Dorchester Mutual Fire Insurance v. First Kostas Corp.

731 N.E.2d 569, 49 Mass. App. Ct. 651, 2000 Mass. App. LEXIS 559
Massachusetts Appeals Court·Decided July 12, 2000·No. No. 98-P-1250·Published·Cited by 14 cases

Opinion

Greenberg, J.

Underlying this action is a paint job done on the outside of Carol Goss’s and Donald Straus’s (owners) house, during which lead paint chips and dust allegedly were propelled inside by employees of First Kostas Corporation, Inc. (contractor). The contractor previously had purchased a comprehensive [652] general liability policy from Dorchester Mutual Fire Insurance Company (Dorchester), but Dorchester denied coverage. On February 7, 1997, the owners sent a G. L. c. 93A demand letter to the contractor claiming that the contractor’s activities caused them to hire a hazardous waste clean-up company, vacate the premises, and conduct tests of family members (and pets) to check lead levels. Dorchester brought this action under G. L. c. 231A seeking a judgment declaring that the owners’ claim is not within the scope of the policy and that Dorchester has no obligation to defend against the claim.

The question of coverage is raised by several policy exclusions that Dorchester argues disfavor the contractor.2 Upon consideration of cross motions for summary judgment, a Superior Court judge rejected Dorchester’s reliance on a pollution exclusion, but agreed that coverage was barred by Section (B)(1)(k)(5) of the policy, one of the so-called “faulty workmanship” clauses set out in the margin. He entered summary judgment in favor of Dorchester.

These are the uncontroverted, material facts. On October 8, 1996, the owners entered into a contract with the contractor to paint the exterior of their house. The contract specified that the old paint would be scraped off and sanded, and two new coats would be applied. Painters employed by the contractor undertook the preparation work and completed the painting to the owners’ satisfaction. Nonetheless, the owners alleged that, in the process, lead paint chips and dust contaminated the inside of their premises. They claim that remediation of the resulting [653] property damage was necessary, and that they expended about $17,000 for that purpose.3

Dorchester investigated the claim and refused coverage under several different policy exclusions. To settle the matter, and prior to the owners bringing any damage suit, Dorchester initiated this declaratory judgment action. In this respect it acted conformably with Lumbermens Mut. Cas. Co. v. Belleville Indus., Inc., 407 Mass. 675, 685-686 (1990) (declaratory judgment an appropriate vehicle for determination of dispute over duty to defend).

Interpretation of policy language is a question of law for the court. See Jet Line Servs., Inc. v. American Employers Ins. Co., 404 Mass. 706, 710 n.5 (1989). It is settled that if the allegations are reasonably susceptible of an interpretation that they state a claim covered by the policy, the insurer must undertake the defense. See, e.g., Continental Cas. Co. v. Gilbane Bldg. Co., 391 Mass. 143, 146 (1984). When “the allegations lie expressly outside the policy coverage and its purpose,” however, summary judgment for the insurance company is proper. See Lusalon, Inc. v. Hartford Acc. & Indem. Co., 400 Mass. 767, 773 (1987), quoting from Terrio v. McDonough, 16 Mass. App. Ct. 163, 168 (1983).

The allegations in this case encompass a scenario expressly excluded from coverage. Although not the clause the motion judge relied on, we find section B(1)(n)(1), the “impaired property” exclusion, applicable to the claim here, and affirm on that basis. “It is well established that, on appeal, we may consider any ground apparent on the record that supports the result reached in the lower court.” Gabbidon v. King, 414 Mass. 685, 686 (1993). We express no opinion about the applicability of any of the other exclusionary clauses in the policy.

The “impaired property” exclusion in Dorchester’s policy states that coverage does not extend to “property damage” to “impaired property” arising out of a “defect, deficiency, inadequacy, or dangerous condition” in the insured’s work. “Property damage” as defined in the policy includes loss of use, as occurred here. “Impaired property” is defined as property other than the insured’s “work,” that cannot be used or is less useful because it incorporates “defective, deficient, inadequate or dangerous” work, but which can be restored to [654] use simply by, for example, removing the offending work. The insured “work” is defined as “operations performed by” the insured. Thus, in the circumstances, the effect of the “impaired property” exclusion is to bar coverage for loss of use claims (1) when the loss was caused by the insured’s faulty workmanship; and (2) when there has been no injury to the property aside from the incorporation of the insured’s faulty work itself.

Discussed in some detail in Standard Fire Ins. Co. v. Chester O’Donley & Assoc., Inc., 972 S.W.2d 1, 9-10 (Tenn. Ct. App. 1998), that court illustrated this exclusion — which featured policy language nearly identical to that featured here — by explaining how the loss of use of a building might be occasioned by the installation of a faulty heating system. Other cases implicating this exclusion have turned on the fact that the exclusion applies only if the damaged property can be restored to use by the “repair, replacement, adjustment or removal” of the insured’s work. See, e.g., Shade Foods v. Innovative Prods. Sales & Mktg., 78 Cal. App. 4th 847, 866-867 (2000) (exclusion does not apply where cereal nut clusters found to contain wood splinters unable to be restored to use).

In the case at bar, Dorchester has no duty to defend. The damage claimed by the owners came from the alleged dispersal of lead-based paint chips and dust. The painters are said to have failed to contain the toxins they set free through their scraping and sanding operations, certainly an inadequacy and a dangerous condition in their work. That faulty workmanship denied the owners the use of their house until it could be restored to use by the removal of the faulty element of the contractor’s work, the errant chips and dust. There was no other damage to the property other than the contractor’s work.

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Dorchester Mutual Fire Insurance v. First Kostas Corp., 731 N.E.2d 569, 49 Mass. App. Ct. 651, 2000 Mass. App. LEXIS 559 (Mass. Ct. App. 2000).

731 N.E.2d 569 (Dorchester Mutual Fire Insurance v. First Kostas Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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