IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

MARGARET BUHRMAN,
Plaintiff,

V.
C.A. NO. N16C-04-270 MMJ
COURTYARD BY MARRIOTT,
INC., SECURITAS SECURITY
SERVICES USA, INC., 1102 WEST
STREET, LP, CENTRAL PARKING,
LLC, COURTYARD
MANAGEMENT CORPORATION,
SP PLUS CORPORATION, and
STANDARD PARKING
CORPORATION,

\_/\/\_/\./\/\/\/\_/\_/VVV\_/\/\/\/\/

Defendants.

Submitted: January 22, 2019
Decided: April 3, 2019

On Defendants Courtyard by Marriott, Inc., 1102 West Street, LP,
and Courtyard Management Corporation’s
Motion for Summary Judgment

On Defendant Securitas Security Services USA, Inc.’s
Motion for Summary Judgment
Against C0-Defendant/Cross-Clairnants’
Courtyard by Marriott, Inc., 1102 West Street, LP,
and Courtyard Management Corporation

OPINION

Paul D. Sunshine, Esq., (Argued), Reger, Rizzo, & Darnall, LLP, Attorneysfor
Courlyard by Marriott, Inc., 1102 West Street, LP, and Courl_‘yara' Management
Corporation

Eileen M. Ford, Esq., (Argued), Marks, O’Neill, O’Brien, Doherty, & Kelly, P.C.,
Attorneys for Defendant Securitas Security Services USA, Inc.

JOHNSTON, J.

PROCEDURAL AND FACTUAL CONTEXT

Plaintiff brought suit against Defendants following a robbery that occurred
on June 8, 2014. Plaintiff’ s claims against Defendants have been resolved. What
remains is an indemnification action between the two groups of Defendants:
Courtyard by Marriott, Inc., 1102 West Street, LP, and Courtyard Management
Corporation (collectively “Marriott”); and Securitas Security Services USA, Inc.
(“Securitas”).

The Security Guard Services Agreement (the “Agreement”) between
Marriott and Securitas outlines the parties’ obligations A document titled Post
Instructions provides instructions to the Securitas security officer assigned to
Marriott.

Marriott’s Motion for Summary Judgment alleges that Securitas breached
the Agreement by failing to procure Commercial General Liability Insurance, for
the protection of Marriott, in the amount of one million dollars. The Securitas
insurance was to be primary and non-contributing with respect to any insurance

purchased or maintained by Marriott International, Inc. and any Marriott affiliatesl

 

1 Agreement 11 12.1(B)(l).

Securitas obtained a two-million dollar policy, containing a $500,000 self-insured
retention (“SIR”).

Marriott argues that in addition to Securitas’ obligation to procure a one-
million-dollar insurance policy, Securitas had a separate obligation to “indemnify,
defend, and hold harmless.”2 Securitas agreed to defend and indemnify Marriott
against all claims and losses arising out of any “negligent act or omission or willful
misconduct” on the part of Securitas in the performance of its obligations under the
Agreement.3 The indemnification obligation extends to “[a]llegations regarding
Marriott’s hiring, retention or supervision of Securitas’s, its employees, or its
Services provided hereunder except to the extent caused by the willful misconduct
of Marriott.”4 Securitas declined to defend or indemnify Marriott.

Securitas’ Motion for Summary Judgment argues that although there is a
duty to defend and indemnify for Securitas’ acts under the Agreement, there is no
duty to defend or indemnify for Marriott’s own negligence Further, Securitas
claims that the duty to procure the required insurance is not material because the
duty was never triggered Securitas argues that Marriott’s own expert testified that

Securitas was not negligent

 

2 Marriott cites Manhart v. Morton Int’l Inc., 155 F. Supp. 3d 294 (W.D.N.Y. 2016) to support
its argument that Securitas’ Motion for Summary Judgment should not be granted. In Manhart,
the Court rejected a recommendation by a Magistrate Judge to grant Securitas’ Summary
Judgment on contractual indemnification claims. However, the Court rejected the
recommendation because the Court determined that there were disputed issues of material fact.
Ia'. at 296. Therefore, this Court finds that Manhart does not apply in the instant case.

