The Construction Advantage, The Faulty Workmanship Exclusion in Builder’s Risk Insurance Measure Thrice, Cut Once and ME’s Home Construction Contracts Act & ME’s Unfair Trade Practices Act

The Faulty Workmanship Exclusion in Builder’s Risk Insurance Measure Thrice, Cut Once

By George F. Burns

Builder’s risk insurance is perhaps the least understood insurance product in the construction world. Even sophisticated construction participants are not quite sure what a builder’s risk insurance policy covers, who has rights to recovery, or how builder’s risk coverage dovetails with other insurance like comprehensive general liability and worker’s compensation insurance.[i] Many insureds have a vague notion that the product covers damage to work on a project, but that is about all they know.

A full education on these questions is more than this article will undertake. Rather, the focus here is on an important exclusion in most builder’s risk policies: the exclusion for faulty workmanship. A brief examination of case law regarding this exclusion is a good vehicle for showing the complexity of builder’s risk analysis. The message here is to be careful before jumping to conclusions either in favor or against coverage: faulty workmanship may have been a factor in a loss but that alone does not necessarily destroy coverage. On the other hand, factors contributing to the loss other than faulty workmanship do not in and of themselves guarantee coverage. Best to measure thrice and cut once in this area. The three “measurement” steps are the same here as for any insurance policy: is there coverage, is there an exclusion, and is there an exception to the exclusion? As disappointed insureds might tell you, it is better to ask these questions before you buy the product rather than after a loss.

Measurement No. 1: Is There Coverage in the First Place?

Speaking generally, builder’s risk insurance policies cover damage to the work of the project, and items related to that work, often arising out of extraneous causes like fire, collapse, or other physical calamities. There are some losses that simply do not qualify for coverage right out of the gate. E.g., Builders Concrete Services, LLC v. Westfield National Insurance Company[ii], no coverage for parts of the structure or building not involved with the work; Bergeron v. State Farm Fire and Cas. Co.[iii] , a dam not a structure covered by the policy; and Tocci Building Corp. v. Zurich American Ins. Co.[iv] grouting and patching a wall to meet municipal ordinance requirements was not covered physical damage.

Builder’s risk insurance is more accurately viewed as a first-party policy, protecting the insured from property damage rather than a third policy that provides defense and indemnification to the insured from claims of third parties. In everyday terms it is more like auto collision insurance than auto liability insurance. See, e.g., 689 Charles River, LLC v. American Zurich Insurance Company[v] (condo contractor not entitled to defense and indemnification from a poor workmanship claim).

There are all sorts of variations of builder’s risk insurance policies, and typically the prospective insured is presented with a varied menu of possible coverages. Not until a loss occurs do many insureds realize to their surprise that a loss is covered or not covered.

Measurement No. 2: Is There an Exclusion?

Assuming there is coverage to begin with, is there an exclusion that takes coverage away? The damaged property may be the kind of property the policy protects but an exclusion may apply. A common exclusion is the faulty workmanship exclusion. Here is a sample from a Zurich policy: “We will not pay for a loss caused by or resulting from any of the following. But if loss by a Covered Loss results, we will pay for the resulting loss caused by that Covered Cause of Loss.

Faulty, inadequate, or defective:

• Planning, zoning, development, surveying, siting;
• Design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction;
• Materials used in repair, construction, renovation, or remodeling; or
• Maintenance; of all or any part of any Covered Property wherever located.”

A similar clause was at issue in Rocky Mountain Prestress, LLC v. Liberty Mutual Fire Insurance Company[vi] The whole claim was based on the faulty workmanship itself. The distinction to keep in mind is between the bad work versus the consequences of bad work. In Rocky Mountain, the contractor sprayed windows with the wrong product leading directly to damage to the windows. Simply stated, there was no coverage that would fund making poor work right.

Measurement No. 3: Is There an Exception to the Exclusion?

Just as an exclusion can punch a hole in coverage, an exception to that exclusion can fill that hole. Such is the case with the “resulting loss” exception to the faulty workmanship exclusion.

