Exclusions Gone Awry: Misinterpretations of the Contractual Liability and Faulty Workmanship Exclusions Pose a Threat to the Construction Industry

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1 Recent Developments in Insurance Coverage Disputes Exclusions Gone Awry: Misinterpretations of the Contractual Liability and Faulty Workmanship Exclusions Pose a Threat to the Construction Industry Jeffrey J. Vita Saxe Doernberger & Vita, P.C. Hamden, CT Bethany L. DiMarzio Saxe Doernberger & Vita, P.C. Hamden, CT

2 I. Everything s Bigger in Texas: Gilbert and Ewing Expand Scope of CGL s Contractual Liability Exclusion Over the past two years, Texas courts have interpreted and expanded the scope of the contractual liability exclusion in a standard CGL policy. The typical contractual liability exclusion provides: This insurance does not apply to:.... b. Contractual Liability Bodily injury or property damage for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages: (1) Assumed in a contract or agreement that is an insured contract; or (2) That the insured would have in the absence of the contract or agreement. In most jurisdictions, courts interpret the contractual liability exclusion to preclude coverage only in instances where the insured assumes the liability of another, such as in a hold-harmless or indemnity agreement. 1 However, in 2010, the Texas Supreme Court s holding in Gilbert Texas Constr., L.P. v. Underwriters at Lloyd s London, 327 S.W.3d 118 (Tex. 2010) took the contractual liability exclusion a step further, holding that the exclusion applies whenever an insured is obligated to pay damages because of its assumption of liability in any contractual undertaking. Id. at The plaintiff, Gilbert, entered into a contract with the Dallas Area Rapid Transit Authority ( DART ) for construction of a light rail. Id. at In the contract, Gilbert undertook an obligation to protect improvements and utilities on properties adjacent to the project and to 1 See, e.g., Olympic, Inc. v. Providence Wash. Ins. Co. of Alaska, 648 P.2d 1008, 1011 (Alaska 1982) ( Because liability assumed by contract refers to a particular type of contract-a hold harmless or indemnification agreement-and not to the liability that results from breach of contract, the contractual liability exclusion applies only to hold harmless agreements. ); Haugan v. Home Indem. Co., 197 N.W.2d 18, 23 (S.D. 1972) ( Breach of an implied warranty is not a contractual assumption of liability. The coverage under this section of the policies applies only to an assumption of another's liability. This contemplates an express contractual assumption of another's potential liability by an agreement to indemnify or hold another harmless for an obligation not otherwise imposed by law. ); Federated Mut. Ins. Co. v. Grapevine Excavation Inc., 197 F.3d 720, 726 (5th Cir. 2000) ( This exclusion operates to deny coverage when the insured assumes responsibility for the conduct of a third party. ); Gibbs M. Smith, Inc. v. U.S. Fid. & Guar. Co., 949 P.2d 337, 341 (Utah 1997) ( As USF&G's brief correctly states, however, Courts have over and over again interpreted the phrase liability assumed by the insured under any contract to apply only to indemnification and hold-harmless agreements, whereby the insured agrees to assume the tort liability of another. ); Am. Family Mut. Ins. Co. v. Am. Girl, Inc., 673 N.W.2d 65, 70 (Wis. 2004) ( We conclude that this language does not exclude coverage for all breach of contract liability. Rather, it excludes coverage for liability that arises because the insured has contractually assumed the liability of another, as in an indemnification or hold harmless agreement. ).

3 repair or pay for any damages that did occur. Id. at 127. As a result of flooding damage to an adjacent building, the property owner brought suit against Gilbert and DART. Because the only theory of liability against Gilbert was based on breach of contract, the court determined that Gilbert was not entitled to coverage. Id. at 127. The holding in Gilbert therefore expanded the traditional interpretation of the contractual liability exclusion to include not only hold-harmless or indemnity agreements, but also contracts wherein the insured assumes any liability above and beyond that which is normally imposed by general principles of common law. Two years later, the Fifth Circuit continues to struggle with the scope of the contractual liability exclusion, resulting in a state of uncertainty for policyholders. a. The Southern District of Texas Expands Gilbert in Ewing The facts giving rise to the court s decision in Ewing Const. Co., Inc. v. Amerisure Ins. Co., 814 F. Supp. 2d 739 (S.D. Tex. 2011) occurred in 2010, around the same time Gilbert was decided. In the underlying lawsuit, Tuloso-Midway Independent School District (the School District ) sought damages from Ewing Construction Company, Inc. ( Ewing ) for allegedly defective construction of a tennis facility pursuant to a contract between the School District and Ewing. Id. at 741. Ewing was the named insured under a CGL policy issued by Amerisure Insurance Company ( Amerisure ). Id. Amerisure s denial of coverage under the policy led to the Ewing action. Id. In its analysis, the Ewing court first decided that, based on the allegations in the underlying complaint, there was coverage under the policy. Id. at 745. The court then went on to discuss the applicability of the CGL policy s contractual liability exclusion. Ewing argued that the exclusion did not apply, as it had not assumed any liability under its contract with the School District, and even if it had, the underlying complaint alleged theories of liability sounding in tort as well as contract. Id. The court, relying on Gilbert, found that the contractual liability exclusion applied not only to indemnity or hold-harmless agreements, but also to any instance where the insured assumes liability in a contract for bodily injury or property damage. Id. at 746. The court concluded that Gilbert, therefore, stands for the proposition that the contractual liability exclusion applies when an insured has entered into a contract and, by doing so, has assumed liability for its own performance under that contract. Id. at 747. Turning to the facts in the underlying complaint, the court found that Ewing assumed liability for its own work on the tennis courts such that it would be liable for failure to perform under the contract if that work was deficient. Id. According to the court, this assumption of liability was

