Kalman Floor Co. v. Old Republic General Insurance Corp.

          ORDER

          LEWIS T. BABCOCK, JUDGE

         This matter is before me on the Motion for Summary Judgment filed by Defendant Old Republic General Insurance Corporation. ECF No. 47. I have jurisdiction pursuant to 28 U.S.C. § 1332. After considering the parties' arguments and exhibits, I GRANT Defendant's Motion for the reasons set forth below.

         I. Facts

         This action arises out of an insurance coverage dispute concerning a commercial general liability (“CGL”) policy issued by Defendant to Plaintiff. Based on the briefing and evidence submitted, the parties agree as follows, unless noted. Where a dispute exists, I construe the facts most favorable to the nonmovant.

         In 2007, Plaintiff was subcontracted to construct over 158, 000 square feet of concrete flooring for a cold storage facility. ECF No. 47 at ¶ 1; ECF No. 55 at ¶¶ 1, 2. In turn, Plaintiff contracted with another company to supply concrete under a specified mix design. ECF No. 45 at ¶¶ 7-8; ECF No. 47 at ¶ 5. The parties dispute whether the other company was a subcontractor or merely a supplier. ECF No. 47 at 13; ECF No. 55 at 6-7.

         In late 2008, Plaintiff completed the concrete floor installation. ECF No. 47 at ¶ 8. In late 2009, Plaintiff's contractor notified it that pockmarks, or “pop-outs, ” were apparent on the concrete flooring. Id. at ¶ 9; ECF No. 55 at ¶¶ 8-10. The only damage to tangible property in the facility caused by the pop-outs was the concrete flooring itself. ECF No. 57-1 at 3, 27.

         On January 31, 2009, Defendant issued a general liability insurance to Plaintiff for one year (the “Policy”). ECF No. 47-2 at 4. The Policy reads in relevant part that Defendant

a. [W]ill pay those sums that the Insured becomes legally obligated to pay as damages because of . . . “property damage” to which this insurance applies. . . .

b. This insurance applies to . . . “property damage” only if:

(1) The . . . “property damage” is caused by an “occurrence” that takes place in the “coverage territory”;

(2) The . . . “property damage” occurs during the policy period . . . .

Id. at 12. The Policy defines “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” Id. at 25. The Policy defines “property damage” in part as “physical injury to tangible property, including all resulting loss of use of that property. . . or [l]oss of use of tangible property that is not physically injured.” Id. at 26.

         The Policy contains provisions that will exclude coverage under certain circumstances, including work done by the insured. The Policy defines “your work” to mean “(1) Work or operations performed by you or on your behalf; and (2) Materials, parts or equipment furnished in connection with such work or operations.” Id. at 27. The Policy ...