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1325 North Van Buren5/17/2005
his exclusion does not apply to the loss of use of other property arising out of sudden and accidental physical injury to 'your product' or 'your work' after it has been put to its intended use." Indiana does not provide, however, any explanation as to how or why this exclusion applies--it merely duplicates the exclusion and the definition of "impaired property" in its brief and concludes that " s a result of this exclusion, there is no coverage for non-physical property damage or damages that can be repaired" because "1325 is claiming that, in essence, the building was 'impaired property' because it incorporated T-3's defective work product." Without more, we cannot properly consider the applicability of the exclusion.
Finally, we reach Exclusions J (5) and J (6), which provide that the policy does not cover property damage to:
(5) That particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the "property damage" arises out of those operations; or
(6) That particular part of any property that must be restored, repaired or replaced because "your work" was incorrectly performed on it.
"Your work" is defined as " ork or operations performed by you or on your behalf." Indiana contends that both exclusions clearly preclude coverage for 1325's claims.
Read plainly, J (5) excludes coverage for property damage to the particular part of the real property on which T-3 or its subcontractors "are performing operations" if the damage arises out of those operations. Thus, if it were to be determined that the damages occurred to the part of real property on which the subcontractors were performing operations, and the damages arose out of those operations, then coverage would be excluded. It seems clear that the damages claimed by 1325 arose from the subcontractors' operations, in that they were caused by accidents that occurred in the course of their work on the site. Whether the property damage was to "that particular part of real property on which" the subcontractors were "performing operations," however, invokes a number of factual determinations that have not been thoroughly argued here or considered below, and that we are not at liberty to make. That is, 1325 contends that the damage occurred to work that had already been completed or parts of the building that were never intended to be renovated. Indiana disagrees with that conclusion. As such, these exclusions raise questions of fact that have not been considered below, and thus, should be addressed by the trial court.
Moreover, the same can be said for J (6). J (6) excludes coverage for property damage to " hat particular part of any property that must be restored, repaired or replaced because 'your work' [which includes that work done on behalf of T-3] was incorrectly performed on it." Excepted from the J (6) exclusion, however, is "property damage" included in the "products-completed operations hazard." Because this exclusion requires a determination of whether the work was "incorrectly performed on" the damaged property, and perhaps whether the "products-completed hazard" applies, the factual backgrounds and circumstances of each claimed "accident" need to be considered on a case-by-case basis, to determine whether the exclusion applies. Since the parties do not appear to agree on the factual backgrounds and circumstances of these accidents, and have not fully developed their arguments with regard thereto, these are questions of fact better left to the trial court on remand.
Thus, while we agree that business risk exclusions may be applicable here, the factual circumstan
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