Broad Coverage For Construction Defects. By Alexander J. Anglim, Esq.

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1 C L A I M DENIED July 2004 A publication of the Lowenstein Sandler Insurance Law Practice Group Broad Coverage For Construction Defects By Alexander J. Anglim, Esq. The Wisconsin Supreme Court recently issued a decision that analyzes several recurring construction defects insurance issues, including (i) whether such claims constitute an occurrence; (ii) whether such claims are for property damage and (iii) application of the various business risk exclusions. The court also applied a continuous trigger (without any real analysis). Finally, the case is notable for its holding regarding the professional services exclusion. The factual situation in American Family Mutual Insurance Company v. Inside NOTICE: GOOD NEWS, BAD NEWS D&O SCORECARD BROKER - CLIENT CONFLICTS American Girl, Inc., 673 N.W.2d 65 (Wis. 2004) arose from the construction of a warehouse. The insured, the general contractor, relied upon the site-preparation advice of an engineering subcontractor. Id. at 69. The advice was faulty, and soon after construction the building began to sink. Id. at As a result, the structure buckled and cracked, and ultimately was declared unsafe and torn down. Id. Property Damage The court found that the threshold question was whether the claim involved property damage caused by an occurrence as those terms were defined in the standard-form CGL policies. The court ruled in the policyholder s favor. The insurer contended that the claim involved solely economic loss, rather than property damage, relying on the economic loss doctrine. The economic loss doctrine generally precludes recovery in tort for economic losses resulting from the failure of a product to live up to contractual expectations. Id. at 75 (internal citation omitted). The insurer argued that since the building owner could not recover in tort from the policyholder, there was no property damage. The court rejected this argument, holding that the economic loss doctrine is a remedies principle... [i]t does not determine whether an insurance policy covers a claim, which depends upon the policy language. Here, the policy provides that physical injury to tangible property, regardless of the cause of action that the injured party alleges, constitutes property damage. Thus, since the sinking, buckling, and cracking of the warehouse was plainly physical This document is published by Lowenstein Sandler PC to keep clients informed about current issues. It is intended to provide general information only. A L D

2 injury, the court concluded that the claim involved property damage as defined in the policy. Id. Occurrence American Family also argued that since the owner s claim was grounded in breach of contract rather than tort, there was no occurrence, because the CGL is not intended to cover contract claims arising out of the insured s defective work or product. Id. at 76. The court firmly rejected this argument. Although breach of contract claims generally are not covered under CGL policies, the court noted this is due to the inclusion within CGL policies of the... business risk exclusions, not because a loss actionable only in contract can never be the result of an occurrence as defined in the policy. Id. In order to meet the policy s definition of an occurrence, all that is required is that the damage be accidental, rather than intentional or anticipated. Id. at 70. In the present case, the court found that the unexpected settling and cracking of the building constituted an occurrence within the meaning of the policy. Id. Contractual Liability Exclusion Notably, the court addressed the contractual liability exclusion in some detail. That exclusion precludes coverage for the insured s liability for damages that the insured is obligated to pay by reason of the assumption of liability in a contract or agreement. American Family argued that this exclusion applied because the owner s claims against the policyholder were grounded As with most post-1986 CGL policies, however, the exclusion contains an exception it does not apply if the damaged work or the work out of which the damage arises was performed by a subcontractor. upon contractual rather than tortbased theories of recovery. However, the court rejected the notion that the exclusion operated to bar coverage for all breach of contract claims. Rather, the court found that the use of the word assumed was significant, and held that exclusion only applied where the insured has contractually assumed the liability of a third party, as in an indemnification or hold harmless agreement[.] Id. at (emphasis supplied). Business Risk Exclusions The court also rejected American Family s arguments regarding applicability of the various business risk exclusions. Most of the court s discussion focused on the damage to your work exclusion, which precludes coverage for damage to the insured s own work. As with most post-1986 CGL policies, however, the exclusion contains an exception it does not apply if the damaged work or the work out of which the damage arises was performed by a subcontractor. In this case, the court found that the damage arose out of the improper site preparation advice given by the soil engineer, who was a subcontractor. The court distinguished the cases cited by American Family, on the grounds that they involved interpretation of pre-1986 policy forms that did not include the subcontractor exception. Accordingly, the court found that the exclusion did not preclude coverage for the claims at issue here. Professional Services Exclusion In addition to the primary CGL policy, the insurer also issued several excess policies to the insured. Unlike the primary policy, the excess policies contained a broad professional services exclusion. American Family argued that the exclusion barred coverage for the claim because the damage arose from faulty advice by the soil engineer hired by the insured. The policyholder relied on Leverence v. United States Fidelity and Guaranty, 462 N.W.2d 218 (Wis. Ct. App. 1990), for the principle that the professional service exclusion does not apply if the primary objective of the insured s operations is to provide a building, rather than a professional service. In Leverence, occupants of prefabricated homes brought suit

