Travelers Indemnity Co. of America v. Tower-Dawson, LLC

299 F. App'x 277
CourtCourt of Appeals for the Fourth Circuit
DecidedOctober 31, 2008
Docket07-1525
StatusUnpublished
Cited by1 cases

This text of 299 F. App'x 277 (Travelers Indemnity Co. of America v. Tower-Dawson, LLC) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Travelers Indemnity Co. of America v. Tower-Dawson, LLC, 299 F. App'x 277 (4th Cir. 2008).

Opinion

PER CURIAM:

Tower-Dawson, LLC (Tower), the developer of The Villages at Tower Oaks (Tower Oaks), a residential development in Rockville, Maryland, appeals the district court’s grant of summary judgment on its claim that Travelers Indemnity Company of America, Travelers Indemnity Company, Colony Insurance Company, and Done-gal Group (collectively the Insureds) had an obligation to indemnify Foundations Unlimited, Inc. (Foundations) for the costs incurred by Tower in installing a new retaining wall in front of the defective one Foundations installed in Tower Oaks and for the costs to repair federally-protected wetlands located adjacent to Tower Oaks which were damaged by Tower during its installation of the new retaining wall. For the reasons that follow, we affirm.

I

The Insureds issued commercial general liability (CGL) policies (the Policies) to Foundations, covering a time period beginning on August 28, 1995 and ending on August 28, 2003. The Policies provided coverage for damages that Foundations owed because of “property damage” caused by an “occurrence.” Property damage is defined as either a “[pjhysical injury to tangible property, including all resulting loss of use of that property” or “[l]oss of use of tangible property that is not physically injured.” Occurrence is defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.”

The Policies’ grant of coverage for property damage caused by an occurrence is limited by a “your work” exclusion. Specifically, the your work exclusion provides that coverage to the named insured, in this case Foundations, does not apply to “ ‘property damage’ [due] to ‘your work’ arising out of it or any part of it.”

In August 1995, Tower contracted with Foundations to construct a 770-foot retaining wall at Tower Oaks. Construction began shortly thereafter, and Foundations completed the retaining wall some time in 1996.

In 2001, the retaining wall began to show signs of failure, and eventually a seventy-foot section of the retaining wall collapsed in 2003, causing damage to several homeowners’ property and federally-protected wetlands adjacent to the development.

In order to prevent further damage to the homeowners’ property and the federally-protected wetlands adjacent to the development. Tower stabilized the area around the retaining wall by installing wood and gravel bracing. Once the slope was stabilized, Tower constructed a new retaining wall immediately in front of the defective one. With the two retaining walls in place, the land both above and below the walls was stabilized. To construct the new retaining wall, Tower decided to access the site through the federally-protected wetlands, but this caused further damage to those wetlands. Following the construction of the new retaining wall, Tower repaired the homeowners’ property and remediated the federally-protected wetlands. For the costs it incurred, Tower instituted arbitration proceedings against Foundations, which resulted in an award to Tower in the sum of $2,015,603, an amount which has not been paid.

Travelers Indemnity Company of America and Travelers Indemnity Company (collectively Travelers) instituted this declaratory judgment action, seeking a declaration that it had no duty under the CGL policies it issued to Foundations to indemnify Tower for any portion of the arbitra *280 tion award Tower obtained against Foundations. Travelers joined as defendants Colony Insurance Company and Donegal Group, each of whom filed counterclaims seeking a declaration that their policies did not require them to indemnify Tower in connection with the arbitration award.

On cross-motions for summary judgment, the district court held that the Insureds were obligated to indemnify Tower for some of its costs, but not others. More specifically, the district court held that the damage to the homeowners’ property and the federally-protected wetlands caused by the collapse of the original retaining wall was a covered loss under the Policies. The district court also held that the cost of the emergency bracing was a covered loss as well, concluding that the cost was incurred to prevent imminent or further damage to third party property. The district court held that the cost of installing the new retaining wall was not a covered loss under the Policies because it was not caused by an occurrence or, alternatively, the loss was barred by the “your work” exclusion. Finally, the district court held that the cost of repairing the further damage to the federally-protected wetlands brought about by the installation of the new retaining wall was not a covered loss because the loss was not accidental.

Tower appeals the portion of the district court’s decision adverse to its interests. The Insureds have not challenged any portion of the district court’s decision.

II

We review de novo the district court’s grant of summary judgment. Ellis v. Metro. Life Ins. Co., 126 F.3d 228, 232 (4th Cir.1997). We will affirm the district court’s decision “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). We view the record and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party, here Tower. Williams v. Giant Food Inc., 370 F.3d 423, 428 (4th Cir.2004).

On appeal. Tower argues that the district court erred when it determined that the cost of installing the new retaining wall and the cost of repairing the damage to the federally-protected wetlands brought about by the installation of the new retaining wall were not covered losses under the Policies. In resolving this argument, we apply Maryland’s substantive law regarding the interpretation of an insurance policy, which the parties agree applies to this case. French v. Assurance Co. of Am., 448 F.3d 693, 700 (4th Cir.2006). Under Maryland law,

[a]n insurance policy is interpreted in the same manner as any other contract. Maryland courts do not follow the rule that an insurance policy must be strictly construed against the insurer. The principal rule in the interpretation of contracts is to effect the intentions of the parties. When a contract’s wording is clear, the court will presume that the parties intended what they expressed, even if the expression differs from the parties’ intentions at the time they created the contract. If reasonably possible, effect must be given to every clause and phrase of a contract, so as not to omit an important part of the agreement.

Nationwide Ins. Co. v. Rhodes, 127 Md.App. 231, 732 A.2d 388, 390-91 (1999) (citations and internal quotation marks omitted).

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299 F. App'x 277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/travelers-indemnity-co-of-america-v-tower-dawson-llc-ca4-2008.