M. Mooney Corp. v. United States Fidelity & Guaranty Co.

Brock, C.J.,

dissenting: Because the majority has engaged in what may be characterized as nothing less than verbal gymnastics in order to find coverage under the insurance provisions at issue in this case, I respectfully dissent.

The majority’s reasoning that a “clear causal link” between the occurrence of a fire in one condominium unit and the fire marshal’s order prohibiting use of the remaining units’ fireplaces thereby established an “accident” resulting in “property damage,” presents a strained application of the policy’s terms. The policy does not cover an occurrence of alleged negligent construction; it covers negligent construction that results in an occurrence. Merely because the remaining units were found to contain allegedly negligent construction and their use was consequently withdrawn from the market does not mean there has been an “accident” within the meaning of the policy.

In addition, I cannot approve of the majority’s construction of exclusion (p) as ambiguous. Exclusion (p) excludes from coverage costs incurred by the withdrawal of work completed from the market. There are no words of limitation concerning the identity of the party who might withdraw the work completed from the market. Thus, under the plain language of the exclusion, it is immaterial that the withdrawal was not by the insured.

Finally, I consider the analysis given by the majority as to the effect of exclusion (3) unsatisfactory as important considerations of construction risks and principles of insurance have simply been ignored.

I would reverse the decision of the trial court and deny coverage under the insurance policies issued.

Thayer, J., joins in the dissent.