                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 17a0047n.06

                                      Nos. 16-1176, 16-1231                              FILED
                                                                                   Jan 20, 2017
                          UNITED STATES COURT OF APPEALS                       DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


ORCHARD, HILTZ & MCCLIMENT, INC.,                         )
                                                          )
       Plaintiff-Appellant/Cross-Appellee,                )
                                                          )
               v.                                         )
                                                          )
PHOENIX INSURANCE CO.,                                    )
                                                          )       ON APPEAL FROM THE
       Defendant-Appellee/Cross-Appellant,                )       UNITED STATES DISTRICT
                                                          )       COURT FOR THE EASTERN
and                                                       )       DISTRICT OF MICHIGAN
                                                          )
FEDERATED MUTUAL INSURANCE                                )
COMPANY,                                                  )
                                                          )
       Defendant-Appellee.                                )
                                                          )



BEFORE: GUY, CLAY, and GRIFFIN, Circuit Judges.

       GRIFFIN, Circuit Judge.

       In this declaratory judgment action, plaintiff Orchard, Hiltz & McCliment, Inc. seeks a

judgment requiring defendants Phoenix Insurance Company and Federated Mutual Insurance

Company to defend and indemnify it in two underlying tort actions. Plaintiff appeals the district

court’s grant of summary judgment in favor of defendants. Most contested is whether the

Phoenix and Federated insurance policies’ professional services exclusions bar coverage. We

affirm the judgment of the district court because liability coverage is precluded in this case.
Nos. 16-1176/1231, Orchard, Hiltz & McCliment v. Phoenix Ins. Co., et al.


                                                 I.

       In 2011, the Village of Dexter, Michigan (“Dexter”), hired engineering and architecture

firm Orchard, Hiltz & McCliment, Inc. (“OHM”) to oversee upgrades to its wastewater treatment

plant’s sludge-handling system. The project included a design phase and a construction phase.

       During the course of the project, Dexter approved three OHM proposals for “professional

engineering services.” Initially, OHM agreed to prepare all contract and design documents for

the project including all “architectural, structural, process, plumbing, heating and ventilation,

electrical and instrumentation drawings and technical specifications” for the general contractor,

and a schedule for completing construction work. OHM also agreed to conduct a quality

assurance and control review of all drawings and specifications.

       During the construction phase, OHM was responsible for “contract administration,

construction engineering, construction observation, and construction staking.” Among other

duties, OHM agreed to provide daily observation of “significant construction work or testing,”

prepare daily field reports, and check completed work for “compliance with contract

documents.” Moreover, OHM conducted progress meetings with Dexter staff and the project’s

general contractor and subcontractors, and reviewed and approved all shop drawings. Finally,

when Dexter staff became concerned the project was falling behind schedule, OHM proposed

that engineer Chris Nastally “provide . . . additional services” by monitoring and documenting

the general contractor’s activities at the construction site full time. Dexter approved.

       Dexter hired nonparty A.Z. Shmina, Inc. (“Shmina”) as the project’s general contractor.

Dexter’s contract with Shmina (the “prime contract”) designated OHM as the project engineer

and Dexter’s representative on the project. Under the prime contract, Shmina had to maintain

liability insurance to “protect [Shmina], the [Village of Dexter], and Orchard, Hiltz


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Nos. 16-1176/1231, Orchard, Hiltz & McCliment v. Phoenix Ins. Co., et al.


& McCliment, Inc., Consulting Engineers, from claims arising out of the work described in this

Contract[.]”

       Shmina obtained a commercial general liability insurance policy through defendant

Phoenix Insurance Company (“Phoenix”). The Phoenix policy contains an additional insured

endorsement extending general liability coverage to “any person or organization that you agree

in a ‘written contract requiring insurance’ to include as an additional insured[.]” Excluded from

this endorsement, however, is coverage for bodily injury, personal injury, or property damage

       arising out of the rendering of, or failure to render, any professional architectural,
       engineering or surveying services, including:

          i.    The preparing, approving, or failing to prepare or approve, maps, shop
                drawings, opinions, reports, surveys, field orders or change orders, or the
                preparing, approving, or failing to prepare or approve, drawing and
                specifications; and

         ii.    Supervisory, inspection, architectural or engineering activities.

