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Ford v. Architectural Door & Millwork12/28/2004
product to the house that was being constructed. Therefore, the claim made against Blackwell was for "property damage" occurring away from Blackwell's premises arising out of Blackwell's product. Accordingly, the "products-completed operations hazard" exception to the exclusion does apply and the trial court erred in concluding that exclusion j(6) applied to the case at bar.
Northland also argues that the trial court erred in determining that an "occurrence" occurred within the meaning of the policy. If so, then the trial court reached the correct result, albeit for the incorrect reason. But we are not persuaded that the trial court erred in its determination. We believe that this case is controlled by Radenbaugh, supra. The definition of "occurrence" in the policy at issue here is exactly the same as the definition of "occurrence" in Radenbaugh. The Radenbaugh Court looked to, and adopted the reasoning of, the opinion in Calvert Ins Co v Herbert Roofing & Insulation Co, 807 F Supp 435 (ED Mich, 1992). After considering the opinions in Hawkeye-Security Ins Co v Vector Const Co, 185 Mich App 369; 460 NW2d 329 (1990), and Bundy Tubing Co v Royal Indemnity Co, 298 F2d 151 (CA 6, 1962), Calvert, supra at 438, concluded as follows:
The holdings in Bundy and Vector can be reconciled by focusing on the property damage at issue in each case. In Vector, the insured's defective workmanship resulted only in damage to the insured's work product. In Bundy, the insured's defective workmanship resulted in damage to the property of others. Taken together, these cases stand for the proposition that when an insured's defective workmanship results in damage to the property of others, an "accident" exists within the meaning of the standard comprehensive liability policy.
As discussed above, the allegations raised by plaintiff in this case includes claims of damage done to his house because of Blackwell's defective product. Accordingly, the allegations in the underlying complaint come within the definition of "occurrence."
Northland also argues that exclusion "m" under the policy also applies. But the trial court did not base its ruling on exclusion "m" and we decline to consider the issue. Northland, however, is free to raise that issue on remand.
Finally, we turn to Blackwell's appeal as to plaintiff and ADAM in which Blackwell argues that the trial court erred in denying the award of case evaluation sanctions to Blackwell under MCR 2.403(O). We disagree. Turning first to whether Blackwell is entitled to sanctions against plaintiff, the trial court concluded that Blackwell was not entitled to sanctions because plaintiff's claim against Blackwell was not filed until after the case evaluation. We agree. At the time this case was submitted for evaluation, the only claims in plaintiff's complaint were against ADAM. Blackwell's involvement at that point was limited to ADAM's claim for indemnity against Blackwell. Accordingly, the case evaluation award of $50,000 in favor of plaintiff could only represent the evaluation of plaintiff's claims against ADAM.
Blackwell argues that the trial would have been avoided had plaintiff accepted the award. To some extent that is true, but it is irrelevant. First, a trial between plaintiff and Blackwell would not necessarily have been avoided if plaintiff nevertheless filed a claim directly against Blackwell. That is, plaintiff may have accepted an award as to ADAM and then pursued a claim against Blackwell for additional money. Second, once the claim was added, Blackwell could have raised the issue with the trial court that the claim had not been evaluated and request that the new claim be submitted to case evaluation or Bla
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