COURTNEY HUDSON GOODSON, Associate Justice.
The present case involves two questions of law certified to us by the United States District Court for the Eastern District of Arkansas, Western Division, in accordance with Arkansas Supreme Court Rule 6-8. The certified questions arise from a complaint for declaratory judgment filed in the federal court by petitioners Columbia Insurance Group, Inc., and Columbia Mutual Insurance Co. (Columbia) to determine its obligations under the Commercial General Liability Insurance Policy (CGL policy) issued to its insureds, respondents Arkansas Infrastructure, Inc. and David Barron (AII).
Columbia Ins. Grp., Inc. v. Cenark Project Mgmt. Servs., Inc., 2015 Ark. 396, 2015 WL 6560626.
We reaffirm this court's previous position that a CGL policy does not extend basic coverage for a claim of breach of contract. Because there is no coverage, we consider the certified questions to be moot.
The Home Owners in this case are related to one another by either blood or marriage. In contemplation of retirement, they acquired seven lots on which to construct six homes in the Platinum Peaks
In June 2012, the Home Owners filed a complaint against All in the Circuit Court of Van Buren County for breach of contract,
The Home Owners also alleged that Barron had admitted that All had failed to follow the plans, specifications, and drawings developed by CENARK during the performance of the contract. Further, they asserted that "[i]n the failure to follow the engineer's plans, specifications, and drawings in the construction of the foundation pad, drainage systems, buttresses and gabion walls, knowing that such components would be covered by foundation, fill dirt and soils, All actively attempted to conceal its failure to follow such plans and specifications, and committed fraud upon the plaintiffs." The Home Owners sought "damages in the loss of the contract price paid to All and CENARK, plus additional damages for the cost of work required in the past and that will be required in the future to repair, replace or remediate the faulty work done by AII."
At issue in this case is a CGL policy. These policies have been in existence in various forms since 1940. See Travelers Indemnity Co. of Am. v. Moore & Assocs., Inc., 216 S.W.3d 302 (Tenn.2007); Am. Family Mut. Ins. Co. v. Am. Girl, Inc., 268 Wis.2d 16, 673 N.W.2d 65 (2004). The most recent revision came in to use in 1986. Am. Family, supra. Most CGL policies are written on standardized forms developed by an association of domestic property and casualty insurers known as the "Insurance Services Office." Travelers Indemnity, supra (citing Hartford Fire Ins. Co. v. California, 509 U.S. 764, 113 S.Ct. 2891, 125 L.Ed.2d 612 (1993)).
The CGL policy in the instant case, like most CGL policies, contains several basic parts relating to insurance coverage. Lee Builders, Inc. v. Farm Bureau Mut. Ins. Co., 281 Kan. 844, 137 P.3d 486 (2006) (citing Am. Family, supra). The first basic component concerns the initial grant of general coverage. Id. The second part sets out various "exclusions" from the initial grant of coverage. Id. Finally, the third basic part involves "exceptions" to the exclusions, which reinstate coverage that was previously excluded from the general grant. Id.
CGL policies can contain exclusions for intended or expected losses, and for so-called "business risks," that are also known as "your work," "your work product," and "your property" exclusions. Id. A potential exception to a business-risk exclusion might be found in a provision regarding "products-completed operations hazard," depending on the terms of the policy. See Am. Family, supra.
The Wisconsin Supreme Court in American Family enunciated a three-step analysis for evaluating coverage in CGL policies. The court explained,
Am. Family, 268 Wis.2d at 32-33, 673 N.W.2d 65.
Under the initial grant of coverage in the CGL policy in question, Columbia is required to "pay those sums that the insured becomes legally obligated to pay as damages because of ... `property damage' to which this insurance applies." In relevant part, the policy provides that the insurance applies to "property damage" only if the "property damage" is caused by an "occurrence." Thus, coverage is provided for "property damage" caused by an "occurrence."
