Case 1:07-cv RBK-JS Document 28 Filed 09/10/2008 Page 1 of 9. (Not for Publication) (Docket Entry Nos. 17, 24)

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1 Case 1:07-cv RBK-JS Document 28 Filed 09/10/2008 Page 1 of 9 (Not for Publication) (Docket Entry Nos. 17, 24) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN VICINAGE : PENNSYLVANIA NATIONAL : MUTUAL CASUALTY INSURANCE : COMPANY, : : Plaintiff, : : Civil No (RBK) v. : : OPINION PARKSHORE DEVELOPMENT : CORPORATION, et al., : : Defendants. : : Currently before the Court in this action for a declaratory judgment are Plaintiff Pennsylvania National Mutual Casualty Insurance Company s ( PNI ) motion for summary judgment and Defendant Parkshore Development Corporation s ( Parkshore ) cross-motion for summary judgment. For the reasons to follow, Defendant Parkshore s motion will be denied and Plaintiff s motion will be granted in part and denied in part. I. Facts PNI seeks a declaration that it bears no duty to defend or indemnify its policyholder, Defendant Parkshore, in a New Jersey state court action filed by Catalina Cove Condominium Association ( Catalina Cove ). Parkshore was the developer and general contractor for Catalina Cove Condominiums in Linwood, New Jersey. All of the work on the Catalina Cove Condominiums at issue in this case was performed by subcontractors. Construction was completed in In July 1999, Catalina

2 Case 1:07-cv RBK-JS Document 28 Filed 09/10/2008 Page 2 of 9 Cove informed Parkshore that stucco around some of the windows had not been caulked properly, and the windows were leaking. Parkshore retained a subcontractor, Keen s Caulking and Waterproofing, to recaulk the stucco. In or about October 2006, Catalina Cove filed suit against Parkshore, Keen s Caulking and Waterproofing ( Keen s Caulking ), and multiple John Doe defendants. Catalina Cove advanced claims of breach of contract and negligence, breach of implied warranties, consumer fraud, and failure of remediation. Catalina Cove s expert identified numerous construction problems in the condominiums that led to wet crawl spaces and water infiltration of the walls. In Count I of its complaint, Catalina Cove claimed that Parkshore and the John Doe developers ( Developer Defendants ) breached their common law and contractual duties to design, construct, and convey to the public residential dwellings that conformed to construction industry standards and plans for the project, and that were free from design and construction defects. In Count II, Catalina Cove alleged that the Developer Defendants breached the implied warranties of merchantability and fitness for a particular purpose. In Count III, Catalina Cove claimed that the Developer Defendants violated the New Jersey Consumer Fraud Act by making false representations to prospective purchasers of condominium units about the quality of the units. In Count IV, Catalina Cove alleged that the Developer Defendants and Keen s Caulking, when notified of the construction problems, failed to properly diagnose the source of the problems and take steps to correct the problems. PNI is Parkshore s insurer. PNI issued Parkshore a Commercial General Liability policy for each consecutive year from March 7, 1989 through March 7, The PNI policies issued to Parkshore cover bodily injury and property damage caused by an occurrence.

3 Case 1:07-cv RBK-JS Document 28 Filed 09/10/2008 Page 3 of 9 1 The PNI policies contain two slightly different definitions of occurrence. The earlier policies define occurrence as an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured. Later policies define occurrence as an accident, including continuous or repeated exposure to substantially the same general harmful conditions. The PNI policies also contain two different definitions of property damage. One form defines property damage as: (1) physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom, or (2) loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period. Another form defines property damage as: a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the occurrence that caused it. A number of the PNI policies also contain the following language: This insurance does not apply to... Property damage to your work arising out of it or any part of it and included in the products completed operations hazard. This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor. Parkshore submitted a claim for defense and indemnification in the Catalina Cove action to PNI on or about October 17, By letter dated November 27, 2006, PNI disclaimed coverage for the Catalina Cove action, concluding that the action did not meet the policy definitions of occurrence and property damage. PNI subsequently filed this suit on March 1 Neither party has identified which policy year applies to this case.

