Summary
holding that defective construction resulting in damage only to the insured's work product itself is foreseeable and thus not an "occurrence" under the CGL policy
Summary of this case from Black & Veatch Corp. v. Aspen Ins. (UK) LTDOpinion
No. 07-803.
Opinion delivered September 6, 2007.
COURTS — CERTIFICATION — ACCEPTED. — After a review of the certifying court's analysis and explanation of the need for the supreme court to answer the question of law pending in that court, the supreme court accepted certification of the following question: Does defective construction or workmanship, including failure to complete work, delays in construction, or failure to procure qualified subcontractors, constitute an accident and, therefore, an occurrence within the meaning of commercial general liability insurance policies?
Request to Certify Question of Law from the United States District Court for the Eastern District of Arkansas, granted.
In accordance with section 2(D)(3) of Amendment 80 to the Arkansas Constitution and Rule 6-8 of the Rules of the Supreme Court and Court of Appeals of the State of Arkansas, Judge J. Leon Holmes of the United States District Court for the Eastern District of Arkansas has by proper motion and certifying order filed a motion and certifying order with our clerk on August 2, 2007. The certifying court requests that our court answer one question of law which may be determinative of a cause now pending in the certifying court, and it appears to the certifying court that there is no controlling precedent in the decisions of the Arkansas Supreme Court. The law in question involves whether defective construction or workmanship (including failure to complete work, delays in construction, or failure to procure qualified subcontractors) constitutes an accident and, therefore, an occurrence within the meaning of commercial general liability insurance policies issued by an insurer to an insuree.
[1] After a review of the certifying court's analysis and explanation of the need for this court to answer the question of law presently pending in that court, we accept certification of the following question: Does defective construction or workmanship, including failure to complete work, delays in construction, or failure to procure qualified subcontractors, constitute an accident and, therefore, an occurrence within the meaning of commercial general liability insurance policies?
This per curiam order constitutes notice of our acceptance of the certification of question of law. For purposes of the pending proceeding in the Supreme Court, the following requirements are imposed:
A. Time limits under Rule 4-4 will be calculated from the date of this per curiam order accepting certification. The plaintiff in the underlying action, Essex Insurance Company, is designated the moving party and will be denoted as the "Petitioner," and its brief is due thirty days from the date of this per curiam; the defendants, John Holder, d/b/a J H Enterprises, Tom Baumgartner, and Kara Baumgartner, shall be denoted as the "Respondents," and their brief shall be due thirty days after the filing of Petitioner's brief. Petitioner may file a reply brief within fifteen days after Respondents's brief is filed.
B. The briefs shall comply with this court's rules as in other cases except for the briefs content. Only the following items required in Rule 4-2(a) shall be included:
(3) Point of appeal which shall correspond to the certified question of law to be answered in the federal district court's certification order.
(4) Table of authorities.
(6) Statement of the case which shall correspond to the facts relevant to the certified question of law as stated in the federal district court's certification order.
(7) Argument.
(8) Addendum, if necessary and appropriate.
(9) Cover for briefs.
C. Oral argument will only be permitted if this court concludes that it will be helpful for presentation of the issue.
D. Rule 4-6 with respect to amicus curiae briefs will apply.
E. This matter will be processed as any case on appeal.
F. Rule XIV of the Rules Governing Admission to the Bar shall apply to the attorneys for the Petitioner and Respondents.
Request granted.