Wyoming Duty-to-Defend Triggered for Additional Insured Where Complaint Alleges Subcontractor’s Partial Causation and Incomplete (“Ongoing”) Operations

1. Introduction

This insurance-coverage dispute arises from a highway construction project on Interstate 80 in Wyoming. Simon Contractors of Wyoming, Inc. (“Simon”) served as the general contractor and subcontracted certain traffic-control/protection responsibilities to S&J Signs, Inc. (“S&J”). The subcontract required S&J to (i) name Simon as an additional insured on S&J’s commercial general liability policy and (ii) “adequately and properly protect” the work with “lights, barriers, supports and guards,” while also agreeing to defend and indemnify Simon for claims “arising out of or in connection with” S&J’s work, including when harm is alleged to involve Simon’s “concurrent acts” or negligence.

Two tractor-trailer drivers (Ware and Gibson) sued both Simon and S&J, alleging a dangerous edge drop-off in the construction zone and inadequate warnings and barriers. Liberty Mutual (Simon’s own insurer) demanded that Cincinnati (S&J’s insurer) defend Simon as an additional insured under Cincinnati’s endorsement. Cincinnati denied, asserting the suits did not arise from S&J’s work. Liberty sued for declaratory relief. The district court granted summary judgment for Liberty, and the Tenth Circuit affirmed.

Key issues: (1) whether the underlying complaints alleged “bodily injury” “caused, in whole or in part” by S&J’s acts or omissions in its “ongoing operations” for Simon, thereby triggering Cincinnati’s duty to defend; and (2) whether the subcontract limited (or instead reinforced) that duty.

2. Summary of the Opinion

Applying Wyoming law, the Tenth Circuit held Cincinnati owed Simon a duty to defend as an additional insured. The court concluded:

• The endorsement’s “in whole or in part” language requires only partial causation; the complaints expressly attributed failures to warn and to erect barriers to “both” Simon and S&J, creating at least a potential that S&J’s omissions partially caused the injuries.
• “Ongoing operations” encompasses work prior to completion; allegations tied to incomplete performance (including omissions) qualify, and the court declined to narrow the phrase to “active work” occurring at the moment of the accident.
• The subcontract did not limit coverage in Cincinnati’s favor; its broad defense/indemnity clause—especially the “whether or not” concurrent-negligence language—supported the conclusion that Simon was entitled to a defense even if Simon’s own negligence contributed.

Because the underlying suits were at least potentially covered, Cincinnati’s duty to defend was triggered, and summary judgment for Liberty was affirmed.

3. Analysis

3.1 Precedents Cited

The opinion is grounded in Wyoming’s duty-to-defend framework and contract-interpretation rules, supplemented by persuasive federal authority interpreting similar additional-insured language.

A. Wyoming duty-to-defend and “potential coverage” standards

• Matlack v. Mountain W. Farm Bureau Mut. Ins. Co., 44 P.3d 73 (Wyo. 2002) (quoting Shoshone First Bank v. Pac. Emps. Ins. Co., 2 P.3d 510 (Wyo. 2000)) supplied the governing test: whether a claim “rationally falls within the policy coverage.” The Tenth Circuit used this framing to focus on pleaded allegations rather than Cincinnati’s characterization of S&J’s role.
• Shoshone First Bank v. Pac. Emps. Ins. Co., 2 P.3d 510 (Wyo. 2000) was repeatedly invoked for the principle that the duty to defend arises if the claim is “potentially covered,” and that the court looks at the complaint’s allegations to assess that potential.
• Lawrence v. State Farm Fire & Cas. Co., 133 P.3d 976 (Wyo. 2006) reinforced that “potential” coverage is enough to trigger a defense—important here because Cincinnati argued the allegations did not prove S&J’s causal role.
• Reisig v. Union Ins. Co., 870 P.2d 1066 (Wyo. 1994) (quoting First Wyo. Bank, N.A., Jackson Hole v. Cont'l Ins. Co., 860 P.2d 1094 (Wyo. 1993)) provided the methodological rule: examine the facts alleged in the complaint to evaluate the duty to defend. The panel applied this strictly, quoting the “both defendants” allegations regarding warning signs and barriers.
• Marathon Ashland Pipe Line LLC v. Md. Cas. Co., 243 F.3d 1232 (10th Cir. 2001) and Aetna Ins. Co. v. Lythgoe, 618 P.2d 1057 (Wyo. 1980) were used for the pro-insured tilt where coverage is uncertain: doubts about coverage (including ambiguity in the complaint) are resolved against the insurer for duty-to-defend purposes.