The term "property damage" is defined in the policy as "[p]hysical injury to tangible property, including all resulting loss of use of that property" and "[l]oss of use of tangible property that is not physically injured." As stated in the policy, "occurrence" means "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." The term "accident" is not defined in the policy. However, this court has defined "accident" to mean "an event that takes place without one's foresight or expectation — an event that proceeds from an unknown cause, or is an unusual effect of a known cause, and therefore not expected." United States Fid. & Guar. Co. v. Cont. Cas. Co., 353 Ark. 834, 845, 120 S.W.3d 556, 563 (2003).
The first certified question of law presented to us asks whether All's defective workmanship resulting in property damage to the work or work product of a third party constitutes an "occurrence." In deliberating this issue, we have come to the conclusion that the certified question rests on the premise that the underlying claim asserted by the Home Owners involves defective workmanship on the part of AII. It does not. Their claim is one for breach of contract. As a consequence, the basic coverage issue is controlled by our decision in Unigard Sec. Ins. Co. v. Murphy Oil USA, Inc., 331 Ark. 211, 962 S.W.2d 735 (1998).
In Unigard, this court examined the general grant of coverage in several CGL policies that contained like provisions. In summary, the policies covered sums that the insured became "legally obligated" to pay "as damages" "because of," or "on account of," "property damage" that was caused by, or arose out of, an "occurrence," which was essentially defined as an accidental event. Unigard, 331 Ark. at 222, 962 S.W.2d at 740. Property damage was defined as loss of, direct damage to, or destruction of tangible property (other than property owned by the named assured).
In that case, Murphy Oil had leased an island located in an Alabama river for the purpose of operating a petroleum-storage facility. During its occupancy, Murphy Oil routinely spilled petroleum products during operations. In addition, Murphy Oil allowed three major spills to occur in 1970, 1975, and 1982, which caused additional harm to the island. Despite its knowledge of the environmental damage caused by the spills, Murphy Oil returned possession of the island to the owner without remediating the damage. When the owner subsequently
Following that decision, Murphy Oil filed suit in the Union County Circuit Court against its insurance carriers seeking a declaration that its insurers were obligated to indemnify it for the Alabama judgment. The carriers appealed the decision that they were liable for the judgment under the terms of the policy. Although the parties on appeal raised numerous issues, this court deemed as dispositive the "threshold question whether the policies issued by the insurance carriers cover the liability that Murphy Oil incurred in the underlying Alabama suit." Unigard, 331 Ark. at 215, 962 S.W.2d at 736. We held that there was no coverage under the policies for breach of contract or for the punitive-damage award.
In our analysis, we began with the proposition that the question of coverage turned on the nature or type of liability that Murphy Oil incurred in the Alabama suit. After considering the allegations in the complaint and the jury instructions in the Alabama case, this court determined that "[t]he basis of Murphy Oil's liability for compensatory damages was simply its failure to honor its covenant to `quit and surrender the premises hereby demised in as good state and condition as reasonable usage will permit.'" Unigard, 331 Ark. at 222, 962 S.W.2d at 740. Consequently, we concluded that Murphy Oil's liability for compensatory damages did not arise from conduct on the part of Murphy Oil that injured or damaged any property. We further observed that the judgment represented the economic loss the owner suffered on account of Murphy Oil's breach. This court also was not convinced that the nature of the claim was changed because the Alabama litigation involved property damage, and we rejected "Murphy Oil's broad contention that coverage is available to an insured under a CGL policy as long as `property damage' is merely lurking somewhere in the underlying case." Id. at 227, 962 S.W.2d at 743.
