¶ 1 Soil settlement caused cracks and other damage to 50 new homes in north Scottsdale. Prompted by complaints from customers to whom it had sold the homes, the developer, Desert Mountain Properties Limited Partnership, paid an average of $200,000 per home to have the soil issues corrected and the damage repaired. Desert Mountain then sought reimbursement from its insurer. We hold in this appeal that commercial general liability policies issued by Liberty Mutual Fire Insurance Company covered the expenses Desert Mountain incurred in repairing property damage resulting from the soil settlement. We also affirm the jury’s conclusion that Liberty Mutual was obligated to indemnify Desert Mountain for those expenses even though none of the homeowners had sued Desert Mountain over the damage to their homes.
¶ 2 Desert Mountain contracted for the construction of hillside homes in two subdivisions, the Sonoran Cottages and the Sonoran Cottages Enclave. 1 The general contractor, The Weitz Company, completed the homes in 1995. From the outset, some of the homes experienced settlement and drainage problems and patio cracks. In October 1999, Desert Mountain learned of a home in the Enclave that had experienced such significant settlement that the patio had sunk two to three inches, retaining walls had rotated and cracks had appeared in the roof and interior walls. Desert Mountain hired a consultant, Joe Frank, to examine the property. After receiving other complaints of cracks in interior walls, patio slabs and retaining walls throughout 2000, the company asked Frank to expand his investigation to all 50 properties.
¶ 3 Frank concluded there was “a very substantial soils issue involving the poor compaction of fill material” on which the homes had been built. Poor soil compaction had caused floor slabs to shift, resulting in cracks and other damage, and water infiltration had exacerbated the matter. Frank’s investigation also revealed other construction defects, including defectively installed water and sewage lines that allowed additional moisture to enter the poorly compacted fill. Ultimately, all 50 homes required repairs of varying degree. Areas of poorly compacted soil needed to be treated with pressurized grouting. To identify those areas, workers needed to drill through concrete floor slabs to test subsurface soil densities. More holes then would be drilled, through which workers would pump pressurized grout (a mixture of cement and water) to stabilize the soil. After this work was completed, cracks in floors and walls would be repaired, drainage systems would be repaired and patio slabs and tile floors would be replaced.
¶ 4 On May 16, 2001, Desert Mountain sent a notice of claim to Liberty Mutual. It sought coverage of damages to the Cottages and Enclave homes pursuant to one-year commercial general liability (“CGL”) policies issued on August 29, 1999 and November 11, 2000. 2 In its letter, Desert Mountain explained it already had spent $640,000 in repairs and that more repairs needed to be made.
¶ 5 In a response dated May 31, William Strickland, a Liberty Mutual claims specialist, asked for additional information and copies of homeowner complaints, repair work and cost documentation, claim notices submitted to Weitz or subcontractors and Frank’s reports. On June 13, Desert Mountain wrote to say it had concluded it needed to proceed with repair work over the summer months, when many residents would be away (so relocation costs would be avoided) and contractors would be available. Liberty Mutual responded by letter on June 26. It explained that it could not begin a “coverage review” until it received more information and the documents it had requested. In the meantime, the insurer warned Desert Mountain that it was not authorizing the repair work that Desert Mountain proposed. It added, “We offer no recommendations at this time, and can neither authorize you to commence the work, nor suggest that you not commence the work.” By the end of June 2001, Desert Mountain had provided Liberty Mutual with some of the documents the insurer had requested, but had not furnished any homeowner complaints or documents relating to the repairs it already had performed.
¶ 6 Believing it had an obligation to repair the damages and desiring to maintain customer goodwill, Desert Mountain proceeded
¶ 7 Desert Mountain then sued Liberty Mutual, alleging breach of contract and breach of the duty of good faith. The superi- or court granted Liberty Mutual’s motion for summary judgment on the bad faith claim. The court also held that, consistent with
United States Fidelity & Guaranty Corp. v. Advance Roofing & Supply Co.,
¶ 8 During a 12-day trial, Desert Mountain presented evidence of $7,311,087 in damages, including repair costs, consulting fees and attorney’s fees incurred in the Weitz lawsuit. After crediting amounts received in settlements with other insurers, Weitz and other contractors, Desert Mountain asked the jury to award it $1,500,346 in damages. Liberty Mutual did not take issue at trial with the nature of the repairs Desert Mountain undertook, nor did it argue that the expenses Desert Mountain incurred were unreasonable; it argued only that its policies did not cover the expenses. The jury found in favor of Desert Mountain on its contract claim and awarded $500,000 in damages. The court granted Desert Mountain its attorney’s fees and costs and denied Liberty Mutual’s motion for judgment as a matter of law or new trial.
¶ 9 Liberty Mutual timely appealed, and Desert Mountain timely cross-appealed. We have jurisdiction pursuant to AR.S. § 12-2101(B) (2003).
DISCUSSION
I. Liberty Mutual’s Appeal.
¶ 10 Liberty Mutual asserts the superior court erroneously instructed the jury and erred by denying its motion for judgment as a matter of law and for new trial.
A. Standards of Review.
¶ 11 Whether a jury instruction correctly states the law is a matter of law that we review
de novo. A Tumbling-T Ranches v. Flood Control Dist. of Maricopa County,
¶ 12 Judgment as a matter of law is appropriate when “a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.” Ariz. R. Civ. P. 50(a)(1);
see also Roberson v. Wal-Mart Stores, Inc.,
B. The Insuring Clause: Repair Costs as “Damages” the Insured Is “Legally Obligated to Pay.”
¶ 13 Liberty Mutual promised in each of the two policies to “pay those sums that the insured becomes legally obligated to pay as damages because of ... ‘property damage’ to which this insurance applies.” The policies did not define “legally obligated” or “damages.” Liberty Mutual contends that because none of the homeowners sued Desert Mountain over the soil settlement problems, Desert Mountain was not “legally obligated” to make the repairs. 3 Liberty Mutual argues that it “agreed to pay monetary damages for [Desert Mountain’s] legal obligations for causing property damage; it did not underwrite a warranty program for [Desert Mountain] to rectify its defective work.”
