Skanska USA Building Inc v. Map Mechanical Contractors Inc ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
SKANSKA USA BUILDING INC., UNPUBLISHED
March 19, 2019
Plaintiff-Appellee,
v No. 340871
Midland Circuit Court
M.A.P. MECHANICAL CONTRACTORS, INC., LC No. 13-009864-CK
Defendant,
and
AMERISURE INSURANCE COMPANY and
AMERISURE MUTUAL INSURANCE
COMPANY,
Defendant-Appellant.
SKANSKA USA BUILDING INC.,
Plaintiff-Appellant,
v No. 341589
Midland Circuit Court
M.A.P. MECHANICAL CONTRACTORS, INC., LC No. 13-009864-CK
AMERISURE INSURANCE COMPANY, and
AMERISURE MUTUAL INSURANCE
COMPANY,
Defendants-Appellees.
Before: SAWYER, P.J., and CAVANAGH and K. F. KELLY, JJ.
PER CURIAM.
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This is a commercial liability insurance coverage dispute, arising from the faulty
installation of parts in the steam heat system of a hospital construction project. The resulting
damage required extensive repairs, in excess of $1 million. In Docket No. 340871, the insurance
carrier, defendant-appellant, Amerisure Insurance Company (“Amerisure”), appeals by leave
granted an order denying its motion for summary disposition upon finding there were factual
issues as to whether the faulty installation caused an “occurrence” within the meaning of the
insurance policy. In Docket No. 341589, the construction manager, plaintiff-appellant Skanska
USA Building Inc.’s (“plaintiff”), appeals by leave granted from the same order. Both parties on
appeal assert that this Court can resolve the coverage issue as a matter of law. The matters have
been consolidated for appeal. 1 We conclude that the trial court erred when it failed to grant
Amerisure summary disposition. Consequently, we reverse the trial court’s order.
I. BASIC FACTS
Most of the facts are undisputed. Starting in 2008, plaintiff was the construction manager
on a renovation project for Mid-Michigan Medical Center in Midland (“Medical Center” or
“MMMC”). Plaintiff subcontracted the heating and cooling portion of the project to defendant
M.A.P. Mechanical Contractors (“MAP”). MAP obtained a commercial general liability
insurance policy (“CGL policy”) from Amerisure. Plaintiff and the Medical Center are named as
additional insureds on the CGL policy.
In 2009, MAP installed a steam boiler and related piping for the Medical Center’s heating
system. MAP’s installation included several expansion joints, which are designed to
accommodate the expansion of the piping caused by the flowing steam. In 2010 the heating
system became fully activated, but it did not function properly. Sometime between late
December 2011 and late February 2012, plaintiff determined that MAP had installed some of the
expansion joints backward. Significant damage to concrete, steel, and the heating system had
occurred. Plaintiff notified MAP of the backward joints.
On March 2, 2012, MAP sent a notice of claim to Amerisure. The notice identified the
date of occurrence as December 21, 2011, and stated that the “claimant” discovered the
backward installation just before Christmas 2011. The notice further indicated that the claimant
had not reported the problem to MAP until March 2012.
On March 28, 2012, the Medical Center sent a demand letter to plaintiff, asserting that
plaintiff must pay for all costs of repair and replacement. The following day, March 29, plaintiff
sent a demand letter to MAP, asserting that MAP was responsible for all costs of repair and
replacement. Plaintiff proceeded to perform the work of repairing and replacing the damaged
property. According to plaintiff, the cost of the repair and replacement work was approximately
1
Skanska USA Building Inc v MAP Mechanical Contractors Inc, unpublished order of the Court
of Appeals, issued April 10, 2018 (Docket No. 340871); Skanska USA Building Inc v MAP
Mechanical Contractors Inc, unpublished order of the Court of Appeals, issued April 10, 2018
(Docket No. 341589).
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$1.4 million. Plaintiff submitted a claim to Amerisure on June 6, 2012, seeking coverage as an
insured. Plaintiff’s claim was denied.
In June 2013, plaintiff filed a complaint against MAP and Amerisure seeking payment for
the cost of the repair and replacement work. Before the parties had completed discovery,
Amerisure moved for summary disposition pursuant to MCR 2.116(C)(8) (failure to state a
claim) and 2.116(C)(10) (no genuine factual issue). Amerisure asserted several grounds for
summary disposition, including: (1) MAP’s defective construction was not a covered occurrence
within the CGL policy; (2) plaintiff failed to provide proper notice of a claim; (3) plaintiff
entered into a settlement without Amerisure’s consent; and (4) several exclusions barred
coverage.
