HOOVER, P.J.
¶ 1 R.G. Hendricks & Sons Construction, Inc., appeals a summary judgment dismissing Pekin Insurance Company from the action. The court concluded that Pekin's policy afforded no coverage for the claims asserted against Hendricks, and that Pekin therefore had no duty to indemnify or further defend Hendricks. Hendricks argues the policy does afford coverage. We disagree, and affirm.
¶ 2 This case arises from the construction of several service stations. Hendricks contracted to "prepare the site and supply and install concrete, stamped concrete, and colored concrete...." Pamperin Rentals II, LLC and others (collectively, Pamperin) sued Hendricks, alleging the concrete Hendricks supplied and installed "was defective and/or the work performed was not done in a workmanlike manner and has resulted in damages, including pitting and deterioration of the concrete, and will require replacement." Pamperin further alleged:
¶ 3 Hendricks's insurer, Pekin, agreed to provide a defense, subject to a reservation of its right to later contest coverage. During discovery, Pamperin disclosed that only the concrete had suffered physical damage. The alleged business interruption and physical damage to asphalt were merely expected future harms to be incurred when the concrete itself was repaired or replaced.
¶ 4 Pekin moved for summary judgment, arguing it had no duty to indemnify or further defend Hendricks because there was no policy coverage for Pamperin's alleged damage. Pekin argued there was no occurrence in the first instance and, additionally, the business risks exclusions applied to bar coverage. Specifically, Pekin argued exclusions k. and l. applied, which preclude coverage for damage to the insured's product and work, respectively. The court granted Pekin's motion, holding there was no occurrence. Hendricks now appeals.
¶ 5 The parties dispute whether Pekin has a duty to indemnify and further defend Hendricks. Where an insurer has provided an initial defense pending a final coverage determination, the "four-corners rule" — related to the duty-to-defend inquiry — is not implicated. Olson v. Farrar, 2012 WI 3, ¶ 34, 338 Wis.2d 215, 809 N.W.2d 1. Instead, the court simply proceeds to a coverage determination. Id. The court may consider extrinsic evidence and, if there is no arguable coverage, determine
¶ 6 As relevant here, Hendricks's commercial general liability (CGL) policy affords coverage when an "occurrence" causes "property damage." The policy defines property damage as:
¶ 7 Hendricks argues both definitions apply here because, regardless of the alleged damage to Hendricks's own product or work,
¶ 8 Hendricks next contends there is policy coverage because Hendricks paid a separate premium for products — completed operations coverage. It asserts that, because this is therefore a separate, purportedly expensive, coverage, the business risks exclusions do not apply.
¶ 9 The policy structure and language do not support Hendricks's argument. The policy's common declarations page explains the policy is comprised of three parts: a CGL coverage part, a commercial inland marine coverage part, and a commercial property coverage part. This page also
¶ 10 The CGL coverage form is divided into the following five sections: I — Coverages; II — Who is an insured; III — Limits of insurance; IV — Commercial general liability conditions; and V — Definitions. Section I is subdivided into the following three separate coverages: Coverage A. Bodily injury and property damage liability; Coverage B. Personal and advertising injury liability; and Coverage C. Medical payments. Each of the three coverages sets forth its own insuring agreement and contains its own set of exclusions.
¶ 11 Coverage A. indicates it covers liability for personal injury or property damage caused by an occurrence. Coverage A. includes numerous exclusions, several of which explicitly state they do or do not apply to the "products — completed operations hazard." As set forth above, there is no separate coverage identified specifically for products — completed operations. Thus, it is apparent that that risk is part of Coverage A. This is confirmed by Section V — Definitions, which explains that the "`Products — completed operations hazard' includes all `bodily injury' and `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.
¶ 12 Thus, a plain reading of the policy reveals that it merely recognizes two types of property damage and personal injury risks — those arising from property or operations under the insured's control, and those arising from products or work over which the insured has relinquished control — and provides separate limits of coverage for each type of risk. The fact that the insured pays a separate (substantially discounted) premium for the (apparently diminished) risk of liability associated with products or work for which it has relinquished control does not dictate that the risk magically becomes a separate coverage
¶ 13 Hendricks asserts that the policy definition of "products — completed operations hazard" itself is an independent grant of coverage, subject to no exclusions or occurrence requirement. That interpretation is unreasonable at best. No reasonable insured would turn to the policy's definitions section, rather than the coverages section, to locate the grants of coverage. Moreover, the definition does not purport to define a coverage; instead, it defines a "hazard."
¶ 14 Hendricks also relies on Robert E. Lee & Associates, Inc. v. Peters, 206 Wis.2d 509, 557 N.W.2d 457 (Ct.App.1996). There, we held the policy's CGL pollution exclusion did not apply to products — completed operations coverage. Id. at 526, 557 N.W.2d 457. That case, however, involved an altogether different insuring agreement. We explained:
Id. The policy in Robert E. Lee contained both a CGL coverage form similar to the one at issue here and a separate, eight-page "Products/Completed Operations Liability Coverage Form," with its own coverage grant, exclusions, definitions and conditions. See id.; University of Wisconsin Law Library Wisconsin Briefs archive, http://libcd.law.wisc.edu/&wtilde;b_web/will0039/3b9b40df.pdf, Ex. G 8-15, 30-38 (last visited Oct. 3, 2012).
¶ 15 Coverage A.'s business risk exclusions — exclusions k. and 1. — if applicable, plainly exclude coverage for damage to Hendricks's products or completed work, i.e., the damaged concrete.
¶ 17 Finally, Hendricks argues Pekin forfeited its right to disclaim its duty of defense because it waited too long to do so and it failed to notify Hendricks that it was entitled to hire its own attorney at Pekin's expense. Hendricks's argument relies primarily, if not entirely, upon Maxwell v. Hartford Union High School District, 2010 WI App 128, 329 Wis.2d 654, 791 N.W.2d 195, rev'd, 2012 WI 58, 341 Wis.2d 238, 814 N.W.2d 484.
¶ 18 Following submission of the briefs in this case, Hendricks notified us of the subsequent decision reversing Maxwell. Hendricks indicated it had cited Maxwell "for the proposition that an insurer's unreasonable delay in contesting coverage precludes it from denying its duty to defend an insured," and that it "hereby withdraw(s) its reliance on Maxwell ... and any argument in its briefs related thereto." Absent further explanation or limitation, we deem Hendricks's notice as a withdrawal of its entire argument. In any event, we observe Hendricks conceded that Pekin did not provide a mere token defense, and Hendricks therefore suffered no prejudice.
Judgment affirmed.
In any event, Hendricks's proposed occurrence, the pitting and shaling of concrete, has not caused any alleged loss of use of the service stations. That is, there is no suggestion that the concrete's damaged condition has itself rendered the stations or carwashes inaccessible or unusable. See Glendenning's Limestone & Ready[-]Mix Co. v. Reimer, 2006 WI App 161, ¶¶ 27, 30, 38-39, 295 Wis.2d 556, 721 N.W.2d 704 (faulty workmanship in itself is not an occurrence, but it can give rise to an occurrence, which, in turn, causes damage to other property). Thus, because there has been no loss of use caused by an occurrence, no loss of use has happened yet under the policy definition.
Our discussion focuses on the 2003 policy year documents. Subsequent policies contained different rate multipliers and/or premiums, but the proportion remained consistent.
The Robert E. Lee policy is located in the appellant's appendix in that case. In lieu of the above direct link, the document may be searched for by the case citation at http://library.law.wisc.edu/eresouorces/wibriefs/.