Nat'l Union Fire Ins. Co. of Pittsburgh v. Turner Constr. Co.

• Decision Date: 15 May 2014
• Citation: 986 N.Y.S.2d 74,2014 N.Y. Slip Op. 03607,119 A.D.3d 103
• Parties: NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, Plaintiff–Respondent, v. TURNER CONSTRUCTION COMPANY, et al., Defendants–Appellants, GSJC 30 Hudson Urban Renewal, LLC, Defendant.
• Court: New York Supreme Court — Appellate Division

119 A.D.3d 103

986 N.Y.S.2d 74

2014 N.Y. Slip Op. 03607

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, Plaintiff–Respondent,

v. TURNER CONSTRUCTION COMPANY, et al., Defendants–Appellants,GSJC 30 Hudson Urban Renewal, LLC, Defendant.

Supreme Court, Appellate Division, First Department, New York.

May 15, 2014.

Saxe Doernberger & Vita, P.C., New York (Edwin L. Doernberger of counsel), for Turner Construction Company, appellant.

Saxe Doernberger & Vita, P.C., New York (Jeffrey J. Vita of counsel), for Permasteelisa North America Corporation, appellant.

Lindabury, McCormick Estabrook & Cooper, P.C., New York (Jay Lavroff, Steven Bakfisch, Jeffrey R. Merlino and Scott D. Zucker of counsel), for respondent.

LUIS A. GONZALEZ, P.J., PETER TOM, DAVID FRIEDMAN, RICHARD T. ANDRIAS, DAVID B. SAXE, JJ.

SAXE, J.

This declaratory judgment action involving insurance coverage arises out of an underlying action brought by a building owner against its contractors after a piece of the exterior wall of its 42–story office building under construction in Jersey City fell to the street from the eighth-story level.

Defendant GSJC 30 Hudson Urban Renewal, LLC (GSJC) is the owner of the Jersey City property. GSJC retained defendant Turner Construction to serve as general contractor for a construction project on the property, and Turner subcontracted with defendant Permasteelisa North America Corporation to design and build the exterior wall, known as the “curtain wall,” which consisted of granite and glass, with an attached network of decorative horizontal and vertical pipe rails.

On January 25, 2010, a segment of the pipe rail system fell to the street from the eighth floor of the building. The outside consultant hired by GSJC to investigate and inspect the curtain wall determined that more than 20% of the pipe rail connections surveyed did not conform to the building plans. It reported additional problems: inconsistencies in the method of rail attachment; loose shear block connections; missing, sheared, or otherwise variably-sized screws; cracked or deformed shear block screw chases; an inability of some rails to accommodate thermal and building movements; bent brackets on the pipe rail system; cracked glass louvers; cracked glass panels; and water infiltration.

GSJC sued Turner and Permasteelisa in New Jersey Superior Court for breach of contract, breach of warranty, and negligence, based on allegations of “defects in the design, fabrication and/or installation of components of the Pipe–Rail Network,” which was responsible for the damage to the building façade and the continuing danger that the remainder of the pipe rail system would fall to the street.

The project was insured by plaintiff, National Union Fire Insurance Company of Pittsburgh, PA, through an Owner Controlled Insurance Program (OCIP), under which the construction project owner procures insurance on behalf of all parties performing work on the project or site. The insurance covered the owner, GSJC, the general contractor, Turner, and on-site project subcontractors, including Permasteelisa. Under the OCIP, National Union issued commercial general liability insurance policies and an umbrella policy (referred to hereafter collectively as the policy).

The policy, as amended by an endorsement, defines “[o]ccurrence” as “an accident, event, or happening, including continuous or repeated exposure to substantially the same general harmful conditions.” The policy contains various exclusions, including one for professional services, also known as a professional liability exclusion.

Turner and Permasteelisa tendered notice of the underlying action to National Union, which agreed to provide a defense, subject to a reservation of rights, based on several policy provisions that could preclude or limit insurance coverage, including the fact that the policy provides coverage only for property damage caused by an “occurrence” and that the claim of defective design and workmanship does not constitute “property damage.”