4 Case 1:07-cv RBK-JS Document 28 Filed 09/10/2008 Page 4 of 9 22, 2007, seeking a declaration that it had no duty to defend or indemnify Parkshore in the Catalina Cove action. PNI filed a motion for summary judgment, arguing that (1) the allegations of faulty workmanship by or on behalf of Parkshore contained in the Catalina Cove complaint do not constitute an occurrence within the meaning of the PNI policy and (2) the alleged violations of the Consumer Fraud Act in the Catalina Cove complaint did not cause property damage within the meaning of the PNI policy. Parkshore opposed PNI s motion, arguing that Catalina Cove s claims against it meet the policy definitions of occurrence and property damage. Parkshore also filed a cross-motion for summary judgment, arguing that PNI has a duty to indemnify and defend Parkshore because the Catalina Cove complaint states a claim constituting a risk covered by the insurance policy. II. Analysis A. Standard for Summary Judgment Summary judgment is appropriate where the Court is satisfied that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). A genuine issue of material fact exists only if the evidence is such that a reasonable jury could find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When the Court weighs the evidence presented by the parties, [t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. Id. at 255. The burden of establishing the nonexistence of a genuine issue is on the party moving for summary judgment. Celotex, 477 U.S. at 330. The moving party may satisfy this burden by either (1) submitting affirmative evidence that negates an essential element of the nonmoving

5 Case 1:07-cv RBK-JS Document 28 Filed 09/10/2008 Page 5 of 9 party's claim; or (2) demonstrating to the Court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's case. Id. at 331. Once the moving party satisfies this initial burden, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. FED. R. CIV. P. 56(e). To do so, the nonmoving party must do more than simply show that there is some metaphysical doubt as to material facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, to survive summary judgment, the nonmoving party must make a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. B. Principles Guiding the Interpretation of Insurance Policies Because the parties agree that New Jersey law governs in this case, the Court will apply New Jersey law. See Newport Assocs. Dev. Co. V. Travelers Indem. Co. of Illinois, 162 F.3d 789, 791 (3d Cir. 1998). Under New Jersey law, the terms of an insurance contract are to be given their everyday and common meaning. Newport Assocs. Dev. Co. v. Travelers Indem. Co. of Illinois, 162 F.3d 789, 792 (3d Cir.1998). Any ambiguities in policy language will be resolved in favor of the insured. Am. Motorists Ins. Co. v. L-C-A Sales Co., 713 A.2d 1007, 1013 (N.J. 1998). Whether an insurer bears a duty to defend its policyholder against a complaint depends upon whether the insurer would be obligated to indemnify the policyholder in the event that the third party plaintiff successfully proved his claim. Merrimack Mut. Fire Ins. Co. v. Coppola, 690 A.2d 1059, 1064 (N.J. Super. Ct. App. Div. 1997). An insurer's duty to defend its policyholder is broader than the duty to indemnify in that the insurer must defend its policyholder against potentially covered claims even if the claims are groundless, false, or fraudulent. Hebela v.

6 Case 1:07-cv RBK-JS Document 28 Filed 09/10/2008 Page 6 of 9 Healthcare Ins. Co., 851 A.2d 75, 79 (N.J. Super. Ct. App. Div. 2004). The relevant inquiry for determining if the duty to defend has been triggered is a comparison of the allegations in the underlying complaint against the language of the insurance policy. SL Indus., Inc. v. Am. Motorists Ins. Co., 607 A.2d 1266, 1271 (N.J. 1992). When the two correspond, the insurer must defend its policyholder against the underlying suit. Id. D. Analysis of the PNI policies The PNI policies cover property damage caused by occurrences. The parties disagree as to (1) whether the Catalina Cove claims for breach of contract and negligence (Count I), breach of implied warranties (Count II), and failure of remediation (Count IV) involve an occurrence and (2) whether the actions giving rise to Catalina Cove s Consumer Fraud Act Claim (Count III) caused any property damage. 1. Counts I, II, and IV of the Catalina Cove Complaint: Occurrence PNI argues that Catalina Cove s claims for breach of contract, negligence, breach of implied warranties, and failure of remediation all spring from faulty workmanship done by or on behalf of Parkshore, and that faulty workmanship by the insured is not an occurrence. Parkshore responds that there was an occurrence because Parkshore did not expect that work performed by subcontractors would damage other parts of the condominium complex. Parkshore also argues that the fact that there is an exception for subcontractor work in the exclusion for property damage caused by your work shows that the policy covers damages Parkshore did not expect that were caused by subcontractors work. Whether faulty workmanship is an occurrence under a commercial general liability (CGL) policy is an issue of first impression for this Court, but the majority of courts that have addressed the issue, including the Appellate Division of the Superior Court of New Jersey, have