B. Wyoming contract/insurance-policy interpretation rules

• State ex rel. Farmers Ins. Exch. v. Dist. Ct. of the Ninth Jud. Dist., 844 P.2d 1099 (Wyo. 1993) and Mem'l Hosp. of Sweetwater Cnty. v. Menapace, 404 P.3d 1179 (Wyo. 2017) supported treating insurance interpretation as a question of law.
• State Farm Fire & Cas. Co. v. Paulson, 756 P.2d 764 (Wyo. 1988) and N. Fork Land & Cattle, LLLP v. First Am. Title Ins. Co., 362 P.3d 341 (Wyo. 2015) grounded the analysis in ordinary contract principles.
• Sweetwater Station, LLC v. Pedri, 522 P.3d 617 (Wyo. 2022) (quoting Star Valley Ranch Ass'n v. Daley, 334 P.3d 1207 (Wyo. 2014)) supplied the “contract as a whole”/plain meaning approach.
• Amoco Prod. Co. v. Stauffer Chem. Co. of Wyo., 612 P.2d 463 (Wyo. 1980) underscored that unambiguous contract language is enforced as written.
• Douglas ex rel. Patricia Ann Douglas Revocable Tr. v. Jackson Hole Land Tr., 464 P.3d 1223 (Wyo. 2020) and Colo. Cas. Ins. Co. v. Sammons, 157 P.3d 460 (Wyo. 2007) justified consulting dictionary definitions to determine the “plain meaning” of phrases like “in part” and “ongoing operations.”

C. Causation and “concurrent negligence” concepts

• Foote v. Simek, 139 P.3d 455 (Wyo. 2006) was cited for proximate cause principles, supporting the court’s view that allegations tying injuries to failures to warn and erect barriers sufficiently alleged causation.
• Frazier v. Pokorny, 349 P.2d 324 (Wyo. 1960) was used to rebut Cincinnati’s “independent duties” argument: a defendant cannot escape liability (and, by analogy here, cannot negate causal contribution allegations) by pointing to a third party’s contributing negligence.

D. Persuasive authority on additional insured language

• First Mercury Ins. Co. v. Cincinnati Ins. Co., 882 F.3d 1289 (10th Cir. 2018) (New Mexico law) was treated as persuasive: “caused[] in whole or in part[] by” requires “some causal relationship to the injury.” The panel found this consistent with Wyoming’s “potential coverage” approach, and emphasized that the present case was even stronger because both general contractor and subcontractor were actually named in the underlying suits.
• Wausau Underwriters Ins. Co. v. Cincinnati Ins. Co., 198 F. App'x 148 (2d Cir. 2006) was used to reject Cincinnati’s narrow “active work” reading of “ongoing operations.”
• Higby Crane Serv., LLC v. Nat'l Helium, LLC, 751 F.3d 1157 (10th Cir. 2014) (citing Liberty Mut. Fire Ins. Co. v. E.E. Cruz & Co., Inc., 475 F. Supp. 2d 400 (S.D.N.Y. 2007)) supported the proposition that, in CGL context, “ongoing operations” refers to occurrences prior to completion of the contracted work.
• United Fire & Cas. Co. v. Boulder Plaza Residential, LLC, 633 F.3d 951 (10th Cir. 2011) was cited to distinguish “ongoing operations” from “completed operations.”
• Dodson Int'l Parts, Inc. v. Williams Int'l Co. LLC, 12 F.4th 1212 (10th Cir. 2021) supported reading “arising from or in connection with” broadly—relevant to Cincinnati’s argument that the subcontract limited coverage.
• Eiden Constr., LLC v. Hogan & Assocs. Builders, LLC, 561 P.3d 304 (Wyo. 2024), plus V-1 Oil Co. v. People, 799 P.2d 1199 (Wyo. 1990) and Breen v. Black, 467 P.3d 1023 (Wyo. 2020), were used to confirm that “ongoing” means not yet “complete,” “pending,” or “current.”

3.2 Legal Reasoning

The court’s reasoning follows a disciplined sequence common to Wyoming duty-to-defend cases: (1) interpret the policy’s unambiguous text using plain meaning; (2) compare that text to the complaint’s allegations; (3) if the allegations are potentially within coverage, the duty to defend attaches.

