Essex Insurance v. Holder

261 S.W.3d 456, 372 Ark. 535, 2008 Ark. LEXIS 138
CourtSupreme Court of Arkansas
DecidedMarch 6, 2008
Docket07-803
StatusPublished
Cited by30 cases

This text of 261 S.W.3d 456 (Essex Insurance v. Holder) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Essex Insurance v. Holder, 261 S.W.3d 456, 372 Ark. 535, 2008 Ark. LEXIS 138 (Ark. 2008).

Opinion

Tom Glaze, Justice.

We accepted certification of a single question of Arkansas law submitted by the United States District Court for the Eastern District of Arkansas under Ark. Sup. Ct. R. 6-8, asking this court whether defective construction or workmanship is an “accident” and, therefore, an “occurrence” within the meaning of commercial general liability insurance policies.

Tom and Kara Baumgartner contracted with John Holder’s J&H Enterprises to build their new home; however, before construction of the home was completed, the Baumgartners filed suit against Holder in the Pulaski County Circuit Court seeking damages for breach of contract, breach of an express warranty, breach of implied warranties, and negligence. Specifically, the Baumgartners alleged that they suffered damages resulting from Holder’s delays, employment of incompetent subcontractors, and defective or incomplete construction. In turn, Holder demanded that Essex Insurance Company (Essex) defend him in the Baumgartners’ action under his commercial general liability (CGL) policies.

Essex responded by filing an action in federal court, seeking a declaratory judgment that it neither owes Holder a duty to defend him in the Baumgartners’ lawsuit, nor a duty to pay any judgment the Pulaski County Circuit Court might enter against Holder. Essex asserted that there is no coverage under any of the three CGL policies for the damages alleged by the Baumgartners in state court, and, therefore, Holder is not entitled to a defense or indemnity under those policies. Although the federal district court determined that Arkansas law applies in the declaratory judgment action filed by Essex, it certified this question to the supreme court because we have not decided this specific issue.

Essex issued three separate policies to Holder. In the first policy, 3CM 7680, “occurrence” is defined simply as an “accident.” However, the second and third policies, 3CP 6214 and3CS 3351, added a “Combination Contractor Endorsement” that modified the definition of “occurrence” somewhat and listed several exclusions, stating:

“Occurrence” means an accident, including the continuous or repeated exposure to substantially the same general harmful conditions; however, the following is not an “occurrence” under this policy:
a. Actual and/or alleged defective work; and/or
b. Actual and/or alleged defective workmanship; and/or
c. Actual and/or alleged defective construction; and/or
d. Actual and/or negligent construction

Although the Baumgartners deny that the Combination Contractor Endorsement operates to exclude coverage of their claims against Holder and state that this is an issue “not presently before this court,” they contend that the endorsement and exclusions “indicate[ ] that Essex at one point considered “occurrence” and “accident” to include ‘defective work,’ ‘defective workmanship,’ ‘defective construction,’ or ‘negligent construction.’ ” The Baumgartners’ principal argument on this certified question though, is that the policy term “accident” is undefined within the CGL policy and is therefore ambiguous and should be interpreted liberally in favor of the insured — Holder.

Arkansas case law is well-developed on the construction of insurance policies. When reviewing insurance policies, this court adheres to the long-standing rule that, where terms of the policy are clear and unambiguous, the policy language controls, and absent statutory strictures to the contrary, exclusionary clauses are generally enforced according to their terms. Smith v. Shelter Mut. Ins. Co., 327 Ark. 208, 937 S.W.2d 180 (1997). It is unnecessary to resort to rules of construction in order to ascertain the meaning of an insurance policy when no ambiguity exists. Id. In other words, the terms of an insurance contract are not to be rewritten under the rule of strict construction against the company issuing it so as to bind the insurer to a risk which is plainly excluded and for which it was not paid. Id.

