Sphere Drake Insurance Co. v. Tremco, Inc.

513 N.W.2d 473, 1994 Minn. App. LEXIS 182
CourtCourt of Appeals of Minnesota
DecidedMarch 1, 1994
DocketC2-93-1358, C3-93-1367
StatusPublished
Cited by11 cases

This text of 513 N.W.2d 473 (Sphere Drake Insurance Co. v. Tremco, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sphere Drake Insurance Co. v. Tremco, Inc., 513 N.W.2d 473, 1994 Minn. App. LEXIS 182 (Mich. Ct. App. 1994).

Opinion

OPINION

FOLEY, Judge.

In this declaratory judgment action, the district court granted summary judgment in favor of the insurer of a subcontractor that performed work on a parking ramp restoration project. The district court concluded that the business risk doctrine precluded coverage for the claims against the subcontractor; that there had been no “occurrence” or “property damage,” as those terms are defined in the policy; and that various policy exclusions applied. We reverse and remand for trial.

FACTS

The present controversy arises out of the restoration of the LaSalle Court parking ramp, now known as the Conservatory ramp. The ramp was owned by Loop Parking Company. The restoration project, which required repair or replacement of the concrete on all levels of two ramp buildings, was designed by Lewis Ng of Walker Parking Consultants/Engineers, Inc. PAULCO was responsible for the removal and replacement of deteriorated concrete slabs. Another company! Cy-Con, was hired to perform the concrete repair work.

The Carlund Corporation and Loop Parking Company entered into a contract for the installation of a waterproofing system as part of the restoration of the parking ramp. Car-lund subcontracted with John Melich Company for the waterblasting preliminary to application of a Tremco TBS-950 traffic-bearing waterproof membrane system at the ramp. Under the subcontract, Melich was to clean *476 the concrete parking deck and remove parking stall lines to prepare the ramp surface for application of the membrane coating.

The Tremco membrane was chosen by Carlund from a list of toppings approved by Walker Parking for use on the project. Tremco formulated the membrane system and sold the component parts to Carlund. Carlund was responsible for installation of the membrane; however, Tremco was required to have a field representative on site during installation. The field representative had the authority to stop the installation and order incorrect installation redone. While Carlund was performing its contract, PAUL-CO and Cy-Con were performing their repair and replacement of the concrete. Car-lund had no authority over PAULCO and Cy-Con.

When installation of the Tremco membrane was completed, Carlund gave Tremco a two-year guarantee, under which Carlund agreed to repair the membrane system, at no cost to Tremco, for leakage or defective workmanship. Tremco issued a five-year guarantee to the ramp’s owner, under which Tremco agreed to repair leaks caused by, among other things, faulty workmanship or materials used in the application of the Tremco membrane.

Carlund and Tremco performed isolated warranty repair work at the ramp in 1988 and 1989. In the spring of 1989, water leakage was observed on several areas of the ramp. At that time, delamination of the Tremco membrane was also detected. The ramp’s owners notified Tremco of the problems with the membrane. Tremco then notified Carlund, requesting that Carlund perform the necessary repair work pursuant to the two-year guarantee Carlund gave Trem-co. Carlund refused to perform further repairs, and Tremco hired Hapco Contractors, Inc. to perform the labor on the repairs. While conducting the repairs, Hapeo’s president observed damage to the ramp’s concrete surface and reinforcement bars which, according to Hapeo’s president, was the result of Carlund’s failure to properly rout, seal and detail the joints. This failure allowed water and salt to penetrate the membrane and damage the concrete and reinforcement bars. The concrete and reinforcing bars were repaired at Tremco’s expense.

Several possible causes of the membrane’s failure have been identified. When the membrane was repaired, paint and dirt were found under it, indicating Melich did not adequately waterblast the surface before the membrane was installed. Tests of the membrane showed areas of inadequate thickness, for which Tremco blames Carlund’s application of the membrane. Carlund has alleged that the primer Tremco provided was defective.

