

Suite 500 

Indianapolis, IN 46204 

And 

USDC IN/ND case 1:15-cv-00351-TLS-SLC document 1 filed 11/24/15 page 1 of 22
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TRAVELERS CASUALTY INSURANCE 

COMPANY OF AMERICA A/S/O 

F.C. GEISHEIMER JR., INC. 

c/o Corporation Service Co. 

251 East Ohio Street 

Suite 500 

Indianapolis, IN 46204 

And 

HARLEYSVILLE PREFERRED INSURANCE 

CO. A/S/O HOME FOOD SERVICES OF 

PENNSYLVANIA 

 c/o National Registered Agents, Inc. 

150 West Market Street 

Suite 800 

Indianapolis, IN 46204 

And 

BLACK BEAR DISTRIBUTION, LLC. 

5701 Tacony Street 

Philadelphia, PA 19135 

 Defendants 

COMPLAINT FOR DECLARATORY JUDGMENT 

 The Plaintiff, Westfield National Insurance Company (“Westfield”), by counsel, and for 

its Complaint for Declaratory Judgment, now states as follows: 

I. JURISDICTION AND PARTIES 

1. Westfield is an insurance company incorporated under the laws of the State of 

Ohio with its principal place of business in the State of Ohio, and which transacts business 

within the State of Indiana. 

 2. Defendant Tippmann Properties, Inc. (“Tippmann”), is an Indiana corporation 

with its principal place of business in Allen County, Indiana. 

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 3. Defendant AIG Specialty Insurance Company (“AIG”), is an insurance company 

incorporated under the laws of the State of Illinois with its principal place of business in the State 

of New York. 

 4. Defendant Liberty Mutual Fire Insurance Company (“Liberty Mutual”), is an 

insurance company incorporated under the laws of the State of Wisconsin with its principal place 

of business in the State of Massachusetts. 

 5. Defendant Travelers Indemnity Company (“Travelers Indemnity”), is an 

insurance company incorporated under the laws of the State of Connecticut with its principal 

place of business in the State of Connecticut. 

 6. Defendant Travelers Casualty Insurance Company (“Travelers Casualty”), is an 

insurance company incorporated under the laws of the State of Connecticut with its principal 

place of business in the State of Connecticut. 

 7. Defendant Harleysville Preferred Insurance Company (“Harleysville”), is an 

insurance company incorporated under the laws of the State of Pennsylvania with its principal 

place of business in the State of Pennsylvania. 

 8. Defendant Black Bear Distribution, LLC (“Black Bear”), is a New Jersey limited 

liability company with its principal place of business in the State of Pennsylvania. 

 9. Jurisdiction is proper in this court, pursuant to 28 U.S.C. § 1332(d), due to the 

diversity in citizenship of the parties and the fact that the amount in controversy exceeds the sum 

of $75,000. 

 10. Venue is proper in the Fort Wayne division of this court, pursuant to 28 U.S.C. § 

1391, due to the fact that the insurance contract at issue was issued in Fort Wayne, Indiana to 

cover an insured with a primary place of business in Fort Wayne, Indiana. 

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II. THE LOSS AND THE UNDERLYING LAWSUITS 

 11. On September 1, 2013, a fire occurred in a cold storage warehouse located at 

1000 Coopertown Road, Delanco, New Jersey (“the warehouse”). 

 12. The fire in question is believed to have started on the roof of the warehouse. 

 13. At all pertinent times, the warehouse was owned, operated and/or utilized by 

Dietz & Watson, Inc. (“Dietz & Watson”), Black Bear Distribution (“Black Bear”), LLC and 

Village Properties Urban Renewal, LLC (“Village Properties”). 

 14. At the time of the fire, Dietz & Watson had an insurance policy through AIG 

which covered the warehouse. 

 15. AIG reportedly made payments to and/or on behalf of Dietz & Watson and/or its 

related entities, for damages arising out of the fire. 

 16. In its capacity as subrogee of Dietz & Watson and its related entities, AIG has 

filed suit against a number of entities and individuals, one of which is Tippmann Construction, 

Inc., who at various times had reportedly performed and/or been involved with work on the roof 

of the warehouse. 

