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Herzog Contracting Corp. v. Oliver12/19/2001
ble to the endorsement.)
With respect to any professional services shown in the Schedule, this insurance policy does not apply to "bodily injury ," "property damage," or "advertising injury," due to the rendering or failure to render any professional service.
Because there was no entry on the endorsement itself, the professional service to which this exclusion applies is in the Declarations. In this instance, the applicable listing corresponding to the endorsement number of the exclusion is "analytical chemist."
GTL contends that the exclusion does not apply because it did not perform the actual chemical analysis of the soil. Rather, GTL took soil samples at the site, then forwarded the samples to a laboratory in Ruston, Louisiana, for analysis.
GTL sent Herzog an environmental survey report. The report prepared by GTL states that the purposes of the study were to: (1) explore the subsurface conditions present at the site; and 2) determine any possible contamination from a wood preserving plant previously located on this site. The report describes the "Field Operations" and "Laboratory Testing." GTL states that it gathered five soil borings, which " pon return to our laboratory, selected samples were subjected to standard laboratory tests." Samples from two locations taken were sent to Enviro-Med laboratories for EP-Toxicity analysis to determine possible contamination from heavy metals and other toxins. The report stated that the soil consisted of alluvial deposits and was mostly clay with traces of decayed vegetation and calcareous nodules. It concluded that, due to the clay nature of the soil, if there had been any past chemical spills, they would have been contained on the surface and clean-up would be fairly easy. GTL also analyzed the results of the EP-Toxicity Tests performed by Enviro-Med Laboratories and expressed its opinion that the site was free of contamination and no extensive clean-up operations were anticipated.
It is clear that Herzog hired GTL to perform the environmental survey of the property, which included an analysis of the soil conditions to determine the presence of toxins related to the prior creosote plant operations. The fact that GTL may have subcontracted part of the actual laboratory testing to another firm did not diminish its role or eliminate its obligation to provide the analysis of the soil, including the chemical composition, the results of which it analyzed and reported to Herzog.
We conclude, therefore, that GTL was providing a professional service for Herzog that included chemical analysis of the soil, regardless of whether it chose to send some of the samples to an outside laboratory for testing. A general liability policy was never intended to guarantee the quality of GTL's professional services or to serve as a performance bond. Swarts v. Woodlawn, Inc., 610 So.2d 888 (La. App. 1st Cir. 1992). Duty to Defend
The summary judgment dismisses all claims of GTL and Herzog against the Maryland Defendants, thereby including GTL's claim that the insurer had a duty to provide GTL with a defense against the claims of Herzog. The insuring agreement in the Commercial General Liability ("CGL") policy issued by National Standard to GTL states that the insurer has a "right and duty to defend any `suit' seeking [ ] damages" for bodily injury or property damage to which the insurance applies.
It is well-settled law that the insurer's obligation to defend suits against its insured is generally broader than its liability for damage claims. Steptoe v. Masco Const. Co., 93-2064 (La. 08/18/94), 643 So.2d 1213; Yarbrough v. Federal Land Bank of Jackson, 31,815 (La. App. 2d Cir. 03/31/99), 731
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