Injury to Building Caused by Negligent Soil Analysis May Constitute Occurrence under CGL That Is Not Precluded by Business Risk Exclusions or Similar Limitations on Coverage
威斯康星州最高法院裁定，因土壤分析疏忽导致建筑物损坏，可触发商业一般责任保险的赔付，且不适用商业风险除外条款，对建筑商和业主有利。
American Family Mutual Ins. Co. v. West American Insurance Co., 673 N.W.2d 65 (Wisconsin Supreme Court--January 9, 2004) Construction defect litigation has been in something of a boom period during the past 15 years, a phenomenon of no small consternation to homeowners, builders, insurers, and state legislatures. In addition to its overall costs to society, shoddy home construction and complex litigation resulting from housing problems also produces complex and costly insurance-coverage litigation. Commercial General Liability (CGL) insurers have attempted to minimize their exposure for these claims by generally arguing that they are not responsible for mere defects in housing but only for housing problems that cause classic third-party tort injury in the manner of a building collapse that injures bystanders or adjoining property. Builders seeking coverage (supported by plaintiff homeowners and associations seeking deeper defendant pockets) have argued, with significant but mixed success, that the CGL policy is indeed triggered by many allegations of shoddy construction so long as the poor construction causes physical injury to tangible property other than the errant contractor or engineer's work. In general, the insurer position against coverage has been losing ground in the courts. For example, in the key California case of Vanderberg v. Superior Court, P.2d (Cal. 1999), court rejected the extreme insurer position that a CGL policy need never respond unless the claim was legally styled as a tort. Rather, the matter is controlled by policy language, which provides for coverage when an occurrence causes injury or damage. No particular legal styling by plaintiff is required. In many other cases, CGL coverage has been found where the of one subcontractor caused physical injury to other parts of a building or piece of property. In addition, many of the older cases finding no coverage because damage resulted from substandard have been correctly held to have been legislatively overruled by the ISO's 1986 revision of the CGL to create an exception to the own work exclusion where the is performed by a subcontractor of the policyholder. The recent Wisconsin Supreme Court case of American Family Mutual Insurance Co. v. American Girl, Inc., 673 N.W.2d 65 (January 9, 2004) continues this trend and arguably clarifies it further in favor of policyholders, also finding coverage in the case of poor soil study that creates building problems. The analysis of the Court's majority opinion is thorough, appreciative of historical context, and properly applies the insights of secondary sources of policy meaning, making more use than most courts of treatise discussion (full disclosure: my treatise was one of those cited by the Court). Because it is a sound opinion from a state high court pertaining to an issue facing many courts in a new realm, it may have significant impact. However, American Family v. American Girl was also a 3-2 opinion in that two Justices did not participate. In addition, the two dissenting Justices enthusiastically embraced what might be regarded as the strong CGL insurer position against coverage, a factor that provides some solace for insurers and a potential source of citation and argumentation. In 1994, Pleasant Company (which later changed its name to American Girl), entered into a contract with Renschler Company for the design and construction of a large distribution center warehouse near Interstate Highway 94 in central Wisconsin. To build the 94DC, Renschler, which held an American Family policy, hired Lawson, a soils engineer to assess soil conditions for construction. Finding the soil poor for these purposes, Lawson recommended rolling to prepare the soil for holding buildings. Renschler accepted Lawson's analysis and recommendation. Rolling surcharging is not, as the name suggests, a new interest or late charge strategy used by credit card companies. …