DeWitt Construction Inc. v. Charter Oak Fire Insurance

concurring:

Were we writing on the proverbial clean slate, I should be in serious doubt that the failure of the insured, DeWitt, to have performed its contracted work properly constituted an occurrence under the commercial liability policies. It seems to me that this goes far towards substituting general liability coverage for a performance guarantee underwritten by an insurance company.

However, evaluation of such doubt is not necessary in this case. We are dealing with a state law case, and the Yakima Cement Products Co. case, cited in the opinion, is a clear statement by the highest court of the state that, in Washington, such a failure is an occurrence. I, therefore, concur.

Opinion by Judge GOULD; Concurrence by Judge HILL.

OPINION

This appeal, in a case with jurisdiction based on diversity, follows the district court’s grant of summary judgment in an insurance contract dispute about two commercial liability insurance policies purchased by DeWitt Construction, Inc. (“DeWitt”) from Travelers Property Casualty Co. 1 (“Travelers”). DeWitt, a sub *1132 contractor on a major development project, negligently installed cement piles, and thereafter had to install new piles that were satisfactory. The initial substandard- performance by DeWitt gave rise to damages claims by the general contractor. 2 The scope of the insurance policies’ coverage, Travelers’ duty to defend DeWitt against the asserted liability on DeWitt’s subcontract, and bad faith and Consumer Protection Act claims resulting after Travelers declined the tender of defense are the subject of this dispute.

The district court granted DeWitt’s partial summary judgment motion on duty to defend, granted Travelers’ partial summary judgment motion on coverage, and thereafter dismissed DeWitt’s claims for bad faith insurance claims handling and for violation of the Washington Consumer Protection Act.…