STUART, Justice.
Town & Country Property, L.L.C., and Town & Country Ford, L.L.C. (hereinafter collectively referred to as "T & C"), sued Amerisure Insurance Company and Amerisure Mutual Insurance Company (hereinafter collectively referred to as "Amerisure") and Amerisure's insured, Jones-Williams Construction Company, Inc.,
In January 1999, Jones-Williams contracted with Town & Country Property to construct an automobile sales and service facility for T & C in Bessemer. Jones-Williams then entered into contracts with various subcontractors to construct the facility, doing none of the actual construction work itself; construction was completed in August 1999. Town & Country Ford then leased the facility from Town & Country Property and began operating a Ford automobile dealership on the premises. Thereafter, T & C discovered various defects in the facility. Jones-Williams was notified of the defects and apparently made some attempts to correct them; however, on October 3, 2002, T & C sued Jones-Williams in the Jefferson Circuit Court, asserting various tort and contract claims stemming from the alleged faulty construction of the facility. Jones-Williams notified its insurer, Amerisure, of
T & C's claims against Jones-Williams were tried before a jury, and on September 4, 2007, the jury returned a verdict in favor of T & C, awarding Town & Country Ford $34,100 and Town & Country Property $616,000. Following the entry of a judgment on the verdict, Amerisure indicated that it would not indemnify Jones-Williams for the judgment entered against it, and on October 30, 2007, T & C initiated the action underlying these appeals, alleging that the award entered against Jones-Williams was covered by the Amerisure policy and seeking payment from Amerisure. Amerisure denied liability and filed a counterclaim seeking a judgment declaring that there had been no occurrence or accident triggering coverage under the Amerisure policy and that, even if there had been an occurrence, the policy excluded coverage for damage caused by Jones-Williams's own faulty work. T & C argued that the faulty construction of the facility was itself an occurrence triggering coverage and that the damage was not the result of Jones-Williams's work but the work of the subcontractors Jones-Williams had employed.
On February 13, 2009, Amerisure moved for a summary judgment. On April 19, 2010, T & C filed a motion opposing Amerisure's summary-judgment motion and seeking a summary judgment on its own behalf. Amerisure and T & C thereafter each filed additional responses and/or supplements to their motions, and on July 26, 2010, the trial court conducted a hearing on the pending summary-judgment motions. On August 26, 2010, the trial court entered a summary judgment in favor of Amerisure, holding that, in Alabama, "faulty construction is not an `occurrence' under a[CGL] policy." T & C now appeals.
We review T & C's arguments on appeal pursuant to the following standard:
Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004).
A valid judgment was entered in favor of T & C and against Jones-Williams. Accordingly, pursuant to the terms of the Amerisure policy, Amerisure is responsible for paying that judgment if the judgment was based on claims based on "property damage" caused by an "occurrence" as those terms are used in the Amerisure policy. The dispute before us is accordingly centered upon the interpretation of the Amerisure policy. The Amerisure policy is itself an example of a CGL policy, which policies are widely used by contractors and generally employ standardized forms and terms. There is accordingly an extensive body of caselaw nationwide concerning the interpretation of such policies. In 2010, the Supreme Court of Indiana provided the following helpful background on the origination and object of these policies:
Sheehan Constr. Co. v. Continental Cas. Co., 935 N.E.2d 160, 162-63 (Ind.2010) (footnote omitted). The Amerisure policy in the present case is identical in all material respects to the CGL policies discussed in Sheehan. The initial grant of coverage in the Amerisure policy reads as follows:
The Amerisure policy further defines "property damage" 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." Finally, it also defines "occurrence" as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." Moreover, consistent with the 1986 revision, the Amerisure policy contains an exclusion, commonly denominated
This Court has previously considered cases requiring it to determine whether damage alleged to be the result of faulty workmanship is covered under a CGL policy, and, in each case, its decision has hinged on the nature of the damage caused by the faulty workmanship. Two cases originally decided on the same date in 1983 effectively illustrate the state of the law in this area: United States Fid. & Guar. Co. v. Warwick Dev. Co., 446 So.2d 1021 (Ala. 1984) ("Warwick"),
Warwick, 446 So.2d at 1023. Thus, Warwick held that faulty workmanship itself is not an "occurrence."
