Comparative Fault, Additional Insured Status and Defective Herbicide Work
Greenline Landscape Contractors maintains the grounds at Maple Ridge Condominium Association under a one-year vendor contract. Greenline carries CGL at $1,000,000 each occurrence / $2,000,000 general aggregate, plus $5,000 medical payments. The contract requires Greenline to name the association as an additional insured on a primary and non-contributory basis and to give 30 days' written notice of cancellation. In June a crew member edging a bed exposed a root; a resident walking her dog tripped on it and broke her wrist, with $65,000 in medical bills. She sues Greenline and the association. Two weeks later the same crew applied the wrong herbicide and killed $40,000 of the association's foundation plantings - the exact beds the crew was treating.
1. Assume the jury assigns the resident 30% of the fault. How does that reduce her recovery, and what exposure does the association face as a co-defendant?
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Massachusetts uses modified comparative negligence. The plaintiff's damages are reduced by her own percentage of fault, but she is barred entirely only if her negligence is greater than the defendants' - that is, at 51% or more. At 30% she is not barred.
The math. $65,000 of special damages x 70% = $45,500, plus general damages (pain, suffering, disability) reduced by the same 30%. Every dollar of it sits inside the $1,000,000 per-occurrence limit, and defense costs are normally paid in addition to the limit, so Greenline's CGL is not exhausted by the judgment.
The association's position. It is a named defendant with its own exposure for its own negligence (failure to inspect, failure to warn), and comparative fault is assessed against each defendant separately. Massachusetts has generally not abolished joint and several liability, so the association may be pursued for more than its own share of the reduced judgment - verify the current rule and any indemnity language in the vendor contract.
Practical point: the 30% finding is worth $19,500 to the defense. That is why comparative fault is pleaded in nearly every Massachusetts auto and premises case.
2. The association tenders the suit to Greenline's carrier as an additional insured. What determines whether that tender succeeds, and what document should the association demand?
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The endorsement form, not the certificate. A certificate of insurance is evidence of coverage only; it grants no rights and creates no additional insured status. Demand the actual endorsement (form number and edition date) attached to Greenline's policy.
Key questions on the endorsement:
- Ongoing or completed operations? The injury happened while the crew was edging the bed - operations were ongoing at the site. An endorsement covering 'liability arising out of your ongoing operations' responds; one limited to 'completed operations' would not.
- Scope of 'arising out of.' Massachusetts reads this broadly, but the AI status only reaches liability attributable to Greenline's operations, not to the association's independent negligence if the endorsement is worded narrowly (some forms exclude the AI's sole negligence).
- Primary and non-contributory. This means Greenline's policy pays first and the association's own CGL does not share the defense - but only if that wording appears in the endorsement or is scheduled, not merely in the contract.
- 30 days' notice of cancellation. This is Greenline's contractual promise; a breach gives the association a contract remedy against Greenline, not a coverage claim against the carrier.
Bottom line: the tender likely succeeds for the trip-and-fall because the loss arose during ongoing operations, but the association must confirm the endorsement language before relying on it.
3. Is the $40,000 of dead foundation plantings covered under Greenline's CGL?
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Almost certainly not, and the reasoning turns on where the crew was working.
- Exclusion j(5) - real property being worked on. The CGL excludes damage to 'that particular part of real property on which you are performing operations, if the property damage arises out of those operations.' The crew was treating exactly those beds. That is the particular part.
- Exclusion j(6) - restoration of faulty work. Property that must be repaired or replaced because the insured's work was incorrectly performed on it is also excluded.
- Exclusion l - damage to your work. The herbicide application is Greenline's work; the cost of redoing it is a business risk, not an insured fortuity. That is what the CGL is designed to leave with the contractor.
Where coverage could still attach: if the herbicide drifted onto adjoining lawn, a neighboring unit owner's garden, or a vehicle - property the crew was not working on - that damage is a separate occurrence and is generally covered, because it is not 'that particular part' of the property being treated.
The lesson: the association's remedy for the plantings is the vendor contract and possibly its own property policy, not Greenline's liability policy. Advise the account to check whether its property form responds to damage to outdoor trees, shrubs and plants, which is often sublimited.