 17. AIG’s lawsuit is pending in the Superior Court of New Jersey, Burlington County 

Division, docket number BUR-L-00285-15. A true and accurate copy of AIG’s Complaint is 

attached hereto as Exhibit A. 

 18. At the time of the fire, Dietz & Watson also had an insurance policy through 

Liberty Mutual which covered the warehouse. 

 19. Liberty Mutual reportedly made payments to and/or on behalf of Dietz & Watson 

and/or its related entities, for damages arising out of the fire. 

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 20. In its capacity as subrogee of Dietz & Watson and its related entities, Liberty 

Mutual has filed suit against a number of entities and individuals, one of which is Tippmann 

Construction, Inc., who at various times had reportedly performed and/or been involved with 

work on the roof of the warehouse. 

 21. Liberty Mutual’s lawsuit is pending in the Superior Court of New Jersey, 

Burlington County Division, docket number BUR-L-1782-14. A true and accurate copy of 

Liberty Mutual’s Amended Complaint is attached hereto as Exhibit B. 

 22. At the time of the fire, food goods belonging to Milk Industry Management 

Corporation (“MIM”) and Dairy Farmers of America, Inc. (“Dairy Farmers”) reportedly were 

being stored in the warehouse. 

 23. MIM’s and Dairy Farmers’ food goods were insured under policies issued to them 

by Travelers Indemnity. 

 24. Travelers Indemnity reportedly made payments to and/or on behalf of MIM and 

Dairy Farmers for the loss of their food items. 

 25. In its capacity as subrogee of MIM and Dairy Farmers, Travelers Indemnity has 

filed suit against a number of entities and individuals, one of which is Tippmann Construction, 

Inc., who at various times had reportedly performed and/or been involved with work on the roof 

of the warehouse. 

 26. At the time of the fire, food goods belonging to F.C. Geisheimer, Jr., Inc. 

(“Geisheimer”) reportedly were being stored in the warehouse. 

 27. Geisheimer’s food goods were insured under policies issued to it by Travelers 

Casualty. 

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 28. Travelers Casualty reportedly made payments to and/or on behalf of Geisheimer 

for the loss of its food items. 

 29. In its capacity as subrogee of Geisheimer, Travelers Casualty has filed suit against 

a number of entities and individuals, one of which is Tippmann Construction, Inc., who at 

various times had reportedly performed and/or been involved with work on the roof of the 

warehouse. 

 30. At the time of the fire, food goods belonging to Home Food Services of 

Pennsylvania (“Home Food Services”) reportedly were being stored in the warehouse. 

 31. Home Food Services’ food goods were insured under policies issued to them by 

Harleysville. 

 32. Harleysville reportedly made payments to and/or on behalf of Home Food 

Services for the loss of its food items. 

 33. In its capacity as subrogee of Home Food Services, Harleysville has filed suit 

against a number of entities and individuals, one of which is Tippmann Construction, Inc., who 

at various times had performed and/or been involved with work on the roof of the warehouse. 

 34. Travelers Indemnity’s, Travelers Casualty’s and Harleysville’s lawsuit is pending 

in the Superior Court of New Jersey, Burlington County Division, docket number BUR-L-2297-

14. A true and accurate copy of the Complaint filed by Travelers Indemnity, Travelers Casualty 

and Harleysville is attached hereto as Exhibit C. 

 35. AIG, Liberty Mutual, Travelers Indemnity, Travelers Casualty and Harleysville 

all seek monetary damages from the various entities and individuals who had reportedly 

performed and/or been involved with work on the roof of the warehouse, including Tippmann 

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Construction, Inc., and seek to hold the various defendants jointly and severally liable for their 

alleged damages. 

 36. Tippmann tendered the defense of AIG’s, Liberty Mutual’s, Travelers 

Indemnity’s, Travelers Casualty’s and Harleysville’s claims and lawsuits (collectively, “the 

subrogation actions”) to Westfield. 

 37. At the time of the fire, Black Bear was the operator of the warehouse. 

 38. At the time of the fire, goods belonging to Wakefern Food Corporation 

(“Wakefern”) were also reportedly present at the warehouse. 

 39. Lexington Insurance Company (“Lexington”) insured Wakefern and made 

payments to and/or on behalf of Wakefern for the loss of its goods. 

