A plumbing contractor’s employee is soldering two lengths of pipe together when a fellow employee asks him to assist with another task for a moment. The first employee lays the soldering torch on a ceiling joist, forgetting that it is still hot. While he is away, the joist begins to smolder, then small licks of flame form and ignite combustible material in the ceiling. By the time someone notices, fire is consuming the ceiling. Firefighters’ efforts to extinguish the blaze causes water damage to portions of the building, and walls near the fire’s starting point suffer smoke damage.
The building owner will most likely hold the contractor responsible for the cost of repairing the damage. In turn, the contractor will look to his General Liability insurance policy to cover that cost. Will the insurance company pay for the repairs?
The Insurance Services Office’s Commercial General Liability Coverage Form states, “This insurance does not apply to … ‘property damage’ to … (t)hat particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the ‘property damage’ arises out of those operations … ” What does this mean, and how does it apply to an incident like this one? What does the form mean by the phrase, “that particular part”? Several courts have weighed in on this question.
A Tennessee court in 1975 ruled against an electrical contractor whose employee, while installing circuit breakers in a switchboard, caused a short circuit that destroyed the entire switchboard. The court said that the employee was performing operations on the switchboard, not just the individual circuit, and therefore liability coverage did not apply. Similarly, a Massachusetts court ruled against a cleaning contractor in 1989. The contractor was cleaning the bottom of an underground oil storage tank when an explosion occurred, destroying the entire tank. The contractor argued that the insurance should cover all of the damage except that to the bottom of the tank, but the court ruled that the entire tank was “that particular part” on which the contractor was performing operations.
Conversely, a Minnesota court granted coverage for a contractor that had been hired to clear trees and brush from a construction site but that also cut down trees on an adjoining property. The court said that, although the liability policy would not cover damage to property the contractor had been hired to work on, it did cover damage to the property of a third party. A New York court ruled in 1974 that a liability policy covered damage that occurred after the contractor had completed operations.
The courts have not established firm rules about what constitutes “that particular part” of property on which a contractor is performing operations. Case law will vary from one state to another. Because of this, contractors should discuss the exposure with one of our insurance agents. To reduce the chances of an uninsured loss occurring, an agent might recommend the purchase of a Builders Risk or Installation Floater policy. These policies cover property that the contractor is installing on a construction site while it’s in storage, in transit, on the job site, and during installation. They also usually cover property of others for which the contractor might be liable. Unlike the General Liability policy, there are no standard versions of these policies, so contractors must review them carefully and ask our agents questions about anything that is unclear.
The law of averages suggests that most contractors will accidentally damage a customer’s property at some point. Now is the time to make sure that there will be no insurance surprises when it happens.