As most contractors know, scope, price and time are the “big” three in any construction contract. Nearly as important, however, are the insurance provisions. Patricularly, when things go bad on a construction project. As the next case, Guastello v. AIG Specialty Insurance Company 61 Cal.App.5th 97 (2021) discusses, the difference between “claims-made” versus “occurrence-based” coverage can be extremely important.
The Guastello Case
In 2003 and 2004, subcontractor C.W. Poss Inc. built retaining walls in the Pointe Monarch housing development in Dana Point, California. Poss performed all related excavation, ground and grading work.
In 2006, Thomas Guastello purchased a home in the development, and in January 2010, a retaining wall close to his lot suffered a massive failure that causing over $700,000 in damages.
In 2013, Guastello sued Poss and other claiming, among other things, that Poss negligently designed and installed the retaining wall. Poss’ insurer, commercial general liability insurance carrier, AIG Specialty Insurance Company, notified Poss that it had no duty to defend and indemnify Poss because the damage occurred in January 2010, outside of the policy’s coverage period from February 1, 2003 to December 3, 2004.
In 2015, Guastello filed a request for default judgement against Poss. In support of his request, he attached the affidavit of a geotechnical engineer, Steven E. Strickler, opined that the retaining wall had collapsed due to improper drainage, soil compaction, and substandard material provided by Poss. The trial court entered a default judgement against Poss in the amount fo $701,133.17.
In 2017, Guastello filed a lawsuit against AIG alleging three causes of action for enforcement fo the default judgment, breach of the covenant of good faith and fair dealing, and declaratory relief. In response, AIG filed a motion for summary judgment arguing that the damage caused by the retaining wall did not occur until after expiration of the policy’s coverage period. The trial court agreed finding that Guastello “did not experience property damage until well past the expiration of the policy.”
On appeal, Guastello argued that there were triable issues of material fact as to whether the property damage, an “occurrence” under the policy, took place during the coverage period. a subcontractor built a retaining wall that collapsed years later causing damage to a residential lot. The homeowner sued the subcontractor, obtained a default judgment, and then sued the subcontractor’s insurance company to enforce the default judgment.
The 4th District Court of Appeal, explaining the difference between “claims-made” and “occurrence-based” insurance policies, explained:
A “claims-made” policy provides coverage only if the claim is made during the policy period. An “occurrence” policy provides coverage for damages that occur during the policy period, even if the claim is made after the policy has expired.” “[I]t is well established that the time of the relevant ‘occurrence’ or ‘accident’ is not when the wrongful act was committed but when the complaining party was actually damaged.” it is also a ‘settled ruled . . . when continuous or progressively deteriorating damage or injury first manifests itself’ the insurer ‘remains obligated to indemnify the insured for the entirety fo the ensuing damage or injury.
The Court of Appeal, analyzing the commercial general liability insurance provided by AIG, noted:
- The policy provided that AIG “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.”
- The policy further provided that it only applies to “property damage” if that damage is caused by an “occurrence” and the occurrence takes place during the policy’s effective dates.
- The policy further defined “occurrence as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions” and that where “continuing or repeated exposure” is at issue “property damage” shall be deemed one “occurrence” and shall be deemed to occur when such “‘property damage’ first commenced.'”
And, here, held the Court of Appeal, the declaration of Guastello’s expert created a triable issue of material fact, that is, it was “Guastello’s theory fo the case that the latent damages to his property were present in 2004 (due to Poss’ alleged negligence), the damages were continuous and progressive, and the damages were not manifested or revealed until the catastrophic collapse fo the retaining wall in 2010” and that “this is a contested issue fo material fact.”
Guastello highlights the important difference between “claims-made” and “occurrence based” insurance policies and how progressive property damage, while it might not be covered under the former, may be covered under the later.