 40. In its capacity as subrogee of Wakefern, Lexington sued Black Bear for monetary 

damages, which lawsuit is pending in the Superior Court of New Jersey, Burlington County 

Division, docket number BUR-L-2201-14. 

 41. Lexington did not name Tippmann Construction, Inc. as a defendant in its lawsuit. 

 42. Black Bear filed a Third-Party Complaint against the various entities and 

individuals, including Tippmann Construction, Inc., who had reportedly performed and/or been 

involved with work on the roof of the warehouse. A true and accurate copy of Black Bear’s 

Third-Party Complaint is attached hereto as Exhibit D. 

 43. Black Bear’s Third-Party Complaint seeks indemnity and contribution from the 

various Third-Party Defendants, including Tippmann Construction, Inc.. 

 44. Tippmann tendered the defense of Black Bear’s claims and Third-Party 

Complaint to Westfield. 

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III. THE CLAIMS AGAINST TIPPMANN 

 45. Prior to the fire, two separate projects were performed on the warehouse – the 

modification of the warehouse from dry storage to cold storage, in approximately 2006, and the 

installation of a photovoltaic system, in approximately 2010. (See, generally, Exh.A, para. 16-

27; Exh. B, para. 16-27; Exh. C, para. 20-31; Exh. D, para. 16-27). 

 46. No allegations were made against Tippmann in any of the subrogation Complaints 

or Black Bear’s Third-Party Complaint with respect to the 2010 work or the photovoltaic system. 

 47. Dietz & Watson hired Tippmann for the 2006 modification project, and the terms 

of their contractual arrangement were set forth in a Design/Build Agreement. (Exh.A, para. 16; 

Exh. B, para. 16; Exh. C, para. 20; Exh. D, para. 16). A true and accurate copy of the 

Design/Build Agreement is attached hereto as Exhibit E. 

 48. Black Bear was not a party to the Design/Build Agreement, and is not referenced 

therein; the parties to the Agreement were Tippmann, Dietz & Watson and Village Properties. 

(Exh. E, generally). 

 49. Tippmann’s work on the warehouse renovation project was completed in June of 

2007. (Exh.A, para. 19; Exh. B, para. 19; Exh. C, para. 23; Exh. D, para. 19). 

 50. The Complaints in the subrogation actions and Black Bear’s Third-Party 

Complaint allege that Tippmann was “the designer and installer of the roof assembly over the 

new freezer section of the warehouse in 2006.” (Exh.A, para. 10; Exh. B, para. 10; Exh. C, para. 

14; Exh. D, para. 10). 

 51. The Complaints and Third-Party Complaint further allege that Tippmann 

designed a freezer roof section “which included two (2) layers of Extruded Polystyrene 

(hereafter “XPS”) insulation, seven (7) inches thick, above the existing roof, covered with 

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Firestone .060 UltraPly TPO membrane.” (Exh.A, para. 17; Exh. B, para. 17; Exh. C, para. 21; 

Exh. D, para. 17). 

 52. The Complaints and Third-Party Complaint further allege that the roof design did 

not include coverboard between the insulation and the roof membrane. (Exh.A, para. 18; Exh. B, 

para. 18; Exh. C, para. 22; Exh. D, para. 18). 

 53. The Complaints and Third-Party Complaint further allege that installation of the 

roof assembly as designed “created a significant risk of fire spread through the roof and into the 

warehouse.” (Exh.A, para. 33; Exh. B, para. 33; Exh. C, para. 36; Exh. D, para. 33). 

 54. The Complaints each allege negligence on the part of Tippmann. (Exh.A, Count 

XVIII; Exh. B, Count XVIII; Exh. C, Count XVI). 

 55. AIG, Liberty Mutual, Travelers Indemnity, Travelers Casualty and Harleysville 

and Black Bear each allege in their Complaints that Tippmann Construction, Inc. “knew or 

should have known” that using XPS insulation in the roof assembly plans “created an 

unreasonable risk of fire spread through the roof and into the warehouse.” (Exh.A, para. 122; 

Exh. B, para. 106; Exh. C, para. 137). 

