Pulte Homes of New Mexico, Inc. v. Indiana Lumbermens Insurance Co.

2016 NMCA 028, 9 N.M. 490
CourtNew Mexico Court of Appeals
DecidedDecember 17, 2015
DocketDocket 33,283
StatusPublished
Cited by1 cases

This text of 2016 NMCA 028 (Pulte Homes of New Mexico, Inc. v. Indiana Lumbermens Insurance Co.) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pulte Homes of New Mexico, Inc. v. Indiana Lumbermens Insurance Co., 2016 NMCA 028, 9 N.M. 490 (N.M. Ct. App. 2015).

Opinion

OPINION

GARCIA, Judge.

{1} Third-party plaintiffs Pulte Homes of New Mexico, Inc. and Pulte Homes, Inc. (collectively, Pulte), appeal the district court’s grant of summary judgment in favor of third-party defendant Indiana Lumbermens Insurance Company (ILM) on the issue whether ILM had a duty to defend Pulte against claims brought by homeowners alleging construction defects in Pulte-built homes. We conclude that (1) claims of defective or defectively installed windows and doors in Pulte’s two defense tenders to ILM constituted claims for “property damage” caused by an “occurrence” under the policy at issue; (2) the “your work” policy exclusion precluded coverage for this occurrence with regard to Pulte’s May 2009 defense tender because no facts were alleged tending to show that the defective or defectively installed windows and doors caused damage to property other than the windows and doors themselves; (3) the “insured contract” exception to the policy’s “contractual liability” exclusion did not override the separate and independent “your work” exclusion with regard to the May 2009 tender; however, (4) the “your work” exclusion did not preclude coverage after Pulte’s March 2012 defense tender, because the tender contained claims tending to show that the defective or defectively installed windows and doors damaged the stucco surrounding those windows and doors. We therefore partially reverse the district court’s grant of summary judgment in favor of ILM and remand the case to the district court for further proceedings.

BACKGROUND

A. The Homeowners’ Initial Complaint

{2} In the mid-2000s, Pulte built 107 homes in the Seville subdivision (Seville) on the west side of Albuquerque, New Mexico. Pulte contracted with a company named Western Building Supply (WBS) to provide the windows for those homes, but a contractor other than WBS installed those windows. Pulte also contracted with WBS to provide and install the homes’ sliding glass doors. In June 2007, a large group of homeowners in the subdivision sued Pulte, alleging numerous construction defects in their homes. Although the homeowners amended their complaint four times between June 2007 and September 2009 to add plaintiffs, the complaint’s allegations about the construction defects remained substantially the same in these amended complaints. Pertinent here, the complaint alleged that Pulte used “substandard and inadequate windows that leak[.]” In June 2008, most of the homeowners agreed to arbitrate their disputes with Pulte.

B. Pulte’s First Defense Tender and Its Third-Party Complaint Against ILM

{3} In May 2009, Pulte tendered its first demand for a defense to ILM—the insurance company that had issued a commercial general liability policy to WBS naming Pulte as an additional insured. Although Pulte did not include a copy of the homeowners’ complaint with its defense tender, Pulte did provide a copy of an arbitration award involving six of the plaintiff homeowners and three of the homes at issue in this case. These homeowners were David and Kerri Scott (Scott), Michael and Stacey Leyba (Leyba), and Timothy and Vena Brown (Brown). The award described the following defects concerning the homes’ windows and sliding glass doors:

The Scotts’ windows did not operate properly and have all been replaced by Pulte. The weight of the evidence demonstrated that when properly installed, the model of window used in Seville can be appropriate for homes of this type and price, but many of the windows were not properly installed. Some of the windows only had a small fraction of the fasteners that should have been used to install the windows. This resulted in inability to open and close the windows, substandard operation, and their early deterioration.
[[Image here]]
The Leyba home suffered from windows and a sliding door that stick and will not close completely. Pulte has replaced one window that had a broken frame.
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The Browns’ windows suffer from the same installation defects described above. Out of seventeen windows in the house, three are functional. The Browns[’] children cannot operate the windows, and cannot open the sliding door to go out into the back yard. One large 5' x 8' window that was removed had only four nails holding it in, while testimony indicated it should have had approximately forty nails.

ILM responded to Pulte’s May 2009 tender by denying coverage. By April 1,2011, Pulte had resolved most of the homeowners’ claims through arbitration or settlement, and these homeowners dismissed their claims against Pulte, including Scott, Leyba, and Brown, whose claims were the subject of the arbitration award. In May 2011, Pulte filed a third-party complaint against ILM, claiming that ILM improperly refused to indemnify and defend Pulte under the insurance policies ILM had issued to WBS.

C.The Homeowners’ Fifth Amended Complaint

{4} The homeowners who remained as plaintiffs in the lawsuit amended their complaint for the fifth time in September 2011 to add plaintiffs and further allegations about the windows. The fifth amended complaint alleged that Pulte

us[ed] substandard and inadequate windows that are approved for use in horse trailers and mobile homes and are not for use in residential construction, causing leaks, improper insulation and an inability to fasten them to the wooden frame surrounding them because they have a flange that is designed for horse trailers and mobile homes;... us[ed] windows that are oversized for their structural integrity, causing warping and an inability to shut and operate the windows; . . . failjed] to use sufficient fasteners to hold the windows in place, causing them to warp, twist and not operate; [and] us[ed] substandard and inadequate windows that leak[.]

The plaintiffs who were added in the fifth amended complaint included Catherine Macrall (Macrall), Todd and Monique Sokol (Sokol), and Jonathan and Isabella Williamson (Williamson).

D. Pulte’s Second Defense Tender

{5} In March 2012, Pulte tendered its second demand for a defense to ILM, which included a copy of the fifth amended complaint and lists of alleged defects concerning the homes owned by Macrall, Sokol, and Williamson. Macrall’s defect list stated that “[a]ll windows and sliding glass are hard to open and close. The sliding glass door leaks; lots of dirt all the time; wind comes through whistling” and “[t]here are cracks [in the stucco] above [the] sliding glass door” and “cracks [in the stucco] by [the] front windows.” ILM continued to deny that it had any duty to defend Pulte in the lawsuit.

E. ILM’s Motion for Summary Judgment

{6} In June 2013, ILM moved for summary judgment, asking the district court to rule that it had no duty to defend Pulte. The district court granted summary judgment in favor of ILM without a hearing, concluding only that “there [was] no genuine issue of material fact [and] Pulte ...

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Cite This Page — Counsel Stack

Bluebook (online)
2016 NMCA 028, 9 N.M. 490, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pulte-homes-of-new-mexico-inc-v-indiana-lumbermens-insurance-co-nmctapp-2015.