In a landmark decision, the Illinois Supreme Court has set forth a new legal framework to follow when analyzing coverage for construction defect claims under CGL policies. In Acuity v. M/I Homes of Chicago, LLC, 2023 IL 129087, __ N.E.3d __ (2023) (“Acuity”), Illinois’ highest court abrogated the longstanding rule applied by Illinois appellate courts that damage to third-party property is required to establish “property damage” caused by an “occurrence.” Instead, the Court held that “property damage” to an insured’s faulty work can be caused by an “accident” and, therefore, constitutes an “occurrence” under a liability insurance policy’s initial grant of coverage. The Court’s ruling in Acuity has effectively changed the landscape for how insurers may respond to construction defect claims in Illinois. With Acuity, the absence of damage to other property does not equate to the absence of an “occurrence,” and is not, by itself, a basis to disclaim a duty to defend. Insurers will need to now rely on the business risk exclusions to determine whether a duty to defend is owed in construction defect cases.
The Acuity Decision
In Acuity, the Illinois Supreme Court was tasked with determining whether Acuity had a duty to defend its additional insured, M/I Homes of Chicago, LLC (“M/I Homes”). The claim at issue arose from an underlying lawsuit brought by a townhome owner’s association (the “Association”) alleging that M/I Homes’ subcontractors caused construction defects in a residential townhome development by using defective materials, conducting faulty workmanship, and failing to comply with applicable building codes. The underlying lawsuit alleged that the defects caused physical injury to the townhomes, which included leakage or uncontrolled water and moisture in locations in the buildings where it was not intended or expected. The underlying lawsuit sought to hold M/I Homes liable to repair both the defects and the “damage to other property caused by the [d]efects” under theories of breach of contract and breach of an implied warranty of habitability.
M/I Homes sought a defense from Acuity as an additional insured under a CGL policy issued to ones of its subcontractors, H&R Exteriors, Inc. (“H&R”) by virtue of the subcontract agreement with H&R to perform certain exterior work on the townhome project. Acuity denied that it had a duty to defend M/I Homes and filed a declaratory judgment action against M/I Homes and the Association.
In the trial court, the parties filed cross-motions for summary judgment. Acuity argued that M/I Homes was responsible for the building of the townhomes and that the claims brought by the Association related to the defective construction of the townhomes alone. It argued that the underlying lawsuit, therefore, “merely alleged the natural and ordinary consequence of defectively performed work, rather than an ‘occurrence’, which is defined as an ‘accident’,” and that the complaint thus only alleged economic loss in the form of repairing the defective work, rather than “property damage.” M/I Homes, in contrast, argued that the Association’s claim that there was damage to “other property” was sufficient to constitute “property damage” caused by an “occurrence.” Ultimately, the trial court found that Acuity had no duty to defend.
On appeal, the parties agreed with the premise that, “under current Illinois law, there could be no ‘property damage’ caused by an ‘occurrence’ under the policy unless the underlying complaint alleged property damage to something beyond the townhome construction project.” The appellate court raised questions about Illinois law on this point. It acknowledged that its analysis in these cases has been driven by broad policy considerations and not by the language of the insurance policy. It also questioned the different outcomes in the case law based on whether the insured was a general contractor or subcontractor, and “whether, when, and why these terms would mean something different for different parties insured under the same policy.” The appellate court further observed that “commentators have criticized the approach to coverage taken by Illinois cases, noting that the cases do not adhere to principles of contract interpretation and are inconsistent with the trend of cases throughout the country.” The appellate court held that, given the parties’ concession, it was not necessary to answer those questions, but raised them hoping that the Illinois Supreme Court could bring clarity to this issue.
The Illinois Supreme Court reviewed the longstanding principle applied by Illinois appellate courts that, unless an underlying complaint alleges damage to “other property” beyond the Insured’s work on the construction project, there can be no “property damage” caused by an “occurrence.” Courts have historically relied on this principal to focus on whether damage to “other property” was sufficiently pled when determining an insurer’s duty to defend in construction defect cases. However, the Court ultimately disavowed this rule and expressly abrogated the cases that established it, such as CMK Dev. Corp. v. West Bend Mut. Ins. Co., 395 Ill. App. 3d 830, 840-41 (2009); Stoneridge Dev. Co. v. Essex Ins. Co., 382 Ill. App. 3d 731, 752 (2008); Certain Underwriters at Lloyd’s London v. Metro. Builders, Inc., 2019 IL App (1st) 190517; Acuity Ins. v. 950 West Huron Condo. Ass’n, 2019 IL App (1st) 180743. In abrogating the prior rule, the Court found the parties’ premise “that there could be no ‘property damage’ caused by an ‘occurrence’ under the policy unless the underlying complaint alleged property damage to something beyond the townhome construction project” to be “erroneous” and “not grounded in the language of the initial grant of coverage in the insuring agreement.”