¶ 14 We interpret an insurance policy according to its plain and ordinary meaning, examining it from the viewpoint of an individual untrained in law or business.
Messina v. Midway Chevrolet Co.,
¶ 15 Liberty Mutual cites California eases holding that an insurer’s duty to indemnify an insured for sums the insured becomes “legally obligated to pay as damages” only extends to amounts a court has ordered the insured to pay.
See, e.g., County of San Diego v. Ace Prop. & Cas. Ins. Co.,
¶ 16 As the California courts acknowledge, however, their interpretation of the policy language is the minority view.
Id.,
¶ 17 The language in the Liberty Mutual policies may be interpreted according to its plain and ordinary meaning, as one untrained in law or business would understand it.
See Messina,
¶ 18 In short, although a court may enforce a legal obligation, in the usual ease, no court action is required to create a legal obligation. For that reason, we conclude the better-reasoned rule is that coverage for sums an insured becomes “legally obligated to pay as damages” may be triggered even in the absence of a civil lawsuit against the insured or a court order requiring the insured to make payment.
¶ 19 Liberty Mutual argues the cases adopting this rule,
supra
¶ 16, are distinguishable because they arise in the context of environmental laws that impose strict liability upon responsible parties.
See, e.g., Bausch & Lomb,
¶ 20 Implicit in Liberty Mutual’s argument is the contention that indemnification should not be available to an insured that pays to settle a questionable claim before the claim is tested in the crucible of litigation. But the insuring clause imposes no indemnification obligation when an insured pays to settle a meritless claim; if a claim lacks merit, the insured by definition is under no “legal obligation to pay.” The “voluntary payments” provision in the standard CGL policy acts as another constraint on an insured that for business reasons might consider entering into a pre-litigation settlement with a customer who raises a claim of questionable merit. See infra ¶¶ 43-47.
¶21 In any event, none of the concerns Liberty Mutual raises has any real application in this case. The insurer offers no argument that Desert Mountain would not have been liable to its customers for breach of implied warranty arising from the sale of the new homes.
See Woodward v. Chirco Constr. Co.,
¶ 22 In its reply brief, Liberty Mutual argues for the first time that because an insurer’s duty to defend under a CGL policy is broader than its duty to indemnify, and because the duty to defend arises only when the insured is sued, the insurer has no duty to indemnify absent a lawsuit against the insured.
See, e.g., Certain Underwriters,
¶ 24 As to whether a duty to defend may apply absent litigation, the standard CGL policy expressly refers to a lawsuit: “We will have the right and duty to defend the insured against any ‘suit’ seeking ... damages [covered by the policy].” 4 By contrast, the policy’s insuring clause (“We will pay those sums that the insured becomes legally obligated to pay as damages”) makes no comparable reference to a lawsuit, suit or other legal proceeding. Given the distinct difference in the policy’s treatments of the two duties, even accepting for purposes of argument Liberty Mutual’s assertion that an insurer is not obligated to defend the insured in the absence of a formal legal proceeding, we cannot accept its argument that the insurer’s duty to indemnify is likewise limited. 5
¶ 25 Similarly, the plain and ordinary meaning of “damages,” as understood by an individual untrained in law or business, is not constrained in the manner Liberty Mutual argues. For example, “damages” is commonly defined as “the estimated money equivalent for detriment or injury sustained.” Random House Webster’s Unabridged Dictionary 504 (Deluxe 2d ed. 2001). This meaning is far broader than “sums that a court orders to be paid,” Liberty Mutual’s proposed definition.
¶ 26 This conclusion is supported by cases upholding coverage of expenses an insured incurs prior to or in the absence of litigation. In
Helena Chemical,
for example, the court rejected the assertion that environmental cleanup costs the insured paid at the request of a state authority were not “damages” within the meaning of the policy.
¶27 The expenses Desert Mountain incurred in making the repairs and for which it sought coverage under the Liberty Mutual policies constituted the “estimated money equivalent for detriment or injury sustained” by the homeowners. As noted, Liberty Mutual agreed at trial that the repairs and costs were necessary and reasonable; those concessions support the conclusion that the expenses were a sufficient equivalent for the detriment the homeowners sustained. Ae-
cordingly,
C. Coverage of Damages Arising Out of Breach of Contract.
¶ 28 In
Flagstaff Affordable Housing Limited Partnership v. Design Alliance, Inc.,
¶ 29 The damage resulting from the construction defects in this case constituted economic loss because the only property damaged was the property that was “itself the subject” of the contracts between Desert Mountain and the customers who purchased the homes.
See id.
at 323, ¶ 11,
¶ 30 Liberty Mutual relies in large part on
Stanford Ranch, Inc. v. Maryland Casualty Co.,
¶31 To be sure, other jurisdictions have held an insurer’s agreement to cover amounts the insured is “legally obligated to pay as damages” applies only to liability arising out of tort and not to contract damages.
