BLACKWELL, Justice.
Generally speaking, a standard commercial general liability (CGL) policy
HDI-Gerling America Ins. Co. v. Morrison Homes, Inc., 701 F.3d 662, 669(4) (11th Cir. 2012). For the reasons that follow, we answer the first question in the negative, and we answer the second question in the affirmative as to fraud and in the negative as to breach of warranty.
We begin with a brief summary of the background of this litigation. The record shows that HDI-Gerling America Insurance Company issued a standard CGL policy to Morrison Homes, Inc., a predecessor of Taylor Morrison Services, Inc.
The policy expressly defines "property damage" as either "[p]hysical injury to tangible property" or "[l]oss of use of tangible property that is not physically injured." And it expressly defines "occurrence" as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." The policy does not define "accident." The policy also contains a number of exclusions, including several known as the "business risk" — or in the construction context, the "builder's risk" — exclusions.
Taylor Morrison is a homebuilder, and it was sued in California by sixteen homeowners, who sought to represent a class of more than 400 homeowners, all of whom owned homes built by Taylor Morrison in three California subdivisions. The homeowner-plaintiffs alleged that the concrete foundations of their homes were improperly constructed, insofar as Taylor Morrison failed to lay four inches of gravel beneath the foundations, it failed to use adequate moisture barriers in the construction of the foundations, and it built the foundations with concrete having too high a water-to-cement ratio.
At first, HDI-Gerling undertook to defend Taylor Morrison against these claims, subject to a reservation of its rights. Then, in 2009, HDI-Gerling filed a lawsuit against Taylor Morrison in the United States District Court for the Northern District of Georgia, seeking a declaratory judgment that the claims for which a class was certified do not involve potential liabilities for which Taylor Morrison has coverage under its standard CGL policy. The district court awarded summary judgment to HDI-Gerling, finding no coverage for several reasons, including that the claims asserted against Taylor Morrison in California do not involve an "occurrence." In that respect, the district court reasoned that there is no "occurrence" when the only "property damage" alleged is damage to work of the insured, in this case, the homes that Taylor Morrison constructed. The district court applied Georgia law in its decision to award summary judgment to HDI-Gerling, a choice of law that no one appears to dispute.
1. About the first question, we addressed the meaning of "occurrence" — as used in a CGL policy, and in the context of a
Like the standard CGL policy in this case, the policy in American Empire defined an "occurrence" simply as "an accident, including continuous or repeated exposure to substantially the same, general harmful conditions," and it did not define "accident." 288 Ga. at 750, 707 S.E.2d 369. Accordingly, we "look[ed] to the commonly accepted meaning of the term," and we found that "accident" most commonly means "an unexpected happening without intention or design." Id. at 751, 707 S.E.2d 369 (citation and punctuation omitted). Upon this finding, we concluded that "an occurrence can arise where faulty workmanship causes unforeseen or unexpected damage to other property." Id. at 752, 707 S.E.2d 369. Our decision in American Empire, therefore, definitively establishes that faulty workmanship sometimes can amount to an "occurrence," at least when the property of someone other than the insured is damaged, a circumstance that was undisputed in American Empire. It does not answer the question, however, with which we are presented here, whether faulty workmanship also can amount to an "occurrence" when the only damage alleged is to work of the insured.
To answer that question, we begin as we began in American Empire, with the usual and common meaning of "accident." As we have explained before, "[a]n insurance policy is simply a contract, the provisions of which should be construed as any other type of contract," Hunnicutt v. Southern Farm Bureau Life Ins. Co., 256 Ga. 611, 612(4), 351 S.E.2d 638 (1987) (citation and punctuation omitted), and so, when the provisions of an insurance policy are clear and unambiguous, we attribute to those provisions their plain meaning. Grain Dealers Mut. Ins. Co. v. Pat's Rentals, Inc., 269 Ga. 691, 693, 505 S.E.2d 729 (1998). An insurer is entitled, of course, to define terms used in its insurance policies as it sees fit, and it may choose to define a term in an unusual and uncommon way. But unless the policy itself indicates that a term is used in an unusual sense, we attribute to that term its usual and common meaning.