 56. AIG, Liberty Mutual, Travelers Indemnity, Travelers Casualty and Harleysville 

each further allege in their Complaints and Third-Party Complaint that Tippmann Construction, 

Inc. breached its duty of care by: 

a. designing and installing a roof assembly which incorporated XPS 

insulation in the roof plans; 

b. designing and installing a roof assembly which did not incorporate a 

coverboard; 

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c. designing and installing a roof assembly which created an “unreasonable 

risk of fire spread through the roof and into the warehouse”; 

d. failing to warn of the risk of fire spread; 

e. “[f]ailing to provide appropriate advice, guidance and direction 

concerning the safe design, construction and installation of a roof assembly on the 

warehouse”; and 

f. not properly assessing the risks and hazards associated with the 

incorporation of the XPS insulation. 

(Exh.A, para. 123; Exh. B, para. 107; Exh. C, para. 138). 

 57. Travelers Indemnity, Travelers Casualty and Harleysville also alleged that 

Tippmann was negligent by failing to follow applicable building codes. (Exh. C, para. 138). 

 58. One of the other defendants named in each of the various Complaints and the 

Third-Party Complaint is Steven Tiberio, I.A.I. (“Tiberio”). (Exh.A, Count XXII; Exh. B, Count 

XXII; Exh. C, Count XX; Exh. D, para. 14). 

 59. Tiberio is an engineer and/or architect who was involved in the 2006 roof 

installation with which Tippmann was involved. (Exh.A, Count XXII; Exh. B, Count XXII; 

Exh. C, Count XX; Exh. D, para. 14). 

 60. AIG, Liberty Mutual, Travelers Indemnity, Travelers Casualty and Harleysville 

each allege in their Complaints that Tiberio improperly approved the plans for the 2006 

warehouse renovation project and, in particular, that he: 

a. approved plans “which created an unreasonable risk of fire”; 

b. failed to warn of the fire risk; 

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c. failed to assess the risks and hazards associated with the use of XPS 

insulation; 

d. failed to assess the risks and hazards associated with the lack of a 

coverboard; and 

e. failed to comply with applicable building codes. 

(Exh.A, para. 148; Exh. B, para. 127 ; Exh. C, para. 162). 

 61. Black Bear generally alleges that the various Third-Party Defendants involved in 

the roof projects, including Tippmann Construction, Inc. and Tiberio, were negligent for reasons 

to similar to those set forth by AIG, Liberty Mutual, Travelers Indemnity, Travelers Casualty and 

Harleysville in their Complaints. (Exh. D., para. 33-37, 40). 

 62. Upon receiving the tender of the Complaints and Third-Party Complaint, 

Westfield conducted an investigation and determined that Tippmann hired Tiberio, in his 

capacity as an engineer and/or architect, to conduct research into whether the construction plans 

satisfied applicable building codes. 

 63. Tippmann also hired Tiberio, in his capacity as an engineer and/or architect, to 

review and approve the plans for the 2006 work, including, specifically, to review the plans for 

the roof assembly at issue. 

 64. At Tippmann’s request, Tiberio reviewed and approved the plans for the roof 

assembly, which included the Extruded Polystyrene insulation and the lack of a coverboard. 

IV. INSURANCE POLICY 

 65. At all pertinent times, Tippmann had an insurance contract with Westfield, policy 

number TRA 7376379. A true and accurate copy of the insurance contract is attached hereto as 

Exhibit F. 

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 66. Tippmann Construction, Inc. was listed on the Policy Named Insured 

endorsement, and is thus a named insured under the insurance policy. 

 67. The policy included a Commercial General Liability (“CGL”) policy, and its main 

coverage form (form CG 00 01 12 07) contained the following pertinent provisions: 

SECTION I – COVERAGES1

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 . . . “property 

damage” 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 . 

. . “property damage” to which this insurance does not 

apply. . . . 

. . . 

2. Exclusions 

This insurance does not apply to: 

. . . 

l. Damage To Your Work 

“Property damage” to “your work” arising out of it or any 

part of it and included in the “products-completed 

operations hazard.” 

This exclusion does not apply if the damaged work or the 

work out of which the damage arises was performed on 

your behalf by a subcontractor. 