See, e.g., Aetna Cas. & Sur. Co. v. Spancrete of Ill, Inc.,
To allow indemnification under [a breach of contract theory] would have the effect of making the insurer a sort of silent business partner subject to great risk in the economic venture without any prospects of sharing in the economic benefit. The expansion of the scope of the insurer’s liability would be enormous without corresponding compensation. There is simply no reason to expect that such a liability would be covered under a comprehensive liability policy which has, as its genesis, the purpose of protecting an individual or entity from liability for essentially accidental injury ....
Keystone Filler & Mfg. Co. v. Am. Mining Ins. Co.,
¶ 32 We decline to hold that as a matter of law, a CGL policy does not cover liability arising out of contract. While there is some appeal to the notion that a breach of contract is not the sort of accidental risk to which liability insurance is designed to apply, we are reluctant to read such a limitation into a CGL policy when the parties have not chosen to write it for themselves. The policies at issue here included various express limitations or exclusions that may apply to certain contractual liabilities.
See infra
¶¶ 34-42. The fact that those express provisions do not flatly bar coverage of all contract claims supports our decision to decline to imply into the policies the broad principle that coverage is not afforded to damages arising from contract.
See, e.g., Am. Family Mut. Ins. Co. v. Am. Girl, Inc.,
¶ 33 Instead, we hold that the “proper inquiry is whether an ‘occurrence’ has caused ‘property damage,’ not whether the ultimate remedy for that claim lies in contract or in tort.”
Lamar Homes, Inc. v. Mid-Continent Cas. Co.,
¶ 34 Of course, our conclusion that standard CGL policies contain no implied absolute bar of coverage of contractual liabilities does not preclude application of express exclusions of such liability. In supplemental briefing we requested after our supreme court issued its decision in Flagstaff Affordable Housing, Liberty Mutual argues an express “contractual liability exclusion” in its policies barred coverage of Desert Mountain’s claims in this case.
¶ 35 At issue is an endorsement by which the policies excluded
“[P]roperty damages” for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages
(1) That the insured would have in the absence of the contract or agreement; or
(2) Assumed in a contract or agreement that is an “insured contract” provided the ... “property damage” occurs sub sequentto the execution of the contract or agreement.[ 9 ]
The question under this policy exclusion is whether Desert Mountain’s obligations to its customers gave rise to “damages by reason of the assumption of liability in a contract or agreement” within the meaning of the exclusion. Put differently, did the sales contracts Desert Mountain entered into with its customers constitute “assumption of liability in a contract or agreement” within the meaning of the policy? 10
¶ 36 Liberty Mutual has not directed our attention to any case from any jurisdiction that construes the “assumption of liability in a contract” exclusion to encompass any contract, regardless of its nature. To the contrary, the eases appear in agreement that this exclusion applies only to “the assumption of another’s liability, such as an agreement to indemnify or hold another harmless.”
Smithway Motor Xpress, Inc. v. Liberty Mut. Ins. Co.,
D. Broad Form Property Damage Exclusion.
¶ 37 In its supplemental brief, Liberty Mutual also argues Desert Mountain’s claims were excluded by the “Broad Form Property Damage” endorsement to the policies. This endorsement provided:
Coverage is not provided for the insured’s liability for damage:
* St 3:
D. To that particular part of any property, not on premises owned by or rented to the insured,
3. the restoration, repair, or, replacement of which has been made or is necessary by reason of faulty workmanship thereon by or on behalf of the insured.
With respect to the completed operations hazard, to property damage to work performed by the named insured arising out of the work or any portion thereof, or out of materials part of equipment furnished in connection therewith____
¶ 38 The final (un-numbered) paragraph of this exclusion does not apply to damages caused by the defective soil compaction because the homes were built by Weitz, not Desert Mountain. Because Desert Mountain did not build the homes (or compact the soil in preparation for the homes), the defective work was not “work performed by the named insured” within the meaning of that provision.
See Fireguard Sprinkler Sys., Inc. v. Scottsdale Ins. Co.,
¶ 39 Liberty Mutual argues, however, that Desert Mountain’s claim was excluded under the language contained in subpart D(3) of the Broad Form Property Damage endorsement.
¶ 40 As noted,
supra
¶ 7, the superior court held Desert Mountain could not recover expenses incurred in repairing the soil settlement itself, but instead could recover only the expenses of repairing damage that resulted from the soil settlement.
See Len-nar Corp.,
¶ 41 In support of its contention, Liberty Mutual cites
Knutson Construction Co. v. St. Paul Fire and Marine Insurance Co.,
¶ 42 Consistent with these eases, we hold the Broad Form Property Damages exclusion does not bar coverage of damage to non-defective property resulting from faulty workmanship. By its terms, the exclusion applies only to the repair of “that particular part of any property ... made ... necessary by reason of faulty workmanship thereon.” Given the narrow scope of the exclusion, we conclude it applies only to the repair of defective workmanship and not to the repair of damage that resulted from the defective workmanship. Because the endorsement excludes only damage to property “by reason of faulty workmanship thereon,” the exclusion did not bar coverage of damage to non-defee-tive property resulting from the faulty soil compaction in this case.
E. The “Voluntary Payments” Clause.
¶ 43 Liberty Mutual next argues the repair costs were not covered because Desert Mountain undertook the repairs voluntarily, without Liberty Mutual’s consent. It relies for this argument on a provision in the policies that stated, “No insured will, except at that insured’s own cost, voluntarily make a payment, assume any obligation, or incur any expense, other than for first aid, without our consent.”
¶ 44 In
Arizona Property & Casualty Insurance Guaranty Fund v. Helme,
¶ 46 Liberty Mutual argues that if the homeowners had sued Desert Mountain for damages, their claims would have been barred by limitations because the express warranties Desert Mountain issued to its customers expired in or about 1999. But Liberty Mutual’s argument fails to address the six-year limitations period that applies to claims for breach of the implied warranty of workmanship and habitability in a new home.