The fact that a term is not defined in a policy does not necessarily render it ambiguous. Smith v. Southern Farm Bureau Cas. Ins. Co., 353 Ark 188, 192, 114 S.W.3d 205, 207 (2003). In Continental Insurance Co. v. Hodges, 259 Ark. 541, 534 S.W.2d 764 (1976), the court addressed an insurance policy where the term “accident” was not defined in a liability insurance policy, but found that “accident” is usually defined as “an event that takes place without one’s foresight or expectation — an event that proceeds from an unknown cause, or is an unusual effect of a known cause, and therefore not expected.” Id. at 542, 534 S.W.2d at 765 (quoting 44 Am. Jur. 2d Insurance § 1219 (1969)). In United States Fidelity & Guaranty Co. v. Continental Casualty Co., 353 Ark. 834, 120 S.W.3d 556 (2003), we addressed a question of whether a portion of a judgment against an insured party was covered under a CGL policy, based on language which provided coverage for “an occurrence” leading to “property damage.” Although the policy defined “occurrence” as an “accident,” the term “accident” was undefined. Id. at 844-45, 120 S.W.3d at 562-63. We remanded the issue to the trial court, explaining the following:

The policy defines an “occurrence” as “an accident.” We have defined an “accident” as “an event that takes place without one’s foresight or expectation — an event that proceeds from an unknown cause; or is an unusual effect of a known cause, and therefore not expected.” [Citation omitted.] Because the policy has defined “occurrence,” and because we have defined “accident,” we con-elude that the remaining fact question must be resolved in this case before coverage can be determined is whether [ ] workmanship . . . constituted an “accident.” [Footnote omitted.]

Id. at 845, 120 S.W.3d at 563. Without addressing or deciding the question, the opinion noted that there was a “split in jurisdictions over whether defective workmanship is an accident and therefore an occurrence which is covered under the terms of an insurance policy.” Id. at n.4.

Two years after Continental Casualty Co., the federal judge in Nabholz Construction Corp. v. St. Paul Fire & Marine Insurance Co., 354 F. Supp. 2d 917 (E.D. Ark. 2005) was presented the question of whether a CGL policy provided liability coverage for deficiencies in construction work. The federal court pointed out that while our court in Continental Casualty Co., supra, left this specific question unresolved, the federal judge offered his opinion that he believed the Arkansas Supreme Court would likely adopt the majority rule found in other jurisdictions that hold that faulty or defective workmanship is not an accident. See id. at 922 (citing Heile v. Herrmann, Ohio App.

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

Related

John Dostart v. Columbia Insurance Group
Supreme Court of Iowa, 2025
Al Neyer, L.L.C. v. Westfield Ins. Co.
2020 Ohio 5417 (Ohio Court of Appeals, 2020)
Ohio N. Univ. v. Charles Constr. Servs., Inc. (Slip Opinion)
2018 Ohio 4057 (Ohio Supreme Court, 2018)
Am. Mining Ins. Co. v. Peters Farms, LLC
557 S.W.3d 293 (Missouri Court of Appeals, 2018)
Black & Veatch Corporation v. Aspen Insurance
882 F.3d 952 (Tenth Circuit, 2018)
Ohio N. Univ. v. Charles Constr. Servs., Inc.
2017 Ohio 258 (Ohio Court of Appeals, 2017)
Owners Insurance Co. v. Jim Carr Homebuilder, LLC
157 So. 3d 148 (Supreme Court of Alabama, 2014)
Pinnacle Group, Inc. v. Erie Insurance Property & Casualty Co.
745 S.E.2d 508 (West Virginia Supreme Court, 2013)
Admiral Insurance Co. v. Price-Williams
129 So. 3d 991 (Supreme Court of Alabama, 2013)
K & L Homes, Inc. v. American Family Mutual Insurance Co.
2013 ND 57 (North Dakota Supreme Court, 2013)
Westfield Insurance v. Custom Agri Systems, Inc.
2012 Ohio 4712 (Ohio Supreme Court, 2012)
Oxford Aviation, Inc. v. Global Aerospace, Inc.
680 F.3d 85 (First Circuit, 2012)
Town & Country Property, L.L.C. v. Amerisure Insurance Co.
111 So. 3d 699 (Supreme Court of Alabama, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
261 S.W.3d 456, 372 Ark. 535, 2008 Ark. LEXIS 138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/essex-insurance-v-holder-ark-2008.