Tred R. Eyerly | Insurance Law Hawaii
While the insured’s faulty work constituted an occurrence under Florida law, a prior occurrence exclusion barred coverage. Pro-Tech Caulking & Waterproofing v. TIG Ins. Co., 2022 U.S. Dist. LEXIS 12319 (S.D. Fla. Jan. 19, 2022).
Pro-Tech was a waterproofing subcontractor for construction of a oceanfront condominium building and was responsible for the installation of waterproofing systems on the Project. Pro-Tech entered into a separate contract with the developer, BRE Point Parcel, LLC to install a traffic coating on the garage floors.
BRE sued the general contractor, Pro-Tech and others for construction defects. The underlying action alleged that Pro-Tech, among other things, failed to wrap the filter fabric to protect the weep holes, improperly installed sealants between the stucco and the underside of the horizontal tile at the balcony slab edge, and failed to properly install traffic coating in one garage. The underlying complaint did not state exactly when the “property damage” resulting from Pro-Tech’s alleged defective work occurred.
Pro-Tech tendered under its CGL policy to TIG. The policy excluded prior occurrences and pre-existing damage. The policy stated, in part, “It is agreed that this insurance does not apply to any ‘occurrence’ of incident, claim or ‘suit’ which first occurred prior to the inception date of this policy . . .” The tender was denied. Pro-Tech sued TIG. TIG moved for summary judgment,
The court concluded that TIG was entitled to summary judgment. Coverage did not apply because the relevant “occurrences” were in the process of occurring at the inception of the policy period. Pro-Tech’s alleged defective work was fully performed prior to the start of the policy period. Accordingly, TIG did not have a duty to defend and summary judgment in TIG’s favor was warranted.
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