The terms establishing the basic grant of coverage we considered in Unigard are in all material respects the same as those contained in the CGL policy at issue in the present case. Focusing on the nature and type of liability asserted in the underlying suit, as Unigard instructs, the Home Owners' claim is that All breached the contract by not adhering to the plans,
This court is not alone in recognizing that breach-of-contract claims are not covered by CGL policies. Grinnell Mut. Reins. Co. v. Lynne, 686 N.W.2d 118 (N.D. 2004) (stating that coverage under a CGL policy is for tort liability and not for contractual liability of the insured for economic loss because the product or completed work is not that for which the damaged person bargained); Oak Crest Constr. Co. v. Austin Mut. Ins. Co., 329 Or. 620, 998 P.2d 1254 (2000) (holding that CGL policy does not cover damages for the failure to perform the contract); Redevelopment Auth. Of Cambria Cty. v. Int'l Ins. Co., 454 Pa.Super. 374, 685 A.2d 581 (1996) (holding that the purpose and intent of a CGL policy is to protect the insured from liability for accidental injury rather than coverage for contractual undertakings); Glens Falls Ins. Co. v. Donmac Golf Shaping Co., 203 Ga.App. 508, 417 S.E.2d 197 (1992) (recognizing that the coverage applicable under a CGL policy is for tort liability and not for contractual liability for economic loss because the completed work is not that for which the damaged person bargained); Viking Constr. Mgmt., Inc. v. Liberty Mut. Ins. Co., 358 Ill.App.3d 34, 294 Ill.Dec. 478, 831 N.E.2d 1 (2005) (holding that the general-coverage provisions do not provide coverage for damages resulting from breach of contract); Am. States Ins. Co. v. Mathis, 974 S.W.2d 647 (Mo.Ct. App.1998) (holding that the breach of a defined contractual duty occasioned by the insured's failure to construct ducts according to contract specifications was not covered under the CGL policy); Newark Ins. Co. v. Acupac Packaging, Inc., 328 N.J.Super. 385, 746 A.2d 47 (Ct.App.Div.2000) (holding that tort liability is covered while contractual liability is not); Bonded Concrete, Inc. v. Transcon., Inc., 12 A.D.3d 761, 784 N.Y.S.2d 212, 213 (2004) (stating that the "purpose of a commercial general liability policy ... is to provide coverage for tort liability for physical damage to others and not for contractual liability of the insured for economic loss because the product ... is not what the damaged [party] bargained for"). Also, federal courts applying Arkansas law have relied on Unigard, to deny coverage under CGL policies where the action is based on breach of contract. Riceland Foods, Inc. v. Liberty Mut. Ins. Co., No. 4:10CV00091 SWW, 2011 WL 2262932 (E.D. Ark. June 8, 2011); Landers Auto Grp. No. One, Inc. v. Cont'l W. Ins. Co., No 4:07cv00921 BSM, 2009 WL 1956392 (E.D.Ark. July 6, 2009); Cincinnati Ins. Cos. v. Collier Landholdings, LLC, 614 F.Supp.2d 960 (W.D.Ark.2009); Mid-Continent Cas. Co. v. Sullivan, Nos. 4:07CV01154 JMM and 4:07CV01155, 2008 WL 5412835 (E.D.Ark. Dec. 23, 2008).
We acknowledge that there is an opposing viewpoint, as several courts have held that there is no distinction between contract and tort claims when evaluating coverage under a CGL policy. See, e.g.,
In light of our conclusion that there is no coverage under the policy, the certified questions have become moot. We decline to address them, as answering the questions would constitute an improper advisory opinion. Hempstead Cty. Hunting Club, Inc. v. Sw. Elec. Power Co., 2011 Ark. 234, 385 S.W.3d 123.
Certified questions moot.
Danielson and Hart, JJ., dissent.
Paul E. Danielson, Justice, dissenting.
I dissent. The primary problem with the majority's decision is that it exceeds the bounds of the authority granted to this court under section 2(D)(3) of amendment 80 to the Arkansas Constitution and Arkansas Supreme Court Rule 6-8 (2015). In accordance with those authorities, the United States District Court for the Eastern District of Arkansas, Western Division, certified to this court two questions of Arkansas law that may be determinative of a cause now pending in the certifying court on the basis that it appeared to the certifying court that there is no controlling precedent in our decisions. See Ark. Sup.Ct. R. 6-8(a)(l). We accepted certification of the questions. See Columbia Ins. Grp., Inc. v. Cenark Project Mgmt. Servs., Inc., 2015 Ark. 396, 2015 WL 6560626 (per curiam). Now, the majority refuses to answer the questions. Instead, it proceeds to answer a question that was not asked of us and is not before us. I cannot overlook this fundamental flaw in the majority's decision.
