Every responsible owner of commercial property carries. public liability insurance. The purpose is usually to provide

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1 THE CGL POLICY - WILL IT COVER A COMMERCIAL BUILDING OWNER FOR CONSTRUCTION DEFECTS IN THE BUILDING? By David H. Fishman GORDON, FEINBLATT, ROTHMAN, HOFFBERGER & HOLLANDER, LLC BALTIMORE, MD Every responsible owner of commercial property carries public liability insurance. The purpose is usually to provide insurance coverage for negligent acts causing personal injury or property damage to others. Much has been written about appropriate coverage for building owners, and that material will not be repeated here. The ACREL Insurance Committee presented a program dealing with many of the usual insurance issues at the September, 1995 meeting in Toronto. Since there are so many reported insurance cases, no effort is made to give citations. Many can be found in Appendix C and the other materials cited herein. The CGL policy also has the potential of covering many types of loss which are not routine. This paper focuses on the potential for coverage under the CGL policy for defects in the construction of a building owned by the insured. This appears to be a "cutting edge" issue, and has generated significant litigation in recent years. Two particular claims are of special interest - the claim of an initial owner against the builder of the building, and the claim of a seller against its insurer when the purchaser raises breach of warranty claims due to construction defects in the building.

2 A. Background The vast majority of liability policies in force are commercial general liability ("CGL") policies written on standard forms issued by the Insurance Services Office, Inc. ("ISO"). The ISO CGL form has undergone four major revisions in the past 30 years: in 1966, 1973, 1986 and 1993 (revised in 1996). Prior to 1986, the policy form was called "Comprehensive General Liability". It is very easy to fall into the trap of assuming that cases cited by the insurer are construing the same policy form which was issued to the insured in your case. Because construction defects often do not manifest themselves for many years, damage claims may well involve old forms. Cases construing the older forms therefore continue to have vitality. For example, a case decided by the U.S. District Court in Maryland in April, 1998 construes the 1973 policy form (see Appendix G). A copy of the 1996 form of the occurrence based policy is attached as Appendix A. The basic Insuring Agreement is found on page 1 in Section I, Coverage A, Paragraph 1.a, as follows: We will pay those sums that the insured becomes legally obligated to pay as damages because of... "property damage" to which this insurance applies. "Property Damage" is defined on p. 13 to mean - physical injury to tangible property, including all resulting loss of use of that property

3 This simple and broad statement of coverage is limited in Paragraph 2 - a list of fourteen exclusions. The first is a general exclusion for deliberate acts - the insurance does not apply to "property damage" expected or intended from the standpoint of the insured. For persons developing and dealing in real property, the most important exclusions are b, j, k and l, which will be discussed below. Insurance companies generally say that the CGL policy is not meant to cover "business risks" of the insured. By this, they mean the risk of replacing or repairing defective construction work, which they view as a cost of doing business. Business risks are viewed by insurers as those risks that are normal, frequent or predictable consequences of doing business, and which business management can and should control and manage. CGL insurance is not meant to be a safety net for every business error or omission. Hendrick and Weizel, "The New Commercial General Liability Forms - an Introduction and Critique", 36 Fed. of Ins. Counsel Q. 319 (1986). One would expect that the ISO would be attempting to protect insurers in its forms. However, comparison of the evolution of CGL policy forms shows a gradual reduction of the risks that are considered within the "business risk" exclusions, and a corresponding expansion of the risks that are considered the proper subject of insurance coverage. This first occurred with the issuance of the "Broad Form Property - 3 -

