Double AA Builders, Ltd. v. Preferred Contractors Insurance Co.

386 P.3d 1277, 241 Ariz. 304, 755 Ariz. Adv. Rep. 25, 2016 Ariz. App. LEXIS 294
CourtCourt of Appeals of Arizona
DecidedDecember 30, 2016
DocketNo. 1 CA-CV 15-0375
StatusPublished
Cited by2 cases

This text of 386 P.3d 1277 (Double AA Builders, Ltd. v. Preferred Contractors Insurance Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Double AA Builders, Ltd. v. Preferred Contractors Insurance Co., 386 P.3d 1277, 241 Ariz. 304, 755 Ariz. Adv. Rep. 25, 2016 Ariz. App. LEXIS 294 (Ark. Ct. App. 2016).

Opinion

OPINION

SWANN, Judge:

¶ 1 This is an appeal from the entry of summary judgment in favor of a general contractor that sought recovery from its subcontractor’s insurer (under which it was named as an “Additional Insured”) for the cost of replacing the subcontractor’s faulty work. The superior court held that coverage existed and entered summary judgment in favor of the contractor. We reverse and remand for entry of summary judgment in favor of the insurer. We hold that coverage was unavailable under the policy’s “your work” exclusion, and that the “subcontractor exception” to that exclusion does not apply.

FACTS AND PROCEDURAL HISTORY

¶ 2 In 2007, Harkins Theatres hired Double AA Builders, Ltd., to serve as general contractor for the construction of a theater complex. Double AA subcontracted with Anchor Roofing, Inc., to install a Built-Up Roofing (“BUR”) system. At the time Anchor performed its work, it was the “Named Insured” under a series of materially identical general commercial liability policies issued by Preferred Contractors Insurance Company, LLC. Double AA, which was itself insured by Westfield Insurance Company, was added to Anchor’s Preferred policies as an “Additional Insured.”

¶ 3 After the theater project was completed, the BUR began to leak, causing damage to work installed by other subcontractors and causing Harkins to lose business. Harkins asked Double AA to replace the BUR. Double AA did so and filed an action in the superior court seeking indemnification from Westfield, Anchor, and Preferred on the theory that Anchor had not properly installed the BUR. Significantly, Double AA sought to recover only the cost of replacing the BUR, and not the cost of the damage to other property.

¶ 4 Double AA settled with Westfield and obtained a default judgment against Anchor. Preferred and Double AA filed cross-motions for summary judgment on the question whether Double AA’s cost of replacing the BUR was a covered loss under the relevant policy. The court denied Preferred’s motion and granted Double AA’s, concluding that coverage was triggered by an “occurrence” and “property damage,” and that a “subcontractor exception” clause removed the claim from the policy’s “your work” exclusion provision. The court further concluded that the property damage had begun to manifest before the applicable policy expired and that Double AA’s replacement efforts constituted compensable preventative measures.

¶ 5 The court entered an appealable judgment on liability, and Preferred timely appeals.

DISCUSSION

¶ 6 We review summary judgment rulings, and the interpretation of insurance policies, de novo. First Am. Title Ins. Co. v. Action Acquisitions, LLC, 218 Ariz. 394, 397, ¶ 8, 187 P.3d 1107 (2008); Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12, 69 P.3d 7 (2003).

¶ 7 Double AA prevailed in the trial court based on its arguments that the policy provides coverage for “property damage” caused by an “occurrence” that takes place within the coverage territory during the policy period. But even assuming that Double AA’s expenditure could qualify for coverage as “property damage” caused by an “occurrence,” coverage was defeated under the policy’s terms, specifically the so-called “your work” exclusion and inapplicability of the “subcontractor” exception to that exclusion.

¶8 The policy “exclusion” removes from the scope of coverage “‘[pjroperty damage’ [306]*306to ‘your work’ arising out of it or any part of it and included in the ‘products completed operations hazard.’” The “exception” provides that the exclusion does not apply “if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor.” (Emphases added.) The policy defines “your work” as including “[w]ork or operations performed by you or on your behalf’ and “[m]aterials, parts or equipment furnished in connection with such work or opei’ations.” “You” and “your” mean “the Named Insured showed in the Declarations, and any other person or organization qualifying as a Named Insured under this policy.” “Products completed operations hazard” is defined as “[i]nclud[ing] all ... ‘property damage’ occurring away from premises you own or rent arising out of ... ‘your work,’” with exceptions that do not apply here.

¶ 9 Put simply, the exclusion applies because the case relates only to Anchor’s defective work. The exception does not apply because the work was performed by Anchor acting as a subcontractor, not by a subcontractor acting on Anchor’s behalf.

¶ 10 In general, a “your work” exclusion “prevent[s] liability policies from insuring against an insured’s own faulty workmanship, which is a normal risk associated with operating a business.” 9A Steven Plitt et al., Couch on Insurance § 129:18 (3d ed. 2016 & Supp. Dec. 2016) [hereinafter “Couch”\. The exclusion “discourages the performance of careless work” and “prevents liability insurance from becoming a performance bond.” Id.

¶ 11 Our opinions concerning coverage do not define the scope of coverage in all cases—they merely interpret the way in which parties choose to allocate risk in private agreements. But we have consistently interpreted Commercial General Liability (“CGL”) policy “your work” exclusions to bar coverage for the cost of repairing an insured’s faulty work. In a duty-to-defend case, United States Fidelity & Guaranty Corp. v. Advance Roofing & Supply Co., Inc., 163 Ariz. 476, 788 P.2d 1227 (App. 1989), we recognized that “some authorities ... appear to conclude that the mere showing of faulty work is sufficient to bring a claim for resulting damages (of whatever nature) within policy coverage.” 163 Ariz. at 482, 788 P.2d 1227. We opted to follow “the better reasoned authorities” that held otherwise. Id. We followed this line of authority in Lennar Corp. v. Auto-Owners Insurance Co., 214 Ariz. 255, 262, ¶¶ 19-20, 151 P.3d 538 (App. 2007) (holding that faulty workmanship that causes property damage, not just faulty workmanship, constitutes an “occurrence” under the CGL policy) and Desert Mountain Properties Limited Partnership v. Liberty Mutual Fire Insurance Co., 225 Ariz. 194, 206, 236 P.3d 421 (App. 2010) (holding that a specific policy exclusion for insured’s faulty workmanship does not bar coverage for repair of damage resulting from the defective workmanship). Because of this exclusion, we need not reach the question whether the Named Insured’s faulty work constitutes an “occurrence” unless an exception to the exclusion applies.

¶ 12 It is undisputed that Double AA sought to recover only the cost of repairing Advance’s defective work, which occurred on premises owned or rented by Harkins.

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Bluebook (online)
386 P.3d 1277, 241 Ariz. 304, 755 Ariz. Adv. Rep. 25, 2016 Ariz. App. LEXIS 294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/double-aa-builders-ltd-v-preferred-contractors-insurance-co-arizctapp-2016.