1 Construction Law Allocation of Risk Among Multiple Insurers By R. Michael Ethridge and Katherine W. Sullivan Progressive Damage Construction Defect Cases The landscape surrounding these issues is constantly changing and never boring. Deciding whether a construction defect claim is covered by a contractor s commercial general liability (CGL) policy is always a sticky proposition. Among the most vexing problems for coverage and defense counsel alike, in a case involving a progressive injury, is which insurance policy is implicated. Unlike the typical personal injury case that would implicate only one CGL policy because the injury would occur during one policy period, a progressive damage construction defect case creates a unique situation, and depending on the state, multiple policies can be triggered. Courts around the country have struggled with how to allocate damages among multiple insurers in these progressive damage cases. This article will briefly attempt to address the different approaches that the states have used to determine coverage triggers in construction cases as well as the methods used by the states to allocate risks among multiple insurers. The following hypothetical scenario will serve as the framework for discussing some of the complications that can arise when attempting to allocate damages in a progressive damage construction defect case. Hypothetical Scenario A general contractor builds a multimillion dollar oceanfront home in At the time of construction the general contractor is insured under a standard CGL policy, ISO Form CG The anniversary date of the policy is January 1. Construction began on June 1, 2005, and was completed on April 1, 2006, with the certificate of occupancy issued on May 1, Because of the collapse of the real estate market, the general contractor goes out of business on December 31, In 2007, the homeowners notice water coming into their home around windows and doors and also begin to experience a serious problem with mold growth on the interior walls. They contact the general contractor who investigates and attempts to perform certain repairs. The general contractor s attempted repairs are not successful, and in October 2007, the homeowners hire a lawyer who immediately R. Michael Ethridge is a partner and Katherine W. Sullivan is an associate of Carlock Copeland & Stair in the firm s Charleston, South Carolina, office. They are both regular contributors to the firm s insurance coverage blog at Mr. Ethridge represents insurance companies, general contractors, construction design professionals, small business owners and others in insurance coverage and civil litigation. Ms. Sullivan focuses on general civil litigation, including construction, insurance coverage and bad faith, personal injury defense, and professional liability defense. 52 For The Defense June DRI. All rights reserved.
2 hires an engineering consultant to investigate the source of the water intrusion and to develop a repair plan delineating the repair scope. The engineer s report, dated December 1st, 2007, identifies numerous construction deficiencies and building code violations. The consultant concludes that these deficiencies are causing significant water intrusion around windows and doors and mold growth on the interior walls. The lawyer hires another consultant to provide an estimate for the repairs. The estimated cost of repairs is $1.75 million, given the extensive nature of the damages and construction deficiencies. The homeowners file a lawsuit in February Litigation ensues, and the wheels of justice turn slowly. Frustrated with the way that the case is proceeding, the judge specially sets a trial date of April 1, 2012, and orders the parties to complete mediation by February 1, On January 15, 2012, the parties convene the court- ordered mediation. The general contractor is present, as are representatives from the various insurance carriers that have provided coverage to the general contractor during the period of continuous damage. All of the insurers are present and accompanied by coverage counsel as well. The general contractor is insured as follows for the relevant period: CGL policy one, covering 2005, $250,000 limits CGL policy two, covering 2006, $250,000 limits CGL policy three, covering 2007, 500,000 limits with a 2294 endorsement CGL policy four, covering 2008, $500,000 limits Uninsured in 2009 Uninsured in 2010 Uninsured in 2011 While a standard CGL policy generally does not cover construction deficiencies, many states have concluded that water intrusion that causes property damage is an accident that potentially would implicate coverage. For purposes of this factual scenario, assume water intrusion can qualify as an occurrence. Trigger of Coverage For purposes of the coverage analysis in our hypothetical scenario, the threshold question is which policies are triggered for the homeowners loss? Trigger of coverage is a term of art used to describe what must happen during the policy period for the potential of coverage to arise. See Montrose Chem. Corp. v. Admiral Ins. Co., 10 Cal. 4th 645, 655, n.2, 913 P.2d 878, 880, n.2 (Cal. 1995). In a typical general liability scenario, the trigger of coverage is a specific