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Under Connecticut law it was held that a CGL carrier had a duty to defend its named insured, swimming pool construction prime contractor, against suits by homeowners alleging cracking in their new pools due to defective workmanship by concrete supply subcontractors.  The summary judgment that had been granted by the trial court in favor of the carrier was reversed.  The trial court found the carrier owed no duty to defend its insured against the claims alleged from the defective work because they could not be deemed an “accident,” and thus there was no “occurrence” to be covered under the CGL policy.

In reversing that decision, the appellate court held that the damages could be deemed an accident and occurrence.  Furthermore, the court went on to say that this is the obvious intent of the policy based on logical interpretation of the subcontractor work exception to the prime contractor’s “your work” exclusion. By making an exception to the exclusion when the damages arise out of the subcontractor’s work rather than the named insured’s own work, the court says the policy affirmatively establishes insurance for damages arising out of defective work performed by subcontractors.  In this case, since there is no dispute that the allegedly defective work in question was performed by subcontractors, the carrier was required to defend the prime contractor against the homeowner suits.

 

About the author: Article written by J. Kent Holland, Jr.,  a construction lawyer located in Tysons Corner, Virginia,  with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 15, No. 7 (July 2013).

Copyright 2013, ConstructionRisk, LLC