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A commercial general liability (CGL) policy insurance carrier sought declaratory judgment that it owed no duty to defend or indemnify a subcontractor that was insured under the policy for damages allegedly caused by the subcontractor’s concrete slab work for a hospital floor. The trial court granted summary judgment on the basis of the “your work” exclusion of the policy. This was reversed on appeal because the exclusion only exempts from coverage an insured contractor’s faulty workmanship with respect to “that particular part of the property subject to the faulty workmanship, and in this case the court concluded it was work of other subcontractors (i.e. vapor barrier subcontractor and tiling subcontractor) that was damaged as a result of the alleged defects in the insured’s work on the concrete slab. All American Insurance Co. v. Lampasona Concrete Corp., 120 N.E. 3d. 1258 (Mass 2019).

The court explained that while the subcontractor installed the concrete slab, different subcontractors installed two other layers of what it called the flooring subsystem – i.e., the vapor barrier below the slab, and the tile above the slab. The alleged (a) errors included puncturing the vapor barrier, which allowed moisture to pass through into the concrete slab, and (b) improperly mixing fiber reinforcement into the concrete, which contributed to moisture wicking to the surface. “The resulting moisture problems caused damage to the tiles and carpet, such as causing the tiles to buckle.”

In granting the insurance company’s summary judgment motion, the trial judge assumed that the entire flooring system, including the vapor barrier and everything above it had to be replaced and that the slab work was inseparable from the work that the other subcontractor’s performed on the flooring system. For that reason, it deemed the j (6) “your work” exclusion to be applicable to the damages for all layers of the flooring system that resulted from puncturing the vapor barrier.

In reversing this, the appellate court found that even if the various layers became part of an integrated flooring system, it was legally significant that the subcontractor didn’t install the vapor barrier under the slab or the floor tiles and carpeting above the slab. Because of that, the court concluded that damages to the various layers must be considered separately, and that the j(6) exclusion was inapplicable to the damages claimed.

 

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 ConstructionRisk 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. 21, No. 7 (Aug 2019).

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