       OHM’s overall project plan required the removal and replacement of two sludge digester

tank lids.     OHM met with Shmina regarding how this work would be done.                   Shmina

subcontracted with nonparty Platinum Mechanical, Inc. (“Platinum”) “to provide all labor and

materials” for the “digester cover installation[.]” Platinum in turn subcontracted with nonparty

Regal Rigging & Demolition (“Regal”) to remove both digester tank lids.

       Per the terms of its contract with Shmina, Platinum had to maintain a commercial general

liability insurance policy. Platinum was required to endorse its policy “to add A.Z. Shmina,

Inc.[,] [the Village of Dexter], and any additional parties as required by the Prime Contract

Document, as additional insured[.]” Platinum’s policy, obtained through defendant Federated

Mutual Insurance Company (“Federated”), includes an additional insured endorsement extending

coverage to “any person or organization, other than a joint venture, for whom you are performing


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Nos. 16-1176/1231, Orchard, Hiltz & McCliment v. Phoenix Ins. Co., et al.


operations when you and such person or organization have agreed in writing in a contract or

agreement that such person or organization be added as an additional insured on your policy.”

No such contract or agreement exists between Platinum and OHM.

       Like the Phoenix policy, the Federated policy contains a professional services exclusion

that limits coverage as provided for in the additional insured endorsement. Although worded

slightly differently, the Federated provision also excludes coverage for bodily injury, property

damage, or personal injury caused by

       [a]ny person or organization whose profession, business or occupation is that of
       an architect, surveyor or engineer with respect to liability arising out of the
       preparation or approval or the failure in preparation or approval of maps, shop
       drawings, opinions, reports, surveys, field orders, change orders, designs,
       drawings, specifications or the performance of any other professional services by
       such person or organization[.]

       The digester lid removal work was underway by late April 2013. On April 22, Regal

worker David McBride was using a cutting torch to remove bolts from a digester lid. Sparks

from the torch ignited methane gas inside the digester tank and caused an explosion that injured

McBride and killed Platinum pipefitter Michael Koch. Nastally was present at the scene of the

accident taking photos of McBride as he removed bolts from the digester lid.

       After the accident, McBride filed a personal injury action and Koch’s estate filed a

wrongful death action in Washtenaw County Circuit Court, each naming OHM as a defendant.

McBride alleged negligence and gross negligence on the part of OHM in the performance of its

engineering duties. Specifically, McBride maintained OHM “had a duty to exercise ordinary

skill and care common to professional engineers and/or architects” that required it “to supervise

all operations and to include in the plans, specifications and drawings, methods for safe removal

of the digester lids[.]” Similarly, Koch’s estate alleged that OHM was negligent in its duty “to

exercise the ordinary skill and care and to act as a reasonably prudent professional engineer,

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Nos. 16-1176/1231, Orchard, Hiltz & McCliment v. Phoenix Ins. Co., et al.


professional architect, and inspector of [the] upgrade of the methane handling capacities of the

Dexter WWTP[.]” Both complaints alleged OHM breached its duty by failing to ensure that its

engineering plans and specifications were complied with, and that related safety precautions,

such as the use of methane detection devices, were implemented.

       Plaintiff’s professional liability insurer, XL Specialty Insurance Company, defended it in

these underlying actions. OHM nevertheless filed a declaratory action in state court seeking a

judgment requiring defendants to defend and indemnify it in the McBride and Koch cases.

Phoenix removed the action to federal court, and Federated concurred in the notice of removal.

The parties filed cross-motions for summary judgment, disputing whether OHM is covered as an

additional insured under either policy and, if so, whether the policies’ professional services

exclusions bar coverage. After a hearing, the district court granted summary judgment in favor

of defendants.

