Harbor East-Office v. Travelers Casualty

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HARBOR EAST-OFFICE, LLC,
Plaintiff-Appellant,

v.

TRAVELERS CASUALTY AND SURETY
No. 98-2329
COMPANY, formerly known as Aetna
Casualty & Surety Company;
FARMINGTON CASUALTY COMPANY,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CA-98-358-S)

Argued: April 7, 1999

Decided: August 30, 1999

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: David William Kinkopf, GALLAGHER, EVELIUS &
JONES, L.L.P., Baltimore, Maryland, for Appellant. Lee Hedgecock
Ogburn, KRAMON & GRAHAM, P.A., Baltimore, Maryland, for
Appellees. ON BRIEF: Thomas N. Biddison, Jr., Michael W. Skojec,
GALLAGHER, EVELIUS & JONES, L.L.P., Baltimore, Maryland,
for Appellant. Kevin F. Arthur, KRAMON & GRAHAM, P.A., Balti-
more, Maryland, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

In a dispute arising from the improper selection of piles for a con-
struction project in the Inner Harbor area of Baltimore, the contractor
on the project was required to install additional piles. To recover the
costs of repair, the contractor sued the foundation subcontractor, and
the subcontractor impleaded Harbor East-Office, LLC, the owner of
the project. Harbor East filed this action against its insurer, Travelers
Casualty and Surety Company, seeking a declaratory judgment that
Travelers is required to provide Harbor East with a defense and with
coverage for the claims alleged in the underlying suit.

The district court granted summary judgment to Travelers. Because
we find that the conduct imputed to Harbor East did not result in
"property damage" as covered by the relevant insurance policies, we
affirm.

I

Harbor East, the owner of a newly developed office-building proj-
ect on the waterfront in Baltimore, engaged a general contractor to
construct the project, and the contractor in turn hired subcontractors.
Two of the subcontractors, Hardin-Huber, Inc. and Underpinning &
Foundation Constructors, Inc., who had formed a joint venture for the
purpose of constructing the foundation of the office building, installed
proprietary "TPT pre-cast" piles that were specified to have a mini-
mum load-bearing capacity of 175 tons. However, because of the
peculiar soil conditions at the site, the piles were rendered unable to

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bear this weight. To remedy the problem, the general contractor spent
approximately $3 million to design and install over 200 "helper" H-
piles.

The general contractor then brought suit against the two subcon-
tractors to recover the costs of this remedial work, and one of the sub-
contractors, Underpinning, filed a third-party complaint against
Harbor East. Underpinning alleged that Harbor East's initial engineer-
ing report, prepared by an independent engineering firm, Geo-
Technology Associates, Inc., warned against the use of pre-cast piles,
noting that on two nearby sites, pre-cast piles had been used and had
failed, necessitating replacement by H-piles at great expense. Geo-
Technology recommended the initial use of H-piles rather than the
less expensive pre-cast piles. Underpinning alleged that Harbor East,
in an attempt to reduce costs, disregarded Geo-Technology's report
and sought a second opinion from Engineering Consulting Services,
Ltd. ("ECS"). While ECS was given Geo-Technology's report, it filed
its own report which did not mention Geo-Technology's recommen-
dation but rather recommended the use of the lower cost pre-cast
piles. Underpinning alleged that it had no knowledge of the Geo-
Technology report as it was given only the ECS report. Underpin-
ning's complaint charged Harbor East with, inter alia, fraud, negli-
gent misrepresentation, fraudulent conspiracy, and respondeat
superior liability for the alleged torts committed by ECS.

In this declaratory judgment action, Harbor East contends that
Underpinning's claims against it are covered by two comprehensive
general liability insurance policies written by Travelers and that,
under these policies, Travelers had a duty to defend Harbor East.
Travelers issued one policy to Harbor East's construction manager
and the other to its general contractor, and it named Harbor East as
an additional insured on each policy.

Each policy states: "We will pay those sums that the insured
becomes legally obligated to pay as damages because of `bodily
injury' or `property damage' to which this insurance applies. We will
have the right and duty to defend any `suit' seeking those damages."
Each policy defines "property damage" as including both "[p]hysical
injury to tangible property, including all resulting loss of use of that

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property," and "[l]oss of use of tangible property that is not physically
injured."

The policies also contain the following exclusions: The owned
property exclusion excludes coverage for property damage to
"[p]roperty you own, rent, or occupy," as well as to "[t]hat particular
part of [real] property[,] on which you or any contractor[s] or subcon-
tractor[s] working directly or indirectly on your behalf are performing
operations, if the `property damage' arises out of those operations."
The work exclusion excludes coverage for property damage to "prop-
erty that has not been physically injured, arising out of [a] defect,
deficiency, inadequacy or dangerous condition in`your product' or
`your work.'" The term "your work" means"[w]ork or operations per-
formed by you or on your behalf [and] [m]aterials, parts or equipment
furnished in connection with such work or operations." The policy
also states that "[t]hroughout this policy the words `you' and `your'
refer to the Named Insured shown in the Declarations, and any other
person or organization qualifying as a Named Insured under this pol-
icy."

On cross motions for summary judgment, the district court entered
judgment in favor of Travelers, concluding that its policies did not
provide coverage for or a duty to defend the claims made in the
underlying litigation. The court held that the underlying complaint
alleged no property damage, as required for coverage, noting that "not
one iota of [the piles'] inherent physical capabilities has been dimin-
ished since the date of their creation by anything Harbor East is
alleged to have done, nor have they been out of use for one day since
their installation."

From the district court's judgment, Harbor East filed this appeal.

