Facts

Greg Wimmer hired J.P Whitney Construction (Whitney) to provide foundation construction services and to serve as a general contractor to remodel his home. Whitney brought on Mike Grasshof Construction (Grasshof), a framer, as a subcontractor. Several months into the job, Wimmer refused to make further payments on the project and the work ceased. Wimmer filed a complaint naming Whitney and Grasshof as defendants and stating causes of action for breach of contract, negligence, breach of warranty, and implied warranty, violation of construction license law, payment of bond and declaratory relief. Whitney's insurer, Contractors Bonding and Insurance Company (Plaintiff), and Grasshof's insurer, AmTrust International Underwriters Limited (Defendant), brought cross motions for summary judgment to determine their defense obligations.

PLAINTIFF'S CONTENTIONS: Plaintiff contended that defendant was required to provide a full and complete defense pursuant to terms of its policy issued to Grasshof and additional insured obligations to Whitney. Plaintiff contended that it had no duty to fund the defense of Whitney because its policy was excess to the coverage provided by Defendant and Defendant had a duty to defend Whitney as an additional insured.

DEFENDANT'S CONTENTIONS: Defendant denied all of the contentions. Defendant contended that a portion of the potential liability was attributable to Whitney's own negligence and that Whitney was only entitled to a defense for that portion of the liability that was 'caused, in whole or part,' by Grasshof.

Result

Defendant's motion for summary judgment was granted and plaintiff's was denied. Each of the insurers must provide half of the defense costs in underlying the Wimmer v. Grasshof matter.