       The district court ruled that plaintiff was covered as an additional insured under the

Phoenix policy, but not under the Federated policy. Neither defendant had a duty to defend or

indemnify plaintiff, however, because there was no dispute of material fact that the professional

services exclusion in both policies barred coverage.          Plaintiff’s subsequent motion for

reconsideration was denied, but the district court modified its original order to require Phoenix to

assume a pro rata share of any defense costs and related damages should it ultimately be

determined that Phoenix must cover OHM’s liability.




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Nos. 16-1176/1231, Orchard, Hiltz & McCliment v. Phoenix Ins. Co., et al.


                                                II.

       Plaintiff appeals the denial of its motions for summary judgment and reconsideration.1

“We review de novo the district court’s order granting summary judgment and its denial of

[plaintiff’s] motion for reconsideration of that order.” CMACO Auto. Sys., Inc. v. Wanxiang Am.

Corp., 589 F.3d 235, 241 (6th Cir. 2009). Summary judgment is proper only “if the movant

shows that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). Although we view the evidence in a light

most favorable to the nonmovant, Rogers v. O’Donnell, 737 F.3d 1026, 1030 (6th Cir. 2013),

“[t]he plain language of Rule 56(c) mandates the entry of summary judgment . . . against a party

who fails to make a showing sufficient to establish the existence of an element essential to that

party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986).

                                               III.

       Plaintiff argues defendants have a duty to defend and indemnify it in the underlying

actions because: (1) plaintiff is an additional insured under the Federated policy; and (2) neither

professional services exclusion applies. Michigan law governs these issues on appeal, and we

apply state law in accordance with the controlling decisions of the Michigan Supreme Court. See

Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); see also Allstate Ins. Co. v. Thrifty Rent-A-

Car Sys., Inc., 249 F.3d 450, 454 (6th Cir. 2001). Where the Michigan Supreme Court has not

yet addressed an issue, we predict how that court would rule in light of “all the available data.”

       1
         Defendant Phoenix also cross-appeals the district court’s decision on reconsideration
requiring it to assume a pro rata share of defense costs and related damages should it be obliged
to cover OHM’s liability. However, we need not address the cross-appeal given our ruling that
plaintiff’s appeal is not meritorious. Martin Cty. Coal Corp. v. Universal Underwriters Ins. Co.,
727 F.3d 589, 598 (6th Cir. 2013). Accordingly, defendant Federated’s motion to strike
defendant Phoenix’s brief on cross-appeal is moot.
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Nos. 16-1176/1231, Orchard, Hiltz & McCliment v. Phoenix Ins. Co., et al.


Allstate Ins. Co., 249 F.3d at 454. “Relevant data include decisions of the state appellate courts,

and those decisions should not be disregarded unless we are presented with persuasive data that

the Michigan Supreme Court would decide otherwise.” Kingsley Assocs. v. Moll PlastiCrafters,

Inc., 65 F.3d 498, 507 (6th Cir. 1995).

                                                1.

       Plaintiff’s appeal implicates two insurance policies.        Under Michigan law, “[a]n

insurance policy is much the same as any other contract. It is an agreement between the parties

in which a court will determine what the agreement was and effectuate the intent of the parties.”

Auto-Owners Ins. Co. v. Churchman, 489 N.W.2d 431, 433 (Mich. 1992). “[T]he construction

and interpretation of an insurance contract is a question of law for a court to determine[.]”

Henderson v. State Farm Fire & Cas. Co., 596 N.W.2d 190, 193 (Mich. 1999). Courts are

bound by the clear, specific language in such an agreement. Id.

       Plaintiff maintains that defendants’ policies obligate them to defend and indemnify OHM

in the underlying actions. The duty to defend is broader than the duty to indemnify. Am.

Bumper and Mfg. Co. v. Hartford Fire Ins. Co., 550 N.W.2d 475, 481 (Mich. 1996). The duty to

indemnify typically does not arise until “liability for the injury has been established.” Gelman

Sci., Inc. v. Fireman’s Fund Ins. Cos., 455 N.W.2d 328, 330 (Mich. Ct. App. 1990).

