Exclusion Defeats Claim for Defense and Indemnity
Duckworth roofing, while repairing a roof for LGO Properties caused a
fire at the Tulane Building while using hot torches to repair the roof.
In Certain Underwriters At Lloyd's Of London As Subrogee Of L.G.O.
Properties, LLC v. Duxworth Roofing And Sheetmetal, Inc., No.
2022-CA-0821, Court of Appeals of Louisiana, Fourth Circuit (July 18,
2023) the defendant sought coverage when the defendant's insurer denied
coverage because of an exclusion called the Torch Down Roofing
Exclusion.
FACTS
L.G.O. Properties, L.L.C. entered into a contract with Duxworth to
perform roofing work at 4033 Tulane Avenue (hereinafter "the Tulane
Building"). Duxworth's roofing work included the use of hot tools and
the installation of a process called "torch down roofing" to repair a
leak on the roof of the Tulane Building. On December 9, 2016, the Tulane
Building was damaged in a fire (hereinafter "the December 2016 fire").
James River, Duckworth's insurer, filed a motion for summary judgment
arguing that the Commercial General Liability insurance policy precludes
Duxworth from receiving coverage.
DISCUSSION
Duxworth asserts multiple assignments of error challenging the trial
court's ruling on the motion for summary judgment.
The Language Of The Torch Down Roofing Exclusion Is Not Ambiguous
The Louisiana Court of Appeals found that the Torch Down Roofing
Exclusion precludes Duxworth from receiving coverage from James River. A
Court must give words and phrases their general meaning. Mr. Duxworth's
deposition revealed that he was a part of the crew that was present and
performing torch down roofing repairs to the Tulane Building on the day
of the December 2016 fire.
Since Mr. Duxworth testified that his team was instructed to repair a
leak to the Tulane Building's roof which required the use of hot tools
and torches, also known as "torch down" roofing, and since Mr. Duxworth
concedes that hot tools and torches were used to install a flat torch
down roof to the Tulane Building the exclusion applies.
Given the plain, ordinary, and generally prevailing meaning of the words
"arise out of," it was clear to the Court of Appeals that Lloyd's of
London's claims against Duxworth arose out of and are derived from the
property damage caused by the fire that occurred during the time
Duxworth was performing ongoing torch down roofing installation.
Duty to Defend
A duty to defend is determined solely from the plaintiff's pleadings and
on the face of the policy. James River's CGL policy provides: "we will
have no duty to defend the insured against any 'suit' seeking damages
for 'bodily injury' or 'property damage' to which this insurance does
not apply." Lloyd's of London's petition alleges that Duxworth failed to
safely use hot torches to perform roofing work on the Tulane Building.
The Torch Down Roofing Exclusion unambiguously excluded the claims
against Duckworth. The trial court properly sustained James River's
motion for summary judgment and determining that the Torch Down Roofing
Exclusion prevents coverage from the use of torch down roofing
operations.
ZALMA OPINION
Everyone who is sued wants to use other people's money to defend the
suit. Duckworth bought a policy with a "Torch Down Roofing Exclusion"
that obviously applied after the insured testified he and his staff were
using torches to repair the building at the time it caught fire. Using
that type of roofing with a policy that excludes it accepted the full
risk of loss and will have to use his own funds to pay off the Lloyd's
Underwriters' subrogation action.
(c) 2023 Barry Zalma & ClaimSchool, Inc.