American Family Mutual Ins. Co. v. American Girl - Insurance ...
American Family Mutual Ins. Co. v. American Girl - Insurance ...
American Family Mutual Ins. Co. v. American Girl - Insurance ...
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673 N.W.2d 65 Page 8<br />
268 Wis.2d 16, 673 N.W.2d 65, 2004 WI 2<br />
(Cite as: 268 Wis.2d 16, 673 N.W.2d 65)<br />
An amicus curiae brief was filed by Thomas J. Misfeldt,<br />
Christine A. Gimber and Weld, Riley, Prenn &<br />
Ricci, S.C., Eau Claire, on behalf of Civil Trial<br />
<strong>Co</strong>unsel of Wisconsin.<br />
An amicus curiae brief was filed by David A. Krutz,<br />
Dereck R. Brower and Michael Best & Friedrich LLP,<br />
Waukesha, on behalf of The <strong>American</strong> Subcontractors<br />
Association, Inc.<br />
An amicus curiae brief was filed by William E.<br />
McCardell and DeWitt Ross & Stevens S.C., Madison,<br />
and Teresa Mueller, Madison, on behalf of Associated<br />
*25 General <strong>Co</strong>ntractors of Wisconsin, Inc., Associated<br />
General <strong>Co</strong>ntractors of Greater Milwaukee, and<br />
Allied <strong>Co</strong>nstruction Employers Association.<br />
1 DIANE S. SYKES, J.<br />
This insurance coverage dispute presents an array<br />
of legal issues pertaining to the proper interpretation<br />
of coverage and exclusion language in several<br />
post-1986 commercial general liability (“CGL”) and<br />
excess insurance policies.<br />
2 The dispute initially focuses on the meaning<br />
of “property damage” and “occurrence” in the standard<br />
CGL insuring agreement's grant of coverage. The<br />
parties also dispute the applicability of several exclusions:<br />
for “expected or intended” losses; “contractually-assumed<br />
liability”; and certain “business risks”<br />
(a/k/a “your work” or “your product” exclusions).<br />
There is a question about the applicability of the<br />
“professional services liability” exclusion in certain<br />
excess policies. Finally, the parties dispute the effect<br />
of the economic loss doctrine on the availability of<br />
insurance coverage, as well as the application of the<br />
common law “known loss” doctrine to certain of the<br />
policies.<br />
3 The factual context is a construction project<br />
gone awry: a soil engineering subcontractor gave<br />
faulty site-preparation advice to a general contractor<br />
in connection with the construction of a warehouse.<br />
As a result, there was excessive settlement of the soil<br />
after the building was completed, causing the building's<br />
foundation to sink. **70 This caused the rest of<br />
the structure to buckle and crack. Ultimately, the<br />
building was declared unsafe and had to be torn down.<br />
4 The general contractor, potentially liable to<br />
the building owner under certain contractual warran-<br />
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.<br />
ties, notified its insurance carriers of the loss. <strong>Co</strong>ntractually-required<br />
arbitration between the owner *26<br />
and the contractor was initiated and stayed pending<br />
resolution of coverage questions involving several of<br />
the contractor's insurers. The circuit court, on summary<br />
judgment, found coverage under some but not all<br />
of the policies. The court of appeals reversed, concluding<br />
that the “contractual liability” exclusion in<br />
each of the policies excluded coverage. FN1 We reverse.<br />
FN1. <strong>American</strong> <strong>Family</strong> Mut. <strong>Ins</strong>. <strong>Co</strong>. v.<br />
Pleasant <strong>Co</strong>., 2002 WI App 229, 257 Wis.2d<br />
771, 652 N.W.2d 123.<br />
5 The threshold question is whether the claim at<br />
issue here is for “property damage” caused by an<br />
“occurrence” within the meaning of the CGL policies'<br />
general grant of coverage. We hold that it is. The CGL<br />
policies define “property damage” as “physical injury<br />
to tangible property.” The sinking, buckling, and<br />
cracking of the warehouse was plainly “physical injury<br />
to tangible property.” An “occurrence” is defined<br />
as “an accident, including continuous or repeated<br />
exposure to substantially the same general harmful<br />
condition.” The damage to the warehouse was caused<br />
by substantial soil settlement underneath the completed<br />
building, which occurred because of the faulty<br />
site-preparation advice of the soil engineering subcontractor.<br />
It was accidental, not intentional or anticipated,<br />
and it involved the “continuous or repeated<br />
exposure” to the “same general harmful condition.”<br />
Accordingly, there was “property damage” caused by<br />
an “occurrence” within the meaning of the CGL policies.<br />
6 We also conclude that the economic loss<br />
doctrine does not preclude coverage. The economic<br />
loss doctrine generally operates to confine contracting<br />
parties to contract rather than tort remedies for recovery<br />
of purely economic losses associated with the<br />
contract relationship. The doctrine does not determine<br />
insurance*27 coverage, which turns on the policy<br />
language. That the property damage at issue here is<br />
actionable in contract but not in tort does not make it<br />
“non-accidental” or otherwise remove it from the<br />
CGL's definition of “occurrence.”<br />
7 We further hold that because the property<br />
damage at issue here was neither expected nor intended,<br />
the “expected or intended” exclusion does not<br />
apply.