Tred Eyerly | Insurance Law Hawaii | August 16, 2017
The court found that the insured’s faulty construction of an outside deck did not arise from an occurrence. Employers Mut. Cas. Co. v. West, 2017 U.S. Dist. LEXIS 113951 (N.D. Miss. July 21, 2017).
D.L. Action Construction Company (DLA) constructed multifamily dwellings. They were sued by the homeowners after a deck collapsed at one of the dwellings. Also sued was the subcontractor, Littrell Construction, who installed the deck. The homeowners alleged that Littrell knew that college students would be residing in the units and that the decks would be heavily used. The decks were attached to the building structure using only nails instead of bolts.
On November 22, 2014, the deck collapsed, causing everyone standing on the deck to fall onto cars parked below. Regarding injuries sustained in the fall, the homeowners claimed against Littrell for negligence, breach of warranty, misrepresentation, fraud, fraudulent concealment, and wanton, gross, and/or intentional conduct. DLA cross-claimed against Littrell, seeking indemnification.
Employers Mutual denied coverage because there was no occurrence. The court granted summary judgment to Employers Mutual. In his deposition, Jason Littrell testified that the method he used to fasten the deck, using nails secured into oriented strand board, would not be an appropriate method of fastening a deck used for live loads. Further, he testified that he knew people would use the deck.
Bodily injury or property damage, expected or intended from the standpoint of the insured, could not be the result of an accident. The result of improperly constructing the deck was the failure and collapse of the deck, which were will within Littrell’s foresight and anticipation. Consequently, there was no occurrence and Employers Mutual had no duty to defend or indemnity.