. . . 

                                                            

1

   Boldfaced type has been removed from all policy language herein for ease of reading. 

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SUPPLEMENTARY PAYMENTS – COVERAGES A AND B 

. . . 

2. If we defend an insured against a “suit” and an indemnitee of the 

insured is also named as a party to the “suit”, we will defend that 

indemnitee if all of the following conditions are met: 

a. The “suit” against the indemnitee seeks damages for which 

the insured has assumed the liability of the indemnitee in a 

contract or agreement that is an “insured contract”; 

b. This insurance applies to such liability assumed by the 

insured; 

c. The obligation to defend, or the cost of the defense of, that 

indemnitee, has also been assumed by the insured in the 

same “insured contract”; 

. . . 

SECTION V -- DEFINITIONS 

. . . 

16. “Products-completed operations hazard”: 

a. Includes all . . . “property damage” occurring away from 

premises you own or rent and arising out of “your product” 

or “your work” except: 

. . . 

(2) Work that has not yet been completed or 

abandoned. However, “your work” will be deemed 

completed at the earliest of the following times: 

(a) When all of the work called for in your 

contract has been completed. 

. . . 

Work that may need service, maintenance, 

correction, repair or replacement, but which is 

otherwise complete, will be treated as completed. 

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. . . 

22. “Your work”: 

a. Means: 

(1) Work or operations performed by you or on your 

behalf; and 

(2) Materials, parts or equipment furnished in 

connection with such work or operations. 

b. Includes: 

(1) Warranties or representations made at any time with 

respect to the fitness, quality, durability, 

performance or use of “your work;” and 

(2) The providing of or failure to provide warnings or 

instructions. 

. . . 

 68. A Contractors General Liability Expanded Plus Endorsement (form CG 70 94 08 

05) was also made a part of the policy. It contained the following pertinent provisions: 

1. SECTION I – COVERAGES, COVERAGE A BODILY INJURY 

AND PROPERTY DAMAGE LIABILITY is amended as follows: 

. . . 

Item 2. Exclusions l. is deleted and replaced with the following: 

l. Damage To Your Work 

“Property damage” to “your work” arising out of it and 

included in the “products-completed operations hazard”. 

This exclusion does not apply if the damaged work or the 

work out of which the damage arises was performed on 

your behalf by a subcontractor. 

This exclusion only applies to that particular part of “your 

work” out of which the damage arises. 

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 69. The CGL policy was also modified by a Contractors – Professional Liability 

exclusion (form CG 22 79 07 98) which provided: 

The following exclusion is added to Paragraph 2., Exclusions of Section I 

– Coverage A – Bodily Injury And Property Damage Liability . . . 

1. This insurance does not apply to . . . “property damage” . . . arising 

out of the rendering of or failure to render any professional 

services by you or on your behalf, but only with respect to either or 

both of the following operations: 

a. Providing engineering, architectural or surveying services 

to others in your capacity as an engineer, architect or 

surveyor; and 

b. Providing, or hiring independent professionals to provide, 

engineering, architectural or surveying services in 

connection with construction work you perform. 

2. Subject to Paragraph 3. Below, professional services include: 

a. Preparing, approving, or failing to prepare or approve, 

maps, shop drawings, opinions, reports, surveys, field 

orders, change orders, or drawings and specifications; and 

b. Supervisory or inspection activities performed as part of 

any related architectural or engineering activities. 

3. Professional services do not include services within construction 

means, methods, techniques, sequences and procedures employed 

by you in connection with your operations in your capacity as a 

construction contractor. 

70. At all pertinent times, Tippmann’s insurance contract also included a commercial 

umbrella policy (form CU 00 01 12 07). It contained the following material provisions: 

SECTION I – COVERAGES 

COVERAGE A – BODILY INJURY AND PROPERTY DAMAGE 

LIABILITY 

1. Insuring Agreement 

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a. We will pay on behalf of the insured the “ultimate net loss” 

in excess of the “retained limit” because of . . . “property 

damage” to which this insurance applies. We will have the 

right and duty to defend the insured against any “suit” 

seeking damages for such . . . “property damage” when the 

“underlying insurance” does not provide coverage or the 

limits of the “underlying insurance” have been exhausted. 