7 Case 1:07-cv RBK-JS Document 28 Filed 09/10/2008 Page 7 of 9 found that it is not. See Firemen s Ins. Co. of Newark v. Nat l Union Fire Ins. Co., 904 A.2d 754, 762 (N.J. Super. Ct. App. Div. 2006); see also 9A COUCH ON INSURANCE 129:4 (3d ed. 2008) ( [A] claim for faulty workmanship, in and of itself, is not an occurrence under a commercial general liability policy because a failure of workmanship does not involve the fortuity required to constitute an accident. ). In Firemen s, the court held that faulty workmanship, by itself, whether performed by a subcontractor or general contractor, is not an occurrence under a commercial general liability policy. See 904 A.2d at (finding no 2 occurrence where only damage sought was replacement of defective work). By contrast, the Appellate Division of the New Jersey Superior Court has held that when faulty workmanship causes damage to property other than the work done by the insured, there is an occurrence. See S.N. Golden Estates, Inc. v. Continental Casualty Co., 680 A.2d 1114, (N.J. Super. Ct. App. Div. 1996) (finding occurrence where insured s allegedly faulty construction 3 of septic systems caused damage to lawns and homes); see also 9A COUCH ON INSURANCE 129:4 ( [A]lthough a commercial general liability policy does not provide coverage for faulty workmanship that damages only the resulting work product, the policy does provide coverage if the faulty workmanship causes bodily injury or property damage to something other than the insured's work product. ). 2 The policy in Firemen s defined occurrence as an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured. Id. at 757. This is the same language used in the earlier PNI policies. 3 The policy in S.N. Golden defined occurrence as an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured. Id. at 1117.

8 Case 1:07-cv RBK-JS Document 28 Filed 09/10/2008 Page 8 of 9 In this case, the damage was limited to Parkshore s work product, the Catalina Cove condominiums. Therefore, the Court finds that there was no occurrence triggering coverage under the PNI policy. Parkshore cites several cases where courts in other jurisdictions held that whether there was an occurrence does not depend on what property is damaged. See Lamar Homes, Inc. v. Mid Continent Cas. Co, 242 S.W.3d 1, 9 (Tex. 2007) (stating no logical basis within the occurrence definition allows for distinguishing between damage to the insured's work and damage to some third party's property ); U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So.2d 871, 883 (Fla. 2007) ( [W]e fail to see how defective work that results in a claim against the contractor because of injury to a third party or damage to a third party's property is unforeseeable, while the same defective work that results in a claim against the contractor because of damage to the completed project is foreseeable. ). However, this seems to be the very distinction that New Jersey courts have made in Firemen s and S.N. Golden Estates. Parkshore argues that while faulty work generally is not covered by the PNI policy, it is because of the business risk exclusion for damage caused by your work, not because of the definition of occurrence. Parkshore notes that this exclusion specifically excepts damages caused by subcontractors work. In Weedo v. Stone-E-Brick, Inc., the New Jersey Supreme Court relied on the business risk exclusion to find that faulty work is not covered by a CGL policy. See 405 A.2d 788, (N.J. 1979). Because Weedo does not address the definition of occurrence under a CGL policy, this Court is hesitant to find that Weedo suggests that faulty workmanship is necessarily an occurrence. Given the existing case law in New Jersey, this Court finds that there is no occurrence where faulty work leads to damage to work product of the insured. Therefore, PNI s motion for summary judgment is granted as to PNI s duty to

