Barr v. Cool Vue Aluminum, Inc.Barr v. Cool Vue Aluminum, Inc.
This is аn appeal from the granting of a motion for partial summary judgment. We affirm.
In June and July 1976, plaintiff-appellants, Luther and Nora Lee Barr entеred into a series of building contracts with Cool Vue Aluminum for the constructiоn of a patio addition to their home. Work was completed in August 1976 аnd almost immediately the Barrs began to notice defects in the addition, some of which caused damage to the original structure. Suit was filed аgainst Cool Vue which joined its insurer, Sentry Insurance Co., as a third party defеndant. The Barrs amended their petition to name Sentry as a defendаnt in the main demand. Sentry responded with a motion for partial summary judgment, аdmitting liability under its policy for damages to the original structure and its duty to defеnd Cool Vue against those claims, but denying liability for defects in the addition or any duty to defend Cool Vue against such claims.
In its motion for summary judgment Sentry рrayed for dismissal of all claims by either the Barrs or Cool Vue for defects in the addition and of Cool Vue’s claim that Sentry owed a duty to defеnd Cool Vue against such claims.
The basis of Sentry’s motion was the contention that its policy with Cool Vue specifically excluded covеrage for defects in the addition. The exclusion on which Sentry relied reads as follows:
[This insurance does not apply;]
(a.) to liability assumed by the insured under any contract or agreement except an incidental contract; but this exclusion dоes not apply to a warrant of fitness or quality of the named insured’s products or warranty that work performed by or on behalf of the namеd insured will be done in a workman like manner;
(N) To property damage to the named insured’s product arising out of such products or any part of such products;
(O) To property damage to work performed by or on behalf of the named insured arising out of the work or any portion thеreof, or out of materials, parts or equipment furnished in connection therewith.”
The Barrs and Cool Vue contend that exclusions (n) and- (o) are ambiguous and in conflict with exclusion (a). We find this contention to be without merit.
In Vitenas v. Centanni,
Primarily we find no conflict in these exclusions. Exclusion (a) is simply contained within itself, and the remainder of that exclusion does not apply to the policy generally, only tо the effect of that liability assumed except [by] an incidental cоntract.
Applying this analysis to the case at hand it appears that Cool Vue’s policy with Sentry does not apply to damages caused by defective work or by defective products used in that work and thus summаry judgment on this issue was correctly granted.
As to the other exclusions we note that to trigger liability there must first be an occurrence as defined in thе policy. The exclusions in question define which occurrenc
If there is no coverage with regаrd to the patio addition it is difficult to conceive how a duty to defend Cool Yue against the Barr’s claims could arise. This is not a case where a policy provides coverage but the validity of the claim is questionable. In this case the damage for which recovery is sought is sрecifically excluded from the policy in question. In such a situation there is no duty to defend. American Automobile Association v. Globe Indemnity Co.,
For the foregoing reasons the judgment of the trial court is affirmed at appellant’s costs.
AFFIRMED.