point in time when the personal injury or property damage occurred. However, in construction defect cases when damages are progressive in nature, such as with water intrusion, it is more difficult to determine when coverage is triggered. In a progressive damage construction defect case, the states mainly use one of three primary methods to determine the trigger of coverage. The majority of the states apply either the injury- in- fact trigger theory or the continuous trigger theory. A limited number of states use the manifestation trigger theory to determine which policies may be triggered by a progressive damage case. Injury-in-Fact Theory Under the injury- in- fact theory, coverage is triggered when property damage occurs during the policy period. For coverage to arise under a particular policy, property damage must occur during the policy period. Because the injury- in- fact theory typically is interpreted to trigger each insurance policy when property damage occurs during the policy period, in progressive damage construction defect cases, the application of the injury- in- fact rule can be remarkably similar to the continuous trigger rule, discussed below. For example, water damage resulting from construction defects often continues to occur every year until someone repairs the defects. In such a case, each policy would be triggered on the date of the first property damage and continue through a settlement or judgment or until someone repairs the property damage-causing condition. In the hypothetical scenario outlined above, the facts could trigger coverage as early as 2006, on the date of substantial completion, should the plaintiffs successfully demonstrate that the construction defects led to some level of water intrusion upon completion of the work, even if the homeowners did not know about it until Under the injury- in- fact theory, the hypothetical facts may also trigger coverage under each of the subsequent policies if the water continued to intrude around the windows and doors causing water damage in each subsequent year. However, the known loss provision in the 2008 policy could preclude coverage from that policy since the contractor became aware of the problems in Therefore, under the injury- in- fact theory, the facts would likely trigger CGL policy two covering 2006 and CGL policy three covering Continuous Trigger Theory Under this theory, the time of the underlying injury- causing event would trigger coverage for each policy in effect at that time, and coverage would continue until the damage is complete. So in the hypothetical scenario above, the facts would likely trigger coverage from the date that the certificate of occupancy was issued, May 1, 2006, until the date that the damage is complete. Similarly, the known loss provision in the policy would likely preclude coverage for all policies after the contractor became aware of the problems in Therefore, under the continuous trigger theory, the hypothetical facts likely would trigger CGL policy two covering 2006 and CGL policy three covering Manifestation Theory Under the manifestation theory, coverage is triggered when property damage is discovered or should have reasonably been discovered. Coverage will be limited to the policy that covers the period when the damage is discovered. This theory is applied to construction defect claims in a limited number of states such as Florida, Louisiana, and New Jersey. See, e.g., Mid- Continent Cas. Co. v. Siena Home Corp., 2011 WL (M.D. Fla. July 8, 2011); Rando v. Top Notch Props., L.L.C., 879 So. 2d 821 (La. Ct. App. 2004); Winding Hills Condo. Ass n, Inc. v. N. Am. Specialty Ins. Co., 332 N.J. Super. 85, 752 A.2d 837 (N.J. Super. Ct. App. Div. 2000). In the hypothetical scenario above, coverage would have likely been triggered under the manifestation theory for the 2007 policy, CGL policy three, when the homeowners noticed water intrusion around the windows and doors and began to experience mold growth, unless the For The Defense June
3 Construction Law insurer introduced evidence showing that the homeowners should have discovered the problems sooner. For example, a Florida court recently determined that coverage is triggered under the manifestation theory when damage was discernable and reasonably discoverable either because it was open and obvious or upon a prudent engineering investigation, and not the time Among the most vexing problems for coverage and defense counsel alike in a case involving a progressive injury is which insurance policy is implicated. of actual discovery. Mid-Continent Cas. Co. v. Siena Home Corp., 2011 WL (M.D. Fla. July 8, 2011). Application of Trigger Theories In certain circumstances a policy s provisions can supersede the default trigger theory adopted by a state. Therefore, analyzing trigger of coverage must begin with an examination of the policy provisions. Not surprisingly, insurers have attempted to limit courts discretion over trigger of coverage and take back control of the issue [by] adopting policy provisions that were designed to qualify and more specifically pin-point when bodily injury or property damage must take place for it to be covered. Randy Maniloff & Jeffrey Stempel, General