4 evidenced by meetings between the School District s Superintendent and Ewing, wherein the Superintendent stated that the tennis courts should last at least 25 years, with no demurrer from Ewing. Id. The court found that Ewing assumed liability for its own work pursuant to its contract with the School District, and that coverage was therefore barred by the contractual liability exclusion. Id. at 748. The court concluded that its holding was consistent with Gilbert and the case law relied on therein. Id. b. The Fifth Circuit Affirms On appeal to the Fifth Circuit, Ewing argued that the District Court s reliance on Gilbert was misplaced, as Gilbert involved an assumption of liability for faulty workmanship performed under a contract, which is not the same as simply entering into a contract, as was the case in Ewing, 684 F.3d 512, 518 (5th Cir. 2012). Ewing admitted that there was an assumption of liability in Gilbert, as the construction company promised to repair third-party property. Id. However, Ewing argued that in this case, any implied promise to the School District to perform the contract with ordinary care was not an assumption of liability, and that the contractual liability exclusion could not be triggered by the type of implied promises that are contained in every contract. Id. at The Fifth Circuit disagreed, stating that [w]hether the breached promise was implied or express, the promise was of a contractual nature, all the same. We therefore hold that the CGL policy s contractual liability exclusion excludes coverage in the instant case. Id. at 519. c. Question Certified to the Texas Supreme Court Less than two months after affirming the District Court s decision, the Fifth Circuit revisited the District Court s opinion in Ewing Const. Co., Inc. v. Amerisure Ins. Co., 690 F.3d 628 (5th Cir. 2012). After the Fifth Circuit s initial ruling, Ewing petitioned for a rehearing, at which point the Fifth Circuit vacated its decision in Ewing Const. Co., Inc. v. Amerisure Ins. Co., 684 F.3d 512 (5th Cir. 2012) to certify questions to the Texas Supreme Court. In doing so, the Fifth Circuit stated that [t]he correct application of this Texas precedent [in Gilbert] to the facts before us is unclear. Ewing, 690 F.3d at 632. The Fifth Circuit further recognized that Ewing s contract with the School District, unlike the contract at issue in Gilbert, involved no undertaking of contractual liability above and beyond that which is common to all contracts. Id. Because the Ewing case

5 presented a disputed question of Texas law, the Fifth Circuit certified the following question to the Texas Supreme Court: 1. Does a general contractor that enters into a contract in which it agrees to perform its construction work in a good and workmanlike manner, without more specific provisions enlarging this obligation, assume liability for damages arising out of the contractor s defective work so as to trigger the Contractual Liability Exclusion. Id. at 633. d. Implications for the Construction Industry Contrary to the District Court s opinion, the Ewing decision is not consistent with Gilbert, which was itself a liberal interpretation of the contractual liability exclusion. Rather, the Ewing decision is an unnecessary and unsupported expansion of the Texas Supreme Court s holding in Gilbert, where the contractual undertaking at issue was at least similar to the type of indemnity or holdharmless agreement that is traditionally encompassed by the contractual liability exclusion. The Southern District of Texas holding in Ewing is noteworthy because it held that the insurer, Amerisure, was under no obligation even to defend a lawsuit that would otherwise be covered simply because the School District alleged causes of action based on the existence of a contract. This result is contrary to the primary purpose of general liability insurance, which is to provide litigation insurance to insureds, like contractors, who face a multitude of claims on a regular basis. Absent the bargained for defense provided by the insurer, contractors will be forced to hire their own defense counsel and suffer immediate expenses at the outset of the claim. If the Texas Supreme Court answers the certified question in the affirmative, and finds that a contractor agreeing to perform its construction work in a good and workmanlike manner assumes liability for damages due to its defective work, the implications for the construction industry will be drastic. Any contractor that performs work pursuant to a contract could find itself potentially uninsured for any liability related to its work. Moreover, the impact of Ewing could reach outside Texas, as insurers are already arguing that the Texas Supreme Court s decision is instructive and should be applied in other jurisdictions. All construction industry policyholders should be vigilant awaiting the Texas Supreme Court s decision, as it could have potentially disastrous implications for the construction industry as a whole.

