In this declaratory judgment proceeding, respondent Green & Company Building and Development Corporation (Green) appeals an order of the Superior Court {Brown, J.) denying its cross-motions for summary judgment and granting summary judgment in favor of the petitioner, Concord Gеneral Mutual Insurance Company (Concord General), and respondent Middlesex Mutual Assurance Company (Middlesex Mutual). The trial court found that there was no “occurrence” as defined by the insurаnce policies issued by Concord General and Middlesex Mutual and concluded, therefore, that coverage for Green’s indemnification claims was not required under either policy. We аffirm.
The trial court found, or the record supports, the following facts. In March 2004, Green began a project in Lee, involving the construction of thirty-four homes to be known as Thurston Woods. Green contrаcted with Birch Masonry to build the chimneys in each of the homes. Birch Masonry was insured by Middlesex Mutual. Birch Masonry requested that Green be added to the policy as an additional named insured, and Middlesex Mutual complied. Throughout the construction, Green held its own commercial general liability policy with Concord General.
Soon after the homes at Thurston Woods were completed and sоld, Green began receiving complaints about the chimneys, particularly regarding flue size. Green told the homeowners that it would make the appropriate repairs and bring the chimneys “to code.” Eventually, however, the homeowners brought suits against Green in superior court. When the lawsuits were filed, Green made demand on Concord General to provide it with a defense and indemnification. Concord General agreed to provide Green with a defense pursuant to a reservation of rights.
While the suits were pending, Green placed carbon monoxide detectors in eаch of the homes and discovered unacceptable levels of carbon monoxide in several of them. Green also began receiving complaints that flue gases were seeрing into
In the meantime, Concord General initiated this declarаtory judgment proceeding against Green, Middlesex, and the homeowners to resolve the insurance coverage issues. After the homeowners’ lawsuits were settled or withdrawn, the remaining parties filеd motions and cross-motions for summary judgment. In arguing for summary judgment, Green argued, among other things, that the leaking carbon monoxide constitutes property damage and is therefore an “occurrence” under the policies. The trial court disagreed, and granted summary judgment in favor of Concord General and Middlesex Mutual. This appeal followed.
On appeal, Green argues that the trial court erred in finding that the leaking carbon monoxide did not constitute property damage and was therefore not an “occurrence.” ‘We review
de novo
the trial court’s application of thе law to the facts in its summary judgment ruling.”
Progressive N. Ins. Co. v. Concord Gen. Mut. Ins. Co.,
Green argues that the carbon monoxide that seeped into the homes as a result of the faulty chimneys resulted in property damage and constitutes “occurrences” under both insurance policies. Cоncord General and Middlesex Mutual assert that the carbon monoxide caused no physical damage and that Green’s claim is essentially for faulty workmanship, which they contend is not covered under the insurance contracts.
“In a declaratory judgment action to determine the coverage of an insurance policy, the burden of proof is always on the insurer, regardless of whiсh party brings the petition.”
Carter v. Concord Gen. Mut. Ins. Co.,
Green’s policy with Concord General and the Middlesex Mutual poliсy contain identical relevant language. Both policies provide coverage for “bodily injury” and “property damage” only if “[t]he ‘bodily injury’ or ‘property damage’ is caused by an ‘ocсurrence’...” The policies define “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.”
a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or
b. Loss of tangible property thаt is not physically injured. All such loss of use shall be deemed to occur at the time of the “occurrence” that caused it.
We have previously held that defective work, standing alone, does nоt constitute an occurrence.
See Hull v. Berkshire Mut. Ins. Co.,
Green asserts that the entry of carbon monoxide into the homes was itself physical injury to tangible property. Relying on
Essex Insurance Co. v. Bloomsouth Flooring Corp.,
In this case, however, the carbon monoxide and other gases caused no physical, tangible alteratiоn to any property. The homeowners did not suffer the loss of use of any property other than their chimneys. Green concedes that the homeowners continued to occupy their homеs and to use their furnaces throughout the heating season. None of the homeowners suffered bodily injury due to the gases, and the homeowners were not required to vacate their homes while the сhimneys were being repaired. The only effect caused by the faulty chimneys was their loss of use. The loss of use of the insured’s work product, standing alone, is not sufficient to constitute an “occurrence” under the policy.
Moreover, all of the repairs made to the chimneys were limited to correcting the faulty workmanship. The repairs were thus preventative in nature, made for the purpose of stopping carbon monoxide leaks before they caused any actual bodily injury
Green contends that it would be an “absurdity” to require someone to become physically injured by the leaking gases before coverage under the policies is available. This argument misconstrues entitlement to insurance coverage. An insurance policy is a contractual obligation between the insured аnd the insurer. Insurers are free to limit their liability through clear and unambiguous policy language.
See Turner v. St. Paul Prop. & Liab. Ins. Co.,
Affirmed.