Mazzotta v. Aetna Casualty & Surety Co.

4 Pa. D. & C.4th 283, 1989 Pa. Dist. & Cnty. Dec. LEXIS 116
CourtPennsylvania Court of Common Pleas, Alleghany County
DecidedSeptember 29, 1989
Docketno. 3667 of 1989
StatusPublished

This text of 4 Pa. D. & C.4th 283 (Mazzotta v. Aetna Casualty & Surety Co.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Alleghany County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mazzotta v. Aetna Casualty & Surety Co., 4 Pa. D. & C.4th 283, 1989 Pa. Dist. & Cnty. Dec. LEXIS 116 (Pa. Super. Ct. 1989).

Opinion

WETTICK, A.J.,

This, lawsuit arises out of a $1,500 contract between plaintiff, a painting company, and the owners of a residence. Under the terms of the contract, plaintiff was to paint a portion of the interior of the residence. His responsibilities consisted of purchasing the paint, preparing the surface for painting, and applying the paint.

Sometime after the painting job was completed, portions of the paint began to chip and peel. The apparent cause was that plaintiff had applied latex paint over oil-based paint without proper preparation of the surface to be painted.

The homeowners instituted litigation against plaintiff in which they sought damages of $6,824. The damages consisted entirely of the estimated costs for removing the paint that plaintiff had applied, preparing the surface for painting, and apply[284]*284ing the new paint. The homeowners did not claim that there would be any diminution in the value of their residence once this work was performed.

Plaintiff tendered the homeowners’ claim to Aetna Casualty and Surety Company, which provided business liability insurance to plaintiff under a standard comprehensive general liability policy. Aetna refused to provide coverage or a defense on the ground that several exclusions in the insurance policy excluded the homeowners’ claim. As a result of the denial of coverage, plaintiff retained his own counsel to defend the action which was eventually settled for $2,800. In the present action, plaintiff has sued Aetna for the amount of this settlement and legal fees and costs of $3,618.14 incurred in defending the action.

Both parties have moved for summary judgment. These motions are the subject of this opinion and order of court.

The insurance policy contains two standard exclusions which Aetna cites in support of its position that the homeowners’ claim was not covered under Aetna’s policy of insurance with plaintiff. The policy provides that the business-risk coverage provided by the policy does not apply:

“(n) To property damage to the named insured’s products arising out of such products or any part of such products.
“(o) To property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof or out of materials, parts or equipment furnished in connection therewith.”

Plaintiff contends that these exclusions are not applicable. These exclusions apply only to property damage from plaintiffs products or to work performed by plaintiff. According to plaintiff, the paint is the product which it furnished and its ap[285]*285plication is the work which it performed. The major portion of the homeowners’ damage claim did not involve the cost of new paint or the cost of applying the new paint — it involved the cost of repairing the damage to the residence caused by the application of the paint.

Plaintiffs argument would have merit if his work had caused damage to the residence beyond the scope of his work. However, in this case there was no damage to the residence other than to the work that plaintiff performed. The work that plaintiff performed consisted of furnishing the paint, preparing the surface for painting, and applying the paint. The homeowners’ claim against plaintiff was limited to the estimated cost of performing only these tasks. Thus, this was a claim for property damage to plaintiff’s work arising out of the work which plaintiff had performed and the products which plaintiff furnished.

This construction of exclusions (n) and (o) is consistent with the manner in which the Pennsylvania Supreme Court construed almost identical exclusions in Gene & Harvey Builders v. Pennsylvania Manufacturers’ Assoc., 512 Pa. 420, 517 A.2d 910 (1986). That case involved the duty of an insurance company to defend and indemnify its insured, a building contractor, against a lawsuit filed by a homeowner who claimed that his home, constructed by the insured contractor, had become uninhabitable because it was negligently built on land which had subsided. The court held that the claim was excluded from coverage under both the exclusion covering damage to the contractor’s product arising out of any part of the product and the exclusion covering damage to work performed by the contractor arising out of any portion of the work. The former exclusion was applicable because:

“[A]ll the claims concern damage to the insured’s [286]*286product (the house) arising from a part of the product, i.e., a builder’s duty to be reasonably prudent in the placement of a house. One does not contract for the budding of a house in the sky; of necessity, houses must rest on the earth. Assumed is that part of the contractor’s work product wdl be to act prudently in placing the, house on the lot. Reasonable inspection of the lot and representing the condition of the lot to the owner are, in short, part of the work of budding a house, which is the ‘product’ of a contractor.” Gene & Harvey Builders, supra.

The latter exclusion was appdcable because:

“[A]d the negdgence assertions in the complaint concern damage to the work (the budding of the house, i.e., a budding fit for habitation) arising out of any portion of the work — using reasonable care to inspect the ground to see that it is normally sound, filling in holes which were present in the ground, and representing to the homeowner-buyers that the land had or did not have certain characteristics. ” Id.

The same rationale is appdcable to the present case. Part of plaintiff’s product was the preparation of the surface. Also, ad of the assertions in the homeowners’ complaint concerned damage to the work — the fadure of the paint to adhere properly to the surface. Furthermore, the only damage was to the product which, according to this Supreme Court opinion, would include the preparation of the surface and the appdcation of the paint.

We also find to be persuasive the opinion of the Court of Appeals for the Tenth Circuit in Hartford Accident & Indemnity Co. v. Pacific Mutual Life Insurance Co., 861 F.2d 250 (10th Cir. 1988). In that case, a subcontractor instaded a reflective glass wad system which it had furnished to the exterior of a budding. This wad system was defective — the window units cracked and broke and the coating surfaces [287]*287deteriorated. As a result of these defects, the budding suffered physical damage, including cracks and breaks in the concrete floor slabs because of water leakage. The owner undertook a major restoration to correct the problems, including removal of somé of the parts of the original system and installation of a replacement wall system outside the defective one. The owner sued the subcontractor. The Tenth Circuit opinion involved the issue of whether the insurance carrier that issued a comprehensive general liability policy to the subcontractor was liable for any of the damages which the owner claimed.

The court held that exclusions almost identical to those in Aetna’s policy with plaintiff limited recovery to the diminution in the value of the building in excess of the cost of replacing the wall system.

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4 Pa. D. & C.4th 283, 1989 Pa. Dist. & Cnty. Dec. LEXIS 116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mazzotta-v-aetna-casualty-surety-co-pactcomplallegh-1989.