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By: Roberta D. Anderson, K&L Gates, Pittsburgh

In a highly anticipated decision issued on January 17, the Texas Supreme Court held that the standard commercial general liability (CGL) “contractual liability” exclusion does not void coverage for claims alleging that a contractor failed to construct a project in a “good and workmanlike manner” as required by the construction contract in Ewing Construction Company, Inc. v. Amerisure Insurance Company.

Had the Court answered “yes” to the Fifth Circuit’s certified question, there would have been a radical expansion of the standard contractual liability exclusion that would have been unsupported by — indeed, would have been contrary to — the court’s 2010 decision in Gilbert.  The implications to the construction industry may have been severe.  Coverage for a wide range of construction defects and other mistakes would have effectively disappeared under Texas law.  Many contractors would have faced the concern of potential uninsured liability resulting from the contract work.  And many consumers would have been left without realistic compensation for construction mistakes.

Fortunately, the Court correctly answered “no.”

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By: Joseph C. Safar & Kimberly L. Karr, K&L Gates, Pittsburgh

Whether a construction defect constitutes a covered “occurrence” under a commercial general liability (“CGL”) policy has been the subject of a national debate among state courts in recent years.  Armed with a small minority of seemingly pro-insurer decisions finding no coverage for a contractor’s “faulty workmanship,” some insurers have sought to broaden the coverage-divesting implications of such cases by arguing that the defective design or manufacturing of products should also be deemed “faulty workmanship,” and thus, not covered.  This expansive view of what constitutes “faulty workmanship” disregards important distinctions made in earlier cases and significantly degrades, if not completely undermines, the broad products liability coverage commonly recognized to exist under CGL policies.  For example, if taken to its logical conclusion, this would mean that product manufacturers whose off-the-shelf products unexpectedly cause property damage or bodily injury to others would not be able to obtain coverage—thereby defeating the very purpose of securing CGL coverage.

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By Richard Paciaroni, K&L Gates, Pittsburgh

In April, I participated as a panelist for a program titled Failure is an Option, which addressed best practices for developing a construction project.  Being the only lawyer on the panel among seasoned construction professionals, I was prepared to tackle the topic from a lawyer’s perspective.  I was told to expect the following questions: 1) Is there such a thing as a “good” construction contract?; 2) Can a “good” contract increase the likelihood of success?; and 3) What are the attributes of a “good” construction contract?

After nearly 30 years of handling construction claims and disputes, I felt that I was qualified to address these points.  Specifically, my answers to the first two questions were “yes.”  A good analogy that I can offer is that a “good” construction contract is like a well-constructed ship—it will get you safely through rough water.  Conversely, a “bad” construction contract is analogous to a poorly constructed ship—in rough water, it is likely to capsize, resulting in disaster.

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This article was originally published in the Summer, 2013 edition of The Voice—The Official Magazine of the Construction Users Roundtable.