Liability Insurance Coverage: Key Issues in Every State (2nd ed. 2012). Some of the policy provisions and endorsements used by insurance carriers to attempt to define or narrow when coverage is triggered include, among others, the Montrose endorsement, the first manifestation endorsement, the claims- inprogress exclusion, the discovered injury or damage exclusion, and the prior manifestation exclusion. Id. at 439. Insurers 54 For The Defense June 2012 have used these provisions with varying success, and how courts will apply them often depends on the specific facts in a case. Id. at 440. A large majority of the states apply either the injury- in- fact theory or the continuous trigger theory in progressive damage construction defects cases, both of which can trigger multiple insurance policies in an individual case. When the facts trigger multiple insurance policies, how to allocate the damages among the multiple insurance carriers becomes the next inevitable question. Allocation of Damages How to allocate damages among multiple insurance carriers and/or a self- insured party is highly contested in most progressive damage construction defect cases, and the approach varies by state. The method of allocating damages can significantly impact an insurance company s liability under a CGL policy during either the settlement negotiations or after a court has rendered a judgment. There are two primary approaches to allocation: joint and several and pro rata. The most significant difference between the joint- and- several approach and the pro rata approach is how they treat uninsured time periods, discussed in greater detail below. But the way courts apply the frameworks of these two primary approaches can vary significantly by state. Joint-and-Several Approach to Allocation A minority of jurisdictions have approached allocation of damages by adopting the joint- and- several approach, which requires each triggered policy to indemnify the insured for the entire loss caused by the progressive injury. This method is sometimes called the all sums method, because its proponents argue that the insurer s promise to pay all sums trumps the policy language limiting coverage to the bodily injury or property damage that occurs during the policy period. Randy Maniloff & Jeffrey Stempel, General Liability Insurance Coverage: Key Issues in Every State 464 (2nd ed. 2012). Under the joint and several approach, a policyholder is indemnified up to the policy limits for all damages even if the policyholder failed to purchase CGL coverage throughout the entire progressive damage period. The seminal case endorsing the jointand- several approach is the asbestosrelated case, Keene Corp. v. Ins. Co. of N. Am., 667 F.2d 1034 (D.C. Cir. 1981). In Keene, the policyholder did not have insurance for a portion of the time of asbestos exposure and manifestation. Basing the analysis on the all sums language in the policy, the court held that all triggered insurers had a joint obligation to provide coverage, and the court permitted the policyholder to select the insurer which would provide defense and indemnification. Id. at The Keene court specifically held that [t]here is nothing in the policies that provides for a reduction of the insurer s liability if an injury occurs only in part during a policy period. Id. at The court noted that the function of each policy was to relieve the insured of all risk of liability. Id. The court noted that, once the policyholder tenders to an insurer, that insurer can seek contribution from other insurers for the indemnification of the policyholder. Another case that joint- and- several approach proponents often cite is J.H. France Refractories Co. v. Allstate Ins. Co., 534 Pa. 29, 626 A.2d 502 (Penn. 1993), another asbestos- related case. The court noted that [u]n der any given policy, the insurer contracted to pay all sums which the insured becomes legally obligated to pay, not merely some pro rata portion thereof. 534 Pa. at 39, 626 A.2d at 507 (emphasis in original). The court held that the policyholder should be free to select the policy or policies under which it is to be indemnified. 534 Pa. at 41, 626 A.2d at 508. However, the J.H. France court took the analysis one step further and held that, when the policy limits of a particular insured are exhausted, the policyholder is entitled to choose again from the triggered policies and may continue to do so until fully indemnified for the claims. Id. Depending on how a state applies the joint- and- several approach to a construction case, any insurer that a policyholder selects could have to provide a full defense and full indemnification to the insured for the entire period of progressive damage up to the policy limits even if the insured didn t purchase insurance for that period