Instead, the Court held that the term “accident” as used in the definition of “occurrence” in the policy at issue, “reasonably encompasses the unintended and unexpected harm caused by negligent conduct,” which included the harm alleged in the underlying lawsuit. The Court reasoned that “[n]either the cause of the harm—the inadvertent defects—nor the harm—the resulting water damage to the walls of the interior of the units—was intended, anticipated, or expected.” In reaching its conclusion, the Court noted that “accident” was not defined in the policy. Therefore, the Court relied on prior interpretations of the meaning of “accident” as well as the dictionary definition of “accident” to determine whether “property damage” caused by an “occurrence” was alleged. The Court also relied on case law from policyholder-friendly jurisdictions, like Indiana and Wisconsin, which applied similar interpretations to the scope of “property damage” caused by an “occurrence” in the construction defect context. To this end, the Court briefly noted that exclusion (a) for expected or intended injury did not apply because the underlying complaint did not allege that the damage was intentional.
Moreover, the Court acknowledged Acuity’s argument that “the intent of CGL coverage is not to insure the cost to repair or replace defective work or to recover damages within the named insured’s own scope of work.” However, the Court held that these notions regarding the intent of covered damages under a CGL policy are expressly addressed by the business risk exclusions and are not found in the language of the initial grant of coverage. In highlighting the potential exclusions that may apply to claims of “property damage” arising from a construction defect, the Court emphasized that there are exceptions to the exclusions that may nonetheless apply to afford coverage. For example, the Court explained that exclusion (j)(6), which precludes coverage for property damage to “[t]hat particular part of any property that must be restored, repaired or replaced because your work was incorrectly performed on it,” contains an exception for property damage included in the “products-completed operation hazard.” The Court also noted that exclusion (l), which excludes property damage to “your work” arising out of it any part of it and included in the “products-completed operations hazard,” contains an exception for work performed on the Named Insured’s behalf by a subcontractor.
Ultimately, the Court concluded that the allegations of the underlying lawsuit were sufficient to establish “property damage” caused by an occurrence” for purposes of the insuring agreement and remanded the case to the trial court to determine whether the business risk exclusions applied to bar coverage.
Impact and Take Aways
The key takeaway of the Acuity opinion is that insurers can no longer disclaim the duty to defend in construction defect cases on the ground that there is no “property damage” caused by an “occurrence,” even where the only damage alleged is to the named insured’s work. Because many property damage claims arise following the completion of a construction project, an insurer that issued liability policies to a general contractor as the named insured may now find that it cannot rely on a lack of “occurrence” argument or the business risk exclusions to deny coverage. This may make it more difficult for the insurer to transfer the risk to other insurers that provided coverage to a general contractor as an additional insured.
Insurers will now need to carefully focus their coverage analysis on whether the business risk exclusions (among other exclusions and defenses) are applicable based on the specific facts alleged and whether it is a named insured or additional insured tendering the claim for a defense. To that end, it will be important that exclusions that apply to preclude coverage are clearly articulated in any disclaimer letters and declaratory judgment complaints. Insurers with pending claims and declaratory judgment actions may consider amending their coverage position letters or pleadings in order to raise all applicable exclusions, to the extent that they have not done so already.
Finally, while the Acuity opinion does not make any specific holdings with regard to the application of the business risk exclusions, the Court’s focus on the exceptions to those exclusions could be read as a forecast of its intent to liberally apply the exceptions to find coverage in the future. A liberal application of the exceptions to the business risk exclusions would be consistent with the dynamic shift towards policyholder-friendly jurisprudence that the Acuity opinion seems to usher in. It is imperative that insurers comply with Illinois’ estoppel rule when denying a duty to defend construction defect claims moving forward. Under Illinois law, an insurer with a duty to defend cannot simply refuse to defend its insured. Employers Ins. of Wausau v. Ehlco Liquidating Trust, 708 N.E.2d 1122, 1134-35 (Ill. 1999). Rather, the insurer has two options: “(1) defend the suit under a reservation of rights or (2) seek a declaratory judgment that there is no coverage.” If an insurer declines to take either of these options, then it may be estopped from asserting any policy defenses to coverage, even when those coverage defenses would have successfully barred coverage had the insurer not breached its duty to defend. In light of the uncertainty as to how the Court will apply the business risk exclusions following Acuity, insurers who deny a duty to defend an insured against the allegations of a construction defect claim must file a declaratory judgment action in order to protect itself against any estoppel implications.
