State Farm Fire & Casualty Co. v. Moreco Construction, Inc.

171 F. Supp. 3d 373, 2016 WL 1071013, 2016 U.S. Dist. LEXIS 34362
CourtDistrict Court, E.D. Pennsylvania
DecidedMarch 17, 2016
DocketCIVIL ACTION NO. 15-6131
StatusPublished
Cited by3 cases

This text of 171 F. Supp. 3d 373 (State Farm Fire & Casualty Co. v. Moreco Construction, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Farm Fire & Casualty Co. v. Moreco Construction, Inc., 171 F. Supp. 3d 373, 2016 WL 1071013, 2016 U.S. Dist. LEXIS 34362 (E.D. Pa. 2016).

Opinion

MEMORANDUM

KEARNEY, JUDGE.

A roofing subcontractor sued for allegedly failing to properly tarp and cover a roof during home construction causing property damage from rainwater cannot compel its business liability insurer to defend and indemnify it in the suit for faulty workmanship but may compel coverage if the homeowners’ property damage is an accident. We do not decide the underlying property damage case. Our role today is to declare whether coverage -exists after comparing the “four corners” of the underlying complaint against the roofing subcontractor with the “four corners” of the insurance policy. We are not bound by the nomenclature of the claims but examine the underlying complaint as a whole to determine if the insured subcontractor could be liable for property damage solely due to uncovered faulty workmanship or possibly by a covered accident.

Insurer State Farm Fire and Casualty Company (“State Farm”) asks we declare it has no duty to defend or indemnify its insured, roofing subcontractor Moreeo Construction, Inc. (“Moreeo”). State Farm is presently defending Moreeo on a general contractor’s claim Moreeo negligently failed to properly “tarp, wrap, cover, or otherwise protect” a home while installing a roof. Studying the four corners of the underlying complaint and insurance policy, we find Moreeo is being sued for faulty workmanship and State Farm does not owe a duty to defend or indemnify Moreeo. We grant State Farm’s motion for summary judgment.

I. Undisputed Facts1

State Farm sold a business owners policy providing Moreeo with comprehensive business liability coverage effective January 15, 2013 through January 14, 2014 (the “Policy”).2 Moreeo is a defendant in Russell Construction, LLC v. Mack-Donohoe Contractors, Inc. and Moreeo Construction, now pending in the Court of Common Pleas for Chester County, Pennsylvania (“Underlying Action”).3 Moreeo sought defense and indemnity from State Farm and it is currently providing Moreeo with a defense in the Underlying Action under a reservation of rights.4

A. The Policy

The Policy provides comprehensive business liability, in relevant part, as follows:

Coverage L-Business Liability
1. When a Limit Of Insurance is shown in the Declarations for Coverage L - Business Liability, we will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury”, “property damage” or “personal and advertising injury” to which this insurance applies....
2. This insurance applies:
a. To “bodily injury” and “property damage” only if:
[376]*376(1) The “bodily injury” or “property damage” is caused by an “occurrence” that takes place in the “coverage territory”;5
“Occurrence” is defined by the Policy as: “Occurrence” means an accident, including continuous or repeated exposure to substantially the same general harmful conditions.6

“Property damage” is defined by the Policy as:

a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or
b. Loss of use of tangible property that is not physically injured or destroyed provided such loss of use is caused by physical injury to or destruction of other tangible property. All such loss of use shall be deemed to occur at the time of the “occurrence” that caused it.7

B. The Underlying Action

Volkmar Nitz and Laura Nitz hired Russell Construction as general contractor for their home construction project.8 Russell Construction alleges it “hired” Mack-Do-nohoe to install a new roof on the property, and Mack-Donohoe, in turn, “hired” Moreco to “actually install” the new roof on the property.9 Moreco, as subcontractor, “was to properly construct the roof at the property and to ensure that the property was protected from water infiltration at all times.” 10

Russell Construction alleges the Nitz home “was not properly tarped, wrapped, covered, or otherwise protected,” allowing rainwater to enter the home causing extensive damage.11 Russell Construction paid to repair damage to the Nitz home and then sued Mack-Donohoe and Moreco, claiming breach of implied warranty of reasonable workmanship and negligence against Mack-Donohoe and negligence against Moreco.12

We are focused today on Russell Construction’s negligence claim against More-co for its alleged failure to exercise reasonable care in obtaining, installing, and securing a covering to the Nitz home to protect it from “a foreseeable rain event;” failure to timely warn Russell Construction the covering on the home was inadequate or improperly secured and the house was susceptible to water damage; failure to correctly and timely coordinate roofing work with others so as to ensure the home was covered and protected; failure to protect the home from damage; failure to adequately instruct their employees on the proper way to perform their tasks; failure to adequately warn Russell Construction of the dangers resulting from the careless and negligent failure to exercise reasonable care; failure to provide, establish, and follow proper and adequate control to ensure the proper performance of tasks; and failure to supervise employees in the performance of their tasks.13

[377]*377II. Analysis

On summary judgment,14 we examine whether the Underlying Action asserts claims falling within the definition of “occurrence” in the Policy, triggering its Business Liability coverage and imposing on State Farm a duty to defend and indemnify Moreco. State Farm argues its Policy provides coverage for property damage caused by an “occurrence,” defined as an “accident.” State Farm reads Russell Construction’s allegations against Moreco in the Underlying Action as claims of “faulty workmanship” which do not, under Pennsylvania law, constitute an “accident” for purposes of an “occurrence” in a commercial general liability (“CGL”) policy. State Farm further argues any alleged property damage caused by Moreco’s defective and faulty workmanship arises purely out of an agreement, formal or informal, between Moreco and Mack-Donohoe to perform work on the Nitz home, not from any duties imposed'by social policy.

A. State Farm does not owe a duty to defend under the Policy.

An insurer’s duty to defend its insured is broader than its duty to indemnify.15 “Under Pennsylvania law, which is applicable on the insurance coverage issue, a court ascertaining whether an insurer has a duty to defend its insured makes its determination by defining the scope of coverage under the insurance policy on which the insured relies and comparing the scope of coverage to the allegations of the underlying complaint.”16 “If the allegations of the underlying complaint potentially

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Bluebook (online)
171 F. Supp. 3d 373, 2016 WL 1071013, 2016 U.S. Dist. LEXIS 34362, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-farm-fire-casualty-co-v-moreco-construction-inc-paed-2016.