See Woodward,
¶ 47 Accordingly, because there was evidence from which the jury could have found that Liberty Mutual suffered no prejudice from Desert Mountain’s decision to undertake the repairs, we conclude the superior court properly denied Liberty Mutual’s motion for judgment as a matter of law under the voluntary payments clause.
See Roberson,
F. The “Known Loss” Provision.
¶48 Liberty Mutual next argues Desert Mountain’s claims were barred by the policies’ “known loss” provision because the developer knew of significant settlement-related problems before it purchased the policies.
¶ 49 The policies stated:
This insurance applies ... only if: ... [p]rior to the policy period, no insured ... and no “employee” authorized by you to give or receive notice of an “occurrence” or claim, knew that the ... “property damage” had occurred, in whole or in part. If such a listed insured or authorized “employee” knew, prior to the policy period, that the ... “property damage” occurred, then any continuation, change or resumption of such ... “property damage” during or after the policy period will be deemed to have been known prior to the policy period.
¶ 50 Liberty Mutual argues it offered evidence that Desert Mountain knew of soil-related problems from homeowner complaints and geotechnical reports received pri- or to the effective dates of the policies. It argues this knowledge triggered the known loss clause even if at the time the company did not know of the widespread nature of the problem. It bases this argument on the portion of the known loss provision applying to knowledge of property damage, “in whole or in part,” that “continues], ehange[s], or resum[es]” during or after the policy period. (Emphasis added).
¶ 51 Our review of the record persuades us that sufficient evidence existed
At that time, we didn’t know this. We knew we had an issue. It was sent to the general contractor. It was sent to engineers. They reviewed it. They made recommendations. Those recommendations were executed. The customer service issue was then handled, the owners signed off on the issue. There was no reason to think we had a widespread settlement issue. ... It all was resolved, and it was a thing of the past. No one even considered it any further once there was a resolution.
(Emphasis added). Liberty Mutual argues that two Desert Mountain employees who handled customer complaints learned of the settlement issues from homeowners prior to the first policy period. Those employees testified, however, that none of the complaints led them to believe there was a wide-scale problem with improper soil compaction. Both employees also told the jury that the problems they observed before the first policy commenced were minor issues typically seen in new home construction.
¶ 52 Libei’ty Mutual’s own construction ex-pei’t also agi’eed at trial that, based on his review of relevant records, after Desex’t Mountain resolved those initial homeowner complaints, “it was not until Mr. Frank came onboard and start[ed] doing his analysis that Desert Mountain had indication of further, and even ultimately wide scale compaction px’oblems.” Additionally, he agreed that Desex’t Mountain, “at least as far as everybody knew at the time, could reasonably conclude” that the settlement problems that caused homeowner’s to complain prior to the policy periods had been fully resolved.
¶ 53 Because there was sufficient evidence to support the jury’s conclusion that Desert Mountain did not have knowledge of property damage caused by faulty soil compaction prior to the Liberty Mutual policies, the superior eoux-t did not err in denying Libex’ty Mutual’s judgment as a matter of law on the issue of known loss.
See Roberson,
G. Coverage of Damage that “Continued, Changed or Resumed.”
¶ 54 The policies provided that prop-ex-ty damage that “occurs during the policy period” and was not “known” prior to the policy period “includes any continuation, change or resumption of that ... ‘property damage’ after the end of the policy period.”
¶ 55 The superior court instructed the jury that “[t]he Liberty Mutual policies provide insurance coverage for property damage that continued, changed or resumed beyond the end of the policy period, if that damage occurred during the policy periods.” Liberty Mutual argues that given the policies’ known loss provision, the court’s instruction was misleading and confusing because it was contrary to the policy language precluding coverage for known losses that continue or change over time. We disagree.
¶ 56 The instruction mirrored the policy language. The record indicates that, because the parties disagreed about the meaning of the known loss provision, the superior court chose to allow both sides to argue their positions to the jury rather than instruct the jury on the meaning of the provision. Liberty Mutual’s counsel argued to the jury that the property damage was excluded as a known loss under the policies, and the policies were admitted in evidence.
¶ 57 Under these circumstances, the instruction was neither misleading nor confusing. Nor on this record can we conclude Liberty Mutual suffered any prejudice based on the instruction.
See Am. Pepper Supply Co.,
H. Expenses Incurred in Suing the Contractor.
¶ 58 Liberty Mutual next argues the superior court erred by allowing the jury to award Desert Mountain the attorney’s fees it incurred in its lawsuit against Weitz.
¶ 60 This case turned that usual set of circumstances on its head: As we have seen, Desert Mountain agreed to repair its customers’ homes even though none of the homeowners had brought suit. Desert Mountain then commenced its own lawsuit against Weitz, alleging the contractor was responsible for the soil-settlement problems that had damaged the homes. The superior court ruled in this case that Desert Mountain could recover the expenses of that lawsuit “upon proof of the necessity of the litigation with Weitz and the reasonableness of the litigation costs.”
¶ 61 Generally speaking, when one party’s breach of contract places the other in a situation that “makes it necessary to incur expense to protect his interest, such costs and expenses, including attorneys’ fees, should be treated as the legal consequences of the original wrongful act and may be recovered as damages.”
