Damon Key attorney Tred Eyerly's powerpoint presentation on the Group Builders issue (insurance coverage for construction defects). Hawaii State Bar Association Litigation Section - May 2013

1. GROUP BUILDERS UPDATE
HSBA Section of Litigation - May 21, 2013
Tred R. Eyerly
Damon Key Leong Kupchak Hastert
(808) 526-3625
te@hawaiilawyer.com
Blog: www.insurancelawhawaii
196487
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2. GROUP BUILDERS UPDATE
DISPUTE OVER INSURANCE COVERAGE
FOR CONSTRUCTION DEFECTS
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3. 3
Background
Insuring Agreement – We will pay those
sums that the insured becomes legally
obligated to pay as damages because of . . .
“property damage” to which this insurance
applies.
This insurance applies to “property
damage” only if the “property damage” is
caused by an “occurrence” and the
“property damage” occurs during the
policy period.

4. 4
“Property Damage” –
(a) Physical injury to tangible property,
including all resulting loss of use of that
property; or
(b) Loss of use of tangible property that is
not physically injured

5. 5
“Occurrence” – an accident, including
continuous or repeated exposure to
substantially the same general harmful
conditions.

6. 6
Business Risk Exclusions:
(j) (6) This insurance does not apply to that
particular part of any property that
must be restored, repaired or replaced
because “your work” was incorrectly
performed on it.

7. 7
Business Risk Exclusions:
(l) This insurance does not apply to “property
damage” to “your work” arising out of it or any
part of it . . .
This exclusion does not apply if the damaged
work or the work out of which the damage
arises was performed on your behalf by a
subcontractor.

8. 8
Duty to Defend
Duty to Indemnify

9. 9
Duty to Defend
Determined by the allegations in the
complaint against the insured - is there any
possibility of coverage under the policy?
Complaint Allegation Rule.
Duty to Defend determined at the time of
tender. Insurer cannot rely upon extrinsic
evidence.

10. 10
Duty to Indemnify
After the facts are established, must the
insurer pay claims under the policy?
Insurer can rely on extrinsic evidence,
i.e., facts established in the underlying
case.

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Nationwide Debate over Coverage for
Construction Defects:
Does “property damage” caused by faulty
workmanship arise from an “occurrence”, i.e.,
accident?”

12. One View:
No Coverage for Construction Defects.
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13. Construction Defects do Not Arise from
Occurrence, but from: (1) expected or
intended result; or (2) breach of contract.
No Occurrence = No Coverage
Leading Case: Weedo v. Stone-E-Brick, Inc.,
405 A.2d 788 (N.J. 1979)
Recent Case: Zurich Am. Ins. Co. v. R. M.
Shoemaker Co., 2013 U.S. App. LEXIS 6093
(3d Cir. 3/25/13) (Pennsylvania law)
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14. 14
Another view:
Construction Defects Covered

15. Property damage based upon faulty
workmanship arises from an “occurrence”
(i.e., accident).
Leading Case: Am. Family Mutual Ins. Co. v.
Am. Girl, Inc., 673 N.W. 2d 65 (Wis. 2004).
Recent case: K&L Homes, Inc. v. Am. Family
Mut. Ins. Co., 2013 N.D. LEXIS 61 (N.D.
4/5/13)
Once “occurrence” is established, turn to
Business Risk exclusions. 15

16. Hawaii Case Law Prior to Group Builders.
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17. o Group Builders relies primarily on
Burlington Ins. Co. v. Oceanic Design &
Constr. Inc., 353 F.3d 940 (9th Cir. 2004)
Burlington predicts how Hawaii
Supreme Court would rule.
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18. o Group Builders I relies on Burlington
for guidance on Hawaii law.
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19. Burlington looks to upon federal district court
cases holding, in non-construction cases, that
an expected result of insured’s intentional
acts in performing a contract does not give
rise to an “occurrence:”
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WDC Venture v. Hartford Accident & Indem. Co., 938
F. Supp. 671 (D. Haw. 1996)
CIM Ins. Corp. v. Masamitsu, 74 F. Supp. 2d 975 (D.
Haw. 1999)
CIM Ins. Corp. v. Midpac Auto Ctr., Inc., 108 F. Supp.
2d 1092 (D. Haw. 2000)