When we have no duty to defend, we will have the right to 

defend, or to participate in the defense of, the insured 

against any other “suit” seeking damages to which this 

insurance may apply. However, we will have no duty to 

defend the insured against any “suit” seeking damages for . 

. . “property damage” to which this insurance does not 

apply. . . . 

. . . 

2. Exclusions 

This insurance does not apply to: 

. . . 

o. Damage To Your Work 

“Property damage” to “your work” arising out of it or any 

part of it and included in the “products-completed 

operations hazard”. 

This exclusion does not apply if the damaged work or the 

work out of which the damage arises was performed on 

your behalf by a sub-contractor. 

. . . 

s. Professional Services 

“Bodily injury” or “property damage” due to rendering or 

failure to render any professional service. This includes but 

is not limited to: 

. . . 

(2) Preparing, approving, or failing to prepare or 

approve maps, shop drawings, opinions, reports, 

surveys, field orders, change orders or drawings and 

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specifications by any architect, engineer or surveyor 

performing services on a project on which you serve 

as construction manager; 

(3) Inspection, supervision, quality control, architectural or engineering activities done by or for you 

on a project on which you serve as construction 

manager; 

(4) Engineering services, including related supervisory 

or inspection services; 

. . . 

SUPPLEMENTARY PAYMENTS – COVERAGES A AND B 

. . . 

3. If we defend an insured against a “suit” and an indemnitee of the 

insured is also named as a party to the “suit”, we will defend that 

indemnitee if all of the following conditions are met: 

a. The “suit” against the indemnitee seeks damages for which 

the insured has assumed the liability of the indemnitee in a 

contract or agreement that is an “insured contract”; 

b. This insurance applies to such liability assumed by the 

insured; 

c. The obligation to defend, or the cost of the defense of, that 

indemnitee, has also been assumed by the insured in the 

same “insured contract”; 

. . . 

SECTION V – DEFINITIONS 

. . . 

17. “Products-completed operations hazard”: 

a. Includes all . . . “property damage” occurring away from 

premises you own or rent and arising out of “your product” 

or “your work” except: 

. . . 

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(2) Work that has not yet been completed or 

abandoned. However, “your work” will be deemed 

completed at the earliest of the following times: 

(a) When all of the work called for in your 

contract has been completed. 

. . . 

Work that may need service, maintenance, 

correction, repair or replacement, but which is 

otherwise complete, will be treated as completed. 

. . . 

28. “Your work”: 

a. Means: 

(1) Work or operations performed by you or on your 

behalf; and 

(2) Materials, parts or equipment furnished in 

connection with such work or operations. 

b. Includes: 

(1) Warranties or representations made at any time with 

respect to the fitness, quality, durability, 

performance or use of “your work;” and 

(2) The providing of or failure to provide warnings or 

instructions. 

. . . 

71. Black Bear is not listed on either the CGL or the umbrella policy as a named 

insured or an additional insured. 

72. Black Bear does not qualify as an “insured” under the Who Is An Insured portion 

of the CGL or umbrella policies. 

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73. Although the CGL was modified by an endorsement making an owner of property 

an additional insured if such was required by a construction contract between the parties, Black 

Bear was not a party to the Design/Build Agreement. 

74. There was no contract between Tippmann and Black Bear under which Tippmann 

agreed to defend, indemnify or hold harmless Black Bear. 

75. As Black Bear is not an insured, a named insured or an additional insured under 

the CGL or the umbrella policy, and Black Bear is not Tippmann’s contractual indemnitee, Black 

Bear does not qualify as an insured under Tippmann’s CGL or umbrella policy for Black Bear. 

76. Westfield has no obligation to defend or indemnify Black Bear against 

Lexington’s claims and lawsuit. 

77. There is no coverage under Tippmann’s policies for Black Bear’s indemnity or 

contribution claims against Tippmann. 

78. Tippmann’s work on the warehouse was completed prior to the time any property 

damage to the warehouse or its contents occurred. 

79. All property damage to the warehouse and its contents occurred away from 

premises owned or rented by Tippmann. 

80. Because the work was completed and the property damage occurred away from 

premises owned or rented by Tippmann, any property damage arising out of Tippmann’s “work” 

was part of the “products-completed operations hazard.” 

