Faulty Workmanship Claims Amount to Multiple Occurrences

Tred R. Eyerly | Insurance Law Hawaii

    In a recommended decision, the magistrate found that claims of faulty workmanship against the insured constituted multiple occurrences. Millsap Waterproofing, Inc. v. United States Fire Ins. Co., 2022 U.S. Dist. LEXIS 90112 (S.D. Tex. May 19, 2022).     

    Maravilla Condominiums in Galveston, Texas was damaged by Hurricane Ike in 2008. While repairing the damage caused by the hurricane, an unrelated fire broke out and damaged 77 units. 

    In 2010, the Maravilla Owners Association, Inc. hired several contractors, including Millsap Waterproofing, Inc. Multiple problems arose with the various contractors’ work. In 2016, Maravilla sued the contractors alleging that their shoddy work damaged the condominium complex. More than 80  condominium owners intervened, alleging that Millsap negligently performed work on windows, doorways, walkways, and balconies, resulting in extensive water damage. 

    Millsap had two policies. Amerisure issued a primary policy with limits $1 million per occurrence, subject to a $2 million aggregate limit. Millsap also had an umbrella policy issued by United States Fire Insurance Company with limits $11 million per occurrence in excess of the Amerisure policy. Amerisure agreed to defend. When it became clear that the claims would not settle for less than $1 million, Amerisure argued that the plaintiffs’ damages arose from a single occurrence and refused to contribute more than $1million to a potential settlement. U.S. Fire denied coverage because it determined that the damages stemmed from multiple occurrences and were, therefore, subject to Amerisure policy’s $ 2 million aggregate limit. 

    Millsap settled by adding $550,000 of its own money to the $1 million contributed by Amerisure.

    Millsap sued both insurers and filed a motion for partial summary judgment seeking a determination on whether Millsap’s liability resulted from one or more occurrences. The motion was presented to the magistrate judge.

    Texas applied the “cause” approach to determine the number of occurrences. Under this test, the focus was on the events that caused the injuries and gave rise to the insured’s liability, rather than on the number of injurious effects. The appropriate inquiry was whether there was one proximate, uninterrupted, and continuing cause which resulted in all the injuries and damage. If so, then there was a single occurrence. If the chain of proximate causation was broken by a pause in the negligent conduct or by some intervening cause, then there were multiple occurrences, even if the insured’s negligent conduct which cause each of the injuries was the same kind of conduct.

    Amerisure argued that Millsap’s negligent workmanship was the single proximate, uninterrupted, and continuing cause for damages sought against it. But this overlooked Millsap’s various acts of faulty workmanship. The damages caused by Millsap were not the result of a single, uninterrupted, continuing cause, but from different types of work on multiple areas of separate buildings. The work lasted over a 10 month period and caused damages to both the individual condominium units and common elements. 

    The magistrate judge recommend that the court grant Millsap’s motion to the extent it requested a finding that the claims brought against it involved more than one occurrence, and deny Amerisure’s Motion for Summary Judgment. 

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Fifth Circuit Requires Causal Distinction for Ensuing Loss Exception to Faulty Work Exclusion

Avery J. Cantor and William S. Bennett | Saxe Doernberger & Vita

In Balfour Beatty v. Liberty Mutual Ins. Co., the 5th Circuit Court of Appeals provided valuable insight on coverage available through ensuing loss exceptions to faulty work and design exclusions in builder’s risk insurance policies. In Balfour Beatty, the Court held that, in order to establish coverage through an ensuing loss exception, the ensuing loss must be causally distinct from the original excluded loss.1

Balfour Beatty, serving as general contractor for construction of a commercial office building in Houston, Texas, subcontracted with Milestone for steelwork on the project. As part of this work, Milestone welded a 2-inch metal plate to external tubing on the eighteenth floor of the building. While welding the plate in place, welding slag fell down the side of the building, damaging exterior glass windows on the floors below.

Balfour Beatty and Milestone, along with the developer, sought coverage for the damage to the windows under their builder’s risk policy, issued by Liberty Mutual. Liberty Mutual denied coverage, claiming that the damage was excluded by the policy’s “Defects, Errors, and Omissions” exclusion. The insureds sued, arguing that the ensuing loss exception to this exclusion would carve back coverage because the damage to the windows constituted an “ensuing loss.”

The Court interpreted the policy to exclude damage “caused by” or “resulting from … act[s] … relating to … construction.” However, coverage would apply for any loss caused by “an act, defect, error, or omission” that “results in a covered peril.” The parties agreed that the exclusion barred coverage, except to the extent the exception applied. Accordingly, the Court’s analysis focused on whether Milestone’s welding operations was a separable resulting “covered peril,” distinct from the welding operations.

