48 Trial Lawyer • Summer 2023 defendant’s conduct was a cause of the plaintiff’s harm, the court concluded that the low damages award did not, as the plaintiff had argued, result from allocating damages due to the but-for causation instruction. Commercial General Liability insurer has no obligation to indemnify its insured general contractor when property damage award in the underlying proceeding arises from homeowners’ claim seeking contract remedies rather than tort remedies. Twigg v. Admiral Ins.Co., 324 Or App 259 (2023), Shorr, P.J. Emily Sarah Miller represented the plaintiffs. In this insurance coverage case, the plaintiffs sued their general contractor for defective repair work intended to correct the contractor’s faulty construction of their home, including the garage floor. The contractor performed its work under a “repair agreement,” and did not perform its work timely or properly. In arbitration, the plaintiffs sought remedies under the agreement. The arbitrator concluded that the contractor’s installation of the garage flooring “was ‘defective’ and contrary to the manufacturer's specifications.” The arbitrator awarded $604,594.80 which included the cost of repairs for all items the contractor did not repair, including the garage floor. The contractor tendered the claim to its insurer, defendant Admiral Insurance Company, which denied coverage for the claim. Under the terms of the defendant’s commercial general liability policy, property damage liability provides that it covers “‘property damage’ only if: (1) [t]he *** ‘property damage’ is caused by an ‘occurrence’.” Property damage is defined as “[p]hysical injury to tangible property” and an occurrence is defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” In the court action thereafter brought against the defendant, the plaintiffs alleged that the contractor’s negligent repair work required the defendant to cover $150,000 for the property damage to the garage floor. The parties filed cross-motions for summary judgment and the trial court granted the defendant’s motion and denied the plaintiffs.’ This appeal followed. The Court of Appeals interpreted the policy to determine whether, “from the perspective of an ordinary purchaser of insurance,” the policy provided coverage for its insured’s legal liability in this case. The plaintiffs argued that the policy’s definition for an “occurrence” to include “an accident” is reasonably understood to cover damage caused by mistakes in the work performed, i.e., failing to properly follow the flooring manufacturer’s installation instructions. However, the court confined its analysis to the type of legal liability that the defendant is being asked to cover. Because the homeowners sought only contract remedies under the “repair agreement” in the underlying arbitration, and because relevant case law distinguished the breach of contractual duties from the breach of a duty of care in the tort, the court concluded the contractor’s faulty work did not constitute “an accident” within the meaning of the defined term “occurrence” and affirmed the trial court’s decision. In class action filed in 2013 against property manager and owners under Oregon Landlord Tenant Act, remand required to address, among other things, erroneous application of the discovery rule in determining SOL and the proper size of class, and erroneous calculation of damages under statute. Class plaintiffs retain retaliation claim and retaliation damages. Hathaway v. B & J Property Investments, 325 Or App 643 (2023), Shorr, P.J. Rick Kingbeil represented the plaintiffs. The plaintiffs in this class action filed Sheets Continued from p 47
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