The questions certified to us are as follows:
Id. at 1-2. Rather than answer these questions, the majority poses and answers a question of its own choosing: whether a commercial general liability insurance policy ("CGL policy"), specifically the one involved in this case, provides coverage for the claims asserted by the homeowners in this case. Perhaps what is most striking about the majority's decision is that the federal court already answered this question. In a separate order entered the same day as the certification order, the federal court granted the summary-judgment motion of respondents Arkansas Infrastructure, Inc., and David Barron "to the extent that Columbia has a duty to defend them." As the federal court noted, the duty to defend arises when there is a possibility that coverage exists. See, e.g., Home Indem. Co. v. City of Marianna, 291 Ark. 610, 727 S.W.2d 375 (1987). The
Whether this ruling was correct is not for us to decide. Simply put, this is not an appeal. We have no authority to review the federal court's orders. As we have stated, "[a] Rule 6-8 matter is an original action involving questions of law only." Longview Prod. Co. v. Dubberly, 352 Ark. 207, 211, 99 S.W.3d 427, 429 (2003) (per curiam). "Our inquiry is limited solely to the certified question." McMillan v. Live Nation Entm't, Inc., 2012 Ark. 166, at 3, 401 S.W.3d 473, 475. Even if we had the authority to expand the scope of our inquiry beyond the certified questions, we do not have a complete record to review. This case is ongoing in the federal court, and when we accepted certification of the questions, we directed the parties to provide us with any pleadings that would be useful to our understanding of the legal issues presented. Columbia Ins. Grp., Inc., 2015 Ark. 396. To delve into other issues, when we have neither the authority nor the record to do so, is a mistake.
This mistake is not cured by the majority's assertion that the certified questions are moot and that answering them would constitute an improper advisory opinion. On the contrary,
Longview Prod. Co., 352 Ark. at 209, 99 S.W.3d at 428-29 (quoting Los Angeles All. for Survival v. City of Los Angeles, 22 Cal.4th 352, 93 Cal.Rptr.2d 1, 993 P.2d 334, 339 (2000)) (emphasis in original). The majority's opinion as written will not be dispositive of the issue or res judicata between the parties because it purports to answer a question that is not ours to answer.
Moreover, even assuming it would be a proper undertaking to determine whether the CGL policy extends coverage for the homeowners' claims, I disagree with the majority's analysis on that issue. In short, the majority overstates our holding in Unigard Security Insurance Co. v. Murphy Oil USA, Inc., 331 Ark. 211, 962 S.W.2d 735 (1998). Contrary to the majority's assertion, Unigard does not stand for the proposition that a CGL policy can never extend coverage for a claim of breach of contract. Such a proposition would be untenable given the fact that the CGL policy at issue in that case, like the one at issue here, did not define coverage with reference to any specific cause of action. In Unigard, this court looked to the jury instructions given in the underlying case and to the jury's answers to interrogatories and on that basis concluded that the jury "made the award for compensatory damages `on account of' or `because of' Murphy Oil's breach of its lease, not on account of any property damage that resulted
A careful reading of the homeowners' complaint reveals that they sought compensation for damage to their property caused by faulty workmanship. Specifically, although they made reference to the respondents' failure to perform their work in accordance with certain plans, specifications, and drawings, they also alleged that "the foundation pads, drainage systems, buttresses and gabion walls had not been constructed correctly"; that "the foundation pads, drainage systems, buttresses and gabion walls ... are faulty, and are moving and shifting, causing damage to the homes and other structures built upon them"; and that, as a result of the faulty workmanship, "hydrostatic pressure has developed and continues to develop from groundwater collecting under the foundations of the houses and other structures constructed by plaintiffs on their respective lots, causing shifts in the soils and structure foundations, and endangering the integrity of such structures." The homeowners alleged that they had sustained damages not only in the loss of the contract price, but also in the cost of work required to "repair, replace or remediate the faulty work done by AII, and to prevent future movement of the foundation pads, buttresses, gabion walls and structures constructed upon them," as well as "permanent loss of value of their respective properties and the structures constructed on them." Considering these allegations, this case is unlike Unigard. Here, the insured's potential liability arose from conduct that injured or damaged property. Accordingly, I disagree with the majority's holding that coverage does not exist.