“In determining whether there is a duty to defend, courts are guided by established principles of

contract construction.” Citizens Ins. Co. v. Secura Ins., 755 N.W.2d 563, 566 (Mich. Ct. App.

2008). As Michigan courts have long held:

       The duty of the insurer to defend the insured depends upon the allegations in the
       complaint of the third party in his or her action against the insured. This duty is
       not limited to meritorious suits and may even extend to actions which are
       groundless, false, or fraudulent, so long as the allegations against the insured even
       arguably come within the policy coverage. An insurer has a duty to defend,
       despite theories of liability asserted against any insured which are not covered

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Nos. 16-1176/1231, Orchard, Hiltz & McCliment v. Phoenix Ins. Co., et al.


       under the policy, if there are any theories of recovery that fall within the policy.
       The duty to defend cannot be limited by the precise language of the pleadings.
       The insurer has the duty to look behind the third party’s allegations to analyze
       whether coverage is possible. In a case of doubt as to whether or not the
       complaint against the insured alleges a liability of the insurer under the policy, the
       doubt must be resolved in the insured’s favor.

Id. at 566–67 (emphasis in original) (quoting Detroit Edison Co. v. Mich. Mut. Ins. Co.,

301 N.W.2d 832, 835 (Mich. Ct. App. 1981)).

       With this guidance in mind, we ask whether the relevant policy language, Michigan law,

and the underlying allegations against plaintiff, taken together, require either defendant to defend

and indemnify OHM in the underlying actions. We conclude that they do not.

                                                 2.

       Where an insurer’s duty to an insured is questioned, courts typically determine whether

coverage exists and then “ascertain whether that coverage is negated by an exclusion.”

Buczkowski v. Allstate Ins. Co., 526 N.W.2d 589, 594 (Mich. 1994).             While plaintiff and

Federated dispute whether plaintiff is an additional insured under the Federated policy, there is

no dispute that plaintiff is an additional insured under the Phoenix policy. Because we find no

genuine dispute regarding whether either professional services exclusion applies, we assume

without deciding that OHM falls within Federated’s additional insured endorsement and turn to

this determinative issue.

                                                 3.

       Plaintiff argues that neither professional services exclusion bars coverage because some

of the underlying allegations implicate “general project operations and work place safety”

concerns for which OHM was not responsible pursuant to its contracts with Dexter.

Accordingly, defendants are obligated to defend OHM unless and until the state court

conclusively determines that OHM is liable for its independent acts as project engineer. Plaintiff

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Nos. 16-1176/1231, Orchard, Hiltz & McCliment v. Phoenix Ins. Co., et al.


conflates the question of scope of coverage with that of ultimate liability. See Walgreen Co. v.

RDC Enters., L.L.C., No. 293608, 2011 WL 3689152, at *7 (Mich. Ct. App. Aug. 23, 2011)

(“[I]t is unnecessary to determine if there is evidence that Walgreen lacks fault for the ultimate

design of the catwalk. The material issue is whether the activities engaged in by Walgreen, and

which form the basis for the claim against it in the [underlying] negligence case, fall within the

[professional services] policy exclusion.”).

       Generally, the “insured bears the burden of proving coverage, while the insurer must

prove that an exclusion to coverage is applicable.” Heniser, 534 N.W.2d at 505 n.6. Although

exclusions “are strictly construed in favor of the insured,” courts give effect to clear and specific

clauses because an insurance company cannot be held liable for risks it did not agree to assume.

Auto-Owners Ins. Co., 489 N.W.2d at 434.