9 Case 1:07-cv RBK-JS Document 28 Filed 09/10/2008 Page 9 of 9 defend and indemnify Parkshore as to Counts I, II, and IV of the Catalina Cove complaint, and Parkshore s motion for summary judgment is denied as to these claims. 2. Consumer Fraud Act Claim and Property Damage PNI contends that it has no obligation to defend or indemnify Parkshore for the Consumer Fraud Act (CFA) claim (Count III) brought by Catalina Cove because no property damage is alleged to have resulted from this claim. Parskhore responds that the damages Catalina Cove alleged it suffered from the CFA violation were no different than the damages alleged in the other counts of its complaint, which do constitute property damage. Count III of Catalina Cove s complaint alleges that Parkshore made representations as to the quality of the condominium units and then failed to provide units which conformed to these representations. The complaint states that Catalina Cove sustained damages as a result of Parkshore s alleged violation of the CFA. Because it is unclear what damages Catalina Cove claims to have suffered as a result of Parkshore s alleged violation of the CFA, summary judgment as to PNI s duty to defend and indemnify Parkshore for the CFA claim is not appropriate at this time. Therefore, both motions for summary judgment are denied as to PNI s duty to indemnify and defend Parkshore with regard to Count III of the Catalina Cove complaint. III. Conclusion For the reasons expressed above, Plaintiff PNI s motion for summary judgment is granted as to its duty to defend and indemnify Parkshore for Counts I, II, and IV of Catalina Cove s complaint and denied as to its duty to defend and indemnify Parkshore for Count III of Catalina Cove s Complaint. Defendant Parkshore s motion for summary judgment is denied. Dated: /s/ Robert B. Kugler ROBERT B. KUGLER United States District Judge

10 Page 1 1 of 2 DOCUMENTS PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, Plaintiff, v. PARKSHORE DEVELOPMENT CORPORATION, et al., Defendants. Civil No (RBK/JS) UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY 2009 U.S. Dist. LEXIS June 17, 2009, Decided June 17, 2009, Filed NOTICE: NOT FOR PUBLICATION COUNSEL: [*1] For PENNSYLVANIA NATIONAL MUTUAL CASUALITY INSURANCE COMPANY, Plaintiff, Counter Defendant: MICHAEL S. SAVETT, LEAD ATTORNEY, WEBER, GALLAGHER, SIMPSON, STAPLETON, FIRES & NEWBY, LLP, CHERRY HILL, NJ. For PARKSHORE DEVELOPMENT CORPORATION, Defendant, Counter Claimant: SALVATORE PERILLO, LEAD ATTORNEY, NEHMAD PERILLO & DAVIS, P.C., SOMERS POINT, NJ. JUDGES: ROBERT B. KUGLER, United States District Judge. OPINION BY: ROBERT B. KUGLER OPINION Presently before the Court is a motion by Defendant Parkshore Development Corporation ("Parkshore") for reconsideration of this Court's Opinion and Order of September 10, 2008 in which the Court denied Parkshore's motion for summary judgment and granted in part the motion for summary judgment filed by Plaintiff Pennsylvania National Mutual Casualty Insurance Company ("PNI"). For the reasons set forth below, Parkshore's motion for reconsideration will be denied. I. BACKGROUND Parkshore was the developer and general contractor for the Catalina Cove Condominiums. The last unit was completed in In 2006, the Catalina Cove Condominium Association ("Catalina Cove") filed suit against Parkshore and other defendants, claiming that Parkshore breached its contract with purchasers of the [*2] condominium units by failing to design and construct the condominium buildings in an acceptable manner; was negligent in designing and constructing the condominium buildings; breached implied warranties of merchantability and fitness for a particular purpose; and violated the New Jersey Consumer Fraud Act. Catalina Cove further claimed that Parkshore and the other defendants were negligent in failing to properly diagnose the cause of and failing to remedy water infiltration, failing to repair structural damage caused by water infiltration, and failing to prevent further water infiltration. According to Catalina Cove, this negligence caused common elements of the Catalina Cove condominiums to sustain substantial

