Bonded Concrete, Inc. v. Transcontinental Insurance Company

Decision Date04 November 2004
Docket Number95766.
Citation784 N.Y.S.2d 212,2004 NY Slip Op 07892,12 A.D.3d 761
PartiesBONDED CONCRETE, INC., Appellant, v. TRANSCONTINENTAL INSURANCE COMPANY, Doing Business as CNA COMMERCIAL INSURANCE, Respondent.
CourtNew York Supreme Court — Appellate Division

Appeal from an order of the Supreme Court (Benza, J.), entered February 19, 2004 in Albany County, which, inter alia, granted defendant's cross motion for summary judgment dismissing the complaint.

Carpinello, J.

This declaratory judgment action between plaintiff, an insured under a commercial general liability insurance policy, and defendant, its insurer, arises out of a dispute which itself was the subject of a recent appeal to this Court (see U.W. Marx, Inc. v Bonded Concrete, Inc., 7 AD3d 856 [2004]). In that prior action, filed in mid-November 1999, plaintiff was sued by the general contractor on a school renovation project for allegedly supplying defective concrete for use in sidewalks. Shortly thereafter, plaintiff forwarded the pleadings to defendant with a demand that it provide plaintiff with a defense and indemnification.

After investigating the claim, defendant advised plaintiff, by letter dated February 7, 2000, that there was no coverage for the claim under the policy because the delivery of defective concrete did not constitute a covered "occurrence." Defendant also relied upon a number of exclusions in the policy in denying plaintiff's demand. Among the exclusions was one for property damage to "your product." Shortly before trial in the underlying action, the general contractor was permitted to amend its complaint to assert an additional claim that plaintiff violated General Business Law § 349 (deceptive business practices). The amended pleadings were not immediately provided to defendant. After defendant failed to pay the judgment rendered against plaintiff in the underlying action, plaintiff commenced the instant suit. Plaintiff now appeals from an order of Supreme Court granting defendant summary judgment dismissing the complaint.

We begin with the well-settled rule that the issuer of a commercial general liability insurance policy is not a surety for a construction contractor's defective work product (see George A. Fuller Co. v United States Fid. & Guar. Co., 200 AD2d 255 [1994], lv denied 84 NY2d 806 [1994]). In Fuller, policy provisions identical to those in the case at bar were construed to negate insurance coverage to a contractor which had been sued for faulty workmanship in a construction project. Thus, precedent dictates that policies like defendant's were never intended to provide indemnification to contractors from claims that their work product was defective (see id. at 259). Rather, the "purpose of a commercial general liability policy . . . is to provide coverage for tort liability for physical damage to others and not for contractual liability of the insured for economic loss because the product . . . is not what the damaged [party] bargained for" (Hartford Acc. & Indem. Co. v Reale & Sons, 228 AD2d 935, 936 [1996]).

Plaintiff cannot escape the effect of this rule. The gist of the claims in the underlying action is that plaintiff provided an allegedly defective product, namely, concrete. The damages sought were the costs of correcting the defect, not damage to property other than the completed work itself (see Zandri Constr. Co. v Firemen's Ins. Co. of Newark, 81 AD2d 106, 109 [1981], affd sub nom. Zandri Constr. Co. v Stanley H. Calkins, Inc., 54 NY2d 999 [1981]).

We are unpersuaded by plaintiff's reliance on a number of cases which...

