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McAllister v. Peerless Ins. Co.

Supreme Court of New Hampshire Hillsborough
Apr 9, 1984
124 N.H. 676 (N.H. 1984)

Summary

holding that "defective work, standing alone, did not result from an occurrence, and indeed was not property damaged within the meaning of the policy"

Summary of this case from Wallace v. Nautilus Ins. Co.

Opinion

No. 82-383

Decided April 9, 1984

1. Appeal and Error — Findings — Master's Findings The supreme court will sustain the master's findings of fact if there was evidence on which a reasonable person could have found as he did.

2. Insurance — Coverage — Determination In a declaratory judgment action to determine insurance coverage, where in 1978 the insurer had issued a comprehensive general liability policy with completed operations coverage to the insured, who conducted a landscaping and excavating business, but failed to deliver to the insured a set of documents that included all the written terms governing the coverage, and where in 1979 an action was brought against the insured by a third party, for whom the insured had performed landscaping work and constructed a leach field, seeking damages to pay for correcting allegedly defective work, the supreme court held that there was evidence on which a reasonable person could have found as the master did in finding that neither the insured nor the insurer's agent definitely recalled any representations the agent made about the coverage the insurer would provide, and that the agent had made no representation that coverage would be provided for liability of the sort asserted by the third party, and held, therefore, that the master's findings must stand.

3. Insurance — Liability for Damage or Injury — Wording of Policy In a declaratory judgment action to determine coverage under a comprehensive general liability policy with completed operations coverage, the supreme court held that liability for faulty workmanship was not the subject of coverage for completed operations, since it was clear from the policy language that the property damage giving rise to liability must take place after the completion of the operation, and since the claim in the present case was to correct a defect in workmanship, which defect was complete when the work was complete.

4. Insurance — Liability for Damage or Injury — "Occurrence" In a declaratory judgment action to determine insurance coverage under a comprehensive general liability policy, where the claims in the underlying action were claims to correct a defect in workmanship, and where the policy covered "completed operations hazard," which was defined, in part, as "property damage arising out of operations . . . but only if the . . . property damage occurs after such operations have been completed or abandoned," the master rightly concluded that the declarations in the underlying action alleged no occurrence, and the supreme court was unable to find in the policy language a reasonable basis to expect coverage for defective workmanship, since the deck sheet to the policy defined "occurrence" as "an accident, including continuous or repeated exposure to conditions, which results in property damage," and the fortuity implied by reference to accident or exposure is not what is commonly meant by a failure of workmanship.

5. Insurance — Liability for Damage or Injury — "Occurrence" In a declaratory judgment action to determine insurance coverage under a comprehensive general liability policy, where the claims in the underlying action were claims to correct a defect in workmanship, and where the insurer failed to deliver to the insured a set of documents that included all the written terms governing the coverage, the supreme court would have found no coverage for faulty workmanship, even if it had extended its consideration of the language of the policy to the general grant of coverage customarily used in general liability policies, since the general coverage provision the insurer should have delivered would obligate the insurer to pay damages arising out of "property damage to which this insurance applies, caused by an occurrence," and thus provides coverage only when damage results from an occurrence, and since the supreme court's holding in Hull v. Berkshire Mutual Insurance Co., 121 N.H. 230 (1981), was that a general grant of coverage identical to the general coverage provision in the present case does not insure against liability for the cost of correcting defective work.

6. Insurance — Liability for Damage or Injury — "Occurrence" The supreme court's holding in Hull v. Berkshire Mutual Insurance Co., 121 N.H. 230 (1981), that a general grant of coverage under a general liability policy does not insure against liability for the cost of correcting defective work and that defective work, standing alone, did not result from an occurrence and was not property damaged within the meaning of the policy, was squarely applicable to the present case, where the underlying action alleged defects in workmanship, whether the supreme court considered the requirement of occurrence in the general grant of coverage or the same requirement in the terms of the policy relating to completed operations.