       Plaintiff does not distinguish between the Phoenix and Federated exclusions. Indeed, the

clauses are similarly worded. Both broadly exclude coverage for liability “arising out of”

performing or failing to perform any professional architectural, engineering, or surveying

service. Both define such services to include preparing, approving, or failing to prepare or

approve maps, shop drawings, opinions, reports, surveys, field orders, change orders, drawings,

and specifications.    In addition, the Phoenix policy excludes liability coverage for all

“[s]upervisory, inspection, architectural or engineering activities,” while the Federated policy

also excludes liability coverage for “the performance of any other professional services by” any

“architect, surveyor, or engineer[.]”

       We ask whether any of the underlying allegations against OHM could fall outside these

exclusions by implicating non-professional acts or omissions. Under Michigan law, “[w]hether a

professional service is being rendered depends on the nature of the act or omission, not the


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character or title of the person who acted or failed to act.” Shuler v. Mich. Physicians Mut. Liab.

Co., 679 N.W.2d 106, 126 (Mich. Ct. App. 2004). Michigan appellate courts have defined

“professional services” as those involving specialized skill of a predominantly intellectual

nature.2 See, e.g., Westfield Ins. Co. v. D & G Dollar Zone, No. 306408, 2013 WL 951086, at *4

(Mich. Ct. App. Feb. 28, 2013); see also St. Paul Fire & Marine Ins. Co. v. Quintana,

419 N.W.2d 60, 62 (Mich. Ct. App. 1988).               Consequently, not all acts performed by

professionals constitute professional services. See, e.g., D & G Dollar Zone, 2013 WL 951086,

at *4 (“[W]e conclude that the term ‘professional service,’ as used in instant exclusions, does not

contemplate the mere sale of goods at a dollar store.”); Quintana, 419 N.W.2d at 62 (sexual

assault and battery does not “fall[] within the purview of being a ‘professional service’”).

       Michigan courts, however, have generally interpreted professional services exclusions

broadly. See, e.g., Am. Fellowship Mut. Ins. Co. v. Ins. Co. of N. Am., 282 N.W.2d 425, 428

(Mich. Ct. App. 1979) (the “professional services” exclusion of a life insurance contract referred

to any business activity conducted by the insured company). They have even applied them to

acts not involving a specialized skill if such acts reasonably related to the overall provision of

professional services. For example, a doctor was denied liability coverage for claims alleging

       2
         Courts often rely on the Supreme Court of Nebraska’s definition of “professional
services” articulated in Marx v. Hartford Accident & Indem. Co., 157 N.W.2d 870, 871–72
(Neb. 1968), as those “arising out of a vocation, calling, occupation, or employment involving
specialized knowledge, labor or skill, and the labor or skill is predominately mental or
intellectual, rather than physical or manual.” E.g., Dibeneditto v. Med. Protective Co., 3 F.
App’x 483, 486–87 (6th Cir. 2001); Great Am. Ins. Co. v. Geostar Corp., Nos. 09–12488–BC,
09–12608–BC, 09–14306–BC, 2010 WL 845953, at *10 (E.D. Mich. 2010); Cincinnati Ins. Co.
v. Harding, No. 2:06–CV–205, 2007 WL 3124654, at *7 (W.D. Mich. 2007); Westfield Ins. Co.
v. D & G Dollar Zone, No. 306408, 2013 WL 951086, at *4 (Mich. Ct. App. Feb. 28, 2013); St.
Paul Fire & Marine Ins. Co. v. Quintana, 419 N.W.2d 60, 62 (Mich. Ct. App. 1988). This
definition of “professional services” is consistent with that given in Michigan’s Business
Corporation Act. See M.C.L. § 450.1282(b) (“a type of personal service to the public that
requires that the provider obtain a license or other legal authorization as a condition precedent to
providing that service”).
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Nos. 16-1176/1231, Orchard, Hiltz & McCliment v. Phoenix Ins. Co., et al.


that he failed to “properly retrieve, transport, maintain and deliver the pathology report [to a

patient] as part of the nonprofessional duties of the business” and his staff “failed to properly

retrieve telephone and facsimile messages, place messages in the appropriate locations and

collect, sort, file and forward the mail containing the report to the proper recipient.” White v.