In Moss, however, a homeowner sued a contractor she had hired to reroof her house in order "to recover for damage she allegedly incurred due to rain which fell into her attic and ceilings because, as she claimed, the roof was uncovered much of the time that the re-roofing job was being performed." 442 So.2d at 26. The contractor's insurer argued that it was not required to provide a defense or to pay any judgment against the contractor because, it argued, the damage was not the result of an occurrence and was therefore not covered under the contractor's CGL policy. Following a bench trial limited to deciding the insurance-coverage issue, the trial court ruled in the insurer's favor, holding that the damage to the homeowner's house was not the result of an occurrence. On appeal, we reversed the trial court's judgment, stating:
Moss, 442 So.2d at 29. Thus, in Moss we held that there had been an occurrence for CGL policy purposes when the contractor's poor workmanship resulted in not merely a poorly constructed roof but damage to the plaintiff's attic, interior ceilings, and at least some furnishings. Reading Moss and Warwick together, we may conclude that faulty workmanship itself is not an occurrence but that faulty workmanship may lead to an occurrence if it subjects personal property or other parts of the structure to "continuous or repeated exposure" to some other "general harmful condition" (e.g., the rain in Moss) and, as a result of that exposure, personal property or other parts of the structure are damaged.
Accordingly, the trial court in this case properly relied on Warwick to hold that Amerisure was not required to indemnify Jones-Williams for the judgment entered against it insofar as the damages represented the costs of repairing or replacing the faulty work.
We are mindful that some other jurisdictions have interpreted CGL policies differently. However, the position we reaffirm today is shared by the majority of jurisdictions that have considered the issue. See, e.g., Cincinnati Ins. Co. v. Motorists Mut. Ins. Co., 306 S.W.3d 69, 73 (Ky.2010) ("The majority viewpoint, however, appears to be that claims of faulty workmanship, standing alone, are not `occurrences' under CGL policies."). Still other jurisdictions, though they concede that faulty workmanship may constitute an occurrence, nevertheless hold that the cost of repairing or replacing the defective construction itself is not covered by a CGL policy because the defective construction does not constitute "property damage" as that term is used in CGL policies. See, e.g., Crossmann Cmtys. of North Carolina, Inc. v. Harleysville Mut. Ins. Co., 395 S.C. 40, 50, 717 S.E.2d 589, 594 (2011) (holding that the definition of "occurrence" in CGL policies is ambiguous and must therefore be construed in favor of the insured, but also clarifying "that negligent or defective construction resulting in damage to otherwise non-defective components may constitute `property damage,' but the defective construction would not"). While differing in their rationales, both of these approaches are consistent with the general understanding that a CGL policy is intended "`to protect an insured from bearing financial responsibility for unexpected and accidental damage to people or property'" while a performance bond is intended "`to insure the contractor against claims for the cost of repair or replacement of faulty work.'" Essex Ins. Co. v. Holder, 372 Ark. 535, 539, 261 S.W.3d 456, 459 (2007) (quoting Nabholz Constr. Corp. v. St. Paul Fire & Marine Ins. Co., 354 F.Supp.2d 917, 923 (E.D.Ark.2005)). See also Kvaerner Metals Div. of Kvaerner U.S., Inc. v. Commercial Union Ins. Co., 589 Pa. 317, 335, 908 A.2d 888, 899 (2006) ("To permit coverage in [cases where faulty workmanship damages the work product alone] would convert CGL policies into performance bonds, which guarantee the work,
T & C sued Amerisure seeking a judgment requiring Amerisure to pay the $650,100 judgment previously entered against Amerisure's insured, Jones-Williams. The trial court entered a summary judgment in favor of Amerisure holding that it was not required to indemnify Jones-Williams because there had been no occurrence invoking coverage under the policy. For the reasons explained above, that judgment is now affirmed to the extent the awarded damages represented the costs of repairing or replacing the faulty work itself. We are remanding the case to the trial court so that it may consider arguments from the parties to determine if any of the damages awarded represented compensation for damaged personal property — e.g., computers and furnishings — or otherwise nondefective portions of the facility. That damage would constitute "property damage" resulting from an "occurrence," and it would be covered under the terms of the Amerisure policy in light of the fact that all the construction work in this case was performed by a subcontractor and therefore the damage suffered as a result of that construction work would fall within the subcontractor exception to the your-work exclusion. Due return shall be made to this Court within 42 days of this opinion.
1100009 — AFFIRMED IN PART AND REMANDED WITH INSTRUCTIONS.
1100072 — APPEAL DISMISSED AS MOOT.
MALONE, C.J., and WOODALL, BOLIN, PARKER, MURDOCK, SHAW, MAIN, and WISE, JJ., concur.
STUART, Justice.
The opinion of June 29, 2012, is withdrawn, and the following is substituted therefor.
