Tred R. Eyerly | Insurance Law Hawaii | August 3, 2015
The federal district court applied California law to find there was no coverage when the subcontractor was sued for broken tiles on a project. Am. Home Assur. Co. v. SMG Stone Co., 2015 U.S. Dist. LEXIS 75910 (N. D. Cal. June 11, 2015).
The subcontractor installed stone floor tiles at the project. The developer discovered fractures in some of the tiles. The fractured tiles were removed and replaced. This remediation process required the removal and replacement of portions of drywall and concrete subfloor installed by other subcontractors. The developer sued the subcontractor, who tendered the defense to its insurer.
The insurer denied coverage and filed for a declaratory judgment that there was no coverage for the floor tile fracture claims.
On cross-motions for summary judgment, the court first found that the fracturing of the stone floor tiles caused by the subcontractor’s defective installation was the result of an “occurrence.” There was no evidence that the subcontractor knew that its tile installation work was defective before the tiles fractured. Instead, the fracturing was an unexpected consequence of the defective installation.
But there was no “property damage.” For the subcontractor to prevail, the defective installation work had to be considered separate and distinct from the physical manifestation of the defective work. Under California law, coverage resulted from construction defects that involved physical injuries to other parts of the construction project. Here, damage to the subfloor and the drywall did not result from the defective floor tile work, but from the remediation of the defective floor tile work. Remediation work did not constitute property damage under California law.
Nor did loss of use create property damage. The case law indicated that a mere delay in the completion of the project and sale of the residences did not constitute “loss of use.”
Finally, even if the costs arising from the fractured floor tiles constituted “property damage,” Exclusions J (5), J (6) and (l) would bar coverage. Exclusion j (5) did not apply when faulty workmanship directly caused damage to other parts of the property that were not being worked on by the subcontractor. Such was not the case here…