Tremco sued Carlund and Melich to recover the costs of investigation and repair of the damage to the ramp. Tremco alleged that Melich was negligent in failing to waterblast the concrete surface of the ramp properly, causing poor adhesion between the Tremco membrane and the ramp surface. Tremco alleged that Carlund failed to supervise Me-lich properly, failed to apply the Tremco membrane properly, and failed to detail cracks in the concrete before applying the Tremco membrane. Tremco’s complaint alleged Melich and Carlund breached their implied warranties of good workmanship and fitness. Tremco also sought a declaration that it was entitled to indemnity from Car-lund and Melich for claims for consequential damages which might be brought against Tremco. Thus far, no such claims have been brought.

Respondent First Financial Insurance Company (FFI) provided a manufacturer’s and contractor’s liability policy to Melich. 1 Although the subcontractor agreement between Melich and Carlund required Melich to name Carlund as an additional insured on its FFI policy, Melich did not do so. FFI was allowed to intervene in the litigation, and seeks a determination of FFI’s duty to defend or indemnify Melich or Carlund for the claims brought by Tremco.

*477 The FFI policy provided that the insurer would pay on behalf of the insured all sums the insured becomes legally obligated to pay as damages because of property damage to which the insurance applies, caused by an occurrence. In addition, the FFI policy contained exclusions for liability that the insured assumed contractually, for loss of use of tangible property that has not been physically damaged and for damage to work performed by the named insured.

FFI moved for summary judgment, alleging that the claims brought by Tremco came within the business risk doctrine, that there had been no occurrence resulting in property damage, and that policy exclusions barred coverage. The district court granted FFI’s motion, concluding that the damages alleged were outside of the scope of the coverage afforded by the policy FFI issued to Melich. Tremco and Walker have appealed, and their appeals have been consolidated. 2

ISSUES

1. Did the district court err in concluding that the business risk doctrine precludes coverage from Tremco’s claims?

2. Did the district court err in concluding there had been neither an “occurrence” nor “property damage” within the meaning of the FFI policy?

3. Does the FFI policy’s exclusion of coverage for contractual assumption of liability preclude coverage for the claims of Tremco?

4. Does the work performed exclusion of FFI’s policy preclude coverage for the claims brought by Tremco?

ANALYSIS

Summary judgment is appropriate when there is no genuine issue as to any material fact and a party is entitled to a judgment as a matter of law. A material fact is one that will affect the result or the outcome of the case depending on its resolution. Zappa v. Fahey, 310 Minn. 555, 556, 245 N.W.2d 258, 259-60 (1976).

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

Related

Carley Pesente v. Minnesota Life Insurance Company
Court of Appeals of Minnesota, 2024
Unitedhealth Group Inc. v. Columbia Casualty Co.
941 F. Supp. 2d 1029 (D. Minnesota, 2013)
Remodeling Dimensions, Inc. v. Integrity Mutual Insurnce Co.
806 N.W.2d 82 (Court of Appeals of Minnesota, 2011)
In Re Forfeiture of $180,975
734 N.W.2d 489 (Michigan Supreme Court, 2007)
Corn Plus Cooperative v. Continental Casualty Co.
444 F. Supp. 2d 981 (D. Minnesota, 2006)
Thommes v. Milwaukee Mutual Insurance Co.
622 N.W.2d 155 (Court of Appeals of Minnesota, 2001)
Seward Housing Corp. v. Conroy Bros. Co.
573 N.W.2d 364 (Supreme Court of Minnesota, 1998)
Fluoroware, Inc. v. Chubb Group of Insurance Companies
545 N.W.2d 678 (Court of Appeals of Minnesota, 1996)
O'Shaughnessy v. Smuckler Corp.
543 N.W.2d 99 (Court of Appeals of Minnesota, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
513 N.W.2d 473, 1994 Minn. App. LEXIS 182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sphere-drake-insurance-co-v-tremco-inc-minnctapp-1994.