Commercial General Liability Coverage Exclusions Under

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l. Damage To Your Work “Property damage” to “your work” arising out of it or any part of it and included within the “products-completed operations hazard”. This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor. • Unlike exclusions j(5) and j(6), which do not apply after the insured’s work has been completed, this exclusion applies only where the damage occurs (or becomes manifest) after the insured’s work at the site has been completed, or put to its intended use by parties other than other contractors. • Note that this exclusion contains a significant exception which is of particular relevance when considering the coverage afforded to a general contractor or home builder, in that it does not apply if either the damaged work, or the work out of which the damage arises was performed by a subcontractor. That exception was evidently added to this exclusion in response to cases such as our Superior Court’s decision in Ryan Homes, Inc. v. Home Indemnity Co., 647 A.2d 939 (Pa.Super. 1994), holding on the basis of earlier policy language that the work performed by an insured home builder must be viewed as including the work of all of the subcontractors hired by the insured in connection with the overall project. <strong>Under</strong> the current language of this exclusion, it will never apply to a general contractor or home builder which subcontracts all of the work in constructing a building to other parties. m. Damage To Impaired Property Or Property Not Physically Injured “Property damage” to “impaired property” or property that has not been physically injured, arising out of: (1) A defect, deficiency, inadequacy or dangerous condition in “your product” or “your work”; or (2) A delay or failure by you or anyone acting on your behalf to perform a contract or agreement in accordance with its terms. This exclusion does not apply to the loss of use of other property arising out of sudden and accidental physical injury to “your product” or “your work” after it has been put to its intended use. • The interpretation of this exclusion is obviously dependent upon the meaning of the term, “impaired property”, which is essentially defined elsewhere in the CGL form as meaning tangible property other than the named insured’s work or product that either cannot be used, or is rendered 18
less useful because it incorporates the named insured’s defective or deficient work or product, and which can be restored to use by repairing, replacing, adjusting or removing the insured’s work or product. • A good example of a situation in which this exclusion would apply can be found in the case of St. Paul Fire & Marine Ins. Co. v. The Bergquist Co., 31 Phila. 122, 28 D.&C.4th 141 (1996), where the insured supplied heat transfer tape for use in a manufacturer’s water coolers which omitted an offensive sulphur or rotten egg like odor when the coolers were placed in use, requiring the purchaser to rework already manufactured coolers to remove and replace the defective tape. It was held that the manufacturer’s claims for the cost of taking those steps and for lost profits resulting from cancelled orders for the coolers fell within the scope of the exclusion since the water coolers were clearly “impaired property” which could be restored to use by the removal and replacement of the insured’s product. The court also held that the claims would fall within the “product recall” exclusion discussed below. n. Recall Of Products, Work Or Impaired Property Damages claimed for any loss, cost or expense incurred by you or others for the loss of use, withdrawal, recall, inspection, repair, replacement, adjustment, removal or disposal of : (1) “Your product”; (2) “Your work”; or (3) “Impaired property” if such product, work, or property is withdrawn or recalled from the market or from use by any person or organization because of a known or suspected defect, deficiency, inadequacy or dangerous condition in it. • Although prior versions were sometimes referred to as the “sistership” or “product recall” exclusion, the language of this policy exclusion actually extends far beyond situations in which there has been a formal recall of a defective product from the marketplace and should apply whenever an insured’s work or its product are withdrawn from use by anyone due to a defect, deficiency, inadequacy or dangerous condition. • One example might be a situation in which an insured plumbing contractor improperly installs a defective shower drain line, causing water to leak to the room below. In order to inspect, repair, remove, replace or adjust that defective work, it is necessary for the homeowner or its new contractor to remove the glass shower enclosure and to demolish the tile flooring. The expenses incurred for that work should fall within the intended scope of this exclusion and/or Exclusion n. 19
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Commercial General Liability Coverage Exclusions Under

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