6 II. Application of the Faulty Workmanship Exclusion is Risky Business Unlike CGL policies, whose terms are largely standardized, the terms of builder s risk insurance policies vary amongst carriers. Most builder s risk policies contain a faulty workmanship exclusion, but variations in the wording and inconsistent interpretations by the court can be troublesome and frustrating for those in the construction industry. a. Nevada Supreme Court: Workmanship Means Both Products and Processes Although the language of the faulty workmanship exclusion varies from policy to policy, a common issue arises in that the term faulty workmanship is not defined by most builder s risk policies. The lack of definition and resulting uncertainty often leaves insureds to fend for themselves in dealing with their insurers over the definition and scope of the exclusion. This was the case in Fourth St. Place v. Travelers Indem. Co., 270 P.3d 1235 (Nev. 2011), which was decided in December 2011 by the Nevada Supreme Court. Plaintiff Fourth Street was the owner of an office building in Las Vegas, insured by an all-risk policy issued by defendant Travelers. Id. at Fourth Street hired a general contractor to repair and renovate an office building, and the contractor in turn hired subcontractor Above It All Roofing to repair the roof. Id. Above It All removed the waterproof membrane on the roof, intending to replace it the next day, but due to substantial rainfall the roof had to be covered with tarps. Id. The tarps blew away during the storm, resulting in significant water damage to the building and several tenants vacating the building. Id. Fourth Street submitted a claim for damages to Travelers, which denied coverage, stating that the damage did not occur from a covered cause of loss. Id. Fourth Street then sued Travelers, seeking damages and declaratory relief for breach of the insurance policy and bad faith denial of Fourth Street s claims. Id. Although Travelers had not raised the policy s faulty workmanship exclusion as a basis for denying the claims, Fourth Street preemptively argued that the exclusion was ambiguous, and therefore the term workmanship, which was not defined in the policy, should be construed in favor of the insured to mean only a flawed product and not the construction process itself. Id. at The district court disagreed, finding, inter alia, that no coverage was available due to the faulty workmanship exclusion. Id. On appeal to the Nevada Supreme Court, Fourth Street argued that the faulty workmanship exclusion did not exclude its claim, because Above It All s work on the roof was in progress when the damages occurred. Id. at According to Fourth Street, the faulty workmanship

7 exclusion was ambiguous, and could be interpreted to include damage caused by a flawed product, damage caused by a flawed process, or both. Id. at Here, the damages were sustained by Above It All s failure to properly cover the roof during the repair, amounting to a flawed process. Id. Because the exclusion was ambiguous, Fourth Street argued that it must be construed in its favor, as the insured, to exclude only damages resulting from a flawed finished product. Id. The Nevada Supreme Court disagreed, finding that workmanship refers to both products and processes. Id. at In its reasoning, the court considered, but disagreed with, a Ninth Circuit case interpreting a similarly worded faulty workmanship exclusion and finding it ambiguous. 2 Rather, the court stated that the meaning of the term workmanship was plain and ordinary, based on the Webster s Dictionary definition of workmanship as both the quality or mode of execution (a process) and the product or result of labor and skill; work executed (a product). Id. The court went on to interpret the faulty workmanship exclusion in the context of the policy as a whole, finding that the term faulty workmanship also appeared in a subsection of the policy which listed items that were both processes and products. Id. The court noted that the term workmanship also appeared in the exclusion clause between the words planning and maintenance, indicating that it was intended to refer to the building process as well as the finished product. Id. Accordingly, the court held that although the term workmanship standing alone may be ambiguous, when read in context with its surrounding terms, workmanship is an unambiguous broad term excluding from coverage both a faulty process and a faulty finished product. Id. at b. Implications for the Construction Industry The Nevada Supreme Court s holding in Fourth Street is not only clearly unfavorable to policyholders, but is also inconsistent with the overall purpose of obtaining coverage under a builder s risk policy. Most builder s risk policies are issued on an all-risk basis, and should therefore provide broad coverage except as clearly limited by the policy s exclusions. From the perspective of construction industry policyholders, the court s holding in Fourth Street severely 2 The court noted that Fourth Street relied on Allstate Ins. Co. v. Smith, 929 F.2d 447 (9th Cir. 1991) for the proposition that the exclusion was ambiguous and susceptible to at least two interpretations, and should therefore be construed in favor of the insured. The Fourth Street court noted that the exclusion should be interpreted in context of the particular circumstances at hand, and disagreed with the Allstate decision to the extent that it stood for the proposition that a policy term can only have one meaning. Fourth Street, 270 P.3d at 1242.

8 limits the coverage a contractor expects to receive, as the majority of builder s risk claims concern at least some level of human error. By excluding damages due to faulty services as well as faulty products, the Nevada Supreme Court effectively precluded coverage for claims caused by human error during the construction process, thereby rendering the policy nearly valueless to contractors.

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