Town & Country Property, L.L.C., and Town & Country Ford, L.L.C. (hereinafter collectively referred to as "T & C"), appealed the summary judgment entered by the Jefferson Circuit Court in favor of Amerisure Insurance Company and Amerisure Mutual Insurance Company (hereinafter collectively referred to as "Amerisure") holding that Amerisure was not obligated to pay a $650,100 judgment entered on a jury verdict in favor of T & C and against Amerisure's insured, Jones-Williams Construction Company, because, the trial court reasoned, the faulty construction of the T & C facility upon which the judgment was based was not an "occurrence" covered under the commercial general-liability ("CGL") insurance policy Amerisure had issued Jones-Williams. On October 21, 2011, we affirmed in part the judgment entered by the trial court, agreeing that faulty construction did not in and of itself constitute an occurrence for CGL-policy purposes and that, accordingly, "Amerisure was not required to indemnify Jones-Williams for the judgment entered against it insofar as the damages represented the costs of repairing or replacing the faulty work." Town & Country Prop., L.L.C. v. Amerisure Ins. Co., [Ms. 1100009, October 21, 2011] 111 So.3d 699, 706 (Ala.2011) ("Town & Country I"). However, we further recognized in Town & Country I that if damages had been awarded T & C to compensate it for damage the faulty construction later caused to personal property or some otherwise nondefective portion of the T & C property, then "[t]hat damage would constitute `property damage' resulting from
On remand, the parties filed briefs with the trial court taking predictable positions: T & C argued that the vast majority of the $650,100 judgment should be attributed to covered damage, while Amerisure argued that the damages T & C sought for the repair and/or replacement of defective construction exceeded the amount of the verdict and thus none of the judgment should be attributed to covered damage to personal property or other portions of the T & C property. In its order resolving the issue on remand, the trial court identified $257,500 in damages claimed by T & C at trial as representing the repair or replacement of faulty construction. It therefore subtracted that amount from the $650,100 awarded by the jury and awarded T & C $392,600, plus interest and costs.
Upon a review of the record, it is evident that the $392,600 judgment entered by the trial court is not supported by the evidence. In its brief on return to remand, T & C argues that the trial court's judgment entered on remand is justified as follows:
T & C's brief on return to remand, pp. 6-7 (citations to record omitted). However, it is apparent that much of the damage itemized by T & C in this regard is itself faulty workmanship for which Amerisure is not obligated to indemnify Jones-Williams. Moreover, although there was testimony indicating that carpet, computers, furnishings, and certain fixtures were also damaged — which damage might be attributable to an occurrence and thus be covered under the CGL policy — no evidence was presented of the cost required to repair that damage, and, accordingly, no portion of the awarded damages may be considered compensation
In Town & Country I, we held that the cost of repairing faulty or defective construction itself was not covered by the terms of the CGL policy. With one minor exception discussed below, our review of the materials submitted to the trial court in the present case indicates that no evidence was introduced in the underlying trial as to the cost of repairing anything other than the defective construction itself. To the contrary, the only evidence as to the monetary amount of any damage suffered by the insured was the testimony of T & C's own construction-defect expert who testified in the underlying trial that it would cost $751,346 to repair or replace the defective work at issue. Moreover, T & C's argument to the jury in the underlying trial was that this amount was the amount the jury should award in damages. The jury awarded just over $650,000 in damages.
The only evidence of specific property damage caused by an occurrence identified by either the parties or the trial court and accompanied by evidence of a specific cost associated with repairing or replacing that damage concerns certain ceiling tiles. Amerisure concedes that there was testimony that nondefective ceiling tiles damaged by roof leaks had to be replaced at a cost of $600. The damage to the ceiling tiles is property damage caused by an occurrence, and, accordingly, T & C is entitled to damages in the amount of $600. The judgment entered by the trial court on remand is accordingly reversed, and the cause is again remanded for the trial court to enter a final judgment in favor of T & C for $600.
APPLICATION FOR REHEARING OVERRULED; OPINION OF JUNE 29, 2012, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.
MALONE, C.J., and WOODALL, BOLIN, PARKER, SHAW, MAIN, and WISE, JJ., concur.
MURDOCK, J., concurs specially.
MURDOCK, Justice (concurring specially).
The main opinion states that "[t]he only evidence of specific property damage caused by an occurrence identified by either the parties or the trial court and accompanied by evidence of a specific cost associated with repairing or replacing that damage" is $600 worth of damage to certain ceiling tiles. 111 So.3d at 710. I agree.
I note that the construction-defect expert offered by Town & Country Property, L.L.C., and Town & Country Ford, L.L.C. (collectively "T & C"), Mark Moore, testified on pages 254-55 of the trial transcript, Record Vol. 7, p. 1205, that the cost of replacing "the blanket insulation" in the
T & C suggests that the $52,000 first referenced by Moore was intended as a separate amount, one that related to the replacement of insulation in the front portion of the building (the office and showroom area), as opposed to the replacement of insulation over the rear portion of the building. As such, according to T & C, the damage represented by that figure would represent "property damage" resulting from an "occurrence," namely rainwater damage to a part of the structure other than the defectively constructed portion of the structure (the roof) that allowed the rainwater to penetrate.