3 against the builder s insurers. The occupants alleged that the homes retained excessive moisture within the exterior walls, leading to moldrelated health risks and thereby devaluing the homes. The Leverence court declined to separate the insured s work into separate The court found that the professional services exclusion barred coverage for the claim under the excess policies. components, and then bar claims arising out of its manufactured product because intellectual skills were employed; to do so, it reasoned, would go beyond the normal rules of contract interpretation. American Family, supra, 673 N.W.2d at 85 (quoting Leverence). However, the American Family court distinguished Leverence on the grounds that in Leverence, it was difficult to determine whether professional or non-professional errors had caused the damages. By contrast, the American Family held that this case does not pose the analytical dilemma that troubled the court in Leverence, because there was no dispute that the faulty site preparation advice was a substantial factor in causing the damage. Accordingly, the court found that the professional services exclusion barred coverage for the claim under the excess policies. Conclusion The application of general liability policies to construction litigation is extremely complex. It involves both the specific language of the insurance policy and a careful review of the underlying facts. Our experience is that insurers routinely reject these claims. A careful coverage analysis by the insured is essential. NOTICE: GOOD NEWS, BAD NEWS By: Robert D. Chesler, Esq. The good news is that in St. Charles Hospital v. Royal Globe (Suffolk Cty. 2004), for the first time a New York court held that late notice without prejudice is insufficient to foreclose coverage. New York has always been considered, from a policyholder s point of view, the worst state with regard to notice, foreclosing coverage if notice was only a few weeks late and the insurer had not incurred prejudice. The decision in St. Charles Hospital is revolutionary. Now, the issue is how the decision will fare on appeal. The bad news is that St. Charles involved an occurrence-based general liability policy with traditional notice provisions. Many insurance disputes now arise under specialty policies such as environmental, employment, or D&O, that are written on a claims-made basis. All states require that the insured give notice of a claim under a claims-made policy within the policy period. These policies usually define claim very broadly - frequently as any written demand for monetary or non-monetary relief. As a result, policyholders do not realize that an informal angry letter can trigger the notice requirement. When the policyholder does give notice of the complaint when it is filed, the insurer can disclaim coverage because of a failure to give notice of the prior, informal communication from the plaintiff that constitutes a claim as defined by the policy. For example, in one recent case, an insurer successfully disclaimed coverage under an employment insurance policy because the insured had not given notice to the insurer of a notice from EEOC that an employee had filed a charge of discrimination with the agency. The easy answer for the insured is to give notice early and broadly. However, insureds often hesitate to give notice because of a fear that it will increase the premium. Moreover, it is difficult to educate all relevant people at the insured company, such as supervisors and managers, of the importance of reporting every complaint that they receive to the person at the company with the proper authority for determining