The Court characterized the falling slag as the damage resulting from the welding operations and, on that basis, held that the falling slag did not constitute a separate event resulting in a covered peril. In effect, the Court interpreted the language of the exception to require that there be a second, entirely distinct, loss event – one of which is an excluded peril and a second, which is the resulting covered peril. In this case, the Court determined that the damage to the windows directly resulted from the falling slag, which itself directly resulted from the subcontractor’s faulty work, rather than from a separate event resulting in a covered peril. Based on this analysis, the Court held that the damage to the windows was not an ensuing loss.

It is important to consider this case in context. Case law addressing faulty work exclusions, including the LEG formsand others, is relatively uncommon. Where guidance does exist, it tends to be piecemeal and underdeveloped in any one particular jurisdiction. This can give outsized consideration to cases from outside of the jurisdiction where your particular dispute occurs. For that reason, all cases addressing these issues should be carefully considered and should be on contractors’ radar. Understanding this function of your builder’s risk policy can be one of the most important aspects of the program, as terms can differ significantly. Where deficiencies potentially exist, contractors should consider whether they have options to enhance that aspect of their program or supplement the program with other lines of coverage that can potentially respond in situations like the one in Balfour Beatty.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Insurers Must Defend Allegations of Faulty Workmanship

Tred R. Eyerly | Insurance Law Hawaii

    Granting the insured’s motion for partial judgment on the pleadings, the court determined the insurers had a duty to defend. Suez Treatment Solutions, Inc. v. Ace Am. Ins. Co. & Liberty Mut. Fire Ins. Co., 2022 U.S. Dist. LEXIS 59044 (S. D. N. Y. March 30, 2022). 

    Suez Treatment Solutions, Inc. held policies from Chubb and Liberty Mutual Fire Insurance Company to cover its operations in connection with the development of a pollution treatment system in North Carolina. When the project ultimately failed, an underlying action sought damages from Suez, alleging breach of contract, negligence, and fraud. Suez filed this case seeking a declaratory judgment that Chubb and Liberty were each obligated to defend and indemnify Suez in the underlying case. 

    The City of High Point hired Suez to upgrade the facilities at its wastewater treatment plant staring in 2021. Because mercury levels were too high in emissions from sewage-sludge incinerators, Suez began working on the installation of a Mercury Removal System. After installation, a leak occurred in a component known as the heat exchanger. The leak caused the system to shut down and weeks-long repairs began. 

    The underlying complaint alleged that the day after the system shut down for repairs, Suez and its subcontractor left and did not instruct High Point on how the system should be monitored during the shutdown. The shutdown caused an increase of the carbon monoxide levels. High Point contacted Suez who instructed the plant to open an outlet damper to evacuate the heat. This action caused temperatures to increase, however. A fire ignited, and the burning carbon created high concentrations of toxic sulphur-dioxide gas. It was alleged that fire created health and safety hazards at the treatment plant and surrounding area. The fire was finally extinguished almost a month after the shutdown by dumping the carbon out of the unit. 

    According to the City, Suez did nothing to repair the unit for months. When attempts to repair were made, they were fruitless. Another fire occurred during the planned start-up, causing extensive damage to the system. 

    High Point sued for breach of contract, breach of warranties, negligence, negligent misrepresentation, fraud, and unfair and deceptive trade practices.  

    When a defense was denied, Suez sued Chubb and Liberty for a declaratory judgment. The Chubb policy was a Contractors Pollution Liability and Errors & Omission Policy that ran from July 24, 2016 to July 24, 2017. Liberty issued a CGL policy with a policy period from March 1, 2016 to March 1, 2017. Suez moved for partial judgment on the pleadings.

    Chubb relied upon a Products Liability Exclusion to deny coverage. The exclusion barred coverage for any suit against Suez “arising out of or related to” “[a]ny goods, products or equipment designed, manufactured, sold, supplied or distributed by [Suez].” The underlying complaint alleged that Suez supplied the mercury removal system that caused the loss and that Suez served as a sales force and distributor. Other underlying allegations, however, related to professional services rendered at the facility, therefore falling outside the scope of the Products Liability Exclusion and triggering a duty to defend. There was a question of fact with respect to whether the damages arose entirely from the “design, manufacture, sale, supply or distribution” of the mercury removal system by Suez, or if other actions taken by Suez – such as a failure to train or supervise – also gave rise to the damage at the High Point facility. Therefore, the Products Liability Exclusion did not, at this stage, preclude coverage as a matter of law. 

    Numerous issues of fact meant that Liberty also had a duty to defend. Liberty argued there was no occurrence because the damage arose from faulty workmanship. But Liberty read the underlying complaint too narrowly. The complaint alleged damage beyond the property Suez supplied, caused by an accident or repeated exposure to conditions. For example, the underlying complaint alleged that the fire damaged other components of the system.

