Tred R. Eyerly | Insurance Law Hawaii
The insured Developer survived a motion to dismiss by one of several carriers who were asked to defend against claims for faulty workmanship. East 111 Assoc. LLC v. RLI Ins. Co., 2019 N.Y. Misc. LEXIS 5331 (Oct. 4, 2019).
Developers sponsored a residential condominium project and sold all units. The owners subsequently sought damages for $881,450 for alleged design and construction defects, and asserting causes of action for, among other things, breach of contract, specific performance and negligence. The underlying action settled for $350,000. Developers sought coverage from its insurers.
The Developers sued the carriers for a declaratory judgment that they were entitled to a defense. Developers had a CGL policy issued by Mt. Hawley. Developers were also additional insureds in policies issued to subcontractors by James River, Admiral and Selective. The insurers moved to dismiss.
The insurers’ breach of contract exclusion precluded coverage for “property damage . . . arising directly or indirectly out of . . . (a) Breach of express or implied contract; (b) Breach of express or implied warranty . . .” Developers argued that the owners’ cause of action for negligence did not fall within this exclusion. However, the negligence cause of action alleged – as did the breach of contract – that Developers constructed the building with design and construction defects and not in accordance with the offering plan. Since all of the alleged “property damage arose directly or indirectly” from Developers’ alleged breach of express or implied contract by their failure to deliver a building free of defects, the underlying action fell within the breach of contract exclusions. Therefore, motions to dismiss by James River, Admiral, and Mt. Hawley were granted.
The Developers were additional insureds under the Selective policy issued to Walsh, a subcontractor. The underlying complaint carried the possibility that Walsh’s allegedly fault workmanship damaged other parts of the building – which was not, as a whole, Walsh’s work – an “occurrence” giving rise to “property damage” could exist under the Selective policy. Accordingly, the alleged water damage triggered Selective’s duty to defend Developers.