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48 Ins. Counsel J. 257 (1981)
Is Unworkmanlike Work of an Insured Covered by a General Liability Policy

handle is hein.journals/defcon48 and id is 259 raw text is: Unworkmanlike Work Of An Insured IS UNWORKMANLIKE WORK OF AN INSURED COVERED BY A GENERAL LIABILITY POLICY? WILLIAM D. SLICKER Daytona Beach, Florida Y OUR CLIENT has issued a compre- hensive general liability policy, sub- ject to the standard exclusions, to a con- tractor who builds additions to houses. The insured builds 9f new family room on- to the plaintiff's house. In an attempt to cut costs, the insured uses substandard lumber and improperly mixed cement. After the family room has been completed and the insured has been paid, the plain- tiff discovers that the walls are buckling and the roof is leaking. He sues the in- sured, alleges that the construction was not done in a workmanlike manner, and seeks recovery of the cost of replacing the defec- tive family room. Additionally, the plain- tiff sues your client and alleges that the comprehensive general liability policy cov- ers this conduct. Plaintiff even cites to you some cases that agree with his coverage ar- gument. Is the unworkmanlike work of the insured really covered by your client's pol- icy? The present standard comprehensive general liability policy includes the follow- ing two exclusions: (a) to liability assumed by the insured un- der any contract or agreement except an incidental contract; but this exclusion does not apply to a warranty of fitness or qual- ity of the named insured's products or a warranty that work performed by or on be- half of the named insured will be done in a workmanlike manner; (o) to property damage to work performed by or on behalf of the named insured aris- ing out of the work or any portion thereof, or out of materials, parts or equipment fur- nished in connection therewith. The plaintiff's argument with regard to coverage is that these two exclusions are re- pugnant in that exclusion (o) takes away coverage allowed for in the exception to exclusion (a). Repugnant clauses create WILLIAM D. SLICKER re- ceived his B.A. and I.D. degrees from Florida State University. He was a ju- dicial aide to Judge Ste- phen H. Grimes of Flori- da's Second District Court of Appeal, and subse- quently was an associate in a firm engaged in in- surance defense. He is presently a judicial aide to Judge Warren H. Cobb of Florida's Fifth District 'Court of Appeal. an ambiguity and any ambiguity is to be construed in favor of the insured. Plaintiff relies upon Federal Ins. Co. v. P.A.T. Homes, Inc.,' Commercial Union Assurance Companies v. Gollan,2 Aid Ins. Services, Inc. v. Geiger.3 What is the fallacy of this reasoning? The work performed exclusion con- tained in exclusion (o) has been used for many years and has been held to unambig- uously exclude liability arising from inter- nal defectiveness of the insured's own work product.4 The claim of ambiguity arises only by reading the exception to exclusion (a) as a grant of coverage that is an exception to exclusion (o) .5 This is the fallacy of plain- tiff's reasoning. An exclusion cannot grant coverage and each exclusion is to be read separately. Therefore, an exception to one exclusion cannot be read as a grant of cov- erage in conflict with a separate exclusion.6 1113 Ariz 136, 547 P2d 1050 (1976). 2118 NH 744, 394 A2d 839 (1978). 3294 NW2d 411 (ND 1980). 4Home Indem. Co. v. Miller, 399 F2d 78 (8th Cir 1968) ; Engine Serv., Inc. v. Reliance Ins. Co., 487 P2d 474 (Wyo 1971) ; B. A. Green Constr. Co. v. Liberty Mut. Ins. Co., 213 Kan 393, 517 P2d 563 (1973). 5See notes 1 to 3, supra. 6Haugan v. Home Indem. Co., 86 SD 406, 197 NW2d 18 (1972) ; Biebel Bros., Inc. v. United States Fid. & Guar. Co., 522 F2d 1207 (8th Cir 1975) ; St. Page 257

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