National Union commenced this action for a judgment declaring that the policy did not cover the underlying claims against Turner and Permasteelisa, and for reimbursement of defense costs paid on Turner's and Permasteelisa's behalf. It then moved for summary judgment declaring that there was no coverage as a matter of law, because (1) GSJC's claims did not constitute “property damage” or an “occurrence” within the meaning of the policy; (2) the CGL policy did not cover the claims for breach of contract, breach of warranty, or breach of fiduciary duty; (3) Turner and Permasteelisa had breached the notice provision of the policy; and (4) there was no coverage for defective design-related claims because of the professional liability exclusion.

In opposition, Permasteelisa and Turner argued that the parties had negotiated an “expanded” version of the definition of “occurrence,” and that, based on dictionary definitions of the terms “event” and “happening,” the subject loss should be covered.

The motion court held that the policy did not cover GSJC's claims against Turner and Permasteelisa, granted the requested declaration, and directed that National Union be reimbursed the costs and fees it paid for its defense of Turner and Permasteelisa in the underlying action.

Discussion

Initially, it is undisputed that the law of New Jersey governs this action, which turns on insurance policy interpretation, and that New Jersey and New York law are consistent as to the issues in dispute here.

Under both New York and New Jersey law, construction defects such as those asserted in the underlying action—faulty design, fabrication or installation—do not constitute “occurrences” under a commercial general liability insurance policy ( see Firemen's Ins. Co. of Newark v. National Union Fire Ins. Co., 387 N.J.Super. 434, 445, 904 A.2d 754, 760 [N.J.App.Div.2006];George A. Fuller Co. v. United States Fid. & Guar. Co., 200 A.D.2d 255, 260–261, 613 N.Y.S.2d 152 [1st Dept.1994],lv. denied84 N.Y.2d 806, 621 N.Y.S.2d 515, 645 N.E.2d 1215 [1994] ). The general rule is that a commercial general liability insurance policy does not afford coverage for breach of contract, breach of fiduciary duty, or breach of warranty, but rather for bodily injury and property damage ( see Grand Cove II Condominium Assn., Inc. v. Ginsberg, 291 N.J.Super. 58, 72, 676 A.2d 1123, 1130 [N.J.App.Div.1996];Fuller, 200 A.D.2d at 259–260, 613 N.Y.S.2d 152).

Under New Jersey law, commercial liability insurance does not provide coverage for faulty workmanship that results in damage to the insured's work; a commercial general liability policy “does not cover an accident of faulty workmanship but rather faulty workmanship which causes an accident” ( Weedo v. Stone–E–Brick, Inc., 81 N.J. 233, 249, 405 A.2d 788, 796 [1979] ). “While Weedo addressed ‘business risk’ in the context of whether certain exclusions applied, the Weedo principle has been extended to the threshold issue of whether the risk was within the scope of the standard insurance clause” ( Firemen's Ins. Co., 387 N.J.Super. at 443, 904 A.2d at 759).

There is no “occurrence” under a commercial general liability policy where faulty construction only damages the insured's own work ( see Pennsylvania Gen. Ins. Co. v. Menk Corp., 2011 WL 5864109, *4–5 [D.N.J. Nov. 21, 2011] ), and faulty workmanship by subcontractors hired by the insured does not constitute covered property damage caused by an “occurrence” for purposes of coverage under commercial liability insurance policies issued to the general contractor, since the entire project is the general contractor's work ( see Firemen's Ins. Co., 387 N.J.Super. at 446, 449, 904 A.2d at 760–761, 762–763). In Baker Residential v. Travelers Ins. Co., 10 A.D.3d 586, 587, 782 N.Y.S.2d 249 (1st Dept.2004), where a developer delivered and installed defective structural beams that deteriorated from water penetration due to improper installation, flashing and waterproofing, this Court held that the damages sought by the developer did not arise from an “occurrence” resulting in damage to third-party property distinct from the developers' own “work product.” And in Direct Travel v. Aetna Cas. & Sur. Co., 214 A.D.2d 484, 485, 625 N.Y.S.2d 221 [1st Dept.1995] ), this Court explained that “[s]ince the...