PER CURIAM.
Appellants Marcus Hentschell and Hentschell Associates, Inc. (Hentschell) obtained an insurance policy for respondent Bada Restaurants. After a court determined that a Bada employee's injuries were not covered under the terms of the policy, Bada sued Hentschell for professional negligence. Hentschell concedes that it was negligent in procuring the policy but argues that the proximate cause of Bada's damages was Bada's own failure to assert the coverage to which it was entitled under the policy. We agree with the trial court that the policy did not provide coverage for the employee's injuries and therefore affirm.
Hentschell's request for oral argument is denied.
The relevant facts are not disputed for purposes of this appeal. Appellants Marcus Hentschell and Hentschell Associates, an insurance agent and agency, procured a commercial general liability (CGL) policy for respondent Bada Restaurants, Inc. (Bada), which operates the BluWater Bistro and an associated catering business in Seattle. The CGL policy, which became effective August 8, 1998, was issued by Westport Insurance Company.
Unlike the previous policy that Hentschell procured for BluWater, the Westport policy included a `Limitation of Coverage to Designated Premises or Project' endorsement (Designated Premises Endorsement). The Designated Premises Endorsement stated that it modified the insurance provided under the `Commercial General Liability Coverage Part' and limited `bodily injury' coverage to the `ownership, maintenance or use' of the designated premises of the BluWater Bistro. Clerk's Papers, at 455. Hentschell concedes that because Bada's activities involved catering and other activities away from its premises, the coverage limitations imposed by the Designated Premises Endorsement `were not necessarily appropriate or consistent with Bada's overall insurance needs' and Hentschell's failure to advise Bada of the policy limitations or arrange for removal of the Designated Premises Endorsement `was inconsistent with the applicable standard of professional care.' Brief of App., at 5-6.
Coverage A ('Bodily Injury and Property Damage Liability') of the Westport policy expressly excludes any coverage for an employer's liability for bodily injury suffered by an employee in the scope of employment. Clerk's Papers, at 467. The Westport policy also included, as part of the Coverages section, Coverage D ('Employers Liability'), a Stop-Gap Employers Liability Endorsement (Stop-Gap Endorsement), which provided coverage for `bodily injury' of `any employee . . . who sustains an injury which arises out of and in the course of his employment.' Clerk's Papers, at 479.
On September 6, 1998, Jennifer Rose, a BluWater employee, was injured in an accident at a BluWater sponsored event on Hood Canal. After the Department of Labor and Industries rejected Rose's claim, she sued Bada for damages. Bada tendered the action to Westport, which denied coverage. Westport's denial was based in part on the Designated Premises Endorsement.
Apparently, a judgment of $623,010.32 has been entered against BluWater in Rose's personal injury action.
Westport then initiated a declaratory judgment action in Federal District Court for the Western District of Washington. The trial court granted summary judgment in favor of Westport, ruling that the policy provided no coverage for Rose's accident. The Ninth Circuit affirmed, concluding that the Designated Premises Endorsement precluded coverage because the accident was not incidental to the operations of BluWater premises.
Bada then filed this action for professional negligence against Hentschell, alleging that Hentschell had breached the appropriate standard of care by failing to obtain insurance coverage for incidents occurring away from the BluWater Bistro premises and that Bada had suffered damages as a result of Hentschell's failure to remove the Designated Premises Endorsement from the Westport policy. Hentschell moved for summary judgment, arguing that its actions were not the proximate cause of Bada's injuries. Hentschell, which was not a party to the declaratory judgment action, maintained that Rose's injuries were covered by the Stop-Gap Endorsement and that Bada's failure to assert this provision in the federal action was the proximate cause of Bada's injuries.
On March 28, 2003, the trial court denied Hentschell's motion for summary judgment. On April 28, 2003, the parties entered into a Stipulated Final Judgment and Final Declaratory Judgment, which provided that the trial court's denial of Hentschell's motion for summary judgment represented a ruling `that, as a matter of law, the Designated Premises Endorsement modifies the coverage provided under the Stop-Gap Employers' Liability Endorsement, and therefore the Westport policy does not provide coverage for the Rose lawsuit.' Clerk's Papers, at 721. As part of the stipulation, Hentschell conceded that it was negligent in arranging for the Westport policy without `discussing and explaining the significance of this material change' with Bada and that it was liable for all damages proximately caused by the negligence. The sole issue reserved for appeal was proximate cause.