3 Agreement 11 l3.l(B).

4 Agreement 11 l3.l(F).

SUMMARY JUDGMENT STANDARD

Summary judgment is granted only if the moving party establishes that there
are no genuine issues of material fact in dispute and judgment may be granted as a
matter of law.5 All facts are viewed in a light most favorable to the non-moving
party.6 Summary judgment may not be granted if the record indicates that a
material fact is in dispute, or if there is a need to clarify the application of law to
the specific circumstances7 When the facts permit a reasonable person to draw
only one inference, the question becomes one for decision as a matter of law.8 If
the non-moving party bears the burden of proof at trial, yet “fails to make a
showing sufficient to establish the existence of an element essential to that party’s

case,” then summary judgment may be granted against that party.9

ANALYSIS
Defense and Indemm'fication
Plaintiff filed her Complaint on April 29, 2016. The Complaint alleges that

Defendants were negligent.l° The negligence claims against Marriott and Securitas

 

5 Super. Ct. Civ. R. 56(c).
6Burkhart v. Davies, 602 A.2d 56, 58_59 (Del. 1991).
7 Super. Ct. Civ. R. 56(c).
8 WOOI€H v. Kl'g€l', 226 A.2d 238, 239 (D€l. 1967).
9 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
10 Compl. 11 15.

4

are essentially the same. Plaintiff did not bring specific allegations of negligence
solely against Marriott. There is only a difference in the nature and the quantity of
alleged negligence on the part of each Defendant.

The duties to defend and indemnify provided in the Agreement are triggered
by the allegations in the Complaint. Even if ultimately no liability had been found,
and neither Marriott nor Securitas were deemed to have been negligent, the duties
under the Agreement nonetheless were activated by claims of negligence.

The Court finds that Maryland law governs this action on the relevant issues.
Under Maryland law, it is well-settled that an insurer's duty to defend under a
liability insurance policy arises when the insured is sued on a claim that is covered,
or potentially is covered, by the insurance policy.ll

Maryland courts have recognized a distinction between a contractual
obligation to indemnify for one’s own negligence and a contractual duty to provide
insurance for one’s own negligence In Heat & Power Corp. v. Ai'r Proa’ucts &
Chemicals, Inc.,12 the Court opined that a contract “will not be construed to
indemnify a person against his own negligence unless an intention to do so is
expressed in those very words or in other unequivocal terms.”13 However, this rule

of construction “does not apply to an insurance contract.”14 “The policy

 

ll Baltimore Gas and Elec. C0. v. Commerci`al Union Ins. Co, 688 A.2d 496, 505 (Md. Ct. Spec.
App. 1997).

12 578 A.2d 1202 (Md. 199()).

13 Ia'. at 1206 (citing Crockett v. Crothers, 285 A.2d 612, 615 (Md. 1972)).

14 Ia'. at 1208.
5

consideration against implying agreements to indemnify one for one’s own
negligence are inapplicable to liability insurance contracts which generally have as
their primary purpose indemnification against one’s own negligence. Also, one of
the reasons why contracts to indemnify must be expressed in unequivocal terms is
to protect the unwary or uninformed promisor. A liability insurer is rarely an
unwary or uninformed promisor.”15

The Court finds that the Complaint alleges negligence by Securitas and that
those claims essentially are identical to the claims brought against Marriott. The
lawsuit named all of Defendants involved. As is typical in a case with multiple
defendants, the factfinder must allocate liability for negligence among these
Defendants. Alternatively, if liability is determined short of trial, Defendants may
be left to sort out their various contributions to the settlement. The contractual
duty to defend was triggered when the Complaint was filed.

Self-Insured Retention

The Court views the $500,000 Self-Insured Retention (SIR) as a very large
deductible. The Court finds that the SIR does not affect the contractual duties to
defend or indemnify under the Agreement. The SIR only relates to the source of

funds and does not affect Securitas’ obligations under the Agreement. There was

no breach of contract on the basis of the SIR.

 

15 Id.

CONCLUSION

The Complaint alleges the same claims of negligence against Marriott and
Securitas. Securitas’ duty to provide a defense to negligence claims was triggered
upon filing the Complaint. This duty is neither excused nor negated by any
ultimate finding regarding negligence, or defensive assertion of lack of Securitas’
negligence. The self-insured retention does not constitute a breach of the Security
Guard Services Agreement.

Therefore, Marriott’s Motion for Summary Judgment is hereby
GRANTED IN PART AND DENIED IN PART. Securitas’ Motion for
Summary Judgment is hereby DENIED.

IT IS SO ORDERED.

    

 

The bI</{noi'ab ary M. Johnston