Fairway Builders, Inc. v. Malouf Towers Rental Co.,
¶ 62 Desert Mountain’s then-controller, Richard Yehling, testified that two days after tendering notice of its claim to Liberty Mutual, Desert Mountain sent a demand letter to Weitz threatening litigation if the contractor would not agree to pay for the repair work. On cross-examination, Yehling testified that Desert Mountain’s decision to sue Weitz “had nothing to do with the status of its claim with Liberty Mutual.” On appeal, Liberty Mutual argues that because Desert Mountain would have sued Weitz regardless of whether Liberty Mutual accepted coverage, as a matter of law, Desert Mountain could not prove the Weitz lawsuit was a necessary consequence of Liberty Mutual’s refusal to accept coverage.
¶ 63 Contrary to Liberty Mutual’s contention, the record contains sufficient evidence from which the jury could find Liberty Mutual’s breach of contract made it necessary for Desert Mountain to sue Weitz.
See Roberson,
¶ 64 Yehling testified that, in the absence of a coverage decision from Liberty Mutual, Desert Mountain filed suit against Weitz in October 2001 because it believed the statute of limitations on its claims against the contractor was about to expire. He added that after filing suit, Desert Mountain purposefully did not pursue the litigation aggressively while it waited to hear whether Liberty Mutual and the company’s other insurers would agree to provide coverage. Additionally, Strickland, Liberty Mutual’s claims specialist, testified that given the insurer’s failure to initiate litigation against Weitz, it was reasonable under the circumstances for Desert Mountain to protect its interests by doing so.
¶ 65 “The insured exposed by his insurer to the sharp thrust of personal liability need not indulge in financial masochism.”
Helme,
¶ 66 Liberty Mutual contends, however, that because the projected repair costs ranged from $3 million to $10 million and its two policies together offered at most only $4 million in aggregate coverage, Desert Mountain would have ended up suing Weitz regardless of Liberty Mutual’s coverage decision. But this argument ignores the fact that because Liberty Mutual failed to accept coverage, Desert Mountain had to file a complaint against Weitz to recover any reimbursement for the costs of repair. Furthermore, as described above, if Liberty Mutual had accepted the claim, it would have brought a subrogation claim against Weitz, and it, rather than Desert Mountain, would have incurred the attorney’s fees and costs to prosecute that suit.
I. Coverage of Preventive Measures.
¶ 67 Liberty Mutual argues the court erred in instructing the jury concerning coverage of preventive measures and by failing to grant its motion for judgment as a matter of law and for new trial because the jury awarded damages for repairs that constituted preventive measures.
1. Jury instruction.
¶ 68 The jury instruction at issue stated, “The Liberty Mutual policies provide insurance coverage for the costs incurred to prevent possible future damage to non-defective property, if that damage probably would have occurred during the policy period if the preventative measures had not been performed.” Liberty Mutual argues this instruction has no basis in the policies and, as a result, it is entitled to a new trial because it cannot be determined from the general verdict whether the jury would have reached the same result without the allegedly erroneous instruction.
¶ 69 In support of its position, Liberty Mutual cites several cases it contends hold that “damages” covered by a CGL policy may not include expenses incurred to prevent property damage. The cases it cites, however, are distinguishable because they involve situations in which the insured had not suffered any property damage before it took preventive measures or did not repair any damaged property, but paid
only
for preventive measures.
See, e.g., Fireman’s Fund Ins. Co. v. Hartford Fire Ins. Co.,
¶ 70 Here, by contrast to the cases Liberty Mutual cites, Desert Mountain proved it had suffered property damage covered by the
¶ 71 We agree with Desert Mountain that
Leebov v. United States Fidelity & Guaranty Co.,
If the plaintiff had not taken immediate and substantial measures to remedy the perilous situation, disastrous consequences might have befallen the adjoining and nearby properties. If that had happened, the defendant would have been required to pay considerably more than is involved in the present lawsuit. It would be a strange kind of argument and an equivocal type of justice which would hold that the defendant would be compelled to pay out, let us say, the sum of $100,000 if the plaintiff had not prevented what would have been inevitable, and yet not be called upon to pay the smaller sum which the plaintiff actually expended to avoid a foreseeable disaster.
Id.
at 84. Other eases are in agreement.
See AIU Ins. Co. v. Superior Court,
¶ 72 We adopt the reasoning of the
Leebov
court under these circumstances and hold the instruction given in this ease was correct.
See A Tumbling-T Ranches,
2. Evidence to support the verdict.
¶ 73 Separate from its attack on the jury instruction, Liberty Mutual argues Desert Mountain presented insufficient evidence that certain work it performed constituted repair of existing damage resulting from the soil settlement rather than prevention of future damage from soil settlement.
¶ 74 According to the record, Desert Mountain divided the work it did to stabilize the affected homes into three categories: “A grout,” “B grout” and “C grout.” “A grout” was the category of work performed to stabilize faulty soil compaction. “B grout” included the installation of soil nails, helical piers, steel rebar, ties and grout employed to repair and stabilize damaged retaining walls, stem walls and footings that had rotated, settled or moved due to faulty soil compaction. Finally, “C grout” work was performed to lock into place retaining walls, stem walls and footings that had been repaired with B grout.
¶ 75 As noted, the superior court ruled prior to trial, pursuant to
Advance Roofing,
¶ 76 In support of its position, Liberty Mutual points to testimony by Frank that the purpose of “B” grouting was to prevent further movement of walls and footings, not to repair any existing property damage. Frank also testified that “C” grouting “[w]as intended to prevent future damage.” As Desert Mountain points out, however, Frank further testified that some of the “B” and “C” grout
¶ 77 The peculiar nature of the repairs Desert Mountain performed makes it difficult to apply the strict rule that Liberty Mutual asserts should bar coverage of any measures that might have prevented additional damage resulting from the inadequately compacted soil. In many instances, rather than, for example, replace a wall that was sinking or listing due to settlement, Desert Mountain simply secured the wall in place, preventing further movement. Thus, Desert Mountain did not aim to return the wall to its original position (prior to the soil settlement); instead, its goal was to ensure that the wall would not move farther out of place. Under these circumstances, we are reluctant to hold that the jury erred by concluding that these measures constituted repairs of existing property damage rather than measures designed to prevent damage that might occur after the policies terminated.