7. Insurance — Liability for Damage or Injury — Property Damage Where property owner brought an action against insured for breaches of contract, claiming faulty workmanship in constructing a leach field and in performing landscaping, the supreme court held that the insurer met its burden of proving that there was no coverage under a comprehensive general liability policy, since under the completed operations provision, property damage giving rise to liability must take place after the completion of the operations, and since a defect in workmanship is complete when the work is complete and therefore cannot give rise to liability under the provision; and further, since under either the general grant of coverage or the provision relating to completed operations, defective work is not an occurrence and is not property damaged.

Ladd Law Offices, of Hollis (William M. Ladd on the brief and orally), for the plaintiff.

Devine, Millimet, Stahl Branch P.A., of Manchester (Lee C. Nyquist on the brief and orally), for the defendant.


This is an action for declaratory judgment under RSA 491:22 to resolve a disputed claim for coverage under an insurance policy. In 1978 the plaintiff began to conduct a landscaping and excavating business. He met with an agent of the defendant to obtain insurance coverage. The parties disagree over the details of the conversation between the plaintiff and the agent, but it is undisputed that each party understood that the defendant would issue to the plaintiff a comprehensive general liability policy with completed operations coverage. The defendant issued such a policy, but failed to deliver to the plaintiff a set of documents that included all the written terms governing the coverage.

Through the agent, the defendant did deliver a so-called deck sheet, which normally would have functioned as a cover or binder for written endorsements. The deck sheet identified the parties, bore some notations indicating coverage, and set out various standard definitions and conditions. It did not include language generally granting coverage, but it did include a definition of "completed operations hazard."

In 1979 Michael Finkelstein hired the plaintiff to landscape his property and to construct a leach field on it. In 1980 Mr. Finkelstein brought action against the plaintiff for breaches of contract, claiming faulty workmanship in constructing the leach field and in performing the landscaping. Mr. Finkelstein sought damages to pay for correcting the allegedly defective work. He did not claim that such defects had caused damage to any other property than the work product, nor did he claim any damage to the work product other than the defective workmanship.

The plaintiff brought the present action to determine coverage for the liability asserted in the underlying action brought by Mr. Finkelstein. Following trial, the Master (R. Peter Shapiro, Esq.) concluded that there was no coverage, and the Superior Court (Goode J.) accordingly entered a decree for the defendant. We affirm.

The plaintiff claims that he is entitled to coverage for any liability for failure to perform in accordance with his contractual obligations. He rests his claim on two grounds: his dealings directly with the agent and the terms of the policy itself.

The master found that the plaintiff had discussed the insurance requirements of his business with an acquaintance, and that by the time he met with the agent, he understood that he ought to obtain general liability and completed operations coverage. The master also found that neither the plaintiff nor the agent definitely recalled any representations the agent made about the coverage the defendant would provide. He found the agent had made no representation that coverage would be provided for liability of the sort asserted by Mr. Finkelstein, and he concluded that the agent's conversation with the plaintiff did not give rise to any obligation to provide such coverage.

[1, 2] We will sustain the master's findings of fact if there was evidence on which a reasonable person could have found as he did. U.S. Fidelity Guaranty Co., Inc. v. Johnson Shoes, Inc., 123 N.H. 148, 153, 461 A.2d 85, 88 (1983). Judged on this standard, the master's findings must stand. It is true that the plaintiff did testify that as a result of his conversation with the agent he understood that the insurance company would pay the cost of correcting substandard work. But the plaintiff also admitted that he had no recollection that the agent had said the plaintiff would have "warranty insurance," or "guaranteed [sic] insurance," and no memory that the agent "ever even mentioned anything at all about coverage for faulty workmanship."

No further references to the testimony are needed to demonstrate that there was a sufficient evidentiary basis for the master's findings. Since the findings must be sustained, there is no occasion to apply the rule that prior dealings between insured and insurer can lead to enforceable expectations of coverage. See Robbins Auto Parts, Inc. v. Granite State Ins. Co., 121 N.H. 760, 762-63, 435 A.2d 507, 508 (1981).