The trial court denied Amerisure’s motion in a 12-page opinion and order issued on
November 18, 2014. The trial court first looked to the policy to determine whether installation
of the backward expansion joints was an “occurrence.” The relevant provision provides:
a. We will 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” . . .
The policy defined “occurrence” as “an accident, including continuous or repeated exposure to
substantially the same general harmful conditions.” However, the policy did not define the word
“accident.” The trial court looked to Hawkeye-Security Ins Co v Vector Construction Co, 185
Mich. App. 369; 460 NW2d 329 (1990), which defined “accident” as “anything that begins to be,
that happens, or that is not anticipated . . . takes place without the insured’s foresight or
expectation and without design or intentional causation on his part.” However, citing Hawkeye,
the trial court noted that “[d]efective workmanship, standing alone, is not an occurrence within
the meaning of a general liability insurance contract, an occurrence exists where the insured’s
faulty work product damages the property of another.” The trial court concluded:
Here, the injured parties and people affected by MAP’s negligence did not
anticipate, foresee, or expect backward expansion joints or property damage to the
entire length of the underground steam and condensate lines. Michigan courts
have consistently focused on the particular property damaged to determine
whether an “occurrence” has happened under a general liability policy and
whether coverage exists. . . . No one has suggested MAP purposefully installed
the expansion joints backward. All the parties agree the negligent installation was
an unforeseen occurrence and not anticipated by any of the parties to the
construction project. Under the plain language of the policy, this unforeseen
incident means an “occurrence” may have happened which triggers Amerisure’s
duty of coverage under the insurance policy. Whether an “accident” has occurred
is evaluated “from the standpoint of the insured, not the injured party.”
Frankenmuth Mutual Ins Co v Masters, 460 Mich. 105, 114; 595 NW2d 832
(1999).
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Damage arising out of the insured’s defective workmanship confined to
the insured’s own work product, i.e. the insured is the injured party, cannot be
viewed as accidental within the meaning of the general liability policy. Skanska
contracted to install piping and expansion joints as part of their scope of work but
the damage caused by defective installation of the expansions joints [sic] by MAP
may have gone beyond the scope of the work required by the contract between
Skanska and MMMC thereby leading to coverage despite the defective or
negligent workmanship, the parties disagree on this allegation which leads the
Court to believe a question of fact is in dispute and thereby precludes entry of
summary disposition.
Plaintiff had urged the trial court to follow Amerisure Mutual Ins Co v Hall Steel Co,
unpublished opinion per curiam of the Court of Appeals, issued December 10, 2009 (Docket No.
286677), wherein the Court of Appeals concluded that supplying defective steel was the type of
unanticipated event under the definition in Hawkeye. However, the trial court simply noted that
“a question of material fact exists as to the extent of the property affected by the defective
workmanship of MAP and whether it extends beyond the scope of work to be performed by
Plaintiff for the contract with MMMC. The resolution of this question of fact requires the matter
be submitted to the trier of fact, so summary disposition is not appropriate at this time.”
Following the trial court’s November 18, 2014, opinion and order, Amerisure moved for
reconsideration. The trial court denied Amerisure’s motion in an April 6, 2015, opinion and
order. The trial court clarified two points from its prior opinion denying summary disposition:
Amerisure’s first claim of palpable error relates to the claim of the repair
and replacement work being within the scope of the original project and thereby
not an occurrence for purposes of coverage. The Court ruled the work within the
scope of the original project with MAP Mechanical Contractors, Inc. was not
subject to coverage; however, a question of fact existed as to the extent of the
scope of the property damage was beyond the original contract thereby potentially
subject to coverage. It appears this is consistent with the opinion issued by this
Court on summary disposition motion so reconsideration is not necessary;
however, the Court will acknowledge there is a partial grant of summary
disposition under the Court’s prior decision.
The second issue in the Motion for Reconsideration relates to the
application of the “no action” clause of the insurance policy. Once again the issue
was addressed by the Court in the original decision. The Court determined a
question of fact existed as to the conduct of Amerisure which could give rise to a
claim of waiver of these contractual provisions and must be decided by the trier of
fact. The passages from case law cited by Amerisure acknowledge the potential
for these provisions to be inapplicable where the insurance company waived their
application. The Court does not see any basis for relief from the prior decision as
it properly analyzed the applicable legal issues and reconsideration is thereby
denied for this claim as well.
