F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
February 26, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
FO R TH E TENTH CIRCUIT
ADAIR GROUP, INC., a Colorado
corporation,
Plaintiff–Appellant, No. 05-1350
v.
ST. PA UL FIR E A N D MA R IN E
IN SURANCE COM PANY, a
M innesota corporation,
Defendant–Appellee.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF COLORADO
(D .C . N o. 04-CV-1996-PSF-PAC)
Dennis B. Polk (James J. Emanuel with him on the briefs), Holley, Albertson &
Polk, P.C., Golden, Colorado, for Plaintiff–Appellant.
David B. Gelman (Ronald H . Nemirow, Kennedy Childs & Fogg, P.C., Denver,
Colorado, and Eric J. Strobel, Hinshaw & Culbertson LLP, M inneapolis,
M innesota, with him on the briefs), Kennedy Childs and Fogg, P.C., Denver,
Colorado, for Defendant-Appellee.
Before TA CH A, Chief Circuit Judge, M cKAY, and HENRY, Circuit Judges.
M cK A Y, Circuit Judge.
In this case, we are called upon to interpret a commercial general liability
insurance policy issued to Adair Group, Inc. (“Adair”) by St. Paul Fire and
M arine Insurance Co. (“St. Paul”). Specifically, we are asked to review the
district court’s grant of summary judgment to St. Paul on the issue of insurance
coverage.
Adair sought indemnity from St. Paul for a $2.5 million arbitration aw ard
setoff against Adair for construction deficiencies in w ork done by Adair’s
subcontractors on two projects. After St. Paul informed Adair that the arbitration
award was not covered by its insurance policy, Adair filed this action in Colorado
state court. St. Paul removed the action to the district court based on diversity.
The parties filed cross-motions for summary judgment on the issue of coverage,
and the district court granted St. Paul’s motion, holding that no covered “event”
under the policy had occurred. As an additional ground, the court held that
coverage was also precluded by the policy’s impaired property exclusion.
W e review the district court’s grant of summary judgment de novo, using
the same legal standard applied by the district court. Cooperm an v. David, 214
F.3d 1162, 1164 (10th Cir. 2000). Summary judgment is appropriate where “the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c). W e agree with the parties that Colorado law
governs, and we review de novo the district court’s interpretation of Colorado
law. See Mincin v. Vail Holdings, Inc., 308 F.3d 1105, 1108-09 (10th Cir. 2002).
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The insurance policy provides that St. Paul will “pay amounts any protected
person is legally required to pay as damages for covered . . . property damage . . .
that: happens while this agreement is in effect; and is caused by an event.”
(Appellant’s App. at 100.) “Event” is defined as “an accident, including
continuous or repeated exposure to substantially the same general harmful
conditions.” (Id.)
Adair argues that the event in this case is “[t]he unanticipated failure of
some of Adair’s subcontractors to perform their work in a workmanlike manner.”
(Appellant’s Br. at 15.) Adair cites to a number of cases that purportedly support
this argument. How ever, as the district court correctly noted, in none of these
cases was faulty workmanship in and of itself treated as an event triggering
application of an insurance policy. Rather, additional damage that resulted from
the faulty workmanship was deemed to be covered under the policies. See Cyprus
Amax M inerals Co. v. Lexington Ins. Co., 74 P.3d 294, 308 (Colo. 2003)
(insurance policy covered property damage caused by landslide); Hecla M in. Co.
v. New Hampshire Ins. Co., 811 P.2d 1083, 1088 (Colo. 1991) (policy covered
environmental damage caused by mining operations); Hoang v. M onterra Homes
(Powderhorn) LLC, 129 P.3d 1028, 1032 (Colo. App. 2005), rev’d on other
grounds sub nom . H oang v. Assurance Co. of Am., 2007 W L 38997 (Colo. 2007)
(policy covered damage to homes due to soil problems); Am. Employer’s Ins. Co.
v. Pinkard Constr. Co., 806 P.2d 954, 955 (Colo. App. 1990) (policy covered
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damage from roof corrosion caused by use of improper fill material); Colard v.
Am. Family M ut. Ins. Co., 709 P.2d 11, 13 (Colo. App. 1985) (policy covered
damage from exposure caused by contractor’s poor workmanship). In this case,
Adair is seeking indemnity for the construction deficiencies alone, not for any
consequent or resultant damages flowing from the poor w orkmanship.
Interpreting a provision nearly identical to the provision at issue here, the
Colorado Court of Appeals held in Union Ins. Co. v. Hottenstein, 83 P.3d 1196,
1202 (Colo. App. 2003), that “poor workmanship constituting a breach of
contract” was not a covered occurrence. See also M cGowan v. State Farm Fire &
Cas. Co., 100 P.3d 521, 525 (Colo. App. 2004) (“Comprehensive general liability
policies normally exclude coverage for faulty workmanship based on the rationale
that poor workmanship is considered a business risk to be borne by the
policyholder, rather than a ‘fortuitous event’ entitling the insured to coverage.”).
W e are not persuaded by Adair’s argument that Hottenstein is inapposite because
the arbitration panel determined that Adair was not guilty of a “substantial
breach” of the construction contract. (Appellant’s A pp. at 163; see Appellant’s
Br. at 21..) W hile Adair may not have been guilty of a substantial breach, the
arbitration award at issue in this case was based upon Adair’s failure, as general
contractor, to fully comply with the contract specifications, and thus the
Hottenstein reasoning still applies.
W e are also not persuaded that a different result is required because of
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Adair’s use of subcontractors. As the federal district court held in DCB
Construction Co., Inc. v. Travelers Indemnity Co. of Illinois, 225 F. Supp. 2d
1230, 1232 (D. Colo. 2002), a general contractor should not be able to turn its
failure to complete construction according to the contract into a covered event
“by bootstrapping on its subcontractor’s ‘negligence.’” A commercial general
liability insurance policy is not intended to provide an anticipatory guarantee of
quality work. See id.
For the foregoing reasons, we conclude that the deficient performance of
Adair’s subcontractors is not in itself an event triggering application of the
insurance policy, 1 and thus that the district court properly granted summary
judgment to St. Paul.
AFFIRM ED.
1
Because w e affirm the district court’s decision based on this ground, we
do not consider the court’s additional conclusion that the impaired property
exclusion precludes coverage under the policy.
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