20.  Burlington also relies on Hawaiian Holiday
Macadamia Nut Co. v. Indus. Indem. Co. 76
Haw. 166 (1994) -
Breach of contract case – intentional
destruction of seedlings not accidental.
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21. o Hawaii Supreme Court cases ignored by
Burlington and Group Builders:
Sturla v. Fireman’s Fund, 67 Haw. 203
(1984)
Hurtig v. Terminex Wood Treating &
Contracting Co., 67 Haw. 480 (1984)
Sentinel Ins. Co. v. First Ins. Co. of Hawaii,
Ltd., 76 Haw. 277 (1994)
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22. o Sturla – Risks insured by policy
are “injury caused by a faulty
product or workmanship.” Id.,
67 Haw. at 210.
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23. o Hurtig –Business risk exclusions do
not bar coverage.
Before reaching business risk
exclusions, must first find there was
an occurrence.
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24. o Sentinel – Court found defense owed
where construction defects alleged.
Even though breach of contract and
breach of warranty claims alleged,
Court found coverage.
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25. • In response to Group Builders,
legislature enacts Act 83 (codified at
Haw. Rev. Stat. 431:1-217)
“The meaning of the term
‘occurrence’ shall be construed in
accordance with the law as it existed
at the time that the insurance policy
was issued.”
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Issue:
What was the meaning of “occurrence”
when policy issued?

27. Reaction of U.S. District Court (Hawaii) to
Act 83.
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28. • State Farm v. Vogelgesang, 2011
U.S. Dist. Ct. LEXIS 72618 (D. Haw.
2011).
Insureds made no effort to
demonstrate what the state of the
law was when policy entered.
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29. • Illinois Nat’l Ins. Co. v. Nordic PCL Constr., 2012 U.S.
Dist. LEXIS 58464 (D. Haw. 2012).
Judge Mollway felt compelled to follow Burlington.
Court also assumed Burlington and Group Builders
must have taken Sturla, Hurtig, and Sentinel into
account – even though this trilogy of cases is never
mentioned in either Burlington and Group Builders.
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30. Evanston Ins. Co. v. Nagano, 2012
WL 3800320 (D. Haw. Aug. 31,
2012)
Judge Kobayashi largely follows
Judge Mollway in Nordic PCL.
Actions of contractor arise from
contract and are not occurrences.
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31. • Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v.
Simpson Mfg. Co., 2011 U.S. Dist. LEXIS
128481 (D. Haw. 2011)
Judge Kay – “Hawaii legislature has specifically
denounced Group Builders in very strong
terms.”
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32. • Several construction defect cases
pending in Hawaii Circuit Courts.
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33. o Judges Chang, Border, and
Sakamoto questioned the viability
of Group Builders in light of Act 83.
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34. Three Circuit Court Cases:
• Nat. Union Fire Ins. Co. of Pittsburgh, PA v.
Sunset Heights Hawaii, LLC, Civil No. 10-1-
2184-10
• Coastal Constr. Co. v. N. Am. Specialty, Civil
No. 11-1-0417-3
• The Pinnacle Honolulu, LLC v. Am. Int’l
Specialty Lines Ins. Co., Civil No. 12-1-0526
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35. o Judge Chang specifically agreed that
the state of the law when the policy
was issued was as stated in Sentinel,
Sturla, and Hurtig.
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36. 36
Group Builders, Inc. v. Admiral Ins.
Co., 2013 Haw. App. LEXIS 207 (Haw.
Ct. App. April 15, 2013)
Duty to Defend construction defect
claims based upon policy language
and allegations in underlying
complaint.

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Admiral refused to defend because
construction completed after its policy
period.
Trial Court found duty to defend.

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To deny duty to defend, Admiral would
have to prove it would be “impossible”
for Hilton to prevail against Group
Builders on a claim covered by the
policy.

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Admiral relied on expert testimony –
mold growth commenced after
Admiral’s policy period.

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But Hilton’s complaint did not
specify when mold growth began,
when any property damage
occurred, or what caused the mold
to grow.
ICA assumes property damage
occurred during Admiral’s policy
period.

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Next Issue:
Were damages caused by defective
workmanship an “occurrence” in 2003
during Admiral’s policy period?

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Admiral owed a defense – courts were
split on whether construction defect
claims constituted an “occurrence.”
But what about Sentinel, Sturla and
Hurtig?

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Admiral argues Business Risk
Exclusions apply:
(j) (5) – excludes coverage for damages
to that particular property resulting
from or arising out of the ongoing
operations of the insured.

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But Hilton’s complaint does not specify
which installation was defective, nor
which parts of the construction project
were damaged.
Possibility existed that the exclusions
would not preclude coverage for all of
Hilton’s claims against Group Builders.
Therefore, Admiral had a duty to
defend.

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Summary:
In 2010, ICA established no indemnity
coverage for construction defects.
In 2011, legislature enacted Act 83.
In 2013, Group Builders II finds duty to
defend construction defect cases
What now?

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Rule 15, Rules of Appellate Procedure –
Reserved Questions.

47. MAHALO
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48. Thank You
Tred R. Eyerly
Damon Key Leong Kupchak Hastert
1600 Pauahi Tower
1003 Bishop Street
Honolulu, Hawaii 96813
(808) 526-3625
te@hawaiilawyer.com
Blog: www.insurancelawhawaii
#196487
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