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After the trial court denied summary disposition, Amerisure took the deposition of
plaintiff’s project manager, Colin Martin. Martin described plaintiff’s repair and replacement
work as “warranty work.” He indicated that most of the warranty work was within the scope of
the construction and renovation project, but that the work may have included repairs on electrical
conduit and irrigation piping that had not been part of the original project.
Amerisure then filed a renewed summary disposition motion pursuant to MCR
2.116(C)(10), reiterating the arguments in its original motion and adding factual support from
Martin’s deposition testimony and exhibits. In the renewed motion, Amerisure contended that
Martin’s testimony established that all of plaintiff’s repair and replacement work—i.e., the
warranty work—was within the scope of plaintiff’s original construction and renovation project.
Amerisure pointed out that plaintiff had failed to come forward with evidence to establish that
any of the warranty work, including repair on the conduit or irrigation system, was actually
outside the scope of the original construction and renovation project.
In response to Amerisure’s renewed motion, plaintiff sought summary disposition on
Amerisure’s liability to plaintiff pursuant to MCR 2.116(I)(2) (opposing party entitled to
summary disposition). Plaintiff argued that Hawkeye did not control the CGL policy in this case.
Plaintiff explained that the Hawkeye decision interpreted a prior version of the standard CGL
policy issued by the Insurance Services Office (“ISO”), who drafted and published the standard
contract. The new commercial general liability policy, which applies to this particular case,
provides coverage for defective construction claims as long as the defective work was performed
by a subcontractor as opposed to the policyholder. Plaintiff further argued that the plain terms of
the current coverage provision demonstrated that MAP’s backward installation of the expansion
joints was an accident, which constituted an occurrence covered by the policy.
In October 2017, the trial court issued an opinion and order again denying summary
disposition. The court reiterated its determination that “[d]efective workmanship, standing
alone, is not an occurrence within the meaning of a general liability insurance contract.” The
trial court “clarified” that it “did not determine whether an accident occurred, and did not make a
finding as to whether or not there was an ‘occurrence.’ Rather, in in its November 2014 Order,
this Court held an occurrence may have happened, and found the damage caused by M.A.P.’s
defective installation of the expansion joints may have gone beyond the scope of the work
required by the contract between Plaintiff and MMMC.” The trial court acknowledged
plaintiff’s argument that the trial court should not rely on Hawkeye because Hawkeye interpreted
the older comprehensive general liability policy as opposed to the new commercial general
liability policy but that “[t]his Court is bound by, and must follow, the precedent set by
Hawkeye, because it has not been overruled or otherwise found to be inaccurate case law
interpreting the insurance provision presented in this case.” The trial court concluded:
There is no indication MAP purposefully installed the expansion joints
backwards. The parties affected by MAP’s negligence did not anticipate, foresee,
or expect backward expansion joints or property damage to the entire length of
the underground steam and condensate lines. This Court finds, as it did in its
November 2014 Opinion, the plain language of the policy means an “occurrence”
may have happened, which would then trigger Amerisure’s duty of coverage. No
further-evidence has been presented to resolve this issue, as this Court cannot find
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that Mr. Martin’s deposition testimony conclusively establishes whether the
warranty work was part of the original project, nor whether an occurrence
occurred, and reasonable minds can differ on the issue. Therefore, a question of
fact still remains for the jury and Summary Disposition is not appropriate.
The trial court denied plaintiff’s motion for reconsideration. Both parties appeal by leave
granted, arguing that the trial court should have resolved the issue as a matter of law in their
respective favors.
II. ANALYSIS
The dispositive issue in this case is whether there was an “occurrence” triggering
coverage. We conclude that the trial court erred when it failed to grant Amerisure summary
disposition where there was no genuine issue of material fact that plaintiff sought coverage for
replacement of its own work product.
The interpretation and application of an insurance policy is a question of law reviewed de
novo. Hunt v Drielick, 496 Mich. 366, 372; 852 NW2d 562 (2014). This Court also reviews de
novo a trial court’s summary disposition ruling. Batton-Jajuga v Farm Bureau Gen Ins Co of
Michigan, 322 Mich. App. 422, 428; 913 NW2d 351(2017). The Court enforces insurance policy
provisions according to the plain terms of the policy. Home-Owners Ins Co v Andriacchi, 320
Mich. App. 52, 62–63; 903 NW2d 197 (2017).