On appeal, Hentschell's sole argument is that the Designated Premises Endorsement, which restricted coverage to the BluWater Bistro premises, `only modified and affected Coverages A, B, and C as listed in the CGL Coverage Part of the Westport CGL Policy,' and therefore did not modify the Stop-Gap Endorsement, Coverage D. Brief of App., at 28. Consequently, Hentschell reasons, had Bada asserted coverage based on the Stop-Gap Endorsement in the federal declaratory judgment action, Westport would have been required to provide coverage for Rose's injuries. Hentschell concludes that Bada's failure to assert coverage based on the Stop-Gap Endorsement, rather than Hentschell's negligence in arranging for a policy with a Designated Premises Endorsement, was `the true proximate cause' of Bada's damages. But the plain and unambiguous language in the Westport policy provides no support for these contentions.
Because the interpretation of an insurance policy is a question of law, we review the trial court's ruling de novo. Overton v. Consol. Ins. Co., 145 Wn.2d 417, 424, 38 P.3d 322 (2002). Insurance policies are construed as contracts, with the policy being given `a fair, reasonable, and sensible construction as would be given to the contract by the average person purchasing insurance.' Key Tronic Corp. v. Aetna, 124 Wn.2d 618, 627, 881 P.2d 201 (1994) (quoting Queen City Farms, Inc. v. Central Nat'l Ins. Co., 126 Wn.2d 50, 65, 882 P.2d 703, 891 P.2d 718 (1994)). But `[i]f the language is clear and unambiguous, the court must enforce it as written and may not modify it or create ambiguity where none exists.' American National Fire Ins. Co. v. BL Trucking Constr. Co., 134 Wn.2d 413, 428, 951 P.2d 250 (1998).
The Stop-Gap Endorsement expressly provides that it amends the Westport policy to include `Coverage D. Employers Liability' in the `Coverages' section. The Coverages section is contained in the Commercial General Liability Form. Thus, as amended by the Stop-Gap Endorsement, the Commercial General Liability Form encompasses Coverages A (Bodily Injury and Property Damage Liability), B (Personal and Advertising Liability), C (Medical Payments), and D (Employers Liability). The Designated Premises Endorsement expressly `modifies insurance provided under the . . . Commercial General Liability Coverage Part.' The Designated Premises Endorsement therefore clearly and unambiguously modifies the entire Coverages section, including Coverage D, the Stop-Gap Endorsement. Nothing in the language of the Designated Premises Endorsement indicates that it is restricted to only certain parts of the Commercial General Liability section of the policy.
For reasons that are not completely clear, Hentschell concedes that the Designated Premises Endorsement modifies Coverages A, B, and C, but asserts that D is not modified because there is no express reference to the Stop-Gap Endorsement. But Hentschell's reliance on Transcontinental Ins. Co. v. Washington Pub. Utils. Dists.' Util. Sys., 111 Wn.2d 452, 760 P.2d 337 (1988), for this proposition is misplaced for several reasons. As already indicated, the Stop-Gap Endorsement, by its express terms, is incorporated into the general liability coverage section of the Westport policy, and the Designated Premises Endorsement expressly modifies that section of the policy. Moreover, Transcontinental involved the court's attempt to construe an ambiguous endorsement and resolve the apparent conflict between a broad grant of coverage and limiting language in the policy. See Transcontinental, at 462-63. Hentschell has not identified or alleged any comparable ambiguity in the Designated Premises Endorsement.
In summary, the Designated Premises Endorsement modified the Stop-Gap Endorsement and limited bodily injury coverage for employees to the BluWater Bistro premises. The trial court therefore did not err in ruling that the Westport policy provided no coverage for the Rose action against Bada.
Affirmed.
KENNEDY and COX, JJ., concur.
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