Navigators Specialty Ins. Co. v. Moorefield Construction Co.

Insurer owed no duty to indemnify an insured construction contractor under a CGL policy for damages it paid the owner of a building for injury to the building’s flooring, since the injury occurred because the insured performed a deliberate, non-accidental act—ordering the subcontractor to lay the flooring over wet concrete—and there was no additional, unexpected, unforeseen or independent event that caused the loss.  The insurer owed no duty to indemnify an insured construction contractor under a CGL policy for damages it paid the owner of a building for injury to the building’s flooring.  The injury was caused by excessive moisture vapor emitted from the concrete over which the flooring was laid.  The contractor had ordered the flooring subcontractor to lay the flooring even though the insured contractor knew from test results that the concrete was emitting excessive moisture.  The CGL policy covered only damages from an occurrence defined to mean an accident.  Here, no accident occurred because the insured performed a deliberate act—ordering the subcontractor to lay the flooring—and there was no additional, unexpected, unforeseen or independent event that caused the loss.  However, the insurer was liable under the supplementary payments coverage of the policy to pay attorney fees awarded against the insured contractor under the attorney fee provision of its contract.  The supplementary payments coverage was triggered by the insurer’s duty to defend, not its duty to indemnify.  Here, the insurer had had a duty to defend.  Also, the burden lay on the insurer, not the insured, to prove what portion of the sums the insurer had paid to settle the underlying litigation and sought to recoup in this case were attributable to covered attorney fees rather than non-covered damages.

California Court of Appeal, Fourth District, Division 3 (Fybel, J.); December 27, 2016; 2016 WL 7439032

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s