In both of the summary disposition rulings in this case, the trial court determined that the
coverage provision is controlled by this Court’s decision in Hawkeye. In Hawkeye, a
construction contractor demanded CGL coverage for the cost of removing and re-pouring
concrete. Hawkeye, 185 Mich. App. at 371. The original concrete, supplied to a subcontractor,
failed to meet the project specifications, necessitating removal and re-pouring of extensive
concrete structures. Id. The trial court granted summary disposition in favor of the insurance
carrier, and this Court affirmed. Id. at 377. At issue was whether there was an “occurrence”
triggering coverage. In contrast to the definition of “occurrence” as found in the policy in the
present case, “occurrence” in the Hawkeye case was defined as “an accident, including
continuous or repeated exposure to conditions, which results in bodily injury or property damage
neither expected nor intended from the standpoint of the insured[.]” Id. at 373 (emphasis added).
Because the policy did not define “accident,” this Court looked to a previously–adopted
definition of “accident,” which was:
Anything that begins to be, that happens, or that is a result which is not
anticipated and is unforeseen and unexpected by the person injured or affected
thereby—that is, takes place without the insured’s foresight or expectation and
without design or intentional causation on his part. In other words, an accident is
an undesigned contingency, a casualty, a happening by chance, something out of
the usual course of things, unusual, fortuitous, not anticipated, and not naturally to
be expected. [Id. 373, quoting Guerdon Industries, Inc v Fidelity & Cas Co of
New York, 371 Mich. 12, 18–19; 123 NW2d 143 (1963), quoting 10 Couch on
Insurance (2d ed), ¶ 41:6, p 27.]
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At issue in Hawkeye – as here – was whether the contractor’s defective workmanship constituted
an accident and was, therefore, an occurrence within the meaning of the policy. Hawkeye, 185
Mich. App. at 374.
This Court rejected the contractor’s reliance on Bundy Tubing Co v Royal Indemnity Co,
298 F 2d 151 (CA 6, 1962). In Bundy, the insured was a manufacturer of tubing that was used in
several homes for radiant heating systems. The tubes ultimately failed and needed to be
replaced. The Sixth Circuit concluded that an “accident” had occurred because homeowners
would not have expected that the system would fail in such a short time. In effect, the failure of
the tubing was unforeseen, unexpected, and unintended. Hawkeye, 185 Mich. App. at 375-376.
The Hawkeye Court determined that Bundy “stood for nothing more than the proposition that an
insurer must defend and may become obligated to indemnify an insured under a general liability
policy of insurance that covers losses caused by ‘accidents’ where the insured’s faulty work
product damages the property of others. In the instant case [the insured] seeks what amounts to
recovery for damages done to its own work product, and not damage done to the property of
someone other than the insured.” Hawkeye, 185 Mich. App. at 377 (emphasis added).
This Court believed that McAllister v Peerless Ins Co, 124 NH 676, 474 A 2d 1033
(1984) was more instructive. Hawkeye, 185 Mich. App. at 377. In McAllister, the insured
operated a landscaping and excavation business and was hired to construct a leach field. The
homeowner sued for breach of contract, alleging faulty workmanship and requesting damages to
pay for corrective work. In that case, the insured sought coverage for the correction of faulty
original work, not for damage to other property. Id. at 377. The New Hampshire Supreme Court
held that there was no coverage under the policy because there was no occurrence, explaining:
“The fortuity implied by reference to accident or exposure is not what is
commonly meant by a failure of workmanship . . . Despite proper deference,
then, to the reasonable expectations of the policyholder, . . .we are unable to find
in the quoted policy language a reasonable basis to expect coverage for defective
workmanship.” [Hawkeye, 185 Mich. App. at 378, quoting McAllister, 124 NH at
680.]
In Hawkeye, this Court observed that the insured sought coverage for damages to its own
work product, not damage to another’s property. Id. It concluded:
We agree with both the reasoning and the conclusion as expressed by
the McAllister court. Accordingly, we hold that the defective workmanship of
[the insured], standing alone, was not the result of an occurrence within the
meaning of the insurance contract. Summary disposition was properly granted on
this issue. [Hawkeye, 185 Mich. App. at 378.]
