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Ford v. Architectural Door & Millwork12/28/2004
the jury. Accordingly, reversal is not required even if the denial was erroneous. MCR 2.613(A).
Turning to ADAM's cross appeal, ADAM argues that the trial court erred in denying summary disposition on the remaining two claims by plaintiff that were submitted to the jury and in dismissing the third-party claim against Blackwell. In light of our affirmance of the jury's verdict, however, those issues are moot and we need not address them.
Next, we turn to Blackwell's appeal of the grant of summary disposition to Northland Insurance. Blackwell sought coverage, including providing a defense, from its insurance company, Northland. An insurer has a duty to defend if the allegations in the underlying complaint arguably fall within the coverage of the policy. Radenbaugh v. Farm Bureau General Ins Co of Michigan, 240 Mich App 134, 137; 610 NW2d 272 (2000). The duty to defend is broader than the duty to indemnify. Id. at 138.
The parties brought cross-motions for summary disposition. The trial court concluded that, while there was an "occurrence" under the policy, exclusion j(6) applied and excluded the claim from coverage. We are persuaded that the trial court erred in concluding that exclusion j(6) applied.
The insurance policy at issue includes the following provision:
This insurance does not apply to:
j. Damage to Property
"Property damage" to:
(6) That particular part of any property that must be restored, repaired or replaced because "your work" was incorrectly performed on it.
Paragraph (6) of this exclusion does not apply to "property damage" included in the "products-completed operations hazard".
The policy defines the "products-completed operations hazard" as follows:
16. "Products-completed operations hazard":
a. Includes all "bodily injury " and "property damage" occurring away from premises you own or rent and arising out of "your product" or "your work" except:
(1) Products that are still in your physical possession; or
(2) Work that has not yet been completed or abandoned. However, "your work" will be deemed completed at the earliest of the following times:
(a) When all of the work called for in your contract has been completed.
(b) When all of the work to be done at the job site has been completed if your contract calls for work at more than one job site.
(c) When that part of the work done at a job site has been put to its intended use by any person or organization other than another contactor or subcontractor working on the same project.
Work that may need service, maintenance, correction, repair or replacement, but which is otherwise complete, will be treated as completed.
The trial court concluded that the "products-completed operations hazard" exception to the exclusion does not apply:
The products-completed operations hazard however, does not apply because this claim does not involve "property damage" that occurred away from their premises. The damage at issue was in the quality of Blackwell-Conway's product and it occurred while the product was in Blackwell-Conway's premises. While it was not discovered until the finish was applied to it, it was nevertheless damaged upon installation. As such, the coverage sought is excluded under Exclusion j(6).
The trial court erroneously concluded that the "property damage" claimed in this case occurred at Blackwell's premises. The claim against Blackwell was not just for damage to the product supplied by Blackwell. Rather, the claim involved damage caused by the Blackwell
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