Auto-Owners Ins. Co., Nos. 265380, 265389, 2006 WL 664206, at *3 (Mich. Ct. App. Mar. 16,

2006). In denying relief, the Michigan Court of Appeals emphasized the substance of the claims,

reasoning that “[a]ccording to the underlying complaint, Dr. White had a professional duty as

Ogburn’s physician to obtain, review and report the biopsy findings. Because some portions of

that duty included clerical tasks does not change the overall nature of the duty.” Id.

       Similarly, an engineering firm hired to conduct a soil investigation had to seek liability

coverage from its professional liability insurer rather than its general liability insurer where two

of its employees damaged telephone lines while drilling for soil samples without first calling

“Miss Dig,” Michigan’s utility notification system. Centennial Ins. Co. v. Neyer, Tiseo & Hindo,

Ltd., 523 N.W.2d 808, 810 (Mich. Ct. App. 1994). The firm argued that its failure to call “Miss

Dig” did not encompass a professional service, but the Michigan Court of Appeals held that,

because the decision to drill before calling “Miss Dig” was “preliminary to, and part of, the

‘professional service’ of conducting a soil investigation,” liability coverage was precluded under

the firm’s general liability policy. Id.

       The Michigan Court of Appeals decision in Hilderbrandt ex rel. Estate of Hilderbrandt v.

Rumsey & Sons Constr., No. 220340, 2001 WL 624966 (Mich. Ct. App. June 5, 2001), is

particularly instructive. In that case, a general contractor’s employee was killed on a water main

replacement project when a trench collapsed on him. Id. at *1. An engineering firm designed

the project, served as consulting engineer, and monitored the general contractor’s progress. Id.


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Nos. 16-1176/1231, Orchard, Hiltz & McCliment v. Phoenix Ins. Co., et al.


The employee’s estate filed a wrongful death action against the firm, alleging that it was

negligent in failing to advise the general contractor of workplace safety violations and to provide

adequate safety supervision. See id. at *3 and *3 n.3. The firm had a commercial general

liability policy with the defendant insurer, but the insurer concluded the underlying wrongful

death allegations against the firm fell within the policy’s professional services exclusion. Id. at

*1. That exclusion was worded similarly to those at issue here. See id. at *3.

       The firm countered that it “had no obligations regarding safety on the project.” Id. But

that was not the point. Instead, the court said: “the issue is whether the failure to advise [the

general contractor] and its employees of safety violations was a failure to render a professional

service.” Id. at *7. Acknowledging that “Michigan cases reveal a broad view of the term

‘professional services,’” the court held that, “[a]ssuming [the firm] had a duty to recognize and

advise regarding such a [safety] violation, the failure to do so involves a failure to render the

professional inspection and supervision services” because “the recognition of such a violation

involves some specialized knowledge and expertise in the area of trenching for water main

replacement, which was allegedly to have been provided by [the firm] under the contract.” Id.

Accordingly, the underlying allegations fell within the professional services exclusion. Id.

       That reasoning is applicable here. Dexter hired OHM to oversee all aspects of Dexter’s

treatment plant improvement project; it designed the plans for every facet of the project,

monitored their implementation, served as an on-site consultant, and supervised the work to

ensure compliance with those plans and timely progress. Both underlying complaints allege that

OHM, as the project’s consulting engineer, was negligent in its duty to supervise construction

operations, provide adequate safety supervision, and to include in its project plans ways to ensure

the safe removal of the digester lids. These acts are predominantly intellectual in nature, and


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both insurance policies exclude coverage for liability “arising out of” an engineer’s or architect’s

failure to prepare or approve drawings and specifications, other “supervisory, inspection,

architectural or engineering activities,” and indeed “any other professional services.” Assuming

the underlying plaintiffs can show that OHM owed such duties, accounting for and ensuring the

safe removal of the lids in its project plans and on site would require OHM to exercise the

specialized knowledge and expertise in wastewater facility project design and supervision that

Dexter hired it to provide.

