Bailey v. Insurance Corp. of New York

Ninth Circuit

Bailey v. Insurance Corp. of New York

155 F. App'x 271

CourtCourt of Appeals for the Ninth Circuit

DecidedNovember 18, 2005

DocketNo. 04-15208; D.C. No. CV-02-05393-AWI/DLB

StatusPublished

This text of 155 F. App'x 271 (Bailey v. Insurance Corp. of New York) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bailey v. Insurance Corp. of New York, 155 F. App'x 271 (9th Cir. 2005).

Pincite

Opinion

MEMORANDUM

*

James G. Bailey appeals the district court’s order granting summary judgment in favor of the Insurance Corporation of New York (“Inscorp”).

The district court concluded erroneously that exclusion j(fi) barred coverage for the portion of the award in the underlying action representing damages to drywall, flooring and other portions of the hotel (except the plumbing system) resulting from water leaks.

Specifically, the district court incorrectly interpreted exclusion j(6) as applying to property damaged because the work of Todd Plumbing Inc. (“Todd”) was “incorrectly performed.” The exclusion applies to “[t]hat particular part of any property” damaged because Todd’s work was incorrectly performed “on it” — that is, to that particular part of the property on which Todd performed work. Construed narrowly, exclusion j(6) frees Inscorp of a duty to indemnify Todd for only that portion of the underlying award representing damages to the plumbing system installed by Todd. This consists of primarily the [272]*272piping and water supply system, but not walls, tiles, insulation, sinks, or toilets surrounding or utilizing the plumbing system unless Todd also constructed, supplied, or installed them.

Because we further conclude that the district court determined correctly that Inscorp failed to prove that no portion of the underlying damage award was the result of an “ ‘occurrence’ within the policy period” — i.e., between July 1, 1997, and March 1, 2001 — triable issues of material fact exist as to whether the insuring provisions of Todd’s policy require Inscorp to indemnify Bailey for any portion of the damages awarded in the underlying action.

Inscorp is not entitled to summary judgment.

REVERSED and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.

Free access — add to your briefcase to read the full text and ask questions with AI

MEMORANDUM

*

James G. Bailey appeals the district court’s order granting summary judgment in favor of the Insurance Corporation of New York (“Inscorp”).

The district court concluded erroneously that exclusion j(fi) barred coverage for the portion of the award in the underlying action representing damages to drywall, flooring and other portions of the hotel (except the plumbing system) resulting from water leaks.

Specifically, the district court incorrectly interpreted exclusion j(6) as applying to property damaged because the work of Todd Plumbing Inc. (“Todd”) was “incorrectly performed.” The exclusion applies to “[t]hat particular part of any property” damaged because Todd’s work was incorrectly performed “on it” — that is, to that particular part of the property on which Todd performed work. Construed narrowly, exclusion j(6) frees Inscorp of a duty to indemnify Todd for only that portion of the underlying award representing damages to the plumbing system installed by Todd. This consists of primarily the [272]*272piping and water supply system, but not walls, tiles, insulation, sinks, or toilets surrounding or utilizing the plumbing system unless Todd also constructed, supplied, or installed them.

Because we further conclude that the district court determined correctly that Inscorp failed to prove that no portion of the underlying damage award was the result of an “ ‘occurrence’ within the policy period” — i.e., between July 1, 1997, and March 1, 2001 — triable issues of material fact exist as to whether the insuring provisions of Todd’s policy require Inscorp to indemnify Bailey for any portion of the damages awarded in the underlying action.

Inscorp is not entitled to summary judgment.

REVERSED and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.

Cite This Page — Counsel Stack

Bluebook (online)

155 F. App'x 271, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bailey-v-insurance-corp-of-new-york-ca9-2005.