 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Cyprus Amax Minerals Company v. Lexington Insurance Company6/16/2003
contract," but "where a duty arises independently of any contractual obligations between the parties, a tort action will lie"); Giampapa v. Am. Family Mut. Ins. Co., 64 P.3d 230, 240 (Colo. 2003) (allowing non-economic damages in a insurance contract claim when the insurer willfully and wantonly breaches the contract, as long as the damages are foreseeable at the time of contracting and the damages are a natural and probable result of that breach).
However, there is no argument here that the policy covers only torts and not contract actions or that the damages are confined by that distinction. Rather, the argument is that property damage is a stand-alone term, implicitly understood to exclude the kinds of damages normally flowing from contract causes of action, such as depreciation in the value of stock or other financial loss.
The court of appeals compared this case to Safeco Ins. Co. v. Andrews, 915 F.2d 500 (9th Cir. 1990). In Safeco, a purchaser of real property brought claims against the insured/seller of negligent failure to inspect property and inform buyer of defects, misrepresentation, breach of contract, and rescission of contract. Id. at 501. The complaint focused on the seller's alleged failure to discover and properly inform the buyer of facts materially affecting the value or desirability of the property. Id. Safeco claimed that that it owed no duty to defend its insured, as the lawsuit both failed to allege any "property damage" within the meaning established by the policy and to allege an "occurrence" within the meaning of the policy. Id. The policy in that case provided coverage " f a claim is made or suit is brought against any insured for damages because of bodily injury or property damage caused by an occurrence to which this coverage applies" and excluded coverage "under any . . . contract or agreement except those directly relating to the maintenance or use of the insured location." Id. at 502.
The Ninth Circuit noted first that the coverage clearly did not extend to claims for breach of contract or rescission. Id. Next, the court concluded that the purchaser's claims did not expose the insured to liability for damages to tangible property, but rather for economic loss resulting from the failure to discover and disclose facts relevant to the property's value and desirability, because while the defective condition of the property served as an element of the claims alleged, it was not the gravamen of the cause of action against the seller. Id. Rather, the court concluded that the damages were caused by the misrepresentations, which the court could not construe as an "occurrence" or a "peril insured against" under the terms of the policy. Id.; see also State Farm Fire & Cas. Co. v. Brewer, 914 F. Supp. 140, 143 (S.D. Miss. 1996) (holding that claims of negligent and intentional misrepresentation and fraud are pecuniary in their nature, thus finding that pre-existing termite damage was not property damage).
The policies at issue in this case made no attempt to carve out an exclusion for breach of contract or rescission actions, unlike the policy in Safeco. Further, in both M.L. Foss and in Safeco, the parties sought damages related solely to the difference in the actual value versus the represented value, rather than including any additional damages for remediation costs. Other jurisdictions have considered remediation costs to constitute property damage as well as economic damage. See, e.g., Gaylord Chem. Corp. v. Propump, Inc., 753 So. 2d 349, 353-54 (La. Ct. App. 2000) (finding property damage under the terms of insurance policy in case where pump failed to operate as represented at time of sale); Sheets v. Brethren Mut. Ins. Co., 679 A.2d 540, 5
Page 1 2 3 4 5 6 7 8 9 10 11 12 Colorado Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|