A. “In whole or in part” means partial causation is enough

The endorsement covered bodily injury “caused, in whole or in part” by S&J’s acts or omissions. Using dictionaries, the panel treated “in part” as “partially”/“to some degree,” and further referenced the idea (via Ferguson v. Moore-McCormack Lines, Inc.) that “in whole or in part” can mean even slight causal contribution. The result: Cincinnati could not avoid a defense by arguing Simon had its own duties or might be independently negligent; the question was whether the pleadings alleged any causal role for S&J.

On that question, both complaints explicitly alleged that “both” Simon and S&J failed to warn and failed to erect sufficient barriers—facts aligning with S&J’s subcontracted obligation to protect the work with “lights, barriers, supports and guards.” That sufficed to create “potential” coverage.

B. “Ongoing operations” includes incomplete performance and omissions

Cincinnati’s principal narrowing move was to claim the incidents did not relate to S&J’s “ongoing operations.” The panel rejected a cramped “active work at the moment” view. It defined “ongoing operations” as work “in progress” and not yet complete, consistent with Wyoming authority (Eiden Constr., LLC v. Hogan & Assocs. Builders, LLC) and federal CGL interpretations (Higby Crane Serv., LLC v. Nat'l Helium, LLC). Alleged failures to place warnings and barriers are classic “omissions in performance,” and if the project was not completed, the operations were ongoing.

C. The subcontract did not restrict coverage; it supported the duty to defend

The endorsement stated coverage for the additional insured “will not be broader than that which you are required by the contract or agreement to provide.” Cincinnati argued this incorporated limiting subcontract language. The court found the subcontract’s operative language broad, not narrow: claims “arising from bodily injury … occurring or arising out of or in connection with [S&J’s] Work,” and importantly “whether or not” arising from Simon’s concurrent acts or negligence. Thus, even under Cincinnati’s “contract governs the breadth” premise, the contract’s defense promise was expansive enough to encompass the pleaded scenario.

3.3 Impact

Although nonprecedential, the decision is a significant roadmap for Wyoming additional-insured duty-to-defend disputes in federal court:

• Low causation threshold at the pleading stage: When an endorsement uses “caused, in whole or in part,” complaints alleging shared failures (e.g., both contractor and subcontractor failed to warn/protect) will often trigger a defense, even if ultimate fault is uncertain.
• “Ongoing operations” construed broadly: Courts may treat omissions and incomplete performance as part of “ongoing operations,” undermining insurer arguments that only on-the-spot “active” work qualifies.
• Subcontract drafting matters: “Whether or not” concurrent-negligence defense clauses can function as powerful reinforcement against attempts to narrow additional insured defense obligations.
• Encourages earlier tenders and earlier declaratory actions: Given Wyoming’s “potential coverage” and pro-defense tilt when uncertain, insurers denying tenders on “no causal connection” grounds face elevated risk where pleadings mention subcontractor-type duties.

4. Complex Concepts Simplified

• Duty to defend vs. duty to indemnify: The duty to defend is broader and is triggered by allegations that are potentially covered. Indemnity depends on what is ultimately proven or resolved.
• Additional insured endorsement: A policy add-on that extends the subcontractor’s insurance protection to the general contractor, usually only for liability connected to the subcontractor’s work.
• “Caused, in whole or in part”: Not “solely caused.” If the subcontractor’s acts/omissions are alleged to contribute to the injury to any degree, that can be enough to trigger defense obligations.
• “Ongoing operations” vs. “completed operations”: “Ongoing” generally means before the subcontractor’s work is finished; “completed operations” refers to after completion. This matters because many endorsements cover one but not the other.
• Summary judgment: A decision made as a matter of law when there are no genuine disputes of material fact. Here, the parties agreed the facts were undisputed; only policy interpretation and the complaints’ allegations mattered.
• Declaratory judgment action: A lawsuit asking the court to declare the parties’ rights and duties under a contract (here, an insurance policy) before full liability is determined in the underlying tort cases.

5. Conclusion

The Tenth Circuit’s decision affirms a straightforward but consequential principle under Wyoming duty-to-defend doctrine: where an additional insured endorsement covers injury “caused, in whole or in part” by a subcontractor’s acts or omissions in “ongoing operations,” a defense is owed whenever the underlying complaint alleges facts plausibly tying the injury—at least partially—to the subcontractor’s work or failures in performance. The court’s plain-meaning reading of “in part” and “ongoing operations,” coupled with Wyoming’s “potential coverage” standard and the subcontract’s broad “whether or not” defense language, leaves insurers with limited room to deny a tender when pleadings attribute safety failures to both contractor and subcontractor.