        Plaintiff contends in a cursory fashion that some of the factual allegations in the

underlying complaints implicate “improper and dangerous general construction means, methods,

techniques, sequences, procedures, operations and equipment” and “improper and inadequate

worker health and safety precautions and programs” that were Shmina’s, Platinum’s, and Regal’s

responsibility. This argument does not create a genuine dispute of material fact because, like the

engineering firm in Hilderbrandt, OHM misses the point.               The nature of the underlying

allegations of liability is what governs the question of coverage, not the scope of OHM’s

responsibilities under its contract with Dexter. See Detroit Edison Co., 301 N.W.2d at 835 (“The

duty of the insurer to defend the insured depends upon the allegations in the complaint of the

third party in his or her action against the insured.”). To the extent plaintiff argues it is not solely

liable for some of the underlying claims, the question of OHM’s ultimate liability to the

underlying personal injury and wrongful death claimants is for the state court to resolve. See

Walgreen Co., 2011 WL 3689152, at *7.

        Plaintiff asserts that the underlying plaintiffs would hold it liable for what it deems

unskilled construction and accident prevention tasks such as failing to hold safety meetings,

monitor methane levels, and post warning signs. Not so. The substance of the underlying claims


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is that OHM is liable for failing to properly plan for, and take preventative measures to ensure,

the safe removal of the digester tank lids it required as part of the overall treatment plant upgrade

project. The underlying plaintiffs allege that OHM had a duty as the project’s consulting

engineering firm to do so. Even if some of the underlying factual allegations implicate tasks that

do not, in and of themselves, involve a specialized skill, such acts and omissions are reasonably

related to OHM’s overall provision of professional services. See White, 2006 WL 664206, at *3

(“Because some portions of that duty included clerical tasks does not change the overall nature

of the duty.”); see also Lansing Cmty. Coll. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., No.

1:09–111, 2010 WL 774877, at *10 (W.D. Mich. March 1, 2010) (applying Michigan law)

(coverage precluded even though some allegations arguably implicated non-professional services

because those tasks “arose from the rendering of, or failure to render, professional services”).

        Phoenix and Federated provided general liability policies that were never intended to

cover professional negligence claims. Indeed, plaintiff’s professional liability insurer defended

it in both underlying tort actions. OHM may dispute that it owed or breached the duties alleged

in the underlying actions, but there is no dispute that if the underlying plaintiffs can prove their

allegations, OHM’s liability is excluded from coverage under the Phoenix and Federated

policies.

                                                 4.

        Plaintiff contends that our construction of the Phoenix and Federated professional

services exclusions renders coverage under either policy illusory. That is an uphill battle.

Applied to insurance contracts, the illusory coverage doctrine requires “an insurance policy to be

interpreted so that it is not merely a delusion to the insured.” Emp’rs Mut. Cas. Co. v. Helicon

Assocs., Inc., 880 N.W.2d 839, 843 (Mich. Ct. App. 2015) (quoting Ile v. Foremost Ins. Co., 809


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Nos. 16-1176/1231, Orchard, Hiltz & McCliment v. Phoenix Ins. Co., et al.


N.W.2d 617, 622 (2011), rev’d on other grounds, 823 N.W.2d 426, 426 (2012)). Michigan

courts thus “avoid interpreting insurance policies in such a way that an insured’s coverage is

never triggered and the insurer bears no risk.” Id. Because coverage could be triggered where

OHM employees are exposed to liability for bodily injury or property damage caused by their

ordinary negligence in performing some task that falls outside the provision of professional

services, our interpretation renders neither policy illusory.

       OHM has not established a genuine dispute of material fact regarding whether the

underlying allegations against it fall outside the provision of professional services.

Consequently, defendants are entitled to summary judgment in their favor.

                                                 IV.

       For the foregoing reasons, the motion to strike defendant Phoenix Insurance Co.’s brief

on cross-appeal is denied as moot, and the district court’s judgment is affirmed.




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