Northland Cas. Co. v. Mulroy
Northland Cas. Co. v. Mulroy
Opinion of the Court
Dana L. Christensen, Chief Judge *1047Before the Court are the parties' cross-motions for summary judgment (Docs. 128 & 131) and the Defendants' motion to supplement the record (Doc. 138).
BACKGROUND
In 2006, Defendant and Counterclaimant Joseph S. Mulroy hired Duane Keim's company, Northwest Log Homes, LLC,
Mulroy asserted a claim for damages against Keim, and Keim tendered the claim to his insurer, Plaintiff and Counter-defendant Northland Casualty Company ("Northland"). Northland notified Keim of its position that the operative commercial general liability ("CGL") policy did not cover Mulroy's damages. Mulroy proceeded to file a complaint in state court, and Northland provided a defense under a reservation of rights. Without Northland's consent, Mulroy and Keim settled the claim. Keim admitted liability and assigned any rights under the CGL policy to Mulroy. Following a damages hearing, which Keim did not attend, the state court awarded $208,824.58 in damages for remediation costs and $120,000 for loss of value, for a total of $328,824.58, plus interest and costs.
LEGAL STANDARD
A party is entitled to summary judgment if it can demonstrate that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment is warranted where the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby, Inc. ,
DISCUSSION
The sole question before the Court is whether Northland has a duty to indemnify Keim for the damages suffered by Mulroy. Northland relies on three of the CGL policy's business risk exclusions to support *1048its position that coverage cannot be found: (1) exclusion j(6),
The Court looks to Montana law for the "rules of decision."
Under the terms of the policy, Mulroy suffered "property damage"-"[p]hysical injury to tangible property." (Doc. 26-1 at 34.) This Court previously found that the initial grant of coverage did not extend to Mulroy's claim for property damage because Keim's defective construction did not constitute an "occurrence." The Ninth Circuit reversed, applying Employers Mutual Casualty Co. v. Fisher Builders, Inc. ,
I. Exclusion j(6)
Exclusion j(6) excludes coverage for "property damage" to "[t]hat particular part of any property that must be restored, repaired or replaced because 'your work' was incorrectly performed on it." (Doc. 26-1 at 24.) For its part, "your work" is defined to include:
(1) Work or operations performed by you or on your behalf; and
(2) Materials, parts or equipment furnished in connection with such work or operation.
"Your work" also includes "warranties or representations" regarding the work, as well as the provision or omission of warnings or instructions. (Doc. 26-1 at 35.)
*1049That said, exclusion j(6) does not exclude coverage if the "property damage" falls under the "products-completed operations hazard." In relevant part, the "products-completed operations hazard" ("PCOH"):
a. Includes all ... "property damage" occurring away from premises you own or rent and arising out of "your product" or "your work" except:
(1) Products that are still in your physical possession; or
(2) Work that has not yet been completed or abandoned ....
(Doc. 26-1 at 34.)
In the underlying action, Mulroy alleged-and the state court found-that Keim was negligent in failing to chemically treat the logs for insects. The use of the untreated logs constitutes Keim's "work," which was "incorrectly performed," causing "property damage" to Mulroy's home and guest house. Thus, upon a first read, the "unambiguous language" of the policy excludes coverage for remediation of at least a "particular part" of Mulroy's property unless the PCOH provision applies. See Heggem v. Capitol Indent. Corp. ,
The applicability of the PCOH provision depends on timing; if the damage occurred after Keim completed its work, then the PCOH provision is in play, and Northland cannot rely on exclusion j(6). Northland argues that the provision does not apply because Mulroy's property damage occurred when the logs were selected and placed, well before Keim finished the project. Mulroy counters that the property damage did not occur until several years after the home was finished, when he noticed beetle holes throughout the logs. Mulroy argues that although the beetles were present in the logs at the time of construction, they were "dormant," and that the "emergence, spread, and active re-infestation occurred after Northwest's work was completed." (Doc. 132 at 22.)
Here, the PCOH provision encompasses Mulroy's property damage, and exclusion j(6) is inapplicable. Property damage does not occur until there is "physical injury to or loss of use of tangible property." Truck Ins. Exch. v. O'Mailia ,
Two Montana cases provide useful guideposts. Northland relies on Swank Enterprises , in which the Montana Supreme Court held that the "application of improper paint" to a water treatment plant constituted property damage because the painted surfaces would need to be stripped and repainted. Id. at 56. Mulroy, for his part, analogizes to Truck Insurance Exchange , in which the Court addressed a fire which arose from an improperly installed *1050water heater and exhaust system. Truck Ins. Exch. ,
The facts here are immediately analogous to those of Truck Insurance Exchange. The use of untreated logs created the conditions for a later beetle infestation, but the complained-of damage did not occur until Mulroy had to remediate and/or replace portions of the structures. Accordingly, the property damage falls within the PCOH umbrella, and exclusion j(6) does not defeat coverage.
