Summary
holding that plaintiffs' claim was not covered by a standard CGL policy because "they allege no bodily injury or property damage . . . [or] damages caused by an accident" and instead had alleged only "a claim for money damages for the builder's defective work"
Summary of this case from Wallace v. Nautilus Ins. Co.Opinion
No. 80-368
Decided March 16, 1981
Insurance — Liability for Damage or Injury — Wording of Policy Where contractor's insurance contract with insurer provided coverage for all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage caused by an occurrence, and where homeowner's suit against contractor was based on claim for money damage for contractor's defective work, not bodily injury, property damage or allegations that damages were caused by accident, there was no ambiguity in the insurance contract and contractor was not covered by the policy for the damages alleged by homeowners.
Wiggin Nourie, of Manchester (Richard B. McNamara on the brief and orally), for the defendant.
S. David Siff, of Concord, by brief and orally, for the plaintiff.
MEMORANDUM OPINION
In 1978, Joseph and Elaine Morretto hired Earl Hull, a masonry contractor, to construct a front porch, steps, and a retaining wall on their property. Before the work was completed, a disagreement arose between the parties, and Hull was discharged. The Morrettos then sued Hull for the allegedly defective work that he had completed. Hull, who had an insurance policy with the defendant, asked the insurance company to defend against the suit. When the insurer denied coverage, Hull brought a petition for declaratory judgment under RSA 491:22. On stipulated facts, the Master (Robert A. Carignan, Esq.) found that Hull was not covered by the policy for the damages alleged by the Morrettos. The Superior Court (Cann, J.) approved the master's report, and Hull appealed.
Under our recent ruling in Trombly v. Blue Cross/Blue Shield, 120 N.H. 764, 423 A.2d 980 (1980), the issue is whether there is an ambiguity in the contract. We find no ambiguity. The insurance contract at issue provides coverage for "all sums which the insured shall become legally obligated to pay as damages because of
A. bodily injury or
B. property damage
caused by an occurrence. . . ." (Emphasis original.) "Occurrence" is defined 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." Relying on Commercial Union Assurance Co. v. Gilford Marina, Inc., 119 N.H. 788, 408 A.2d 405 (1979), and Commercial Union Assurance Cos. v. Gollan, 118 N.H. 744, 394 A.2d 839 (1978), Hull argues that the policy does not clearly exclude coverage. Those cases are distinguishable from this case. In the Morrettos' suit against Hull, they allege no bodily injury or property damage. Nor do they allege damages caused by accident. The sole basis of their suit is a claim for money damages for Hull's defective work. We find no error below. See Bituminous Casualty Corp. v. Bartlett, 307 Minn. 72, 80, 240 N.W.2d 310, 314 (1976), overruled on other grounds, Prahm v. Rupp Const. Co., 277 N.W.2d 389, 391 (Minn. 1979).
Affirmed.