Nothing about our holding is inconsistent with the settled notion that CGL coverage generally is intended to insure against liabilities to third parties for injury to property or person, but not mere liabilities for the repair or correction of the faulty workmanship of the insured. See Elrod's Custom Drapery Workshop v. Cincinnati Ins. Co., 187 Ga.App. 670, 371 S.E.2d 144 (1988). Remember that an "occurrence" alone is not enough to give rise to coverage under a standard CGL policy. The "occurrence" also must cause "bodily injury" or "property damage," and the insured must incur a liability to pay "damages because of [such] `bodily injury' or `property damage.'" Along with applicable exclusions, these other requirements of coverage are inherently better suited than the requirement of an "occurrence" to limit coverage in faulty workmanship cases to instances in which the faulty workmanship has damaged other, nondefective property or work. After all, "property damage," as that term is used in the standard CGL policy, necessarily must refer to property that is nondefective, and to damage beyond mere faulty workmanship,
HDI-Gerling contends that our understanding of "occurrence" is inconsistent with three cases in which our Court of Appeals held, HDI-Gerling urges, that an "occurrence" requires damage to something other than the work of the insured. We disagree. In support of this contention, HDI-Gerling cites SawHorse, supra, McDonald Constr. Co. v. Bituminous Cas. Corp., 279 Ga.App. 757, 632 S.E.2d 420 (2006), and Custom Planning & Dev. v. American Nat. Fire Ins. Co., 270 Ga.App. 8, 606 S.E.2d 39 (2004). In SawHorse, the court concluded that the CGL policy at issue did not cover liability for damage to the completed work of the insured — a second story that the insured had erected atop a previously one-story house, a second story that was constructed defectively — because it was excluded by the "business risk" exclusions of the policy, not because the defective construction was no "occurrence." 269 Ga.App. at 496-497(1), 604 S.E.2d 541(a). SawHorse, therefore, does not concern at all whether an "occurrence" requires damage to something other than the work of the insured. Likewise, in McDonald, the court expressly "pretermitt[ed] whether the [faulty workmanship] constituted an `occurrence' under the policy," 279 Ga.App. at 761(1), 632 S.E.2d 420, assumed that the faulty workmanship was an accident, id. at 762(1), 632 S.E.2d 420, and instead resolved the case based on the failure of the insured to show that its claim "arose from an obligation to
Custom Planning also is consistent with our understanding of the insuring agreement of the standard CGL policy. In Custom Planning, the insured-developer purchased a lot and built a house and pool upon it. The insured also hired a subcontractor to build a retaining wall upon the lot. The insured later sold the lot — with the house, pool, and retaining wall — and a few years later, the homeowners took the insured to arbitration, and the court held that the defective construction of the retaining wall gave rise to no coverage, in part because the arbitrator had found that "no other [nondefective] property, i.e., the swimming pool, was damaged as a consequence of the faulty workmanship." 270 Ga.App. at 10(1), 606 S.E.2d 39. But the pool — like the retaining wall — was a work of the insured. If the insuring agreement required damage to something other than the work of the insured, the Custom Planning court most certainly would not have identified the pool built by the insured as "other property" that might give rise to coverage. Although Custom Planning did treat the "other [nondefective] property" requirement as a component of the "occurrence" requirement, a treatment that we disapprove — it is more properly considered as a component of the "property damage" requirement, as we have explained — the result in Custom Planning is perfectly consistent with our decision today, and we need not overrule Custom Planning outright. HDI-Gerling points to no Georgia precedent that would have a different outcome under our approach, and we have found none.
Our understanding of the insuring agreement also is consistent with the "strong recent trend in the case law [that] interprets the term `occurrence' to encompass unanticipated damage to nondefective property resulting from poor workmanship." Greystone Constr., Inc. v. Nat. Fire & Marine Ins. Co., 661 F.3d 1272, 1282 (10th Cir.2011). "[M]ost federal circuit and state supreme court cases [now] line up in favor of finding an occurrence in [the context of a claim by homeowners against an insured-homebuilder for damage to nondefective portions of a home resulting from the defective construction of another portion of the home]." Id. Indeed, we find a number of recent decisions in our sister states that construe "occurrence" without reference to the identity of the person whose property or work is damaged thereby. See, e.g., Capstone Bldg. Corp. v. American Motorists Ins. Co., 308 Conn. 760, 776(II)(A), 67 A.3d 961 (2013) ("[B]ecause negligent work is unintentional from the point of view of the insured, we find that it may constitute the basis for an `accident' or `occurrence' under the plain terms of the [CGL] policy."); Crossmann Communities of N.C. v. Harleysville Mut. Ins. Co., 395 S.C. 40, 717 S.E.2d 589, 592-593(III)(B) (2011) (holding that faulty workmanship on exteriors of condominium projects that resulted in water damage to nondefective interiors was an "occurrence," notwithstanding that insureds were the developers of the projects); Stanley Martin Cos. v. Ohio Cas. Group, 313 Fed. Appx. 609, 614(III) (4th Cir.2009) (under Virginia law, "obligation to repair or replace defective trusses" involved no "occurrence," but "any mold damage that spread beyond the defective trusses and the gypsum fire walls to nondefective components of the townhouses [that the insured built]" was an "occurrence"); U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So.2d 871, 885(D) (Fla.2007) ("[W]e reject a definition of `occurrence' that renders damage to the insured's own work as a result of a subcontractor's faulty workmanship expected, but renders damage to property of a third party caused by the same faulty workmanship unexpected."); Lamar Homes, Inc. v. Mid-Continent Cas. Co., 242 S.W.3d 1, 16 (Tex.2007) ("[C]laims for damage caused by an insured's defective performance or faulty workmanship may constitute an `occurrence' when `property damage' results from the unexpected, unforeseen[,] or undesigned happening or consequence of the insured's negligent behavior." (quotations omitted)); French v. Assurance Co. of America, 448 F.3d 693, 706(II)(A) (4th Cir.2006) (under Maryland law, standard CGL policy "does not provide liability coverage to a general
With this understanding of the insuring agreement — the usual and common meaning of "accident," the definition of "occurrence" that flows therefrom, and the additional limitations imposed by the requirement of "property damage" — we answer the first certified question in the negative.
