Defense Counsel Journal - International Association of Defense ...

Page 488 DEFENSE COUNSEL JOURNAL–October 2012Utah: Great Am. Ins. Co. v. WoodsideHomes Corp., 448 F. Supp.2d 1275 (D.Utah 2006) (applying Utah law).Occurrence? Yes. Defectiveconstruction performed by asubcontractor is accidental from thestandpoint of the insured andtherefore a covered “occurrence.”Insured’s work covered? No.Defective work performed by theinsured itself is not accidental andtherefore not an “occurrence.”Vermont: Undecided.Virginia: Nationwide Mutual Ins. Co. v.Wenger, 278 S.E.2d 874 (Va. 1981).Occurrence? Yes, implicitly. Thecourt simply considered the businessrisk exclusions and concluded thatthey unambiguously barred coveragefor the insured’s own defectivework. 44Insured’s work covered? No. Thebusiness risk exclusions bar coveragefor the insured’s own faulty work.Washington: Yakima Cement ProductsCo. v. Great Am. Ins. Co., 608 P.2d 254(Wash. 1980) (en banc).44 See also Stanley Martin Cos., Inc. v. OhioCas. Group, 313 Fed. Appx. 609 (4th Cir.2009) (applying Virginia law) (damage thatsubcontractor’s defective work caused togeneral contractor’s non-defective workconstituted an “occurrence” under CGLpolicy).Occurrence? Yes. The insuredwould almost never be seen to havewrongly constructed a building orportion thereof on purpose.Therefore, even from the insured’sperspective, defects in the insured’sown work product are accidental andtherefore an “occurrence.”Insured’s work covered? No. Evenwhen the insured’s defective work isincorporated into other non-defectivework, there is no “property damage”within the meaning of the policy.West Virginia: Corder v. William W.Smith Excavating Co., 556 S.E.2d 77 (W.Va. 2001).Occurrence? No. Damage to theinsured’s work product based ondefective construction is notaccidental and therefore not an“occurrence.” However, if thedefective work results in damage toother property, that damage isaccidental and therefore an“occurrence.”Insured’s work covered? No.Wisconsin: Am. Family Mutual Ins. Co.v. Am. Girl, Inc., 673 N.W.2d 65 (Wis.2004).Occurrence? Yes. Regardless ofwhether the damage is actionable intort or contract, defectiveconstruction will rarely be intendedor expected by the insured,particularly where the defective workis performed by a subcontractor.