MEMORANDUM DECISION AND ORDER I. INTRODUCTION Plaintiff, CONMED Corporation, initiated this lawsuit against Defendant, Federal Insurance Company, on January 25, 2021. See Dkt. No. 1. In its amended complaint, Plaintiff alleges that Defendant breached the terms of their insurance contract when Defendant failed to defend Plaintiff’s indemnitee, Sterigenics, in a lawsuit in Georgia. See Dkt. No. 24 at 9. On June 10, 2021, each party filed a motion for judgment on the pleadings. See Dkt. Nos. 37, 38. For the following reasons, Plaintiff’s motion is granted and Defendant’s motion is denied. II. BACKGROUND Plaintiff, a medical technology company, operates a distribution warehouse facility in Lithia Springs, Georgia. See Dkt. No. 24 at 3. Beginning in 2010, Plaintiff contracted with Sterigenics U.S., LLC to sterilize its medical devices with a technique using Ethylene Oxide (“EtO”).1 See id. at 35; Dkt. No. 24-4. On May 19, 2020, 53 individuals filed a lawsuit against Plaintiff and Sterigenics in Georgia state court. Id. at 28; Essence Alexander, et al. v. Sterigenics U.S., LLC, et al., C.A. No. 20-A-1645 (State Court of Cobb County) (“Alexander Action”). The plaintiffs in the Alexander Action are current and former employees of Plaintiff at the Lithia Springs distribution facility and allege that they were exposed to unsafe levels of EtO. See Dkt. No. 24-6 at 91. Plaintiff is defending Sterigenics in the Alexander Action, citing an obligation to do so under an indemnification agreement between Plaintiff and Sterigenics. Dkt. No. 24 at 38. Since 2009, Plaintiff has purchased insurance policies from Defendant, which include coverage for defense costs, indemnification obligations, and other losses resulting from bodily injury. See Dkt. No. 24-1 at 21. On May 26, 2020, Plaintiff gave Defendant notice of the Alexander Action, including Plaintiff’s indemnification of Sterigenics. Dkt. No. 24 at 39. On November 16, 2020, Defendant denied coverage of the defense costs for Sterigenics in the Alexander Action. Id. at 44. Plaintiff initiated this suit on January 25, 2021, alleging that Defendant’s denial was a breach of their contract. See generally Dkt. No. 1. A. The Insurance Policy The insurance policy between Plaintiff and Defendant requires Defendant to “defend [Plaintiff] against a suit, even if such suit is false, fraudulent or groundless.” Dkt. No. 24-1 at 21. The duty to defend extends to “the indemnitee of the insured, provided the obligation to defend, or the cost of the defense of, such indemnitee has been assumed by [Plaintiff] in an insured contract.” Id. The policy defines “insured contract” to include “any other contract or agreement pertaining to your business…in which you assume the tort liability of another person or organization to pay damages, to which this insurance applies, sustained by a third person organization.” Id. at 43. As relevant to the Alexander Action, the insurance agreement between Plaintiff and Defendant applies to “bodily injuries”2 assumed in an “insured contract.” Id. at 20. The policy includes several exclusions. Relevant here, the policy excludes “bodily injury” to Plaintiff’s employees arising out of the course of their employment, but the exclusion does not apply to liability for damages assumed by Plaintiff in an “insured contract.” Id. at 28-29. Additionally, the policy excludes “bodily injury” arising out of “the actual alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants.” Id. at 35. B. Plaintiff and Sterigenics’ Indemnification Agreement Plaintiff and Sterigenics entered into two relevant agreements, the first was effective from December 17, 2010, to December 31, 2016, and the second from March 28, 2017, to December 31, 2021. See Dkt. Nos. 24-3, 24-4. The agreements include similar indemnification provisions, which exclude from indemnification the damages that arise out of Sterigenics’s negligence. Relevant here, the indemnification provision in the 2010 agreement between Plaintiff and Sterigenics excludes damages that “arise out of Sterigenics’ negligent acts or omissions.” Dkt. No. 24-4 at 6. The 2017 agreement, however, only excludes damages that “arise exclusively and directly out of Sterigenics’ negligent acts or omissions.” Dkt. No. 24-3 at 7. Additionally, the 2017 agreement includes a reciprocal indemnification obligation, which states: Sterigenics agrees to indemnify, defend and hold Customer harmless from and against all Damages incurred or suffered by Customer arising out of or in connection with third party claims that arise out of or in connection with Sterigenics negligent acts or omissions, except to the extent such Damages arise out of the negligent acts or omissions of Customer. Id. C. The Alexander Action The Alexander Action is brought by 53 individuals who are current and former employees of Plaintiff, as well as contractors and other temporary workers, at Plaintiff’s Lithia Springs distribution facility from 2007 to 2019. See Dkt. No. 24-6 at 91. The original complaint was filed on May 19, 2020, an amended complaint on October 28, 2020, and a second amended complaint on February 4, 2021. See Dkt. Nos. 38-2, 38-3, 38-4. In general, the complaint alleges that Sterigenics failed to remove EtO residue from equipment, failed to monitor the safety of items before shipping them to Plaintiff, and shipped hazardous materials in unmarked and nonequipped trucks, among other things. See Dkt. No. 24-6 at