11 2009 U.S. Dist. LEXIS 50738, *2 Page 2 damage. Parkshore submitted a claim for defense and indemnification in the Catalina Cove action to PNI, from whom Parkshore had obtained a Comprehensive General Liability ("CGL") insurance policy. PNI disclaimed coverage for the Catalina Cove action, finding that the policy requirements of an "occurrence" and "property damage" had not been met. PNI subsequently filed this action seeking a declaratory judgment that it has no duty to defend or indemnify Parkshore in connection [*3] with the Catalina Cove suit. Both Parkshore and PNI filed motions for summary judgment. PNI argued that coverage under its policy had not been triggered because there was no "occurrence" within the meaning of the policy. According to PNI, Catalina Cove's claims were based on faulty workmanship, which is not an occurrence. According to Parkshore, there was an occurrence because Catalina Cove's claims were for consequential damages that arose after construction had been completed and that were unanticipated by Parkshore. In its September 10, 2008 Opinion and Order, this Court found that there had been no occurrence, and granted in part PNI's motion for summary judgment and denied Parkshore's motion for summary judgment. Parkshore now seeks reconsideration of that Opinion and Order, arguing that this Court failed to address the distinction between a construction defect present at the time of closing and consequential damages sustained later as a result of the construction defect, and that this failure constituted a "manifest error of law." II. STANDARD In the District of New Jersey, Local Civil Rule 7.1(i) governs motions for reconsideration. Church & Dwight Co. v. Abbott Labs., 545 F. Supp. 2d 447, 449 (D.N.J. 2008). [*4] This rule "permits a party to seek reconsideration by the Court of matters 'which [it] believes the Court has overlooked' when it ruled on a motion." NL Indus., Inc. v. Commercial Union Ins. Co., 935 F. Supp. 513, 515 (D.N.J. 1996) (quoting local rule); see also United States v. Compaction Sys. Corp., 88 F. Supp. 2d 339, 345 (D.N.J. 1999) (noting that party seeking reconsideration must show "that dispositive factual matters or controlling decisions of law were overlooked by the court in reaching its prior decision"). "The standard of review involved in a motion for [reconsideration] is quite high, and therefore relief under this rule is granted very sparingly." United States v. Jones, 158 F.R.D. 309, 314 (D.N.J. 1994) (citing Maldonado v. Lucca, 636 F. Supp. 621, 630 (D.N.J. 1986)). In order to prevail, the party moving for reconsideration must "show[] at least one of the following grounds: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court granted the motion for summary judgment; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice." Max's Seafood Cafe v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) [*5] (citing N. River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). Rule 7.1(i) does not allow parties to restate arguments which the court has already considered. See G-69 v. Degnan, 748 F. Supp. 274, 275 (D.N.J. 1990). "A motion that merely raises a disagreement with the Court's initial decision is not an appropriate reconsideration motion, but should be dealt with in the normal appellate process." Church & Dwight Co., 545 F. Supp. 2d at 450 (citing Bowers v. Nat'l Collegiate Athletic Ass'n, 130 F. Supp. 2d 610, 612 (D.N.J. 2001)). III. DISCUSSION In its September 10, 2008 Opinion, this Court found that there was no occurrence because the only damage was to the condominiums built by Parkshore. The Court noted that the New Jersey Supreme Court has not ruled on when, if ever, faulty workmanship could constitute an occurrence. This Court further noted, however, that the Appellate Division of the Superior Court of New Jersey has held that faulty workmanship that damages only the work product of the insured is not an occurrence. See Firemen's Ins. Co. of Newark v. Nat'l Union Fire Ins. Co., 387 N.J. Super. 434, 904 A.2d 754, (N.J. Super. Ct. App. Div. 2006) (finding no occurrence where [*6] only damage was to general contractor's work product). A. The Significance of Weedo v. Stone-E-Brick, Inc. Parkshore suggests that this Court overlooked the significance of the New Jersey Supreme Court's decision in