4 Damage" endorsement in A copy of the 1982 issuance of this endorsement is attached as Appendix B. Two main lines of authority have evolved from this situation. One line of authority says that the broad form endorsement extended coverage to damage caused by subcontractors of the insured. Fireguard Sprinkler Systems, Inc. v. Scottsdale Ins. Co., 864 F.2d 648 (9th Cir. 1988). The conflicting view is that the broad form did not afford coverage for damage to work of subcontractors of the insured. Knutson Construction Co. v. St. Paul Fire & Marine Ins. Co., 396 N.W. 2d 229 (Minn. 1986). The risk that the insured's defective work or product will cause personal injuries or property damage to third parties is the type of risk which insurers say they intend to cover when they sell CGL policies. In other words, the risk that a building will be damaged or suffer diminution in value because a brick falls off it is not covered; the damage caused to a car the brick falls on is covered. See Weedo v. Stone-E-Brick, Inc., 405 A.2d 788 (N.J. 1979). The amount of coverage litigation might lead one to suppose that insurance companies believe that no damage to the building is ever covered, and that they see themselves merely as receivers of premiums. The differentiation between business risks and insured risks might sound rather simple, but there is a strong divergence of views, both in the cases and the commentary. Some commentators have no trouble in finding that there is no coverage for various sorts of defective construction because the claim is for a - 4 -

5 "business risk". Typical articles discussing this point of view are Franco, "Insurance Coverage for Faulty Workmanship Claims Under Commercial General Liability Policies", 30 Tort & Ins. L.J. 785 (1995); and Henderson, "Insurance Protection for Products Liability and Completed Operations", 50 Neb. L. R. 415 (1970). On the other side of the argument we find Scott C. Turner, "Insurance Coverage for Incorporation of Defective Construction Work or Products", The Construction Lawyer, April 1998, p.29. Turner is also the author of the leading treatise in this field, Insurance Coverage of Construction Disputes (West Group, 1992 w/1998 supp.). The cases are many, they come from every state in the Union, and go both ways. The flow of cases is constant, and it is not unusual to have new cases come down on relevant issues throughout the course of a protracted case. B. Some Important Exclusions from Coverage Examination of the 1996 CGL policy form shows that the following exclusions will bear on coverage available to the developer/owner/seller of commercial properties - b. Contractual Liability- 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 is itself further limited by clause (2) which states that the exclusion does not apply to liability for damages assumed in a contract or agreement that is an "insured contract"

6 The definition of "insured contract" is found on page 11 of the policy form and includes leases. Thus, the exclusion does not eliminate coverage for liability assumed in a lease, if the claim otherwise comes within the language of the insuring agreement. j. Damage to Property - This excludes property damage to: - property which the insured owns, rents, or occupies. - premises the insured sells, if the property damage arises out of any part of those premises; however, this exclusion does not apply if the premises are "your work" and were never occupied, rented or held for rental by the insured. Thus, the exclusion does not apply to premises which are work of the insured but were built for sale. Exclusion j also excludes coverage for property damage to that particular part of real property on which the insured, or any of its contractors, or subcontractors working on its behalf, are performing operations, if the property damage arises out of those operations. Exclusion j also applies to that particular part of any property that must be restored, repaired or replaced because the insured's work was incorrectly performed on it

7 k. Damage to Your Product - This excludes coverage for property damage to the insured's product arising out of that product. Looking at the definitions in Section V of the policy form, beginning at page 10 of Appendix A, we see that the definition of "your product" in 18 on page 13 says that the term means any goods or products, other than real property, manufactured, sold... or disposed of by the insured or others trading under the insured's name. The complicated policy language and the possible interpretations of this language have led to a flood of cases in the state and federal courts. Under the 1966 and 1973 CGL forms, property damage to the work of the insured, arising out of the work, was not covered, whether the damage occurred before or after the work was completed, and whether or not the damage arose out of work performed by the insured's subcontractors. Under the Broad Form endorsement first issued in 1976 (see Appendix B), coverage for completed operations of the insured was enlarged to include coverage for damage to or arising out of work of the insured's subcontractors, according to most courts. In the 1986 CGL form, it was made clear that a building and its component parts are not the "product" of a contractor, and work by the insured's subcontractors was eliminated from the "your work" exclusion. Articles on CGL construction defect issues are heavily footnoted. See, e.g., Scott Turner's article attached as Appendix C