¶ 78 Moreover, Liberty Mutual does not specify any amount the jury awarded for performing “preventive” repairs it contends were not covered by the policies. The jury issued a lump-sum verdict and was not asked to specify the amount of damages it awarded for any particular component of the expenses Desert Mountain sought. Because the jury awarded Desert Mountain only about a third of the total amount of damages it sought, we cannot conclude that it awarded any damages based on purported repair work not covered by the policies.
See A Tumbling-T Ranches,
J. Attorney’s Fees Awarded by the Court.
¶ 79 At the trial’s conclusion, the superior court awarded Desert Mountain its attorney’s fees and costs pursuant to A.R.S. §§ 12-341 (2003) and -341.01(A) (2003). Liberty Mutual contends the court abused its discretion by finding Desert Mountain was the successful party in the litigation. It argues that in light of pretrial rulings that limited the damages Desert Mountain could recover and the court’s entry of summary judgment dismissing the claim for breach of the duty of good faith, and because the jury ultimately awarded Desert Mountain only about a third of what it sought at the conclusion of the trial, Liberty Mutual should be considered the successful party, or in the alternative, there was no successful party for purposes of § 12-341.01(A). 15
¶ 80 The superior court has broad discretion in deciding whether to award attorney’s fees under A.R.S. § 12-341.01(A).
Associated Indem. Corp. v. Warner,
¶ 81 “The decision as to who is the successful party for purposes of awarding attorneys’ fees is within the sole discretion of the trial court, and will not be disturbed on appeal if any reasonable basis exists for it.”
Id.,
¶ 35 (quoting
Sanborn v. Brooker & Wake Prop. Mgmt., Inc.,
¶ 82 Desert Mountain initially sought approximately $7.3 million in damages from Liberty Mutual. The superior court, however, held Desert Mountain could not recover from Liberty Mutual any amounts the developer had received in settlements with contractors and its other insurers. Liberty Mutual filed a host of motions for partial summary judgment prior to trial. As noted, the court dismissed the bad faith claim; it made other rulings that narrowed the scope of contract damages available to Desert Mountain, but it also denied some of Liberty Mutual’s motions and entered orders approving Desert Mountain’s interpretation of certain key policy terms. At the end of the day, as we have said, Desert Mountain asked the jury to award it $1,500,000 in damages; the jury’s verdict was for $500,000.
¶83 In addition, the record shows intermittent unsuccessful settlement offers by both sides. The complaint was filed in May 2003; Desert Mountain made an offer of judgment of $1.5 million in February 2004. For its part, Liberty Mutual served a $75,000 offer of judgment in August 2005. The record does not disclose that Liberty Mutual ever offered more than $75,000 in settlement.
¶ 84 Liberty Mutual argues the determination of the “successful” party for purposes of a fee award under AR.S. § 12-341.01(A) depends on “the totality of the litigation.”
See Schwartz v. Farmers Ins. Co. of Ariz.,
¶ 85 Schwartz does not compel us to reverse the superior court’s exercise of discretion in this case. While Liberty Mutual succeeded in obtaining a pretrial ruling that it was not liable for bad-faith damages, we do not think that or the superior court's (correct) order setting off Desert Mountain’s pri- or settlements necessarily dictated the result of the “successful party” analysis under A.R.S. § 12-341.01(A). To be sure, Desert Mountain’s ease was reduced considerably when the court ruled it could not recover from Liberty Mutual any amounts it already had received in settlements with other parties, but the effect of that ruling was a fortuity from the perspective of Liberty Mutual because it had nothing to do with the merits of the insurer’s substantive defenses to coverage. Under the circumstances, including Liberty Mutual’s failure to make a significant settlement offer, we cannot conclude the superior court abused its discretion in finding Desert Mountain was entitled to its attorney’s fees and costs as the successful party in the litigation pursuant to AR.S. § 12-341.01(A).
II. Desert Mountain’s Cross-Appeal.
¶ 86 Desert Mountain argues the superior court erred by entering partial summary
A. Motions for Summary Judgment.
1. Standard of review.
¶ 87 We review the grant of summary judgment
de novo,
viewing the evidence and reasonable inferences in favor of the non-moving party.
Wells Fargo Bank v. Ariz. Laborers, Teamsters and Cement Masons Local No. 395 Pension Trust Fund,
2. Damages caused by repair of defectively compacted soil: “Get-to” damages.
¶ 88 This court held in
Advance Roofing
that faulty workmanship does not constitute an “occurrence” within the meaning of the standard CGL insurance policy.
¶ 89 Desert Mountain argues the superior court erred, however, by ruling on summary judgment that it could not recover some $136,000 in expenses incurred in repairing damage to non-defective property that occurred during the repair of defective property. To explain, the record shows that to repair some of the poorly compacted soil, Desert Mountain had to damage or destroy walls, floors, slabs or other portions of the homes that had not been affected by the poorly compacted soil. (For example, Desert Mountain sometimes had to drill through perfectly fine floors to gain access to the soil that needed to be remediated.) The court’s ruling precluded Desert Mountain from recovering the expenses of repairing damage (the parties called them “get-to” damages) that occurred in the process of remedying defective soil compaction.