12 2009 U.S. Dist. LEXIS 50738, *6 Page 3 Weedo v. Stone-E-Brick, Inc., 81 N.J. 233, 405 A.2d 788 (N.J. 1979). According to Parkshore, the Weedo court drew a distinction between the risk of having to repair a defect and the risk that the defect could cause consequential damages. First, this Court stands by its prior conclusion that the decision in Weedo was based on an interpretation of exclusions in the policy, not on the definition of occurrence. See Weedo, 405 A.2d at 792 (finding that two exclusions were applicable). Second, to the extent that Weedo could be interpreted to address the definition of occurrence, the distinction drawn by the Weedo court was between the risk that faulty goods will need to be repaired or replaced and "the risk... that the goods, products or work of the insured, once relinquished and completed, will cause bodily injury or damage to property other than to the product or completed work itself, and for which the insured may be found liable." Id. at 791 (emphasis added) (quoting Henderson, Insurance [*7] Protection for Products Liability and Completed Operations: What Every Lawyer Should Know, 50 Neb. L. Rev. 415, 441 (1971)). Thus, the Court finds that there was no "manifest error" in its interpretation of Weedo. B. Cases from other Jurisdictions Parkshore further argues that a number of state courts have found that there can be an occurrence when faulty construction damages only the insured's own work. See, e.g., Lamar Homes, Inc. v. Mid-Continent Cas. Co., 242 S.W.3d 1, 9 (Tex. 2007) (finding occurrence where homebuilder was negligent and did not intend or expect its work to damage home it built); U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So.2d 871, 885 (Fla. 2007) ("[W]e reject a definition of 'occurrence' that renders damage to the insured's own work as a result of a subcontractor's faulty workmanship expected, but renders damage to property of a third party caused by the same faulty workmanship unexpected."); Travelers Indem. Co. v. Moore & Assocs., Inc., 216 S.W.3d 302, (Tenn. 2007) (finding water damage was not foreseeable to construction company where subcontractor installed faulty windows); Lee Builders, Inc. v. Farm Bureau Mut. Ins. Co., 281 Kan. 844, 137 P.3d 486, 495 (Kan. 2006) [*8] (finding occurrence where faulty materials and workmanship by subcontractor caused home to be exposed to moisture, which resulted in water damage); American Family Mut. Ins. v. American Girl, 2004 WI 2, 268 Wis. 2d 16, 673 N.W.2d 65, 69, 78 (Wis. 2004) (finding occurrence where "soil engineering subcontractor gave faulty site-preparation advice to a general contractor in connection with the construction of a warehouse" and soil conditions later caused foundation to sink and building to crack). This Court did not overlook the existence of a line of cases finding that faulty construction causing damage only to the insured's work could be an occurrence. The Court explicitly acknowledged the existence of such cases, but found them to be inconsistent with the law in New Jersey. Further, Parkshore, in its motion for reconsideration, does not mention that there is another line of cases that support this Court's prior decision. See Millers Capital Ins. Co. v. Gambone Bros. Dev. Co., 2007 PA Super 403, 941 A.2d 706, (Pa. Super. Ct. 2007) (finding no accident, and thus no occurrence, where construction defects caused leaks which damaged non-faulty portions of builder's work); Burlington Ins. Co. v. Oceanic Design & Const., Inc., 383 F.3d 940, 943, (9th Cir. 2004) [*9] (predicting that Hawaii Supreme Court would not find occurrence where homebuilder's faulty design or construction of foundation caused damage to house and retaining walls); Transp. Ins. Co. v. AARK Constr. Group, Ltd., 526 F. Supp. 2d 350, (E.D.N.Y. 2007) (finding no occurrence where only damages sought for faulty construction of garage were "the costs of repair of the garage and loss of use of the building incident to the closure of the garage"); Calvert Ins. Co. v. Herbert Roofing and Insulation Co., 807 F. Supp. 435, 438 (E.D. Mich. 1992) ("[W]hen an insured's defective workmanship results in damage to the property of others, an 'accident' exists within the meaning of the standard comprehensive liability policy."); Stoneridge Dev. Co. v. Essex Ins. Co., 382 Ill. App. 3d 731, 888 N.E.2d 633, 654, 321 Ill. Dec. 114 (Ill. App. Ct. 2008) (finding no occurrence where improper soil compaction caused damage to home). IV. CONCLUSION For the foregoing reasons, the Court finds that Parkshore has failed to demonstrate that the Court overlooked dispositive facts or controlling law in reaching its prior decision. Thus, Parkshore's motion for reconsideration is denied.

13 2009 U.S. Dist. LEXIS 50738, *9 Page 4 An accompanying order shall issue today. Dated: /s/ Robert [*10] B. Kugler ROBERT B. KUGLER United States District Judge