Erie Insurance Exchange v. Colony Development Corp.12/31/2003
in buildings 6, 8, 10, and 11 were transferred from Colony to residential owners during the early stages of construction, we find exclusion B.7. applies and, therefore, Colony, as an insured, and the Association, as Colony's assignee, are precluded from recovery under the CGL policy with respect to property damage associated with foundation walls.
.Similarly, to the extent that damage to the firewalls, decks, and roof trusses occurred during construction (1) while Colony retained an ownership interest in the condominium development, and (2) before titles to the individual units were transferred to residential owners, we find exclusion B.7. applies and, therefore, Colony, as an insured, and the Association, as Colony's assignee, are precluded from recovery under the CGL policy with respect to property damage to the firewalls, decks, and roof trusses.
.According to exclusion A.7.e., property damage liability coverage does not apply to damages due to "any service of a professional nature, including but not limited to: 1) the preparation or approval of maps, plans, opinions, reports, surveys, designs or specifications, and 2) supervisory, inspection or engineering services." Policy, at 19.
.Here, the parties stipulated as fact that Colony, as the general contractor, "was responsible for overall coordination, supervision, inspection, and approval of the subcontractors and their work." Stipulation I.1. The parties further stipulated that Craig W. Murdick was the architect for the condominium complex. Stipulation K.
.Although Colony did not prepare the plans, surveys, designs, or specifications for the condominium complex, Colony, as the general contractor, was "responsible" for the "inspection, and approval" of the subcontractor-architect and the subcontractor-architect's work. See Stipulation I.1. As observed in Drs. Harold & Jack Kahn, O.D., Inc. v. Cincinnati Ins. Co. (Feb. 3, 1984), Lucas App. No. L-83-309, quoting Aker v. Sabatier (La.App. 1967), 200 So.2d 94, 97, " 'Professional services, in its usual connotation, means services performed by one in the ordinary course of the practice of his profession, on behalf of another, pursuant to some agreement, express or implied, and for which it could reasonably be expected some compensation would be due.' "
.Therefore, to the extent that coordination, supervision, inspection, and approval of subcontractors and subcontractors' work is a service Colony performed in the ordinary course of its profession as a general contractor and because the "professional services" exclusion precludes coverage to "any service of a professional nature, including * * * the preparation or approval of maps, plans, opinions, reports, surveys, designs or specifications, and * * * supervisory, inspection or engineering services[,]" we find the "professional services" exclusion precludes Colony, as an insured, and the Association, as Colony's assignee, from recovering under the Erie policy. But, see, GRE Ins. Group v. Normandy Pointe Assoc. (Mar. 8, 2002), Montgomery App. No. 18998 (finding "professional services" exclusion did not apply to a general partnership engaged in the business of developing and marketing home sites who contracted with consultant to provide engineering services). Cf. Erie I, at 417 (observing in dictum that "professional services" exclusion "does not apply to those damages resulting from Colony's construction activities, including those performed on its behalf by subcontractors. Construction activities are not professional services").
.The Association, however, asserts the "professional service" exclusion is ambiguous as to whether the exclusion applies to Colony's own rendering of professi
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