8 It is even possible for a construction coverage dispute to reach the Supreme Court! What would appear to many to be a routine coverage dispute between condominium owners and the developer's insurance company reached the Supreme Court last year and was handled under the obscure procedure where the Court, acting per curiam, grants certiorari, vacates the judgment of the court below, and remands the case with instructions (called a "GVR"). Lords Landing Village Condo. Council of Unit Owners v. Continental Ins. Co., 117 S.Ct. 1731, 138 L. Ed. 2d 91 (1997). A copy of the Supreme Court's decision is attached as Appendix D. It appears impossible to predict how a claim for coverage of construction defects by the insured, or by one who has recovered a judgment against the insured, will come out without knowing the state whose law will control. And it often is not obvious which state's law will control. After all, the policy can be issued in a state other than the state where the property is located. Under the rule of lex loci contractus, a party may argue that the law of the state where the final step making the contract binding occurred is the law which should govern coverage. One can discern a trend expanding the risks that are considered the proper subject of insurance coverage. This occurs both in the case law and in the modification of the wording of the ISO CGL form, particularly in the change from the 1973 to the 1986 form. The amount of litigation has increased to the point that the ABA section of Tort and Insurance Law Practice (TIPS) sponsored a national forum on the subject in 1996 which resulted - 8 -

9 in a 770-page book, Insurance Coverage for Defective Construction, made up of the 27 papers delivered at the forum. C. Insurance Coverage for a Building Which Collapses After Sale. Now let us turn to an attempt to apply the CGL policy to a normal sale of an existing office building. Consider a client which bought a building 5 years ago from the original developer. The building is faced with precast panels having a stone aggregate veneer. The building is located in State X and was constructed about 10 years ago. When the building was about 6 years old, stones started falling off the panels. Client called in an engineer, who contacted the general contractor, the precast subcontractor and the stone supplier. A repair scheme was devised and implemented. While the repairs were under way, Client contracted to sell the building to the U.S. Government under a contract stating that the Government's acceptance of the building was final "except for latent defects". Several years after sale of the building to the Government, the Government agency occupying the building discovered that the panels were again deteriorating, and attributed this to a latent defect in the attachment of the stone aggregate to the panels. It demanded that the Client repair the deficiencies. The Client did so, at considerable expense, and then filed a claim with its liability insurance company, asserting that the cost of repairing the deficiencies in the panels was covered under its occurrence based CGL policy. The CGL insurer when the repair program was - 9 -

10 undertaken is different from the insurer at the time of original construction. The insurer responds by saying that the damages arose out of breach of contract, and are not covered because of standard exclusion b in the 1986 CGL policy. This fact pattern is very similar to Lerner Corp v. Assurance Co. of America, attached as Appendix F. In Lerner, the Maryland intermediate appellate court worked very hard to find no coverage. The primary basis for denial of coverage is an assertion by the court that the damages suffered by the insured resulted from its breach of the sale contract and were therefore not unforeseen. But the "property damage" to the building was undoubtedly unforeseen. It is not hard to poke holes in the court's logic in confusing "damages" and "property damage". Whether good coverage lawyers can lead a court in another state in the proper direction remains to be seen. APPENDICES A - B - C - D - E CGL Occurrence Form, Insurance Service Offices, Inc Broad Form Endorsement, Insurance Service Offices, Inc. Scott C. Turner, "Insurance Coverage for Incorporation of Defective Construction Work or Products", The Construction Lawyer, April, 1998, p. 29 ( 1998, American Bar Association, reprinted by permission). Lords Landing Village Condo. v. Continental Ins. Co., U.S., 117 S.Ct (1997). Gregory G. Schultz, "Commercial General Liability Coverage of Faulty Construction Claims", 33 Tort & Ins. L. J. 256 (1997) (copyright 1997 American Bar Association, reprinted by permission)

11 F - Lerner Corp. v. Assurance Co. of America, 707 A.2d 906 (Md. App. 1998). G - Harbor Court Assoc. v. Kiewit Construc. Co., 6 F.Supp.2d 449 (D.Md. 1998). 1:09/18/98 S R

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