4 claim reporting to the insurer. Notice under claims made policies will continue to be a major concern for policyholders. D&O SCORECARD By: Adam S. Cantor, Esq. The recent allegations of corporate wrongdoing have led to a wave of lawsuits over Directors and Officers insurance policies. Those disputes are now resulting in new D&O insurance case law. Recent cases are very briefly summarized below: Federal Insurance Company v. Tyco International Ltd., et al., No /03 (N.Y. Sup. Ct., March 5, 2004). The insurer tried unilaterally to rescind the D&O policy. The court granted the insured s summary judgment motion, finding that the insurer had to defend until a court decided the rescission issue in Federal s favor and voided the policy ab initio. Harris v. Gulf Insurance Company, 297 F. Supp. 2d 1220 (N.D. Cal. 2003). This pro-insured decision involved language in the insured v insured exclusion that voided coverage if an insured gave assistance to the plaintiff. The court narrowly interpreted this exclusion and found that the insured had not given sufficient material assistance to the plaintiff to void coverage. Cutter & Buck, Inc. v. Genesis Insurance Company, 306 F. Supp. 2d 988 (W.D. Wash. Feb. 11, 2004). The D&O policy in this case permitted the insurer to rescind the policy as to all insureds if the person who signed the application knowingly gave false information. The court rescinded the policy because the CFO who signed the policy pleaded guilty to wire fraud with respect to false information in the company s earning statements. National Union Fire Insurance Company of Pittsburgh, PA v. U.S. Liquids, Inc., 88 Fed. Appx. 725, C.A.5 (Tex) (February 17, 2004). The court found no coverage because of the D&O policy s pollution exclusion. The court found that the plaintiff class allegations of failure to disclose pollution liabilities was sufficient to trigger the exclusion. In Re Adelphia Communications Corp., 302 B.R. 439 (S.D.N.Y. 2003). In a dispute concerning whether the proceeds of the D&O policy belonged to the directors and officers or the bankrupt estate, the court allowed the directors and officers access to the policy to pay their defense costs. In Re HealthSouth Corp., 308 F. Supp. 2d 1253 (N.D. Ala. 2004). The court denied the insurers attempt to rescind the policy as to all insureds, and instead enforced the severability provision. BROKER - CLIENT CONFLICTS By: Robert D. Chesler, Esq. Several state attorney generals are now investigating the relationship between insurance brokers and insurance companies. As an example, a broker might ordinarily receive a 10% commission on premium income from an insurance company, but have an agreement whereby that percentage increases to 15% if the broker places in excess of a certain amount of premium income annually with that insurer. Does such an arrangement, which is Most companies do not have a clue concerning the relationship between their broker and the insurance industry. common, influence the broker to steer the insured to a particular insurer, whether or not it offers the best policy? Does the broker have an obligation to disclose the arrangement to its client? This issue is only the proverbial tip of the iceberg. Most companies do not have a clue concerning the relationship between their broker and the insurance industry. As a first question, do you ask your broker what its commission arrangement is? Even putting aside arrangements such as discussed in the first paragraph, do you know if your

5 broker gets 6% or 15% commission? The commission comes out of the premium, which comes out of your pocket. Have you tried to say to your broker: we will purchase this policy only if you reduce your commission from 12% to 8%? In the recent hard market, when premiums skyrocketed, did your broker s income likewise skyrocket? If you increase your policy limit from $10,000,000 to $20,000,000, so that your premium doubles while your broker does no extra work, is it fair that the broker s commission doubles? Moreover, brokers survive on their relationships with their insurers. If insurers refuse to write policies for a broker, the broker goes out of business. This is particularly true of a smaller broker who may only write insurance as an agent for a small number of insurers. Bluntly, the insurer may be more important than any single client. The broker must balance carefully between getting the best policy at the best price for its client and not alienating the insurer. Take the broker who normally writes coverage with insurers A, B and C. All offer you a very high premium. Will your broker go to insurer D, M or Q, with whom it does not have a relationship, to get you a better quote? What if Insurer A says, if I don t get this customer, I will not write any more policies with you, but will go to your competitor down the block? As a law firm, we see this conflict unfold mainly in the arena of claimshandling. Let us assume that you have a disputed claim with your insurer. In view of the above discussion, does your broker have the ability or willingness to pursue that claim as strongly as possible - so strongly that it affects its business relationship with the insurer? If the insurer denies coverage, does your broker tell you that the insurer is right, or does he recommend that you consult a lawyer? If the broker does the latter, three bad things can happen. First, the insurer might get angry. Second, the lawyer might assert that the broker did a bad job of claims handling. Third, the lawyer might say that there is no coverage because the broker committed malpractice. On two occasions recently, we recovered fully on claims after the broker had told the client that the insurer was right and that there was no coverage. To return to the first issue, we do not believe that insurance brokers intentionally steer clients to an insurer, even if it has weaker coverage, simply to get an increased commission. Further, every business is based in large part on the value of relationships, and the insurance world is no different. However, companies should be more aware of the relationship between their brokers and insurers both in purchasing coverage and in evaluating claims. For more information regarding these or any other insurance coverage issues, please contact Robert D. Chesler, Chair of the Insurance Law Practice Group, at or at rchesler@lowenstein.com, or Lynda A. Bennett, member of the Insurance Law Practice Group, at or at lbennett@lowenstein.com. Or visit the Insurance Outpost website at

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