CONSTRUCTION DEFECT JOURNAL

"News and Information for Construction Defect and Claims Professionals"

CONSTRUCTION DEFECT JOURNAL - ISSUE 242749 - THURSDAY, FEBRUARY 6, 2025

Water Alone is Not Property Damage under a CGL policy in Connecticut

Water

The contractor defended construction defect claims brought by an owner and then sued its insurer to recover $500,000 in defense costs for failing to provide a defense under the contractor’s policy.

July 22, 2024
Bill Wilson - Construction Law Zone

The Connecticut Appellate Court recently provided guidance on what does not constitute property damage under a typical contractor’s Commercial General Liability (CGL) insurance policy in Westchester Modular Homes of Fairfield County, Inc. v. Arbella Protection Ins. Co., 224 Conn App. 526 (2024). In this case, the contractor defended construction defect claims brought by an owner and then sued its insurer to recover $500,000 in defense costs for failing to provide a defense under the contractor’s policy. In Connecticut, an insurer is obligated to provide a defense based on what is alleged in a complaint and if it has actual knowledge of any facts establishing a reasonable possibility of coverage. The contractor provided extrinsic evidence for two defects claimed by the owner: (1) windows were installed improperly such that water was collecting and will continue to collect in the window soffit areas and eventually rot the wall, and (2) the vapor barrier was not installed in the second-floor ceiling which will result in water condensation and water damage to the roof structure if not remedied.

The insurer relied on typical provisions included in most CGL policies. The insurer has no duty to defend the insured against any suit seeking damages for property damage to which the insurance does not apply. The term “property damage” is defined as “physical injury to tangible property, including all resulting loss of use of that property.” Under well-established Connecticut law, the phrase “physical injury” unambiguously connotes damage to tangible property, causing an alteration in appearance, shape, color, or some other material dimension. It is also well-established that claims for property damage caused by defective work are covered under a CGL policy but claims for repair of the defective work itself are not. The insurer denied any duty to defend because no coverage was triggered under the liability policy. Both parties moved for summary judgment.

Mr. Wilson may be contacted at wwilson@rc.com


Use the form below to search the CDJ Archives: Search by topic, name, keywords, etc...

CDJ ARCHIVES-NEWS YOU MIGHT HAVE MISSED