I have considered whether T & C's interpretation of Moore's testimony is appropriate, i.e., whether we can and should conclude from Moore's testimony that one of these two similar amounts may be attributed solely to the cost of replacing insulation in the front of the building that was damaged by rainwater and that was not itself part and parcel of a defectively installed roof. I cannot conclude that we can. As noted, Moore refers to both figures as the cost of replacing "the blanket insulation." Further, both statements are made in the context of or with express reference to the "pre-engineered" rear of the building. Further still, the inclusion of an additional $52,000 would make it impossible to reconcile mathematically the sum of the individual repair and replacement costs listed by Moore throughout his testimony with the $751,346 total cost of repairs Moore himself calculates after listing the individual costs.
In other words, we have little choice but to conclude that Moore included in his final tally of damages a single amount, $52,500, attributable to the replacement of insulation. Even if we could conclude that this amount was not limited to the replacement of the insulation that was part of the defective roofing system covering the rear of the building, we have no testimony from which we could determine what portion of that cost should be attributed to the replacement of insulation in the front of the building. Without such testimony, this Court itself would have to engage in speculation to award some portion of this amount to T & C.
That said, there is one additional matter I believe should be addressed in light of the arguments made by T & C and amicus curiae Alabama Associated General Contractors, Inc., to this Court on rehearing in the present case. This additional matter concerns the caveat we recognized in our essential holding in Town & Country Property, L.L.C. v. Amerisure Insurance Co., [Ms. 1100009, Oct. 21, 2011] 111 So.3d 699, 712 (Ala.2011) ("Town & Country I").
The essential holding in Town & Country I was that "faulty workmanship itself is not an occurrence" within the meaning of a contractor's comprehensive general-liability ("CGL") policy. Specifically, we held as follows in our analysis in Part III of the opinion:
111 So.3d at 706 (emphasis added). In addition to the essential holding emphasized above, we recognized one caveat: "[F]aulty workmanship may lead to an occurrence if it subjects personal property or other parts of the structure" to an accidental harmful condition that damages that "other part." 111 So.3d at 706 (emphasis added).
In Part IV of our opinion in Town & Country I, we offered concluding comments and instructions to the trial court as to how to implement our decision on remand. In this portion of our opinion, we first reaffirmed the above-stated general rule by explaining that the trial court's judgment in favor of Amerisure was affirmed "to the extent the ... damages [awarded to T & C in T & C's underlying action against Amerisure's insured, Jones-Williams Construction Company,] represented the costs of repairing or replacing the faulty work itself." We then, made the following statement, however, adding to the language we had earlier used in Part III to delineate the caveat to the general rule:
111 So.3d at 708 (emphasis added).
In concurring in Town & Country I, I failed to take sufficient heed of the wording of the latter phrase and to consider the difference between it and the wording of the caveat as expressed in the analysis portion of our opinion. Concern has been expressed that the latter wording can be read as a restriction on the caveat recognized in Part III of our opinion in Town & Country I to parts of the structure completely free from any defect of their own, rather than simply to "other parts of the structure" apart from the defectively constructed portion primarily at issue. That is, concern has been expressed that the emphasized passage may be construed to mean that when one portion of a structure, such as a roof, is defectively constructed so as to allow into a building rainwater that damages some "other part of the structure," such as a floor, there is no "occurrence" if the "other part of the structure" already had any defect of its own, even if that defect would not itself have necessitated repair or replacement costs equal to those necessitated by the water damage. This specific issue was not presented by the arguments made to us in Town & Country I. Further, as it now turns out, the record before us makes it unnecessary to address this issue in order to decide this case. Accordingly, I consider the issue reserved for another day.
On October 4, 2010, while preparing its Rule 5 petition for a permissive appeal, T & C nevertheless filed the appeal docketed as case no. 1100009 to protect its appellate rights in the event the August 26, 2010, judgment was, in fact, a final judgment such that permission to appeal or a Rule 54(b) certification was unnecessary. T & C subsequently filed its petition for permission to appeal pursuant to Rule 5 as well, which was docketed as case no. 1100072. Because the judgment entered by the trial court on August 26, 2010, did dispose of all the claims between the parties, it was a final judgment, and T & C's October 4, 2010, appeal of that judgment was both timely and proper. Accordingly, the appeal docketed as case no. 1100072 is dismissed as moot.