In Joseph J Henderson & Sons Inc. v. Travelers Property Casualty Insurance Company of America[vii] , an Iowa case, the issue was whether the faulty workmanship exclusion was fatal to a claim for roof damage caused by both a windstorm and faulty workmanship. The insurer argued that there was no coverage for the windstorm because that cause of loss was subject to an “anticoncurrent-cause,” a clause that essentially destroyed coverage if any other event contributed to the loss, in this case faulty workmanship. The faulty workmanship exclusion contained an exception similar to the resulting loss exception in the Zurich policy quoted earlier in this article and, unlike the windstorm-triggered clause, did not contain an anticoncurrent-cause clause. The insured prevailed. Had the faulty workmanship exclusion contained an anti-concurrence provision, as there was for the windstorm clause, the insured may have not prevailed. There was no such clause.

What to Do?

Owners and contracts should take these three “measurements” before buying the policy and not proceed blindly until there is a loss: coverage, exclusions, and exceptions. In both timeframes, before policy purchase and after a loss, it is best to simply read the policy, better yet with the assistance of a seasoned insurance agent, with the particular challenges and risks of each project in mind.

• [i] For an analysis of the interrelationship of builder’s risk with other kinds of insurance products, such as a comprehensive general liability insurance see General Electric versus Zürich American Insurance D. ME | September 27, 1996 | 952 F. Supp. 18
• [ii] Builders Concrete Services, LLC v. Westfield National Insurance Company N.D.Ill. | September 14, 2020 | 486 F.Supp.3d 1225
• [iii] Bergeron v. State Farm Fire and Cas. Co. N.H. | November 15, 2000 | 145 N.H. 391
• [iv] Tocci Building Corp. v. Zurich American Ins. Co. D.Mass. | September 25, 2009 | 659 F.Supp.2d 251
• [v] 689 Charles River, LLC v. American Zurich Insurance Company D.Mass. | September 04, 2018 | Not Reported in Fed. Supp.
• [vi] Rocky Mountain Prestress, LLC v. Liberty Mutual Fire Insurance Company C.A.10 (Colo.) | June 02, 2020 | 960 F.3d 1255
• [vii] Joseph J. Henderson & Sons, Inc. v. Travelers Property Casualty Insurance Company of America C.A.8 (Iowa) | April 20, 2020 | 956 F.3d 992

Asha Echeverria, A Strong Construction Lawyer Embracing New Rules of Collaboration

Shareholder and Construction Practice Group Chair, Asha Echeverria was highlighted as part of the American Bar Association’s Forum on Construction Law Member Feature Series.

In the article, Asha describes her interest and expertise in the construction industry as well as how she has had to adapt her leadership style during the pandemic.

Read the full article HERE.

Building Blocks: A construction law video series that breaks down the issues piece by piece. 

ME’s Home Construction Contracts Act & ME’s Unfair Trade Practices Act

By Zachary Brandwein 

Upcoming Construction Events & Seminars

Associated Builders and Contractors NH/VT – Basic Construction Law: A 6-Part Legal Series

Please join ABC NH/VT and Bernstein Shur’s Construction Practice Group for this 6-part course on Basic Construction Law. Attend for credit toward ABC’s Construction Supervision Certificate, or to load your company’s toolbox with key construction law concepts.

This six-part series, developed for ABC NH/VT by Kelly Gagliuso, features a team of Bernstein Shur attorneys with thriving construction practices. Their combined knowledge and experience delivers a dynamic and comprehensive program on the basics of construction law.

Classes may be taken together, as a series, or independently. For the full series beginning May 13, please register below. Individual class descriptions and registrations can be found here.

Date: Thursdays, May 13th, 20th, 27th and June 3rd, 17th & 24th
Time: 3:30 PM – 6:00 PM
Location: Zoom Webinar

Topics will include:

• Basic Construction Principles (Law Series I)
• Project Documentation and Delivery Methods (Law Series II)
• Building Codes Warranties & Residential Standards (Law Series III)
• Delay, Disruption & Acceleration (Law Series IV)
• Payment Tools (Law Series V)
• Claims, Termination & Dispute Resolution (Law Series VI)

Register to attend HERE.

Save the Date!

Builders Risk – What’s In There and What’s Out There:
A Review of Contract Terms and the Law

Please save the date and join us for a free live webinar in partnership with Clark Insurance and members of Bernstein Shur’s Construction Practice Group for an in-depth discussion of Builder’s Risk Insurance and the law that surrounds this form of coverage.

Topics Covered:

• Coverages Available
• Contract Terms – what do they mean and what do you have to get
• Case law that interprets these policy requirements and policy terms

DATE: Monday, May 24th  
TIME: 8:30 AM – 10:00 AM