2. We next consider whether an "occurrence" requires that the liabilities for which coverage is claimed must be based on some legal theory other than fraud or breach of warranty.
Fraud claims generally are such claims. Under Georgia law, the tort of fraud has five elements, including scienter and intention to induce the plaintiff to act or refrain from acting. Stiefel v. Schick, 260 Ga. 638, 639(1), 398 S.E.2d 194 (1990). Likewise, under California law, the tort of fraud necessarily involves almost identical elements. See Lazar v. Superior Court, 12 Cal.4th 631, 49 Cal.Rptr.2d 377, 909 P.2d 981, 984(II)(A) (1996) ("[t]he elements of fraud ... are (a) misrepresentation... (b) knowledge of falsity (or `scienter'); (c) intent to defraud ...; (d) justifiable reliance; and (e) resulting damage") (citation omitted). It is difficult for us to conceive of a circumstance in which a claim of fraud might properly be premised upon "bodily injury" or "property damage" that was caused by an "accident." We do not absolutely foreclose the possibility that the law of some jurisdiction might allow a theory of liability denominated as "fraud" that is not necessarily inconsistent in some exceptional
Breach of warranty, however, is a different story. Although the making of an express warranty — or the entry of a transaction from which an implied warranty arises by operation of law — undoubtedly is an intentional act, the breach of a warranty may not be. It is true enough that the breach of a warranty could be intentional. But warranty law, generally speaking, imposes strict liability; regardless of intent or culpability, if a product or other work is of a quality that is materially less than that which was warranted, the warranty is breached. See Charles R. Adams, III, Georgia Law of Torts § 25.5 (2012-2013 ed.); see also William L. Prosser Handbook of the Law of Torts 636 (4th ed.1971). In many cases, faulty workmanship may cause a product or other work to amount to a breach of a warranty for the product or work. And we already have held that faulty workmanship can constitute an "occurrence." See American Empire, 288 Ga. at 752, 707 S.E.2d 369. So, in many cases, an "occurrence" might be found in the context of a claim for breach of warranty.
That said, even a breach of warranty that involves an "occurrence" will not necessarily — or even usually — give rise to coverage under a standard CGL policy. Remember that the standard CGL policy only insures against a liability to pay "damages because of `bodily injury' or `property damage,'" and as we said in Division 1, when faulty workmanship in residential construction is the "occurrence," "property damage" may be found only when the faulty workmanship causes physical injury to, or the loss of use of, nondefective property or work. As such, it generally will only be a breach of a warranty of nondefective property from which coverage might arise, as liability for a breach of the warranty of the defective property would not involve "damages because of" "property damage" to the nondefective property. In addition, certain exclusions may apply to limit coverage in breach of warranty cases. Nevertheless, as in Division 1, we conclude that permitting each requirement of the insuring agreement and exclusion to serve its own purpose is a sounder analytical approach than any endeavor to make "occurrence" bear the entire burden for defining the limits of coverage. As such, for an "occurrence" to exist for purposes of a standard CGL policy, it is not always necessary that the claim be for something other than breach of warranty, and as to breach of warranty, we answer the second question in the negative.
Questions answered.
NAHMIAS, J., not participating.
HDI-Gerling, 701 F.3d at 669(IV) (citation omitted). We find it appropriate to limit our consideration of the second question to claims of fraud and breach of warranty. From our review of the record, the California litigation appears to involve no claim for breach of contract, other than for breach of a contractual warranty. Accordingly, we will not address breach of contract, other than as a breach of warranty. In addition, we consider breach of warranty generally, as opposed to breach of warranty premised specifically upon a "failure to disclose material information." In the California litigation, the homeowner-plaintiffs did not rely on any warranty of disclosure, but instead upon alleged warranties that the homes were suited and safe for their intended use and purpose and were of merchantable quality. The failure of the homes to have the warranted quality and characteristics is the alleged breach, not a failure to disclose.