Insurers End ‘Cats’ Fight

Two insurers have settled their dispute over coverage involving a touring company for the musical “Cats” and an employee who was seriously injured on the set at a Providence theater in 2019.

The Providence Performing Arts Center (PPAC) employee was injured when items loaded onto a forklift he was using shifted and fell on him. The employee alleges that as a result of this incident, he has suffered permanent injuries, scarring and disfigurement to his body, nerves, and nervous system, and pain and suffering, and in the future, he will continue to endure pain and suffering, undergo medical treatment and surgeries, and suffer a loss of earnings, among other things.

The injured worker received Rhode Island workers’ compensation benefits through his employer PPAC. He did not sue his employer, PPAC, but did sue the touring company, Cats on Tour, for negligence leading to his injuries.

The dispute between insurers has centered on defense of the touring company for the employee’s negligence lawsuit, specifically whether one policy should provide primary coverage.

In June 2022, Hartford Accident and Indemnity sued for a declaratory judgment that a Massachusetts Bay Insurance Co. commercial general liability policy issued to PPAC was primary to Hartford’s excess policy and that Massachusetts Bay had an obligation to defend and indemnify Cats in the lawsuit. Hartford also sought reimbursement for the defense costs it already incurred due to Massachusetts Bay’s declining to provide coverage.

On September 12, 2024, the insurers notified Judge Margaret Guzman of the U.S. District Court for Massachusetts that they had reached a settlement. The judge dismissed the case the next day. Terms were not disclosed.

When Massachusetts Bay, a Hanover subsidiary, insured PPAC under a commercial general liability policy, the policy included the touring company as a named insured. The Hartford issued an excess liability policy to PPAC.

Massachusetts Bay argued that PPAC’s workers’ compensation coverage, and not its liability policy, was primary in the case. It also argued that its policy excluded claims for bodily injury where Cats is said to be at fault. The employee sued Cats, not its insured PPAC, the insurer noted.

Hartford argued the Massachusetts Bay policy was primary and thus Massachusetts Bay should defend and indemnify Cats. The Hartford said that under a booking agreement with Cats, PPAC was responsible for the forklift accident. Hartford said that the Massachusetts Bay policy included an endorsement extending additional insured coverage to liability for bodily injury caused, in whole or in part, by acts or omissions of those acting on PPAC’s behalf, which it said included Cats.

Hartford maintained that any coverage that might be available to Cats under the Hartford policy was excess to the additional insured coverage provided to Cats under the Massachusetts Bay policy.

However, Hartford said that in light of Massachusetts Bay’s “repeatedly” and “wrongfully” refusing coverage for the suit, it stepped in to undertake the defense of Cats. Hartford said Massachusetts Bay had further failed to reimburse it for the costs and sums it had incurred.