4 in some states. For example, a contractor that purchases a one-year CGL policy in 2001, goes out of business in 2002, does not purchases insurance between 2002 and 2010, and is sued for construction defects in 2010 could receive the same benefits as a contractor that purchases insurance and is continually insured between 2001 and 2010 (assuming the claim could be resolved within the policy limits of the 2001 policy). A few states have adopted the joint- andseveral allocation method in some form or another. See, e.g., Aerojet- Gen. Corp. v. Transp. Indem. Co., 17 Cal. 4th 38, 948 P.2d 909 (Cal. 1997); Hercules, Inc. v. AIU Ins. Co., 784 A.2d 481 (Del. 2001); Zurich Ins. Co. v. Raymark Indus., Inc., 118 Ill. 2d 23, 514 N.E.2d 150 (Ill. 1987); Allstate Ins. Co. v. Dana Corp., 759 N.E.2d 1049 (Ind. 2001); Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St. 3d 512, 769 N.E.2d 835 (Ohio 2002); J.H. France Refractories Co. v. Allstate Ins. Co., 534 Pa. 29, 626 A.2d 502 (Penn. 1993); Am. Nat. Fire Ins. Co. v. B & L Trucking & Const. Co., Inc., 134 Wash. 2d 413, 951 P.2d 250 (Wash. 1998); Plastics Eng g Co. v. Liberty Mut. Ins. Co., 315 Wis. 2d 556, 759 N.W.2d 613 (Wis. 2009). However, in some of those states, there is a split in authority regarding the appropriate method of allocation, or the method of allocation varies depending on the type of case. In the hypothetical scenario outlined about, the general contractor would probably strategically choose to tender the claim to the 2008 policy, CGL policy four, because the 2008 policy has the highest policy limits, $500,000, and it does not contain the limiting 2294 endorsement. Assuming that the total settlement or verdict against the general contractor amounts to less than $500,000, the insurer for CGL policy four for 2008 would have to pay for the entire settlement or judgment and would then have to attempt to seek contribution from the other insurance carriers. Pro Rata Approach to Allocation In general terms, courts applying the pro rata approach to damages allocation hold that each insurer is only liable for its pro rata portion of a loss caused by progressive damage. However, state courts use at least three different approaches to calculate pro rata allocation: (1) time on risk, (2) divisible injury, and (3) by limits and years, also known as the Owens- Illinois approach. A majority of the states with law on this issue have adopted some form of pro rata allocation, and among them are Colorado, Connecticut, Kansas, Kentucky, Louisiana, Massachusetts, Minnesota, Nebraska, New Jersey, New Hampshire, New York, South Carolina, Utah, and Vermont. Randy Maniloff & Jeffrey Stempel, General Liability Insurance Coverage: Key Issues in Every State 465 (2nd ed. 2012). Calculating Pro Rata Damages Allocation by Time on Risk The time-on-risk approach apportions liability among insurers in proportion to the length of their coverage period. In our home state of South Carolina, the South Carolina Supreme Court recently adopted a time-on-risk pro rata approach to allocating fault among insurance carriers in Crossmann Communities of N. Carolina, Inc. v. Harleysville Mut. Ins. Co., 395 S.C. 40, 63, 717 S.E.2d 589, 601 (S.C. 2011). Noting that the proper method for allocating damages in a progressive property damage case is to assign each triggered insurer a pro rata portion of the loss based on that insurer s time on the risk, the court provided the following method for allocating damages: The basic formula consists of a numerator representing the number of years an insurer provided coverage and a denominator representing the total number of years during which the damage progressed. This fraction is multiplied by the total amount the policyholder has become liable to pay as damages for the entire progressive injury. In this way, each triggered insurer is responsible for a share of the total loss that is proportionate to its time on the risk. Id. at 65, 717 S.E.2d at 602. Although the Crossmann Communities court characterized this formula as the default rule for allocating damages, it indicated willingness to modify the method of allocation if proof is available showing that the damage progressed in some different way than in equal portions during each year it progressed. Id. Significantly, under the Crossmann Communities court s strict time-on-risk approach, an insurer is only responsible for a pro rata portion of a settlement or judgment irrespective of whether the policyholder had coverage for the remaining years. The court reasoned that this interpretation would encourage businesses to purchase insurance, which in turn would promote market stability. A number of other states have similarly adopted the time-on-risk approach to damages allocation. For example, the Supreme Judicial Court of Massachusetts adopted a strict time-on-risk approach in Boston Gas Co. v. Century Indem. Co., 454 Mass. 337, 910 N.E.2d 290 (Mass. 2009). The Boston Gas court cited the following advantages of a time-on-risk approach: spreading the risk to the maximum number of carriers, easily identifying each insurer s liability through a relatively simple calculation, and reducing the necessity for subsequent indemnification actions between and among the insurers. 