Plaintiff argues that the trial court erred in determining that Hawkeye controls the
coverage provision in this case. Plaintiff points out that CGL policies generally follow
standardized formats created by the national ISO, and that the Hawkeye case interpreted a prior
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version of the CGL form.2 Again, the old standardized policy defined “occurrence” as “an
accident, including continuous or repeated exposure to conditions, which results in bodily injury
or property damage neither expected nor intended from the standpoint of the insured.” The
policy at issue in this case does not include the italicized passage. Plaintiff suggests that this
Court follow courts from other jurisdictions, which have applied the newer language to include
accidents that are the result of an insured’s own (or subcontractor’s) work product.
We are unpersuaded by plaintiff’s citations to other jurisdictions, finding no compelling
reason to re-visit settled Michigan case law. Still, plaintiff argues that the trial court could have
ignored Hawkeye because the trial court’s only obligation was to apply the unambiguous terms
of the insurance policy. Rory v Cont’l Ins Co, 473 Mich. 457, 468; 703 NW2d 23 (2005),
reinforced that:
A fundamental tenet of our jurisprudence is that unambiguous contracts
are not open to judicial construction and must be enforced as written. Courts
enforce contracts according to their unambiguous terms because doing so respects
the freedom of individuals freely to arrange their affairs via contract. This Court
has previously noted that the general rule of contracts is that competent persons
shall have the utmost liberty of contracting and that their agreements voluntarily
and fairly made shall be held valid and enforced in the courts. [Id.]
Again, the definition of “occurrence” in the policy at issue is “an accident, including
continuous or repeated exposure to substantially the same general harmful conditions.” It omits
language from the prior standard policy in which an “occurrence” was based, in part, on the
insured’s expectations: “an accident, including continuous or repeated exposure to conditions,
which results in bodily injury or property damage neither expected nor intended from the
standpoint of the insured.” Plaintiff notes that appellate decisions lack precedential effect when
the facts of the case are different.
However, there are cases that have considered the post-1986 language and still followed
Hawkeye such that what defines “occurrence” is a principle of law. First among them is
Radenbaugh v Farm Bureau Gen Ins Co of Michigan, 240 Mich. App. 134; 610 NW2d 272, 275
(2000). The insureds in Radenbaugh provided defective instructions to a basement contractor,
which resulted in the improper construction of a mobile home. The home was unusable because
of water damage and condensation. Id. at 144-145. This Court considered the Hawkeye decision
and queried whether Hawkeye was inconsistent with Bundy. It found the cases factually
distinguishable in that Hawkeye involved damage only to the insured’s work product whereas
Bundy involved more than damage to the insured’s own product. The Radenbaugh Court had to
look to the definition of “occurrence” – “an accident, including continuous or repeated exposure
to substantially the same general harmful conditions” – the same definition at issue in this case.
2
This Court has recognized that CGL policies are generally written on standardized forms
developed by the Insurance Services Office, which is a “national insurance policy drafting
organization.” Travelers Prop Cas Co of Am v Peaker Services, Inc, 306 Mich. App. 178, 185 n
2; 855 NW2d 523 (2014).
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Id. at 140. Citing Hawkeye, the Radenbaugh Court noted: “Were the underlying complaint
limited to claims relating solely to the insured’s product, we would agree with defendant [that
there was no occurrence]. However, it is clear that the underlying complaint alleged damages
broader than mere diminution in value of the insured’s product caused by alleged defective
workmanship, breach of contract, or breach of warranty.” Radenbaugh, 240 Mich. App. at 141.
This Court then quoted at significant length Calvert Ins Co v Herbert Roofing & Insulation
Co, 807 F Supp 435 (ED Mich, 1992) and adopted the following language from that opinion as
its own:
The holdings in Bundy and [Hawkeye] can be reconciled by focusing on
the property damage at issue in each case. In [Hawkeye], the insured’s defective
workmanship resulted only in damage to the insured’s work product.
In Bundy, the insured’s defective workmanship resulted in damage to the property
of others. Taken together, these cases stand for the proposition that when an
insured’s defective workmanship results in damage to the property of others, an
“accident” exists within the meaning of the standard comprehensive liability
policy. This construction is supported by the definition of “accident” adopted by
the Michigan Supreme Court:
“ . . . In other words, an accident is an undesigned contingency, a casualty,
a happening by chance, something out of the usual course of things,
unusual, fortuitous, not anticipated, and not naturally to be expected.” . . .
. . .Thus the property owners in Bundy whose homes or offices were
damaged by water leaking from the insured’s defective tubing were
damaged by accident. However, when the damage arising out of the
insured’s defective workmanship is confined to the insured’s own work
product, the insured is the injured party, and the damage cannot be viewed
as accidental within the meaning of the standard liability policy.