To continue reading

Request your trial
22 cases
  • Harleysville Worcester Ins. Co. v. Paramount Concrete, Inc., 3:11cv578(SRU).
    • United States
    • U.S. District Court — District of Connecticut
    • March 31, 2014
    ...an insurer from becoming a surety for the insured's defective work or product. See, e.g., Bonded Concrete, Inc. v. Transcon. Ins. Co., 12 A.D.3d 761, 784 N.Y.S.2d 212, 213 (3d Dep't 2004). The exclusions ensure that a CGL policy covers “tort liability resulting from the product and/or work ......
  • Black & Veatch Corp. v. Aspen Ins. (Uk) Ltd.
    • United States
    • U.S. District Court — District of Kansas
    • November 17, 2016
    ...Ins. Co. v. AARK Const. Group, Ltd., 526 F. Supp. 2d 350, 356 (E.D.N.Y. 2007) (citing Bonded Concrete, Inc. v. Transcon. Ins. Co., 12 A.D.3d 761, 762, 784 N.Y.S.2d 212 (3rd Dept. 2004)); see James River Ins. Co. v. Power Management, Inc., 55 F. Supp. 3d at 454. "CGL policies do not insure a......
  • Harleysville Worcester Ins. Co. v. Paramount Concrete, Inc., 3:11cv578SRU.
    • United States
    • U.S. District Court — District of Connecticut
    • March 31, 2014
    ...an insurer from becoming a surety for the insured's defective work or product. See, e.g., Bonded Concrete, Inc. v. Transcon. Ins. Co., 12 A.D.3d 761, 784 N.Y.S.2d 212, 213 (3d Dep't 2004). The exclusions ensure that a CGL policy covers “tort liability resulting from the product and/or work ......
  • QBE Ins. Corp. v. ADJO Contracting Corp.
    • United States
    • New York Supreme Court Appellate Division
    • October 29, 2014
    ...Co. v. United States Fid. & Guar. Co., 200 A.D.2d 255, 259, 613 N.Y.S.2d 152 ; see Bonded Concrete, Inc. v. Transcontinental Ins. Co., 12 A.D.3d 761, 762, 784 N.Y.S.2d 212 ; Saks v. Nicosia Contr. Corp., 215 A.D.2d 832, 834, 625 N.Y.S.2d 758 ; cf. Exeter Bldg. Corp. v. Scottsdale Ins. Co., ......
  • Request a trial to view additional results
5 books & journal articles
  • Chapter 5
    • United States
    • Full Court Press Business Insurance
    • Invalid date
    ...291 A.D.2d 643, 737 N.Y.S.2d 692, appeal denied 773 N.E.2d 1017 (N.Y. 2002); Bonded Concrete, Inc. v. Transcontinental Insurance Co., 12 A.D.3d 761, 784 N.Y.S.2d 212 (2004). North Dakota: ACUITY v. Burd & Smith Construction, Inc., 721 N.W.2d 33 (N.D. 2006). Pennsylvania: Kvaerner Metals v. ......
  • CHAPTER 9 Comprehensive General Liability Insurance—The Pollution Exclusions
    • United States
    • Full Court Press Insurance for Real Estate-Related Entities
    • Invalid date
    ...Mutual Casualty Co., 36 A.D.3d 555, 828 N.Y.S.2d 385 (N.Y. App. Div. 2007); Bonded Concrete, Inc. v. Transcontinental Insurance Co., 12 A.D.3d 761, 784 N.Y.S.2d 212 (N.Y. App. Div. 2004). North Carolina: Harleysville Mutual Insurance Co. v. Buzz Off Insect Shield, L.L.C., 664 S.E.2d 317 (N.......
  • Chapter 8
    • United States
    • Full Court Press Business Insurance
    • Invalid date
    ...Mutual Casualty Co., 36 A.D.3d 555, 828 N.Y.S.2d 385 (N.Y. App. Div. 2007); Bonded Concrete, Inc. v. Transcontinental Insurance Co., 12 A.D.3d 761, 784 N.Y.S.2d 212 (N.Y. App. Div. 2004). North Carolina: Harleysville Mutual Insurance Co. v. Buzz Off Insect Shield, L.L.C., 664 S.E.2d 317 (N.......
  • CHAPTER 5 Comprehensive or Commercial General Liability (CGL) Insurance: Coverage A for "Bodily Injury" or "Property Damage" Liabilities
    • United States
    • Full Court Press Insurance for Real Estate-Related Entities
    • Invalid date
    ...291 A.D.2d 643, 737 N.Y.S.2d 692, appeal denied 773 N.E.2d 1017 (N.Y. 2002); Bonded Concrete, Inc. v. Transcontinental Insurance Co., 12 A.D.3d 761, 784 N.Y.S.2d 212 (2004). North Dakota: ACUITY v. Burd & Smith Construction, Inc., 721 N.W.2d 33 (N.D. 2006). Pennsylvania: Kvaerner Metals v. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT