Scott Thomas | Payne & Fears
In a recent trial court decision, a Montana federal court reminds us how fragile insurance coverage can be for construction-related insurance claims. Specifically, this case illustrates how seemingly small factual nuances can make or break coverage. The case turned on the application of policy provisions familiar to all who deal with these kinds of cases. (See Nautilus Ins. Co. v. Farrens, No. CV 22-193-M-DWM, 2024 WL 885109 (D. Mont. Mar. 1, 2024))
First, the court rebuffed the insurer’s argument that damage resulting from defective workmanship (in this case, the flawed design and installation of an elaborate floating-floor pool system) is not “caused by an occurrence.” The court correctly applied the test followed by most states: if either act causing injury is unintentional or the resulting injury is unexpected or unintended, the “occurrence” requirement is met. Fortunately, the court distinguished sloppy language from earlier Montana federal court decisions suggesting otherwise.
The court then turned to the application of three exclusions commonly asserted by liability insurers to deny coverage for construction claims:
The first ((j)5) excludes coverage for “property damage to . . . that particular part of real property on which you . . . are performing operations, if the property damage arises out of those operations.” The parties’ arguments and the court’s reasoning focus on the two issues on which the application of this exclusion often turns: Does it apply only when the insured’s work is ongoing (note the present tense “are performing operations”)? And does it apply only to the specific component causing harm or to all of the insured’s work (note the limiting “that particular part”)? The insured was still working on the pool system when the damage occurred, so the first issue was easily resolved in the insurer’s favor. And the court, while noting that other courts have reached conflicting conclusions on this issue, concluded that “particular part” means all of the insured’s work—not just the defective component causing harm to other property.
The second exclusion ((j)6) excludes coverage for property damage to “that particular part of any property that must be restored, repaired, or replaced because [the insured’s] work was incorrectly performed on it.” The issue here, similarly to (j)5, is whether the exclusion applies only to the cost of restoring, repairing, or replacing the specific component that causes harm, or also to the rest of the insured’s work damaged by the defective component. The court concluded that, for various reasons, the entire pool system designed and installed by the insured was defective and, thus, (j)5 excludes coverage for all damage to the entire system.
Finally, the court considers the application of the policy’s professional liability exclusion, which excludes coverage for damage “arising out of . . . professional services by you,” but only “engineering, architectural or surveying services” provided in the insured’s “capacity as an engineer, architect or surveyor.” The exclusion explicitly states that it does not apply to “operations in connection with construction work performed by” the insured. The obvious issue here is whether the insured’s design of the pool system was done “in connection with” its construction of the pool; if so, the exclusion does not apply. Unfortunately (and, we believe, erroneously) the court chose to interpret the construction exception narrowly (even though universally-held rules of construction mandate it be construed broadly in favor of the insured) and held that because the insured did nothing wrong in its installation of the pool system (i.e., the problems stemmed solely from design flaws), the exception does not apply – the result being that the exclusion eliminates coverage.
The takeaways? These coverage cases often turn on narrow, nuanced factual distinctions. For this reason, as well as the subjective perspectives individual judges bring to such cases, outcomes are not always consistent. Caveat emptor.
When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.