United States District Court, D. Colorado
T. BABCOCK, JUDGE
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
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.
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.
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.
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
(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.
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