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Commercial Construction Endeavors, Inc. v. Ohio Security Insurance Co.

Supreme Court of Vermont

December 13, 2019

Commercial Construction Endeavors, Inc.
v.
Ohio Security Insurance Company

          On Appeal from Superior Court, Addison Unit, Civil Division

          Helen M. Toor, J. (summary judgment orders); Alison S. Arms, J. (final judgment)

          Kevin E. Brown of Langrock Sperry & Wool, LLP, Middlebury, for Plaintiff-Appellant.

          Susan J. Flynn of Clark Werner & Flynn PC, Burlington, and Paul T. Sullivan of Zelle LLP, Framingham, Massachusetts, for Defendant-Appellee/Cross-Appellant.

          PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Morris, Supr. J. (Ret.), Specially Assigned

          EATON, J.

         ¶ 1. On a winter night in 2014, strong winds blew through the town of Georgia, causing a partially constructed livestock barn to collapse. Commercial Construction Endeavors, Inc. (CCE), the contractor building the barn, sought recompense for the resulting losses from its insurer, Ohio Security Insurance Company. However, insurer and insured disagreed as to policy coverage for costs incurred by CCE in removing the remains of the collapsed barn and rebuilding it to its pre-collapse state. Ultimately, CCE sued Ohio Security for breach of contract. In successive summary-judgment rulings, the trial court held that the contractor's rebuilding expenses were covered under the policy, but the cost of debris removal was not. Ohio Security cross-appeals from the first ruling and CCE appeals from the second; we reverse the first ruling and affirm the second.[1]

         ¶ 2. The essential facts are undisputed. CCE was hired to construct a livestock barn in Georgia, Vermont. By late December 2014, the barn was partially complete-the foundation had been laid, wood framing erected, and roof trusses installed. However, on the night of Christmas Eve or early Christmas morning, strong winds caused the structure to collapse. CCE subsequently began clearing debris and rebuilding the barn, incurring additional labor and material costs.

         ¶ 3. CCE reported the collapse to Ohio Security shortly after it occurred, and the adjustment process began. Ohio Security determined that CCE was at fault because the barn was not properly braced to withstand the weather conditions, and that the resulting loss was covered under a policy endorsement for "Off[-]Premises Property Damage Including Care, Custody, or Control," which provided coverage for damage to real property upon which CCE was performing operations where the damage resulted from those operations. Upon adjustment, Ohio Security paid CCE $24, 750-the full amount available under that endorsement, less an applicable $250 deductible.

         ¶ 4. However, although Ohio Security indicated that the off-premises endorsement payment exhausted the coverage available under the policy, CCE asserted that coverage was also available under the "Property Floater Coverage Form" included therein. The floater, captioned "COMMERCIAN [sic] INLAND MARINE," read, in relevant part, as follows:

         A. COVERAGE

         We will pay for "loss" to Covered Property from any of the Covered Causes of Loss.

1. COVERED PROPERTY, as used in this Coverage Form, means:
Business personal property you own, including but not limited to equipment, tools, items, or materials to be installed and office business personal property. Business personal property owned by others including but not limited to employees [sic] tools or rented equipment or tools, while they are in your care, ...

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