VIKING CONSTRUCTION, INC.
777 RESIDENTIAL, LLC, et al.
February 14, 2019
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Stephen E. Goldman, with whom was Wystan M. Ackerman,
Hartford, for the appellant (defendant Liberty Mutual Fire
J. Vita, with whom was Theresa A. Guertin, Trumbull, for the
appellees (named defendant et al.).
Keller and Eveleigh, Js.
Conn.App. 248] The cross claim defendant, Liberty Mutual Fire
Insurance Company (Liberty Mutual), appeals from the summary
judgment rendered against it in favor of the cross claim
plaintiffs, 777 Main Street, LLC (777 Main) and 777
Residential, LLC (777 Residential). On appeal, Liberty Mutual
argues that the trial court erred in granting the 777
entities motion for summary judgment on their cross claim
and in denying Liberty Mutuals motion for summary judgment,
on the basis of its interpretation of the insurance policy
issued by Liberty Mutual to the 777 entities. Specifically,
Liberty Mutual argues that (1) the defects, errors, and
omissions exclusion in the insurance policy bars coverage,
and (2) the resulting loss clause in the policy does not
reinstate coverage. We agree with Liberty Mutual and reverse
the judgment of the trial court.
following facts and procedural history are relevant to the
resolution of this appeal. The 777 entities are the owners of
a high-rise building at 777 Main Street in Hartford
(building), which they planned to renovate and convert from
an office building into a 285 unit apartment complex. On
March 27, 2014, the 777 entities hired Viking Construction,
Inc. (Viking), as the general contractor for the renovation.
Vikings work on the renovation included cleaning the
concrete facade of the building. On October 2, 2014, Viking
subcontracted with Armani Restoration, Inc. (Armani), to
clean the concrete facade of the building.
September to December, 2014, Armani cleaned the buildings
facade using a crushed glass cleaner [190 Conn.App. 249] that
was sprayed onto the building using power washers. The
cleaning inadvertently damaged the buildings approximately
1800 windows, all of which had to be replaced at a cost of
over $ 4 million.
July, 2015, the 777 entities claimed coverage of the loss
under a builders risk insurance policy (policy) that they
had purchased from Liberty Mutual. This policy, which was in
effect when the damage occurred, provides: "[Liberty
Mutual] cover[s] direct physical loss or damage caused by a
covered peril to buildings or structures
while in the course of construction, erection, or
fabrication." (Footnote added.) The policy contains
several exclusions, including a "Defects, Errors, And
Omissions" exclusion, which provides that Liberty Mutual
is not responsible for "loss or damage consisting of,
caused by, or resulting from an act, defect, error, or
omission (negligent or not) relating to: a) design,
specifications, construction, materials, or workmanship; b)
planning, zoning, development, siting, surveying, grading, or
compaction; or c) maintenance, installation, renovation,
remodeling, or repair." The exclusion, however, contains
an exception, also known as a "resulting loss"
clause, which provides: "[I]f an act, defect, error, or
omission as described [in the exclusion] results in a covered
peril, [Liberty Mutual] do[es] cover the loss or damage
caused by that covered peril."
policy also includes an optional renovation endorsement,
which the 777 entities added to the policy because the
project involved the renovation of an [190 Conn.App. 250]
existing building rather than the construction of a new
structure. The renovation endorsement provides:
"[Liberty Mutual] cover[s] direct physical loss or
damage caused by a covered peril to building materials and
existing buildings that are part of [the 777 entities]
rehabilitation or renovation project. "
August 12, 2015, after investigating the 777 entities
claimed loss under the policy, Liberty Mutual denied
coverage. On December 24, 2015, Viking filed an action
against 777 Residential, alleging breach of contract on the
basis of 777 Residentials alleged refusal "to remit the
outstanding contract balance ... for work Viking performed on
the [renovation]." On May 12, 2016, Viking filed a
motion to cite in as defendants, inter alia, 777 Main,
Liberty Mutual, and Armani, which the court subsequently
granted. On August 19, 2016, the 777 entities filed a cross
claim, alleging a breach of contract on the basis of Liberty
Mutuals refusal to cover the claimed loss under the policy.
In March, 2017, the 777 entities settled their case with
Viking and Armani for $ 1.6 million. The 777 entities
continue to seek the remaining balance of the cost to replace
the windows from Liberty Mutual.
November 6, 2017, after the close of discovery, Liberty
Mutual filed a motion for summary judgment on the cross
claim. On January 11, 2018, following oral argument on the
motion, the trial court denied Liberty Mutuals motion for
summary judgment. In its memorandum of decision on the
motion, the court explained that its conclusion was based on
a reading of the policys exclusion in conjunction with the
loss peril clause.
Conn.App. 251] On January 31, 2018, the 777 entities filed a
motion for summary judgment on their cross claim, which the
court subsequently granted on February 14, 2018 "[f]or
the reasons stated in the courts memorandum of decision on
Liberty Mutuals motion for summary judgment ...." On
February 16, 2018, the parties filed a stipulation as to the
amount of damages. On February 20, 2018, the 777 entities
filed a motion for judgment in accordance with the
stipulation and Liberty Mutual filed an objection to the
motion. On February 22, 2018, the court granted the motion
for judgment and rendered judgment on the cross claim in the
amount of $ 1,950,000 ...