¶ 90 Desert Mountain argues the removal or destruction of non-defective property required to repair poorly compacted soil was covered under the policies because it constituted property damage caused by the defective work. In support, it cites
Dewitt Construction, Inc. v. Charter Oak Fire Insurance Co.,
¶ 91 In our view, however, the expense of removing or repairing non-defective property under the circumstances presented here more properly is characterized as a cost of repairing the defect. The removal or destruction of non-defective property required to repair poorly compacted soil is not damage caused by the poorly compacted soil. Rather, it is damage caused by the
repair
of the poorly compacted soil.
16
Therefore, because the cost of repairing the defect is not recoverable under a CGL policy in Arizona,
Advance Roofing,
¶ 92 Authorities from other jurisdictions support this conclusion.
See OneBeacon Ins. Co. v. Metro Ready-Mix, Inc.,
3. Breach of the duty of good faith.
¶ 93 Desert Mountain also argues the superior court erred by granting Libei’ty Mutual’s motion for partial summary judgment on the bad faith claim. Desert Mountain contends questions of fact existed as to whether the insurer acted in bad faith and points to evidence that Liberty Mutual denied coverage without interviewing any Desert Mountain employee, retaining an expert to examine the claims or visiting the site.
¶ 94 An insured alleging breach of the duty of good faith must show both that the insurer acted unreasonably in investigating, evaluating or processing the claim and that it either knew or was conscious of the fact that it acted unreasonably.
Zilisch v. State Farm Mut. Auto. Ins. Co.,
¶ 95 We conclude that on the record before the superior court at the time of the summary judgment briefing, there existed no genuine issue of material fact as to whether Liberty Mutual acted unreasonably, or if it did, that it knew or was conscious that it had acted unreasonably. For the most part, Desert Mountain’s response to Liberty Mutual’s motion for partial summary judgment on the bad faith claim argued that Liberty Mutual’s decision to deny coverage was not well-founded.
17
In its letter denying coverage, dated February 12, 2003, Liberty Mutual cited the voluntary payments and known loss exclusions as bars to coverage. As we have held, neither of those exclusions barred coverage of Desert Mountain’s damages. In its response to the motion for summary judgment, however, Desert Mountain failed to
¶ 96 Desert Mountain argues, however, that Liberty Mutual engaged in bad faith by delaying its response to the demand for coverage and by issuing its denial letter without properly investigating the claim. It was undisputed, however, that in June 2001, in response to the May 16, 2001 notice of claim, Liberty Mutual asked Desert Mountain to furnish it nine categories of documents relating to the claim. Desert Mountain correctly does not argue on appeal that Liberty Mutual’s request for documentation was unreasonable. The insurer asked, for example, for documents concerning homeowner complaints, the contracts between Desert Mountain and Weitz, any other insurance policies on the project, repair work already done and payments already made, Frank’s reports, the proposed repair schedule and any notices of claim given to Weitz or to other subcontractors. Desert Mountain did not furnish the insurer with documents regarding homeowner complaints (which Yehling admitted Strickland told him were “important”) or documentation of completed repairs until October 2002. 18 Liberty Mutual notified Desert Mountain of its coverage decision on February 12, 2003, four months after Desert Mountain finally delivered the last of the documents.
¶ 97 We conclude the limited evidence Desert Mountain offered in response to Liberty Mutual’s motion for summary judgment created no genuine issue of fact with respect to the claim for breach of duty of good faith and fair dealing.
See Zilisch,
B. “Markup” Damages.
¶ 98 Before trial, Desert Mountain sought as damages a 10 percent “markup” on the overall repair expenses it incurred to compensate it for the time its employees devoted to the repair efforts and the lawsuit against Weitz. The superior court, however, granted Liberty Mutual’s motion in limine to preclude the markup. On appeal, Desert Mountain argues the court erred because the markup fairly represented costs Desert Mountain incurred as a direct result of Liberty Mutual’s breach of contract.
¶ 99 Although we ordinarily review the superior court’s admission or exclusion of evidence under a clear abuse of discretion standard, we review questions of alleged legal error, including those related to evidentiary rulings,
de novo. Yauch v. S. Pac. Transp. Co.,
¶ 100 Desert Mountain’s first argument in support of its entitlement to the markup rests on the policies’ “Supplementary Payments” provision, which stated, “[Liberty Mutual] will pay, with respect to any claim we investigate or settle, or any ‘suit’ against an insured we defend ... [a]ll reasonable expenses incurred by the insured at our request to assist us in the investigation or defense of the claim or ‘suit’ ____” Desert Mountain asserts that because Liberty Mutual breached its contractual duties to investigate the claim, acknowledge coverage and prosecute a subrogation claim against Weitz,
¶ 101 We conclude the “Supplementary Payments” provision does not support Desert Mountain’s position. The policy language only obligates the insurer to pay expenses the insured incurs at its request. Because Desert Mountain does not contend Liberty Mutual made any such requests, the “Supplementary Payments” provision is inapplicable.
¶ 102 Desert Mountain also argues the markup fairly represented the internal expenses it incurred as a foreseeable consequence of Liberty Mutual’s breach of contract. It contends, for example, that if Liberty Mutual had accepted coverage of the claim, Desert Mountain employees would not have had to manage the repair program or oversee the prosecution of the construction defect lawsuit against Weitz. But in contrast to the verifiable repair expenses and attorney’s fees and out-of-pocket costs it offered in evidence, the markup Desert Mountain sought did not represent the actual cost of the time its employees devoted to managing the repairs and overseeing the litigation. In the absence of evidence of the actual value of the time its employees actually spent on those tasks, the jury could not have awarded damages on this element of Desert Mountain’s claim.