II. Exclusion k
Exclusion k excludes coverage for " 'property damage' to 'your product' arising out of it or any part of it." (Doc. 26-1 at 24.) "Your product" includes "[a]ny goods or products, other than real property , manufactured sold, handled, distributed or disposed of by [you]." (Doc. 26-1 at 34-35 (emphasis added).) "Your product" extends to include "[w]arranties and representations" regarding the product, as well as the provision or omission of warnings or instructions. (Doc. 26-1 at 35.)
The parties do not dispute whether Keim's work constitutes its "product" but rather whether Keim's "product" constitutes "real property." Common sense dictates that it does indeed, rendering exclusion k inapplicable. If a custom log home is not real property, it is hard to imagine what is. Nonetheless, Northland briefs the exclusion extensively, relying on a case from the Indiana Court of Appeals in which that court applied the "your product" exclusion to a log home. Jim Barna Log Sys. Midwest, Inc. v. Gen. Cas. Ins. Co. of Wis. ,
Here, looking to the clear language of the policy, exclusion k does not apply. Indeed, if there were any question that "real property" does not include a log home placed on-site, the exclusion would be ambiguous, and it would accordingly be construed in favor of coverage. Ribi Immunochem ,
III. Exclusion l
Exclusion l bars coverage for " 'property damage' to 'your work' arising out of it or any part of it and included in the 'products-completed operations hazard.' " (Doc. 26-1 at 24.) It "does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a sub-contractor." (Id. ) As discussed in Section I above, the property damage falls within the PCOH. See *1051supra p. 6-9. The parties dispute the applicability of exclusion l as to three issues: (1) whether the property damage is damage arising from Keim's "work"; (2) whether the exclusion is inapplicable because the damages were caused by a subcontractor; and (3) whether, if the exclusion applies, it covers only damage to the logs themselves.
A. Keim's "work"
The parties agree that at least some portion of Mulroy's damages constitute " 'property damage' to '[Keim's] work,' " but they disagree as to whether the beetle infestation arose from Keim's work. Northland contends that the infestation arose from Keim's failure to treat the logs used to build Mulroy's home. Mulroy counters that "[t]he infestation is not Keim's work. He does not know how to make a beetle infestation nor did he intend for an infestation." (Doc. 132 at 35.)
Northland has the better argument. If Mulroy's position were successful, he would have had no basis for a claim against Keim in the underlying action.
B. Subcontractor
Mulroy contends that exclusion l does not apply because "the damaged work or the work out of which the damage [arose] was performed on [Northland's] behalf by a sub-contractor," the log broker who supplied the logs. (Doc. 26-1 at 24.) To support its position, Mulroy moves to supplement the record to include a declaration signed by Keim, in which he attests that the log broker "selected and delivered the logs" and "processed the logs by washing, measuring, and sorting them by size," "consistent with the specifications [Keim] provided to [the broker]." (Doc. 139 at 1.) The Court grants the motion to supplement. However, it finds that, even with the proffered declaration, the record does not give rise to a dispute of material fact.
The parties devote much of their argument to the issue of whether Ray Downing, the log broker, was a subcontractor. However, whether the log broker can fairly be classified as a subcontractor is immaterial because there has been no suggestion that the broker was responsible for treating the logs. Mulroy's theory in the underlying action, frequently repeated over the long course of this lawsuit, was that Keim negligently failed to treat the logs. Mulroy has not argued that there was negligence in selecting and using logs in which beetles lay dormant. He has not alleged that the logs should have been washed differently. As determined by the state court, his damages arose from the failure to apply insecticide. If Keim had provided to the broker a specification that the logs be pretreated to avoid infestation, and if the broker had failed to meet that specification, Mulroy would have a strong *1052argument on this point. However, no such allegations were made before the state court; no such allegations were made in Mulroy's Answer and Counterclaim, filed in April 2014; no such allegations were made in response to Northland's discovery requests; and no such allegations find support in Keim's declaration, which was offered in October 2018.