81. There is no coverage under either the CGL or the Commercial Umbrella policies 

for any damage to the work or operations performed by Tippmann’s employees, which would 

constitute “your work” as defined by the policy, pursuant to the “Damage To Your Work” 

exclusion contained in each of the policies. 

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82. The Contractors – Professional Liability exclusion precludes coverage under the 

CGL policy for any property damage resulting from the rendering of professional services. 

83. Preparing and approving drawings, plans and blueprints constitute “professional 

services” as that term is defined in paragraph 2.a. of the Contractors – Professional Liability 

exclusion which is incorporated into the CGL policy. 

84. Paragraph 1.b. of the exclusion precludes coverage for property damage arising 

out of the performance of professional services by an independent professional hired by the 

insured to provide engineering or architectural services in connection with the insured’s 

construction work. 

85. Tiberio is an independent professional. 

86. Tiberio was hired by Tippmann to provide engineering or architectural services in 

connection with Tippmann’s construction work on the warehouse. 

87. There is no coverage under the CGL for any property damage arising out of 

Tiberio’s rendering of or failure to render professional services. 

88. Tiberio’s actions also constitute a “professional service” as that term is defined in 

the umbrella policy, under paragraphs (2), (3) and/or (4) of the Professional Services exclusion. 

89. There is no coverage under the umbrella policy for any property damage arising 

out of Tiberio’s rendering of or failure to render professional services. 

90. There is no coverage under either the CGL or the umbrella policy for any property 

damage falling within the “professional service” exclusionary language. 

91. Tippmann seeks coverage and a defense against the various subrogation 

Complaints and Black Bear’s Third-Party Complaint pursuant to the Commercial General 

Liability policy and/or Commercial Umbrella Policy. 

USDC IN/ND case 1:15-cv-00351-TLS-SLC document 1 filed 11/24/15 page 20 of 22
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92. AIG, Liberty Mutual, Travelers Indemnity, Travelers Casualty, Harleysville and 

Black Bear are named herein as parties as they are all seeking to recover from Tippmann, and 

have an interest in whether there is coverage under the Westfield policies for the damages they 

seek. 

93. Westfield is presently defending Tippmann against the various Complaints and 

Third-Party Complaint pursuant to a reservation of rights. 

 94. A real and actual controversy exists between the parties, and questions have 

arisen regarding coverage issues which ought to be decided by this Honorable Court in order to 

safeguard the rights of the parties hereto. 

95. Westfield has a substantial present interest in the relief sought. 

WHEREFORE, Westfield National Insurance Company respectfully seeks an Order from 

this Honorable Court: 

 1. Declaring that Westfield has no duty to defend Black Bear Distribution, LLC 

against Lexington Insurance Company’s claims, or any claims which were raised or could have 

been raised by Lexington Insurance Company a/s/o Wakefern Food Corporation against Black 

Bear Distribution, LLC in the currently-pending lawsuit, case no. BUR-L-2201-14.

 2. Declaring that the Westfield policies do not provide coverage for Black Bear’s 

indemnity and contribution claims against Tippmann, as set forth in the currently-pending 

lawsuit, case no. BUR-L-2201-14. 

 3. Declaring that the Westfield policies do not provide coverage for any claims in 

any of the subrogation Complaints or Third-Party Complaint which fall within the scope of any 

of the applicable policy exclusions; 

USDC IN/ND case 1:15-cv-00351-TLS-SLC document 1 filed 11/24/15 page 21 of 22
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 4. Setting forth the relative rights and obligations of the parties with respect to 

coverage and defense with respect to the four underlying lawsuits brought against Tippmann; 

and 

 5. Awarding all other just and proper relief. 

Respectfully submitted, 

WATERS, TYLER, 

HOFMANN & SCOTT, LLC 

By: s/ Tricia Hofmann___________ 

 Scott L. Tyler, Atty. #16218-10 

 Tricia Kirkby Hofmann, Atty.#20480-46 A 

WATERS, TYLER, 

HOFMANN & SCOTT, LLC 

1947 East Spring Street 

New Albany, IN 47150 

(812) 949-1114 

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