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1325 North Van Buren5/17/2005
ices--has been rejected.
As such, the economic loss doctrine does not apply here, and consequently, the negligence claims were improperly dismissed by the trial court. In light of this conclusion, we must now consider the effects of the relevant coverage provisions and exclusions on all of the claims raised by 1325.
B. 1325's Claims Against T-3 Trigger Indiana's CGL Coverage, But May be Precluded by Exclusions in the Insurance Policy
1325 argues that, contrary to the trial court's conclusion, Wisconsin law recognizes that claims alleged in contract against an insured can form the basis for coverage under a CGL policy. Moreover, 1325 insists that Indiana's policy provides coverage for accidental property damage caused by an "occurrence" alleged as a breach of contract claim, that 1325 "is neither seeking recovery for every subcontractor failure[,] nor for damages caused by warranted products incorporated into its building, but only for a specific group of accidentally-caused property damage[,]" and that the policy exclusions do not bar coverage under the facts of this case.
Indiana argues that "the trial court never rejected and, in fact, did not address 1325's contract claims as a basis for recovery under Indiana's policy[,]" because 1325 conceded, on numerous occasions, that the CGL policy did not provide coverage for the contract claims. As such, Indiana claims that these issues are being raised for the first time on appeal, and thus should be disregarded. In any event, Indiana insists that there is no recovery for contract claims under the policy because: (1) American Girl has no direct impact upon the applicability of CGL business risk exclusions--which they assert defeat coverage for the entirety of 1325's complaint--and is not binding precedent, since only three justices joined in the opinion; (2) there is no claim for property damage; and (3) there is no "occurrence" under the contract claim. Moreover, Indiana argues that, should we reverse the trial court and determine that "coverage may be afforded under any portion of Indiana's policy, the case should be remanded to the trial court to determine the applicability of the business risk exclusions." In the alternative, Indiana argues that it is clear that the exclusions apply and there is no coverage under the policy for 1325's losses.
We have concluded that the economic loss doctrine is inapplicable here, and thus the negligence claims are still viable. We also conclude that 1325's allegations appear to trigger coverage. However, relevant exclusions in Indiana's CGL policy may preclude coverage, though the extent to which those exclusions apply is a determination better left to the trial court, as the exclusions were not fully considered below, were not adequately briefed on appeal, and do invoke factual issues to be determined on remand. Moreover, while the arguments focused on the negligence claims, we are not convinced that 1325 necessarily conceded the contract claims. In any event, American Girl nonetheless reinforces that it is the language of the policy, and not the applicability of the economic loss doctrine, that determines whether an insurance policy covers a claim. We must look to the claim itself and the language of the policy to determine whether there is coverage.
Here, 1325 claims that as a result of the negligence of T-3 and its subcontractors, it suffered property damage covered by the Indiana policy. The CGL policy has several relevant provisions:
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance app
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