The plaintiff also claims coverage based on the terms of the policy. He argues that in construing those terms we should hold that the defendant's failure to deliver complete policy terms estops it to claim that any policy exclusions limit coverage, and he urges that any ambiguity in policy terms be construed against the defendant. We do not consider these claims about the application of estoppel and the resolution of ambiguity, because nothing in the policy language that was or should have been delivered could give rise to the coverage that the plaintiff seeks.

In considering the plaintiff's claim based on the terms of the policy, we look first to those terms set out on the deck sheet, the one document that was delivered to the plaintiff. Although the deck sheet did not include the general grant of liability coverage, it did include the definition of "completed operations hazard." Since it is undisputed that the insurance to be provided included coverage for liability arising out of completed operations, we look to that definition to determine whether completed operations coverage extends to claims of faulty workmanship. The portion of the definition that concerns us provides coverage by reference to liability for "property damage arising out of operations . . . but only if the . . . property damage occurs after such operations have been completed or abandoned."

Two portions of this language make it clear that liability for faulty workmanship is not the subject of coverage for completed operations. First, it is clear from the language that the property damage giving rise to liability must take place after the completion of the operation. To determine the time when the damage is alleged to have occurred, we look to the declarations in the underlying action. Lumbermen'sc. Co. v. McCarthy, 90 N.H. 320, 321, 8 A.2d 750, 751 (1939). The claims for faulty workmanship as set out in those declarations are claims for defects in existence by the time the work was completed. The evidence of faulty workmanship may well have appeared only after completion, when effluent failed to disperse and grass died. But the claim in each instance before us remains a claim to correct a defect in workmanship. Such a defect is complete when the work is complete, and thus cannot give rise to liability covered under the quoted language of the policy.

A second element of that language also indicates that there is no coverage. The property damage in question must "occur" after completion. The deck sheet defines "occurrence" in the standard fashion as "an accident, including continuous or repeated exposure to conditions, which results in property damage." Since the context does not indicate different definitions for the noun and verb forms no property damage in question can "occur" without such accident or exposure. See Williams v. Aetna Casualty Surety Co., 151 N.J. Super. 68, 376 A.2d 562 (1977).

The fortuity implied by reference to accident or exposure is not what is commonly meant by a failure of workmanship. Hull v. Berkshire Mut. Ins. Co., 121 N.H. 230, 427 A.2d 523 (1981); Tinker, Comprehensive General Liability Insurance — Perspective and Overview, 25 FED'N. INS. COUNS. Q. 217, 231 (1975). The master therefore rightly concluded that the declarations in the underlying action allege no occurrence. Despite proper deference, then, to the reasonable expectations of the policyholder, Town of Epping v. St. Paul Fire Marine Ins. Co., 122 N.H. 248, 252, 444 A.2d 496, 498 (1982) we are unable to find in the quoted policy language a reasonable basis to expect coverage for defective workmanship.

We reach the same result if we extend our consideration of the language of the policy to the general grant of coverage customarily used in general liability policies. The defendant did not deliver a written statement of this term in this case, but even if delivered it would have provided no coverage on a claim of defective workmanship.

The evidence at trial included a copy of the general coverage provision that the defendant should have delivered. Its pertinent language would obligate the defendant to pay damages arising out of "property damage to which this insurance applies, caused by an occurrence." This general provision is thus equivalent to the language quoted from the definition of "completed operations hazard" in providing coverage only when the damage results from an occurrence, and our earlier discussion of the nature of an occurrence applies with equal force here. In fact, the holding in Hull v. Berkshire Mutual Insurance Co., 121 N.H. 230, 427 A.2d 523 (1981), was that a general grant of coverage identical to the general coverage provision here does not insure against liability for the cost of correcting defective work.