454 Mass. at , 910 N.E.2d at 313. Practically, the strict pro rata approach has the potential to make settlement negotiations more complex in construction cases because the policyholder is responsible for a pro rata portion of the settlement covering the years for which it didn t have insurance, and often the policyholder does not have liquid assets. In addition, questions always arise about how it affects allocation when an insurance carrier that issued a policy during one or more years of progressive damage denies coverage. Using the hypothetical scenario outlined above, let s assume that coverage was triggered on May 2, 2006, and coverage continued through the end of Let s also assume that that a trial judgment was rendered against the general contractor in the amount of $1,000,000. This would implicate the following policies: CGL policy two for 2006, CGL policy three for 2007, and CGL 4, for In addition, we need to consider the years during which the general contractor did not have insurance. Let s also assume that subcontractors performed all of the work on the home, and the insurer for the 2007 policy issued a denial of coverage letter based on the 2294 endorsement. The general contractor did not purchase insurance after A strict pro rata approach would require the general contractor to contribute pro rata to the settlement for the 2007 policy period for which coverage is denied and for the For The Defense June
5 Construction Law remaining years when he was uninsured. With 80 total months of progressive damage from May 2006 through December 2012, and factoring in that the general contractor would have to take personal responsibility for 2007 (coverage denied), 2009 (uninsured), 2010 (uninsured), 2011 (uninsured), and 2012 (uninsured), we calculate the damages allocation as follows: When the facts of a case trigger multiple policies, one of the most contested issues is whether a policyholder must pay the deductible of each policy or only one deductible. The general contractor: 60 months / 80 months = 75 percent of $1,000,000 = $750,000 The insurer that issued CGL policy two: 8 months / 80 months = 10 percent of $1,000,000 = $100,000 The insurer that issued CGL policy four: 12 months / 80 months = 15 percent of $1,000,000 = $150,000 However, the general contractor went out of business and had limited, if any, personal assets. Obviously, the strict pro rata approach can have a serious impact on settlement negotiations because an insurer with a small percentage of time on risk may be more willing to risk a trial when it knows that it will only be responsible for a small percentage of a judgment. Calculating Pro Rata Damages Allocation by Divisible Injury The divisible injury approach apportions damages proportionately based on the percentage of injuries occurring during each triggered policy. However, practically, attempting to determine which proportion of progressive damage occurred during each policy period would become extremely difficult and expensive. Therefore, courts 56 For The Defense June 2012 typically don t favor the divisible injury approach and reject it in favor of a less difficult and more cost- effective method of calculating damages allocation. See, e.g., Crossmann Communities of N. Carolina, Inc. v. Harleysville Mut. Ins. Co., 395 S.C. 40, 63, 717 S.E.2d 589, 601 (S.C. 2011) (adopting time on risk as the default rule due to the difficulty in determining precisely what damage occurred during each policy period; Boston Gas Co. v. Century Indem. Co., 454 Mass. 337, 910 N.E.2d 290 (Mass. 2009) (noting that it is often both scientifically and administratively impossible to determine how to determine the proportion of damage that occurred in each policy period). Returning to the hypothetical scenario and making the same assumptions as we made for the time-on-risk discussion, the parties could employ some interesting strategies. For example, the plaintiffs could retain an expert to attempt to show that all or most of the water damage occurred in 2006 and 2008 when coverage is not contested. Using this method, the plaintiffs counsel could attempt to recover the entire judgment from the insurers that provided coverage in 2006 and On the other hand, the coverage counsel for the 2008 policy, CGL policy four, could retain an expert to attempt to show that all or most of the water damage occurred in If the 2008 insurer can show that all of the water damage occurred in 2006, then the 2006 insurer would bear the entire loss. Calculating Pro Rata Damages Allocation by Limits and Years The limits and years approach allocates the loss among the policies based on both the policy period as well as the liability limits. The limits and years approach is the most complicated method for calculating pro rata damages allocation. There are two rationales for taking the limits of liability into account when apportioning damages: (1) insurers that issue policies with lower limits collect smaller premiums, and so should not be forced to pay the same amounts paid by others that collected larger premiums for the same risk, and (2) it is easier for insurers to underwrite risks if they know that future payments will be commensurate with the policy limits. J. Stephen Berry & Jerry B. McNally, Allocation of Insurance Coverage: Prevailing Theories and Practical Applications, 42 Tort Trial & Insurance Practice Law Journal 999, (2007). The first case to endorse the limits- andyears approach was Owens- Illinois, Inc. v. United Ins. Co., 138 N.J. 437, 650 A.2d 974 (N.J. 1994). The Owens-Illinois court noted that [a] fair method of allocation appears to be one that is related to both the time on the risk and the degree of risk assumed. 