Kvaerner Metals Division of Kvaerner US, Inc. v. Commercial Union Insurance Company

908 A.2d 888, 589 Pa. 317, 2006 Pa. LEXIS 2064
CourtSupreme Court of Pennsylvania
DecidedOctober 25, 2006
Docket47 & 48 MAP 2004
StatusPublished
Cited by420 cases

This text of 908 A.2d 888 (Kvaerner Metals Division of Kvaerner US, Inc. v. Commercial Union Insurance Company) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kvaerner Metals Division of Kvaerner US, Inc. v. Commercial Union Insurance Company, 908 A.2d 888, 589 Pa. 317, 2006 Pa. LEXIS 2064 (Pa. 2006).

Opinion

OPINION

Chief Justice CAPPY.

In this insurance coverage dispute, Appellant National Union Fire Insurance Company of Pittsburgh, Pennsylvania (“National Union”) appeals from the Superior Court’s April 16, 2003 order, which reversed the trial court’s order granting National Union’s motion for summary judgment and remanded the case for additional proceedings to determine whether National Union was responsible for defending and indemnifying Appellee Kvaerner Metals Division of U.S., Inc., and other related companies (collectively, “Kvaerner”) in an action brought by Bethlehem Steel Corporation (“Bethlehem”). Because we find that National Union has no duty under its policies to defend or indemnify Kvaerner in this case, the order of the Superior Court is reversed.

In June 1997, Bethlehem brought an action against Kvaerner asserting claims of breach of contract and breach of warranty. In its complaint, Bethlehem alleged that it entered into a contract with Kvaerner (the “Contract”) pursuant to which Kvaerner agreed to design and construct a coke oven battery (the “Battery”) for Bethlehem. According to Bethle *322 hem, under the contract Kvaerner (1) agreed to build the Battery according to certain “plans and specifications that were made a part of the [Contract],” (2) warranted that its materials, equipment, and work would be free from defect, and (3) agreed to repair or replace any defective work or materials.

Bethlehem then contended that based on these facts, Kvaerner breached the above Contract terms because the Battery built by Kvaerner was “damaged” and “did not meet the contract specifications and warranties, or the applicable industry standards for construction ...” Bethlehem further alleged that although it sent Kvaerner a “non-performance list” detailing the Battery’s “damages and breaches,” Kvaerner had failed to remedy the Battery’s problems. Moreover, Bethlehem incorporated by reference the “damages and breaches” listed in the non-performance list, which enumerated numerous problems with the Battery, including the following:

(1) “100% of the ovens have cracked paver bricks”; (2) “[s]hifting brickwork has caused maximum deviation of centerlines of flue inspection ports”; (3) “[t]he larry car rails are introducing eccentric loads on the oven walls”; (4) “[d]ue to displacement of oven top brick and appurtenances (e.g. larry car rail chairs) the chairs are not directly above the centerline of the heating walls”; (5) “[t]he non-uniform shifting of brickwork in the oven roof resulted in a tilted configuration of the flue inspection ports”; (6) “[s]heared/open joints are present in the horizontal plane of roof brick and there are open joints in the vertical plane of roof brick,” causing the migration of gas; (7) “[s]ections of seven lintel blocks [have subsided] and the outer blocks of two ovens are completely broken or shattered”; (8) the centerlines of the Battery’s ovens are displaced, causing multiple door jams; (9) there are sheared/open joints between the silica and fireclay in the Battery; (10) the oven walls are not plumb and are distorted, causing them to experience compressive stress orders of a magnitude greater than design; (11) the oven walls are spalling; (12) certain braces deviate from the Contract design specifications; (13) *323 the spring adjustments are inadequate; (14) the tie rod housings are bowed; (15) the buckstays do not comply with the erection tolerances; and (16) water is penetrating the coke side bench.

Bethlehem’s Non-Performance List, attached to May 15, 1997 Letter of Final Notification of Contract Non-Performance (“Non-Performance List”), Exh. 3 to Kvaerner’s Motion for Reconsideration, at 1-14 (incorporated by reference in Bethlehem Complaint, Exh. A to Kvaerner Complaint, at 8-9). As a result of these damages to the Battery, Bethlehem asserted that Kvaerner was liable to it for either “the amount that it will cost to replace the Coke Oven Battery, or the difference in value between the defective Coke Oven Battery that it received and the Coke Oven Battery that [Kvaerner] warranted that it would deliver.” Id. at 10.

After being served with Bethlehem’s complaint, Kvaerner notified its insurer, National Union, of the suit, seeking defense and indemnity pursuant to two commercial general liability (“CGL”) policies (collectively, the “Policies”). The first policy was a “claims made” policy for the period of September 30, 1995 to September 30, 1996 (the “1996 Policy”) whereas the second policy was an “occurrence” policy for the period of April 1, 1997 to December 31, 1997 (the “1997 Policy”). 1 National Union subsequently notified Kvaerner that it was disclaiming “coverage, defense, and indemnity for all allegations contained in [the] complaint” based on its conclusion that Bethlehem’s claims did not fall within the *324 coverage provisions of the Policies. August 29, 1997 Letter from AIG Claim Services, Inc. to National Union, Exh. H of Index of Exhibits in Support of National Union’s Motion for Summary Judgment, at 6.

Due to National Union’s refusal to provide coverage, Kvaerner commenced the instant action in the Court of Common Pleas of Northampton County against National Union, seeking, inter alia, a declaratory judgment that National Union has a duty to defend and indemnify it pursuant to the Policies. National Union responded by filing an answer and a new matter, raising numerous affirmative defenses. 2 The parties engaged in discovery and in September 2000 National Union filed a motion for summary judgment, arguing that judgment must be entered in its favor because (1) the Policies only permitted coverage for allegations of “property damage” caused by an “occurrence,” which was defined by the Policies as an accident, and Bethlehem had not alleged that the Battery was damaged by such an occurrence, and (2) even if Bethlehem alleged property damage caused by an occurrence, such damages were excluded under various “business risk/ work product” exclusions in the Policies.

Kvaerner filed a brief in opposition to National Union’s motion for summary judgment as well as a cross-motion for summary judgment, asserting that National Union was responsible for defending and indemnifying it under the Policies because the Battery’s damages were caused by an occurrence, which it deemed to be an unintended and unexpected event. According to Kvaerner, the Battery was damaged because of “longitudinal movement of the roof,” which was caused be *325 cause the bricks in the Battery’s roof were “grouted” too early and because of heavy rains that occurred on October 31, 1994. Kvaerner’s Bf. in Opposition to National Union’s Motion for Summary Judgment, at 6, 24. In support of this claim, Kvaerner submitted a report from two experts in which they collectively opined that the damages to the Battery were caused from displacement and movement of the Battery’s roof, which occurred because Kvaerner grouted the bricks earlier than had been scheduled. See Expert Report of Mr. Chuck Beechan and Dr. Clayton Liu, Exh.

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Bluebook (online)
908 A.2d 888, 589 Pa. 317, 2006 Pa. LEXIS 2064, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kvaerner-metals-division-of-kvaerner-us-inc-v-commercial-union-insurance-pa-2006.