Defense Counsel Journal - International Association of Defense ...

More documents

Recommendations

Info

Page 482 DEFENSE COUNSEL JOURNAL–October 2012from his work, then the resultingdamage is accidental and therefore an“occurrence.”Insured’s work covered? Unknown.Since the business risk exclusionswere not addressed in the trial court,the appeals court remanded for thetrial court to consider the exclusions inthe first instance.Indiana: Sheehan Const. Co., Inc. v.Continental Casualty Co., 935 N.E.2d160 (Ind. 2010).Occurrence? Yes. As long as theresulting damage is an event thatoccurs without expectation orforesight, defective construction canconstitute an accident and thereforean “occurrence.”Insured’s work covered? No. Onlydamage to property other than theinsured’s work is covered. Thebusiness risk exclusions clearlyexclude coverage for damage to theinsured’s work.Iowa: Pursell Const., Inc. v. HawkeyeSecurity Ins. Co., 596 N.W.2d 67 (Iowa1999).Occurrence? No. Defective workstanding alone is not an accident andtherefore not an “occurrence.”Insured’s work covered? No, butdamage to property other than theinsured’s work would presumably becovered.Kansas: Lee Builders, Inc. v. FarmBureau Mutual Ins. Co., 137 P.3d 486(Kan. 2006).Occurrence? Yes. As long as thedamage resulting from defectiveconstruction was unforeseen andunintended by the insured, it isaccidental and therefore an“occurrence.”Insured’s work covered? Yes,implicitly. The Lee Builders courtcould have considered the businessrisk exclusions, but did not, choosinginstead to hold simply that thedefective construction was an“occurrence” and therefore covered.Kentucky: Cincinnati Ins. Co. v.Motorists Mutual Ins. Co., 306 S.W.3d 69(Ky. 2010).Occurrence? No. Although aninsured would almost never haveintended to perform substandardwork, the concept of fortuity has asecond aspect: control. For thedefective construction to be anaccident, it must be a chance event,beyond the insured’s control.Insured’s work covered? No. 37Louisiana: Joe Banks Drywall &Acoustics, Inc. v. Transcontinental Ins.Co., 753 So.2d 980 (La. Ct. App. 2000).Occurrence? Yes. As long as thecomplaint does not allege that the37 See McBride v. Acuity, No. 5:10-CV-173,2011 WL 6130922 (W.D. Ky. Dec. 11, 2011).
Raising the Roof Page 483insured intended the damage, thedefective construction was accidentaland therefore an “occurrence.”Insured’s work covered? No. Thebusiness risk exclusions clearly applyto bar coverage for damage to theinsured’s work. Damage to otherproperty would presumably becovered.Maine: Massachusetts Bay Ins. Co. v.Ferraiolo Construction Co., 584 A.2d608 (Me. 1990); Peerless Insurance Co.v. Brennon, 564 A.2d 383 (Me. 1989).Occurrence? Yes. Comprehensivegeneral liability insurance is intendedto cover occurrence of harm risks,but not business risks. Occurrence ofharm risks are those involving harmto others due to faulty work orproducts, while business risks arethose involving business expensesincurred by the insured for repair orreplacement of unsatisfactory work.Insured’s work covered? No.Maryland: French v. Assurance Co. ofAm., 448 F.3d 693 (4th Cir. 2006)(applying Maryland law).Occurrence? No. The defectiveperformance of work can never be anaccident and therefore is not an“occurrence.”Insured’s work covered? No, unlessthe damage was to non-defectivework of the insured which resultedfrom defective work performed by asubcontractor (under thesubcontractor exception to the “yourwork” exclusion).Massachusetts: Commerce Ins. Co. v.Betty Caplette Builders, Inc., 647 N.E.2d1211 (Mass. 1995).Occurrence? Yes. The courtappeared to gloss over this questionsince the insurer did not dispute thatthe claims would be covered in theabsence of the “your work”exclusions.Insured’s work covered? No. Thecourt rejected the applicability of the“your work” exclusion and itssubcontractor exception, choosinginstead to hold that the entire housewas the insured’s “product.” Thus,the “your product” exclusion appliesto bar coverage entirely.Michigan: Auto Owners Ins. Co. v.Long’s Tri-County Mobile Home, Inc.,No. 252580, 2005 WL 1522169 (Mich.Ct. App. June 28, 2005).Occurrence? No, unless the defectiveconstruction causes damage toproperty other than the insured’swork. 38Insured’s work covered? No. Onlydamage to property other than theinsured’s work is covered.38 See also Kent Companies v. Wausau Ins.Co., No. 295237, 2011 WL 1687676 (Mich.App. May 3, 2011).
Page 4 and 5:
Page 380advanced in the world, yet
Page 6 and 7:
Page 3822013 midyear MeetingFebruar
Page 8 and 9:
Page 384Defense Counsel JournalBoar
Page 10 and 11:
Page 386Calendarof MeetingsMidyear
Page 12 and 13:
Page 388 DEFENSE COUNSEL JOURNAL-Oc
Page 14 and 15:
Page 16 and 17:
Page 18 and 19:
Page 20 and 21:
Page 22 and 23:
Page 24 and 25:
Page 28 and 29:
Page 30 and 31:
Page 32 and 33:
Page 34 and 35:
Page 36 and 37:
The Global Supply Chain: Understand
Page 38 and 39:
Page 40 and 41:
Page 42 and 43:
Page 44 and 45:
Page 46 and 47:
Page 48 and 49:
Page 50 and 51:
Page 52 and 53:
Page 54 and 55:
Page 56 and 57: Page 432 DEFENSE COUNSEL JOURNAL-Oc
Page 62 and 63: Fending off the Use of a Rule 12(f)
Page 78 and 79: Predictability in Punitive Damages:
Page 114 and 115: CONNINGConning theIADC NewslettersI
Page 118 and 119: Newsletters Page 494TEXAS STATE COU
Page 136: U.S. Postal Service Statement of Ow
show all

Defense Counsel Journal - International Association of Defense ...

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?