The plaintiff seeks to distinguish Hull as a case for "money damages" for "unaesthetic work, an intangible." But Hull did not turn on the nature of the relief sought in the underlying action, or on the visual perceptibility of the defect. Rather, we held there that defective work, standing alone, did not result from an occurrence, and indeed was not property damaged within the meaning of the policy. The holding in Hull is squarely applicable to the present case, whether we consider the requirement of occurrence in the general grant of coverage or the same requirement in the terms relating to completed operations.

The plaintiff further seeks to avoid the precedent of Hull, and the analysis on which it rested, by invoking Commercial Union Assurance Cos. v. Gollan, 118 N.H. 744, 394 A.2d 889 (1978). That latter case is inapposite here. The record in that case indicates that the parties had stipulated that the only issue to be decided was whether certain policy exclusions negated coverage, and the opinion was concerned solely with resolving what was held to be ambiguity created by the exclusions in question. In the absence of such a stipulation, it is not appropriate to consider exclusions unless coverage has first been found. In the instant case, and in Hull, it is clear that the policy terms granting coverage provide none against the liability asserted in the underlying actions. For the same reason, we do not reach the plaintiff's claim that a requirement of fair notice should estop the defendant to deny coverage. It is not apparent how an estoppel to deny coverage can arise unless there is some basis to find coverage in the first instance.

The record indicates that the defendant met its burden under RSA 491:22-a to prove there was no coverage under the policy. We affirm the judgment below.

Affirmed.

All concurred.


Summaries of

McAllister v. Peerless Ins. Co.

Supreme Court of New Hampshire Hillsborough
Apr 9, 1984
124 N.H. 676 (N.H. 1984)

holding that "defective work, standing alone, did not result from an occurrence, and indeed was not property damaged within the meaning of the policy"

Summary of this case from Wallace v. Nautilus Ins. Co.

holding that a general comprehensive liability policy does not provide coverage for claims against an insured for the repair of defective workmanship that damaged, as here, only the resulting work product.

Summary of this case from Environmental Expl. v. Bituminous Fire

concluding that no accident, i.e., fortuitous event, was presented by claim seeking merely to correct defective landscaping and construction

Summary of this case from Fletch's Sandblasting & Painting, Inc. v. Colony Ins. Co.

determining that defective work, standing alone, did not result from an occurrence

Summary of this case from Amerisure, Inc. v. Wurster Const. Co.

In McAllister v. Peerless Insurance Co., 124 N.H. 676, 474 A.2d 1033, 1035-37 (1984), PCOH coverage was held not to extend to the repair of faulty workmanship in constructing a leach field and performing landscaping.

Summary of this case from J.Z.G. Resources, Inc. v. King

In McAllister, the plaintiff sought coverage under a CGL policy for claims brought against him by a customer after the plaintiff allegedly improperly constructed a leach field.

Summary of this case from MacTec Engineering Consulting v. Onebeacon Insurance

In McAllister v. Peerless Ins. Co., 124 N.H. 676, 474 A.2d 1033 (1984), the New Hampshire Supreme Court held that claims for poor workmanship were not covered by the insured landscaper's CGL policy. It stated, "[t]he fortuity implied by reference to accident or exposure is not what is commonly meant by a failure of workmanship."

Summary of this case from Kvaerner Metals v. Commercial Union Ins. Co.

In McAllister, 124 N.H. 678-680, the court drew a distinction between coverage of property damage resulting from the defective work product and coverage of damage to the work product itself.

Summary of this case from Hawkeye Ins v. Vector Const
Case details for

McAllister v. Peerless Ins. Co.

Case Details

Full title:DAVID H. MCALLISTER v. PEERLESS INSURANCE COMPANY

Court:Supreme Court of New Hampshire Hillsborough

Date published: Apr 9, 1984

Citations

124 N.H. 676 (N.H. 1984)
474 A.2d 1033

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