    The business risk exclusions in Liberty’s policy also did not bar coverage because issues of fact were present. Further, although the underlying complaint alleged “design and oversight responsibilities” were breached, the Professional Liability Exclusion did not bar coverage because the underlying complaint did not allege that the property damaged arose solely out of a failure to render professional services. 

    Therefore, the court granted Suez’s motion against both Chubb and Liberty, granting declaratory relief with respect to the duty to defend. 

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Insurer Must Defend Faulty Workmanship Claims

Tred R. Eyerly | Insurance Law Hawaii

   The court determined that the insurer improperly denied a defense for construction defect claims made against the insured. Amerisure Mut. Ins. Co. v. McMillin Tex. Homes, 2022 U.S. Dist. LEIS 40363 (W.D. Texas March 8, 2022). 

    McMillin was a developer, general contractor and home seller. It constructed multiple homes in various communities in the San Antonio area. After the homes were completed, homeowners observed defects in the artificial stucco exterior finish. After claims were lodged against McMillin, the various claims were tendered to Amerisure. Amerisure filed for declaratory judgment that it had to duty to defend or indemnify and moved for summary judgment.

    Amerisure first argued the homeowners’ faulty workmanship claims did not allege “property damage” under the policies. It argued there were no allegations that any property damage existed, but merely that the stucco suffered from construction defects. The court disagreed. Among the allegations was the statement that due to the construction defects, the homes suffered damage “not only to the exterior stucco, but also to the underlying wire lath, paper backing, house wrap, flashing, water resistive barriers, sheathing, interior walls, interior floors and/ or other property.” Consequently, the underlying claims amounted to property damage.

    The court then considered exclusions relied upon by Amerisure. Exclusions J (5) and (6) precluded coverage for faulty workmanship. Both were limited by the phrase “that particular party” of property damaged due to the insured’s work. This limitation precluded application of the exclusions to damage on other parts of the home or non-defective portions of the insured’s work. Here, several of the homeowners alleged damage to parts of the house beyond the stucco system, including interior walls, interior floors and other property. Therefore, Amerisure failed to establish as a matter of law that Exclusions J (5) and (6) prohibited coverage for the homeowners’ claims. 

    Next the court determined that Exclusion k did not apply to the construction of a building because buildings were constructed or erected, not manufactured. 

    Exclusion L, Damage to Your Work, only applied to exclude damages to the insured’s “competed” work. The underlying complaints did not specifically allege when property damage from McMillin’s work occurred. The property damage could have occurred before, during, and after completion of McMillin’s work. 

    Finally, there was a duty to defend rip and tear allegations. Amerisure asserted that the policy did not cover tear-out work performed to remove and replace the stucco system because defective work itself did not constitute covered “property damage” and any ensuing tear-out work would not qualify for independent coverage under the policies. The extent of any property damage and whether repair or removal of the stucco exterior was necessary to fix any covered damages would depend upon the facts in each instance. For the duty to defend analysis, the insured needed only to demonstrate the potential that tear-out work would be necessary. 

    The duty to indemnify could only be determined when the underlying suit was concluded.

    Consequently, Amerisure’s motion for summary judgment was denied. 

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Prior Occurrence Exclusion Bars Coverage for Construction Defects

Tred R. Eyerly | Insurance Law Hawaii

       While the insured’s faulty work constituted an occurrence under Florida law, a prior occurrence exclusion barred coverage. Pro-Tech Caulking & Waterproofing v. TIG Ins. Co., 2022 U.S. Dist. LEXIS 12319 (S.D. Fla. Jan. 19, 2022).

    Pro-Tech was a waterproofing subcontractor for construction of a oceanfront condominium building and was responsible for the installation of waterproofing systems on the Project. Pro-Tech entered into a separate contract with the developer, BRE Point Parcel, LLC to install a traffic coating on the garage floors.

    BRE sued the general contractor, Pro-Tech and others for construction defects. The underlying action alleged that Pro-Tech, among other things, failed to wrap the filter fabric to protect the weep holes, improperly installed sealants between the stucco and the underside of the horizontal tile at the balcony slab edge, and failed to properly install traffic coating in one garage. The underlying complaint did not state exactly when the “property damage” resulting from Pro-Tech’s alleged defective work occurred.

    Pro-Tech tendered under its CGL policy to TIG. The policy excluded prior occurrences and pre-existing damage. The policy stated, in part, “It is agreed that this insurance does not apply to any ‘occurrence’ of incident, claim or ‘suit’ which first occurred prior to the inception date of this policy . . .” The tender was denied. Pro-Tech sued TIG. TIG moved for summary judgment,

    The court concluded that TIG was entitled to summary judgment. Coverage did not apply because the relevant “occurrences” were in the process of occurring at the inception of the policy period. Pro-Tech’s alleged defective work was fully performed prior to the start of the policy period. Accordingly, TIG did not have a duty to defend and summary judgment in TIG’s favor was warranted. 

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.