The facts of the instant case are not in dispute. The new roof
began to leak shortly after Herbert completed the installation and the
leaking water caused damage to the interior of the building, the exterior of
the building, and to the personal property of students and school district
employees. The School District has filed an action against Herbert in state
court which sounds in both negligence and contract and seeks recovery for
the cost of replacing the roof and for the damage to the school building
and its contents. On these facts, the Court holds that Plaintiff is obligated,
under the terms of the insurance policy, to defend Herbert against the
negligence claim in the underlying state action and to indemnify Herbert
for any damages to the school building or its contents for which Herbert is
held liable. Plaintiff is under no duty, however, to indemnify Herbert for
the cost of removing the defective roof and/or installing a new roof.
[[Calvert Ins Co, 807 F Supp] at 437–439.]
We agree with the reasoning of the Calvert court and hereby adopt its analysis as
our own. [Radenbaugh, 240 Mich. App. at 147–148.]
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Radenbaugh held that, because the damage was to property other than the insured’s work
product, the insureds properly alleged an “occurrence.” Id. Radenbaugh examined the precise
policy term at issue before the panel and clearly affirmed Hawkeye’s admonishment that an
“occurrence” cannot include an accident that results in damage to the insured’s own work
product. That Calvert may have involved the pre-1986 policy language does not change the fact
that this Court continued to embrace its rationale, quoting it over several pages.
This Court relied on Radenbaugh in Liparoto Constr, Inc v Gen Shale Brick, Inc, 284
Mich. App. 25, 38; 772 NW2d 801 (2009), wherein this Court confirmed that an accident can
arise from the insured’s negligence or breach of warranty, if the damage extended beyond the
insured’s own work product. Again, the policy provision at issue in Liparoto defined
“occurrence” as “an accident, including continuous or repeated exposure to substantially the
same general harmful conditions.” Id. at 35. After discussing Bundy, Hawkeye, Radenbaugh,
and Calvert cases at length, the Liparoto Court concluded:
In this case, “occurrence” is defined in the same manner as it was defined
in Radenbaugh. The definition of “occurrence” in Hawkeye–Security is more
detailed, but is not significantly different in substance. This Court
in Radenbaugh held that damage resulting from negligence or breach of warranty
would constitute an occurrence triggering the policy’s liability coverage only if
the damage in question extended beyond the insured’s work product. Here
plaintiff did not allege, and presented no evidence, that there was damage beyond
its own work product. Accordingly, the trial court did not err by concluding that
plaintiff failed to establish an occurrence within the meaning of the policy.
[Liparoto, 284 Mich. App. at 38–39.]
The matter is well-settled. We hold that the trial court properly applied Hawkeye to this
case. It is an established principle of law that an “occurrence” cannot include damages for the
insured’s own faulty workmanship.
However, the trial court erred when it failed to decide, as a matter of law, that the
incident was not an “occurrence” under the policy. There were no factual issues to resolve. If,
as the trial court ruled, the CGL policy does not cover defective workmanship within the scope
of the original project under Hawkeye, the summary disposition analysis turned on evidence of
the scope of the repair and replacement work as compared to the scope of the original project.
Amerisure presented evidence to demonstrate that all of the repair and replacement work was
within the scope of plaintiff’s original project through Martin’s testimony. Once Amerisure
presented that evidence, the burden shifted to plaintiff to present evidence that the repair and
replacement work included tasks or property beyond the scope of the original project. MCR
2.116(G)(4); see also Liparoto, 284 Mich. App. 38-39 (plaintiff has burden of demonstrating
damage beyond the scope of the contractor’s own work product). Plaintiff presented no evidence
or argument concerning the scope of its repair or replacement work. Accordingly, MCR
2.116(G)(4) required that summary disposition be entered against plaintiff.
Amerisure is entitled to judgment as a matter of law because coverage was not triggered
due to lack of an “occurrence” and there is no genuine issue of material fact that the only damage
was to plaintiff’s own work product (rather, that of its subcontractor). Because there is no
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coverage, there is no need to address whether any of the exclusions apply or whether conditions
precedent were met.
Reversed and remanded with orders to enter summary disposition in favor of Amerisure.
We do not retain jurisdiction.
/s/ David H. Sawyer
/s/ Mark J. Cavanagh
/s/ Kirsten Frank Kelly
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