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May 14, 2015  

 Q&A of the Week

Damage to Neighbor's Residence Caused by Insured's Teenager

An Ohio subscriber recently asked the following question:

Facts: Our named insured set up a tarp in his backyard so his fifteen-year-old son could hit hockey pucks into the tarp during the winter months of 2014/2015. The insured's son had at least ten pucks that he could hit. Every time the insured's son missed the tarp with the puck, he would hit the neighbor's vinyl siding. The son would have to go into the neighbor's yard to pick-up the pucks and then start over again. The insured's next door neighbor's son contacted our insured last week advising that his mom's vinyl siding on the one end of her house was completely destroyed by the insured son's hockey pucks. The damage is quite obvious (dents, cracks, and holes). The neighbor that lives there is ninety years old and never knew this was going on. Her siding was struck approximately 100 times. The insured's son never told him that this was going on.


1. Does this meet the definition of "occurrence"?

2. When does this activity of hitting hockey pucks into the neighbor's siding become expected and intended?

3. Is there any coverage for the damaged siding under Section II – Liability Coverages?

4. Is there coverage under Section II – Additional Coverages for damage to property of others up to $1,000?

ANSWER: You have a unique situation. Yes, the hockey pucks hitting the house constitute an occurrence; the repeated or continuous exposure to a harmful condition, which is the hockey pucks hitting the house. While the hitting of the hockey pucks was intended and expected, the damage to the house was not. However, as the son was fifteen years old, after the first few times the puck hit the house someone that age could reasonably be expected to work out the cause and effect and could be held responsible for the expected damage to the neighbor's property. That portion of coverage is excluded since a fifteen-year-old could be held to make that connection. Damage to property of others is restricted if the damage is intentional, and it was not intended here, it just should have been expected. So, the $1,000 for damage to property of others should be paid out, but the insured owes for the rest of the damage to the neighbor's property out of his own pocket.
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 What's New This Week in FC&S
Motorized Golf Carts Form
Motorized golf carts are their own special type of property. Not really an automobile, but not normal personal property or yard equipment, they are in a class of their own. Therefore, an inland marine form is the best way to provide coverage. ISO form PM 00 33 is designed to provide coverage for motorized golf carts and their trailers. Read More
 Litigation Watch
Pollution, Faulty Work, and Ensuing Loss

This case deals with a claim involving the spread of silica dust caused by alleged faulty workmanship and the ensuing loss exception. This case is Broome County v. The Travelers Indem. Co., 125 A.D.3d 1241 (2015).

Travelers issued a first-party insurance policy to Broome County covering a building in a government complex. During construction of a parking garage underneath the building, construction work caused silica dust to migrate up an elevator shaft and disperse into all of the floors in the building. A claim was made to the insurer for the damage, but Travelers disclaimed coverage. Broome County filed a lawsuit and the insurer moved for summary judgment; the insured cross-moved for summary judgment. The trial court denied both motions and this appeal followed.

The Supreme Court, Appellate Division, Third Department, New York, noted that Travelers claimed the pollution exclusion in the policy precluded coverage. The court agreed. The court said that the record contains unrebutted evidence that silica dust can cause lung disease and respiratory problems so silica dust is clearly an unhealthy and hazardous building material as well as a solid irritant or contaminant. The insured had argued that the words of the pollution exclusion, namely, "the discharge, dispersal, migration, release, or escape" were terms of art in environmental law referring to damage caused by disposal or containment of hazardous waste and so, the pollution exclusion in this instance did not refer to the short migratory events of the silica up the elevator shaft simply causing damage to the inside of the insured's building. The court disagreed and said the only reasonable reading that gives the pollution exclusion a meaning in this case precludes coverage for the loss at issue.

The insurer also claimed summary judgment based on the faulty workmanship clause. The faulty workmanship exclusion applied to loss or damage caused by or resulting from faulty, inadequate, or defective workmanship, repair, or construction. The insured conceded that the loss here resulted from the absence of adequate protective barriers to prevent construction dust from infiltrating the elevator shaft and the building. And, the court noted that the unrebutted record established that a flawed process on the part of the contractors led to the loss at issue.
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 FC&S Ask the Experts
Did you realize that the Q&A section of FC&S is made up of questions submitted by subscribers like you?

Paid subscribers to FC&S Online or print FC&S Bulletins are invited to submit insurance coverage questions to the editors. We'll provide a personalized opinion within five business days. (We'll let you know if it will be longer than that. Sometimes we have to gather research or other supporting materials).

Who knows? Your question may be featured (anonymously) in the online Q&A of the Week or as an FC&S update.

Submit your coverage interpretation question right to the editors of FC&S for quick and reliable information. Ask our expert staff a question by clicking here.
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 Contact Us
As always, your comments and questions are welcome.

Contact us at:
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Phone: 800-543-0874
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The Zalma Insurance Claims Library
Insurance Claims: A Comprehensive Guide
The only source you'll need to successfully handle insurance claims from start to finish. More Info
Construction Defects Coverage Guide
Your single-source for identifying, insuring, investigating, prosecuting, and defending cases that result from construction defect claims. More Info
Mold Claims Coverage Guide
This guide will allow you to handle mold insurance claims and litigation resulting from mold or fungi related disputes with confidence. More Info
For more information about these titles Click Here
FC&S Team
Kelly Maheu, J.D.
  Diane W. Richardson, CPCU
Consulting Editor
Christine G. Barlow, CPCU
Managing Editor, FC&S
  Diana B. Reitz, CPCU, AAI
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David D. Thamann, J.D., CPCU, ARM
Managing Editor, FC&S Bulletins
  Emily Brunner
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  Tosha Brinkman
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  Donna Cozatchy
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Barry Zalma, Esq., CFE
Contributing Editor
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