138 N.J. at 479, 650 A.2d at The limits and years approach was subsequently adopted by the Supreme Court of New Hampshire, which explained: Under pro- ration by years and limits, loss is allocated among policies based on both the number of years a policy is on the risk as well as that policy s limits of liability. The basis of an individual insurer s liability is the aggregate coverage it underwrote during the period in which the loss occurred. Under this approach, an insurer s proportionate share is established by dividing its aggregate policy limits for all the years it was on the risk for the single, continuing occurrence by the aggregate policy limits of all the available policies and then multiplying that percentage by the amount of indemnity costs. Energy North Natural Gas, Inc. v. Certain Underwriters at Lloyd s, 156 N.H. 333, 341, 934 A.2d 517, 523 (N.H. 2007) (citations omitted). Using the hypothetical scenario above and assuming that coverage was triggered on January 1, 2006, and continued through December 31, 2008, the facts would implicate the following policies: CGL policy two for 2006 ($250,000 limits); CGL policy three for 2007 ($500,000 limits); and CGL policy four for 2008($500,000 limits). For the sake of simplicity, let s also assume that no exclusions applied. To calculate each insurer s pro rata portion of damages, divide the policy limits for each policy by the total limits for all three years. For example, we would calculate the percentage allocated to CGL policy two as follows: $250,000 / $1,250,000 = 20 percent. We would calculate the percentage allocated to CGL policy three as follows: $500,000 / $1,250,000 = 40 percent. Likewise, we would calculate the percentage allocated to CGL policy four as follows: $500,000 / $1,250,000 = 40 percent. Assuming that the settlement
6 amounted to $1,000,000, the CGL policy two insurer would pay $200,000, the CGL policy three insurer would pay $400,000, and the CGL policy four insurer would pay $400,000. Deductibles When the facts of a case trigger multiple policies, one of the most contested issues is whether a policyholder must pay the deductible of each policy or only one deductible. A deductible is a specified amount of money that a policyholder must pay before an insurance company becomes liable for payment. In a joint- and- several jurisdiction, a policyholder typically can select the insurer with the lowest deductible and tender the claim to that insurer to avoid paying multiple deductibles. However, whether a policyholder must pay the deductible of each policy or only one becomes more complicated in pro rata jurisdictions. Typically, when a case triggers multiple policy periods, the policyholder must pay the deductible for each policy. In South Carolina, where the supreme court recently adopted a strict time-on-risk approach as discussed above, the U.S. District Court for the District of South Carolina addressed an issue of first impression in South Carolina and held that an insured is not entitled to prorate any deductibles, and must pay the full deductible for each policy triggered by the progressive damage. Liberty Mut. Fire Ins. Co. v. J.T. Walker Indus., Inc., 817 F. Supp. 2d 784 (D. S.C. 2011), reconsideration denied, 2011 WL , CIV.A. 2: MBS (D. S.C. Dec. 8, 2011). In Liberty Mutual, the underlying litigation involved allegations that the windows manufactured by the policyholder were defective, which allowed water to leak into homes causing progressive damage over a six-year period. The insured window manufacturer maintained six, one-year standard CGL policies spanning the time period involved in the underlying litigation. The policyholder argued that the entire progressive water damage during the periods covered by the policies constituted a single occurrence so each insurer only was liable for part of an occurrence. The policyholder argued that it would be inequitable to force a policyholder to pay a full per- occurrence deductible for indemnification of a partial occurrence. The policyholder further argued that it should only be required to pay a single $500,000 deductible for the resolution of a claim arising from progressive damage spanning six policy periods. After reviewing the policy language and South Carolina case law, the court concluded that the only reasonable interpretation was that the damage that happens in one policy year constitutes a single occurrence. Noting that the majority of courts applying a pro rata allocation method have agreed that an insurer is entitled to a full deductible for each triggered policy, the court concluded that the policyholder must pay a separate deductible for each triggered policy during progressive damage. Conclusion As you can see, complex and interesting issues arise when attempting to allocate damages among multiple insurers in progressive damage construction defect cases. The landscape surrounding these issues is constantly changing, and state courts haven t adopted a consistent national approach. One thing is certain, however: the intersection of construction claims and insurance coverage is never boring. For The Defense June