Introduction

In a case of first impression, america District Court docket for the District of Columbia (making use of Illinois legislation) rejected a LEG3 exclusion as ambiguous.  See S. Capitol Bridgebuilders “SCB” v. Lexington Ins. Co., 2023 U.S. Dist. LEXIS 176573 (D.D.C. Sep. 29, 2023).  The London Engineering Group (“LEG”) is a consultative physique for insurers of engineering class dangers.  Practically 30 years in the past, LEG launched a collection of defects exclusions, together with LEG1, LEG2, and LEG3 (which was revised in 2006).  Every gives rising ranges of protection, with LEG3 being the broadest.  Typically, whereas preserving some protection, LEG3 purports to exclude prices incurred to enhance defects of “materials workmanship, design, plan, or specification.”  Till now, regardless of frequent utilization in builder’s threat insurance policies internationally, there was a transparent lack of judicial steering relative to LEG3.

Factual Background

In S. Capitol Bridgebuilders, the insured was employed to construct Frederick Douglas Memorial Bridge in Washington DC and procured a builder’s threat insurance coverage coverage.  In constructing and integrating the supportive buildings of the bridge, the insured’s poor vibration of concrete resulted in building malformations generally known as “honeycombing” and “voiding,” which harmed the structural integrity of the bridge.  This required the insured to exchange sizable parts of the bridge’s supportive buildings.  The insured subsequently submitted an insurance coverage declare in search of indemnity for associated prices which the insurer denied for 2 causes: (ii) lack of direct bodily harm, and (ii) reliance on the coverage’s model of a LEG3 exclusion (known as the LEG 3 Defect Extension all through the opinion):

This coverage shall not pay for loss, harm or expense precipitated immediately or not directly by any of the next.

* * *

All prices rendered obligatory by defects of fabric workmanship, design, plan, or specification and may harm (which for the needs of this exclusion shall embody any patent detrimental change within the bodily situation of the Insured Property) happen to any portion of the Insured Property containing any of the mentioned defects, the price of alternative or rectification which is hereby excluded is that value incurred to enhance the unique workmanship design plan or specification.

For the aim of this coverage and never merely this exclusion it’s understood and agreed that any portion of the Insured Property shall not be considered broken solely by advantage of the existence of any defect of fabric workmanship, design, plan, or specification.

All different phrases and situations of the coverage stay the identical.

The Claimed Harm Was Throughout the Scope of Protection

First, the Court docket decided that the claimed harm was inside the scope of protection.  Provided that “harm” was undefined, the Court docket turned to the “plain, peculiar, and well-liked which means of the time period, in addition to the events’ intent and “general objective of the contract.”  The Court docket said that “harm” included the prices of fixing the concrete flaws that weakened the bridge.  “A decreased weightbearing capability is definitely an harm, or on the very least a foul impact, on the bridge and its supporting buildings.”  Contemplating that the insured bought an all dangers coverage for the development of a bridge, “[o]ne such threat, inherent in any advanced building undertaking, is harm from errors in workmanship.”

The insurer unsuccessfully argued that the LEG 3 Defect Extension outlined “harm” in a approach that conclusively excluded defects attributable to materials workmanship.  The insurer directed the Court docket to the ultimate paragraph of the supply, which said that “any portion of the Insured Property shall not be considered broken solely by advantage of the existence of any defect of fabric workmanship.”  The Court docket disagreed:

However “attributable to” and “solely by advantage of the existence” should not the identical.  The Extension doesn’t counsel that property can’t be “broken” if there have been defects in materials workmanship someplace within the causal chain.  As a substitute, it signifies that defects of fabric workmanship in and of themselves are inadequate to represent harm.

The Insurer Did not Display that an Exclusion Was Relevant

After the insured had established protection below the coverage, the burden then transferred to the insurer to reveal that an exclusion utilized.  In rejecting the insurer’s reliance on the LEG 3 Defect Extension, the Court docket said:

The LEG 3 Extension is ambiguous—egregiously so.  To know this, one want solely try to learn it.  In simply three sentences, [the insurer] managed to squeeze in a run-on sentence, an undefined time period, a number of mispunctuations, and a scrivener’s error…The Extension is internally inconsistent and bordering on incomprehensible.  [The insured’s] assertion that the Extension is “convoluted” is an understatement.

The Court docket acknowledged that the supply excluded alternative or rectification prices incurred to “enhance” the unique workmanship.  On this context, the following inquiry involved what it meant to “enhance” the unique workmanship.  The insured steered it meant “making it higher than initially deliberate, and the insurer argued it meant “merely patching or changing faulty parts constitutes an enchancment.” 

The Court docket famous that the insurer’s place had “intuitive attraction,” such that “repairing or changing a faulty part can technically be thought-about an enchancment—until that part is changed with one thing worse.”  Nevertheless, the Court docket finally decided that “to enhance means to make a factor higher than it will have been if it weren’t for faulty work.”  It defined that the language explicitly distinguished the “value incurred to enhance” work from “the price of alternative or rectification.”  Accordingly, the Court docket said that because the LEG 3 Defect Extension was topic to multiple affordable interpretation, it was ambiguous requiring building in opposition to the drafter-insurer.

Conclusion

Though the LEG exclusions should not new, they’re seldomly litigated.  Because of this, S. Capitol Bridgebuilders is a landmark determination which can probably create some uncertainty within the building insurance coverage market the place, because the Court docket famous, potential defects are inherent in any advanced undertaking. 

Policyholders and insurers, alike, ought to stay aware that the majority claims current distinctive points relying upon the coverage’s explicit language and factual circumstances.  Lastly, you will need to be aware that whereas the choice is essentially adversarial to insurers, it solely displays one court docket’s perspective.  However, this determination has the potential to reshape the panorama for LEG3 wordings.

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