Turning to the questions that were actually certified to us, I would answer the first in the affirmative. Columbia argues that the homeowners' alleged damages were not the result of accidental conduct on the part of the insured and thus were not caused by an "occurrence," as that term is defined in the CGL policy. In making this argument, Columbia relies exclusively on our decision in Essex Insurance Co. v. Holder, 370 Ark. 465, 261 S.W.3d 456 (2008). There, we held that "defective workmanship standing alone — resulting in damages only to the work product itself — is not an occurrence under a CGL policy." Id. at 540, 261 S.W.3d at 460. However, as this very language makes clear, we expressly limited our holding in Holder to claims involving damages to the work product of the insured. Property damage to the work product of a third party is not similarly foreseeable. As the Eighth Circuit has explained, Holder provides for the denial of coverage for damage to the insured's work product itself; however, absent some applicable exclusion in the policy or other defense, an insurer is obligated to provide coverage for all property damage other than to the insured's work product. Lexicon, Inc. v. ACE Am. Ins. Co., 634 F.3d 423 (8th Cir. 2010). "Under Arkansas law, it was foreseeable that faulty subcontractor work would damage the [insured's work product], but not foreseeable that faulty subcontractor work would cause millions of dollars in collateral damage." Id. at 427. See also Nabholz Constr. Corp. v. St. Paul Fire & Marine Ins. Co., 354 F.Supp.2d 917 (E.D.Ark.2005). Accordingly, I would hold that faulty workmanship resulting in property damage to the work or work product of a third party (as opposed to the work or work product of the insured) constitutes
I would answer the second certified question in the negative. Despite the fact that the question explicitly asks whether any exclusion in the policy applies, Columbia does not address any policy exclusions in its argument. It did allege in its declaratory-judgment complaint that the "Expected or Intended Injury" exclusion applied to bar coverage for the homeowners' fraud claim. Specifically, the policy provided that it did not apply to "`[b]odily injury' or `property damage' expected or intended from the standpoint of the insured." This exclusionary language has been interpreted to exclude "only the intended injuries flowing from an intentional act." Talley v. MFA Mut. Ins. Co., 273 Ark. 269, 273, 620 S.W.2d 260, 262 (1981) (quoting 10 Couch on Insurance 2d, § 41.6). Because there is nothing in the pleadings before us to indicate that Arkansas Infrastructure intended both the act and the injuries flowing therefrom, I would hold that this exclusion does not bar coverage for the alleged property damage.
For all of these reasons, I dissent.
JOSEPHINE LINKER HART, Justice, dissenting.
On April 14, 2016, a majority of this court answered a question certified to us from the Federal District Court for the Eastern District of Arkansas, despite our venerable practice of not issuing advisory opinions or addressing moot issues. Mendoza v. WIS Int'l, Inc., 2016 Ark. 157, 2016 WL 1554365 (Hart, J., dissenting). In Mendoza, a majority of this court chose to declare Arkansas Code Annotated section 27-37-703, a portion of our mandatory seatbelt-use law, unconstitutional even though the statute in question had no applicability to the factual situation before us. Id. Today's opinion returns to the practice of not issuing advisory opinions or addressing moot issues.
Over objections from two justices who believed the questions submitted by the federal district court were settled by ample precedent, this court accepted two very specific certified questions:
The second question only required an answer if we answered the first question affirmatively.
In my view, the key to the first question lies in the definition of "occurrence." As the majority notes, "occurrence" was partially
In my view, this court had two options: render the obvious answer to the question, which essentially was asking us if we would stand by our precedent, or declining to answer pursuant to Arkansas Supreme Court Rule 6-8(a)(5): "In its discretion, the Supreme Court may at any time rescind its decision to answer a certified question." Creating a "threshold" question about coverage under the policy goes well beyond what the federal court asked. Moreover, the majority's conclusions are not binding on the federal court. Accordingly, if this court wants to remain true to its return to our policy of not answering moot questions or issuing advisory opinions, it has said too much.