¶ 103 Desert Mountain also argues it is entitled to the markup as compensation for the disruption that Liberty Mutual’s breach caused to its business. It cites
Reliable Electricity Co. v. Clinton Campbell Contractor, Inc.,
¶ 104 An insurer’s wrongful failure to indemnify or defend its insured “does not expose the insurance carrier to greater liability than that contractually provided in the policy.”
State Farm Mut. Auto. Ins. Co. v. Paynter,
CONCLUSION
¶ 105 We affirm the superior court’s rulings and the judgment it entered on the jury’s verdict. In our discretion we decline to award either side its attorney’s fees or costs on appeal.
Notes
. We view the facts in the light most favorable to upholding the jury's verdict.
A Tumbling-T Ranches v. Flood Control Dist. of Maricopa County,
. The acronym "CGL,” which prior to 1986 stood for "comprehensive general liability,” now means "commercial general liability.”
Boston Gas Co. v. Century Indem. Co.,
. The superior court ruled on this issue in instructing the jury and in denying Liberty Mutual’s motion for judgment as a matter of law and for new trial. On appeal, Liberty Mutual argues the costs Desert Mountain incurred were not covered because the developer was not sued, no judgment was entered against it, and it entered into no settlement obligating it to make repairs. The insurer does not specifically argue that coverage would not exist for payments made in settlement of a civil suit.
. The Liberty Mutual policies defined "suit" to mean an arbitration, alternative dispute resolution or "civil proceeding” in which damages are alleged.
. We note some authorities have held an insurer's duty to defend may arise in the absence of a suit.
See Ryan
v.
Royal Ins. Co. of Am.,
. Liberty Mutual argues this court previously decided this issue in
Kema Steel, Inc. v. The Home Insurance Co.,
. Under Arizona law, damage resulting from faulty workmanship can constitute an "occurrence.”
Lennar Corp.,
. The Wisconsin court added, "If ... losses actionable in contract are never CGL 'occurrences’ for purposes of the initial coverage grant, then the business risk exclusions are entirely unnecessary ---- Why would the insurance industry exclude damage to the insured’s own work or product if the damage could never be considered to have arisen from a covered ‘occurrence’ in the first place?”
. Neither of the exceptions to this exclusion applies in this case. As we have noted, Desert Mountain’s liability for the damages at issue arises only out of contract, not in tort.
See Flagstaff Affordable Housing,
. Although the language of the two policies determines the outcome of most of the issues in this appeal, neither party directed this court to the specific location of any of the relevant policy provisions. Each of the two policies is 84 pages long, but in their briefs, both parties cited to policy provisions only by referring generally to "Trial Exhibit 2” or "Trial Exhibit 3,” in violation of Arizona Rule of Civil Appellate Procedure 13(a)(6), (b)(1) (briefs shall include "citations to the authorities, statutes and parts of the record relied on”). Breach of this rule may result in sanctions, including waiver.
Ritchie v. Krasner,
. In
Advance Roofing,
we did not address a business risk exclusion but instead considered whether faulty workmanship, by itself, could constitute an "occurrence” within the meaning of the standard CGL policy. Citing the "fundamental nature of a comprehensive general liability policy,” we held that "mere faulty workmanship, standing alone, cannot constitute an occurrence" within the meaning of such a policy.
. The clause at issue in
Helme
stated that the insured "shall not, except at his own cost, volun
tarily make any payment, assume any obligation, or incur any expense.”
. Strickland testified that had Liberty Mutual agreed to reimburse Desert Mountain for the repairs while reserving its right to contest coverage, the insurer could have directed the litigation against Weitz as a subrogation claim. In that event, of course, Liberty Mutual would have directly incurred the attorney's fees and costs of that lawsuit.
. Liberty Mutual does not argue the superior court denied it the right to have the jury enter separate (special) verdicts on the various components of Desert Mountain’s damage claim. The insurer therefore may not argue it was prejudiced because the jury issued only a general verdict.
See Dunlap v. Jimmy GMC of Tucson, Inc.,
. Both parties sought their attorney’s fees after the trial. Liberty Mutual asked for $803,776; Desert Mountain asked for $877,013. The court denied Liberty Mutual’s request and entered an award of $725,000 in favor of Desert Mountain. On appeal, Liberty Mutual does not contest the reasonableness of the amount of fees the court awarded Desert Mountain.
. That Desert Mountain had to destroy or damage slabs or walls that were not damaged by soil settlement in order to "get to” the subsurface to repair the soil is unfortunate but not determinative of the coverage issue. If the only way repair crews could access a certain area of poorly compacted soil was to rent a special piece of expensive equipment that could drill laterally through dozens and dozens of feet of earth to reach the affected location, the rental of the special drill would not be covered because it would be just one of many expense items incurred in repairing the defective soil. That repair crews in this case were required on occasion to drill through a floor to get to the soil should not change the outcome.
. Desert Mountain supports its cross-appeal with dozens of citations to trial evidence that it contends proves Liberty Mutual engaged in bad faith by denying the claim. Our review on appeal from the court’s grant of summary judgment, however, is confined to the evidence available to the court at the time it ruled on the motion. We do not consider evidence that Desert Mountain failed to submit in response to the motion for summary judgment but offered at trial years later.
. Desert Mountain did not dispute its failure to provide all requested documents until October 2002, but asserted that it provided the documents as they "became available.”
. Desert Mountain did not present evidence of lost profits in support of this claim; instead, it argued in general fashion, for example, that because some of its employees were busy with matters concerning the construction defects, they could not devote their full attention to their jobs. Its argument does not acknowledge the possibility that attending to construction defects was within the job descriptions of the affected employees.