II

In this diversity suit, we apply Maryland law. "In Maryland, insur-
ance contracts are interpreted as are other contracts." North River Ins.
Co. v. Mayor and City Council of Baltimore, 680 A.2d 480, 483 (Md.
1996) (citations omitted). The rule for construing policies is that "the
intention of the parties is to be ascertained if reasonably possible from
the policy as a whole." Id. (internal quotation marks and citation omit-

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ted). The duty of an insurance carrier to defend its insured is broader
than the duty to pay a claim. Aetna Ins. Co. v. Aaron, 685 A.2d 858,
862 (Md. App. 1996). The duty to defend arises whenever the com-
plaint against the insured alleges "action that is potentially covered by
the policy, no matter how attenuated, frivolous, or illogical that alle-
gation may be." Sheets v. Brethren Mut. Ins. Co., 679 A.2d 540, 544
(Md. 1996) (citation omitted).

Turning to the language of the policies in question for there to be
coverage, there must have been either "physical injury" to tangible
property or the "loss of use" of tangible property. Harbor East claims
that the TPT piles were physically injured "when they became physi-
cally impeded from functioning properly as a result of being improp-
erly placed in clayey soil." As a result of being placed in soil for
which they were not suited, the piles are no longer capable of bearing
175 tons as they would be if placed in more appropriate soil.

This contention is meritless. The piles were not physically injured.
Indeed, they still stand underneath the building with all of the same
physical capabilities that they had before they were placed in the soil.
They cannot support as much weight as they would be able to if
placed in more favorable soil, but this is not the result of any physical
injury. It is, rather, the result of the piles' preexisting capabilities and
limitations. The piles have not been physically damaged; they have
simply been misused.

Harbor East argues additionally that there has been a "loss of use"
of the piles under two theories. First, it argues, the piles can now sup-
port less than half as much weight as they would be able to support
were they in more suitable soil. Therefore, it concludes, over one-half
of the use of the piles has been lost. Second, it contends that the fail-
ure of the piles caused an 81-day delay to the project and that this 81-
day delay constituted a temporary "loss of use" sufficient to invoke
at least the duty to defend under the policies.

While a loss of use does not have to be permanent to constitute
"property damage," see id. at 545, in this case, there was no loss of
use, temporary or permanent. The piles continued to be used to sup-
port the building. While they were not capable of supporting as much
weight as expected, this is not because of any loss of use; it was

5
because they were never capable of meeting expectations given their
inherent capabilities and the condition of the soil at the site. Addition-
ally, there was no "loss of use" of the piles during the 81-day period
because the piles were being used during the entire period to support
the partially constructed building. It is true that the building could not
be used, during the delay period, but it never had been in use prior
to that time.

Because there was neither physical injury to the piles nor loss of
use of the piles, the policies' requirement for"property damage" were
not alleged in the underlying case, and Travelers therefore had no
duty to indemnify or to defend Harbor East.

III

Even if we were to assume that "property damage" occurred, policy
exclusions would apply in this case. Both policies exclude coverage
for (1) property damage to "[p]roperty you own, rent, or occupy," (2)
property damage to "[t]hat particular part of[real] property[,] on
which you or any contractor[s] or subcontractor[s] working directly
or indirectly on your behalf are performing operations, if the `prop-
erty damage' arises out of those operations," and (3) property damage
to "property that has not been physically injured, arising out of [a]
defect, deficiency, inadequacy or dangerous condition in `your prod-
uct' or `your work' [which includes w]ork or operations performed by
you or on your behalf [and] [m]aterials, parts or equipment furnished
in connection with such work or operations."

Harbor East owns the piles, which became its property when the
piles were affixed to Harbor East's real estate. See Schofer v.
Hoffman, 34 A.2d 350, 351 (1943); State Dep't of Assessments &
Taxation v. Metrovision of Prince George's County, Inc., 607 A.2d
110, 114 (Md. App. 1992) (Motz, J.). This ownership by the insured
implicates the first exclusion. Also the assumed property damage
would have occurred to the real property (i.e. the lot containing the
office building, a part of which was the affixed piles) on which Har-
bor East's contractors and subcontractors were working and the dam-
age would have arisen out of those operations, implicating the second
exclusion. And, finally the assumed property damage would have
occurred to piles that had not been physically injured, as a result of

6
the work of Harbor East and/or entities working on its behalf, thus
implicating the third exclusion.

Harbor East claims that the exclusions do not bar coverage here
because they all refer to "you," and under the policy, "you" refers to
the named insured and not to additional insureds such as Harbor East.
Although this contention might be questionable under the Maryland
rule that additional insureds generally have no greater rights than the
named insured, see DeJarnette v. Federal Kemper Ins. Co., 475 A.2d
454, 462 (Md. 1984), we need not decide that issue because, even if
we assume that "you" refers only to the named insured, at least two
exclusions would still bar coverage.

The named insureds on the two policies are Harbor East's construc-
tion manager and general contractor, respectively. The policies
exclude property damage to any real property "on which you or any
contractor[s] or subcontractor[s] working . . . on your behalf are per-
forming operations, if the `property damage' arises out of those oper-
ations." Even if the word "you" applies only to the construction
manager and the general contractor, the exclusion applies here
because the assumed "damage" would have occurred to real property
on which the named insureds or their agents were performing opera-
tions, and the damage was caused by those operations.

The policy also excludes property damage to "property that has not
been physically injured, arising out of [an] inadequacy in . . . `your
work.'" "Your work" includes "[w]ork or operations performed by
you or on your behalf [and m]aterials, parts or equipment furnished
in connection with such work or operations." Again, even if the "you"
refers only to the construction manager and the general contractor, the
exclusion would apply because the assumed "damage" would have
occurred because of an inadequacy in the materials furnished in con-
nection with the work of the named insureds or their agents.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

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