Assuming without deciding that the broker was a subcontractor, and accepting into the record Keim's declaration, Mulroy's damages simply cannot be attributed to anything other than Keim's "work." Mulroy's damages arose from the failure to treat the logs with insecticide, and the record cannot support a finding that this failure was caused by the log broker. Northland has met its burden of demonstrating that the "work out of which the damage [arose] was [not] performed on [Keim's] behalf by a sub-contractor." (Doc. 26-1 at 24.)
C. Scope
Mulroy argues next that even if exclusion l applies-and it does, as outlined immediately above-it applies only to the logs themselves, not to those "parts of the home implicated beyond Keim's work, including all other work that was done by subcontractors." (Doc. 132 at 36.) The Court agrees with this general proposition, but it is beside the point. The state court ordered remediation and loss-of-value damages strictly related to the infestation caused by the use of untreated logs. (Doc. 34-1.) The damages ordered in the underlying action are strictly for " 'property damage' to '[Keim's] work' arising out of it or any part of it and included in the 'products-completed operations hazard.' " (Doc. 26-1 at 24.)
Thus, exclusion l applies, barring coverage.
IV. Illusory Coverage
Mulroy also contends that any potentially applicable exclusion is defeated by the principle that "an insurer is not allowed to deny coverage for which it has received valuable consideration." Ruckdaschel v. State Farm Mut. Auto. Ins. Co. ,
[i]f Northland intended to exclude Keim's residential log home construction and all associated materials, then it should not have provided express coverages for 'Carpentry-construction of residential property not exceeding 3 stories' and 'subcontracted work-in connection with building construction, reconstruction, repair or erection' and charged an additional premium specifically for those coverages.
(Doc. 132 at 17.) Although it is true that Montana law protects consumers from illusory promises of coverage, it is not true that such protection is triggered here. The policy's declarations page simply classifies the type of work performed by its insured and assesses a premium based on those classifications. That the policy places limitations on the coverage provided to carpenters does not render coverage illusory.
V. Reasonable Expectations
Mulroy's final argument is that, even if an exclusion technically applies, the reasonable expectations doctrine operates to override the technical language of the policy. Under Montana law, "[t]he ... objectively reasonable expectations of insurance purchasers regarding the terms of their policies should be honored notwithstanding the fact that a painstaking study of the policy would have negated those expectations." Am. Family Mut. Ins. Co. v. Livengood ,
Here, the reasonable expectations doctrine does not override the clear language of the policy because it would not be "objectively reasonable" to conclude that the policy covers Keim's deficiently performed "work." See
Accordingly, IT IS ORDERED:
(1) The Plaintiff and Counter-defendant's Motion for Summary Judgment (Doc. 128) is GRANTED;
(2) The Defendants and Counterclaimants' Cross-Motion for Summary Judgment (Doc. 131) is DENIED;
(3) The Defendants and Counterclaimants' Motion to Supplement the Record (Doc. 138) is GRANTED; and
(4) The Clerk of Court shall enter judgment for the Plaintiff and Counter-defendant Northland Casualty Company and close this case.
To minimize confusion, Dwayne Keim and Northwest Log Homes are referred to throughout this Order as "Keim."
Mulroy also briefs exclusion j(5). However, because the insurer has the burden to show the applicability of an exception to coverage, Travelers Cas. & Sur. Co. v. Ribi Immunochem, Inc. ,
In the underlying action, Mulroy brought claims for negligence, negligent misrepresentation, and breach of warranty. Because the operative exclusions define "your work" and "your product" to include warranties, representations, the analysis as to each issue is the same as to each of the underlying causes of action. In other words, where there may fairly be coverage for negligence, there is also coverage for negligent misrepresentation and breach of warranty related to that negligence. Accordingly, the Court does not separately address coverage for each of the underlying causes of action, analyzing instead whether Keim may fairly find coverage under the various provisions of the policy.
Because the Court finds exclusion j(6) inapplicable on the grounds of the PCOH provision, it does not reach Mulroy's other arguments on this issue.
The log provider or broker, Ray Downing, was not named as a party defendant in the underlying action.
Reference
- Full Case Name
- NORTHLAND CASUALTY COMPANY, a Connecticut Corporation, and Counter-Defendant v. Joseph S. MULROY dba Yorlum Ranch and Yorlum Ranch Ltd., Northwest Log Homes LLC, and Duane Keim, Joseph S. Mulroy, Counterclaimant and Third-Party v. Glacier Insurance of Libby, Inc., a Montana Corporation, Third-Party
- Cited By
- 3 cases
- Status
- Published