after problems arose with the construction land by our farms terminated middle american and a lawsuit followed in which lane barr alleged claim for negligence and breach of contract as for the breach of contract claim i do think it's significant and to keep in mind that there is no allegation for example the admin american failed to install are did install trip hazards that violated section twenty five of design spec g or something along those lines there is no allegation like that because there were no design specifications there was no written agreement  fairly amazing really given the scope and cost of this facility but nonetheless that that is the case you know that does jump out here in the case is there anything in the record that explains that involved and as a result of that we're left with no written document no design specifications and the allegation that was made in the breach of contract claim which admittedly was there was that the contract included the impl because of the lack of a written agreement that's really the nature and just of the contract aspect of the case american family moved for summary judgment on one issue one defense to coverage and that is whether there was a an occurrence the alleged numerous other defenses to code to coverage and there has i been decades of litigation over the scope of the word occurrence in general liability policies and amazingly the case does seem a little inconsistent or can performance bond trying to reconcile that with the fact that there are many cases upholding general liability coverage for contractors the case law holds that accidents resulting from the insured negligent behavior fall within the definition of a contract nd it's conceded in has to be conceded that liability policies were designed to protect insureds from damage to rd party property that was held in the mathis case in missouri and many other cases rd the critical inquiry when when analyzing whether there difference between an intended act and intended result for example in the d r sherry case which is a case where the contractor built a home on  necessary i could have never st seen with this peering that the the home would have failed a th settled principle is that pure breach of contract claims are not covered under general liability policies we we agree with that the real issue becomes i think one of these is this court needs to look at is what does that mean our position is and i think the case law bears that out is what the courts mean when they say that a pure breach of contract case is not covered is that we're talking about contracts where the parties negotiate and spell out defined and detailed terms why because st in that instance the insured the contractor in that case would have understood and they go she did exactly what he was supposed to do and the ramifications and potentials if he didn't do it in other words the insured could see if i don't follow design spec a what's the natural result of that failure would be in the absence of design specifications and clear specifications under missouri law there is a duty of implied care that arises  fact going back to what i was talking about earlier with the nature of the brit breach of contract case in effect if you don't spell it out what you're really left with is a duty of care and negligence claim on behalf of the insurer but it can't be what it can't be your honour's is what american family has argued and that is the level of control of the insured and insured is always in control of its own actions if that's the standard there will never and can never be general liability coverage for example contractor or sub counter it can't be because the contractor always controls what it's doing we also we know that he asked you yes come in a little bit differently would it be fair to say the one million dollars property damage claims all stem a minimum erika's allegedly shoddy workmanship in the construction here yes ok so in that case why wouldn't we follow you home owner's association case it's the same language the same language that we have in this case and it is i think held the no coverage for claims stemming from defective construction and substandard mark mention that because in that case it follows with what we're saying about what what do the courts mean when they when they say that there is no coverage for a pure contract claim in the home so in that case like in virtually every other case where there is not work coverage was not found the courts were careful to point out that the parties had negotiated and that the contractor had violated specifications of the contract and that i think is key to the decisions all of the decisions where there was no no coverage  and it can be contrast to your honor with the cases where there is coverage in the other case the judge or tree decided the republic vanguard case their electrical contractor failed to properly install circuits in a home there very similar to this case the insured are the owner alleged breach of contract and negligence against the contractor the breach of contract claim quoting from the case was that the contractor failed to perform or performed i'm sorry in an on workman like and defective manner and the allegation was the sort of general improper installation of staples and circuit only in that case along with the fact that the general contractor said look i never had any idea i couldn't have expected or forseen that my failure to install these circuits in a proper way or in a negligent way would have resulted in the complete destruction of the home lead to a finding of coverage and it's essentially the same case that we have here your hon changes yes i did i didn't always follow the manufacturer's recommendations but that's the way i do business and that's the way i've done it in the past and i could never have expected that in doing that that i would have resulted in  complete complete failure or in the necessary replacement of all of the owner's property that's again sort of like the d r sherry case again the home both on improperly complete compacted soil there the contractor said candidate that i would have resulted in a failure of the entire house the assurance st secure a case in missouri supreme court case another case where there is coverage for a contractor in that case a contractor subbed out there the allegation was the subfield to do proper pre work inspections and there was coverage and the court in that case pointed out after security said look i know they're only alleging negligence but your honor this is really a breach of contract they're just saying they didn't do their job right and in that case the missouri supreme court was careful to say to state quote security has not pointed to any defined contractual specifications and duties that he contends fail to perform in other words what we're really talking about here is a negligent case the spirit case which is a case out of the eastern district of missouri district court same same sort of thing there the general contractor told this go demolish this bridge there were no detail specifications at least the not reported in the opinion charges failed to ignite and the in that case obviously the demo work was obviously within the control of the subcontractor if you using american families approach but nonetheless there was coverage and there it turned on one of the other bright line tests for sea ability and in the court said here the parties have not provided an explanation for why several of the charges failed but it is not disputed that plaintive did not foresee or expect the demolition to go as it did coke engine nearing this court case the opinion that indicates that there was a detailed specification or an allegation that there was a violation of a detailed specification but again obviously the contractor had control over to work and yet this court found that there was coverage  that was caused by the improper work did the insured see or could he forsee or expect the injury or damages again the undisputed testimony by affidavit of mr hare was that he could for example hawkeye security versus davis where he talks about the breach of defined contractual duties in accordance with their contract  and where they cite mathis where mathis which is one of the cases that everybody cites and everybody but he relies on where matthew says performance of the contract according to the term specified there in was within the insured contractor control in management and its failure to perform cannot be described is undesigned or unexpected nec it gets back to what i was saying earlier i think if the court reads the cases where there was no coverage you'll find  similar line of thinking that is if the parties sit down if they lay it out and if they spell it out then the contractor can come in and say well gee i couldn't have expected that because they negotiated  please the court i'm phil graham i am counsel here today for the a belly american family mutual insurance company this is a case about the consequences of the american occurrence is an accident and we would suggest that no it is not an accident and thus not an occurrence in american families policy for all of the reasons set forth in our brief and those that will argue here today and we would require the court affirm the district court's judgment below contractors or subcontractors involved but american was entirely in control of this project from beginning to its end there is no question there is no dispute about that and that's important in this case  despite the arguments by appellant control over the work is central to this case and it is important to ask you this would you agree though that missouri case seems to be going in the that view as owner had control and management over the property during the renovation this naturally included the ability to resolve any alleged construction deficiencies in the property as well as during mediate substandard work because the ability to resolve these construction deficiencies was within the views control and management its billiard to address them cannot be described as an undesired and unexpected  sinking of the property after it was built on the world it was that was was insufficient there were no allegations or no indication at least in the opinion that the general contractor had been tasked with  in that case you get the result that you get but this case is different because men american control the entire process and there is not any allegation that anything outside of its control or purview cause america and failed to follow lamar industries industry leading provider of steel towers related structures drawings and best practices in construction of the tower and related structures including without limitation and then it limit  allegations we have here are that when american failed to follow certain specifications and requirements what's that what's important here is that it's alleged beyond the control of an american ad i that mit american agreed and promised to design build and deliver a state of the art grain facility state of the art grain facility and what apparently happened is they didn't deliver that but the reason they didn't deliver that was purely and only its own fault in not living up to its contract obligations to deliver a state of the art facility both in the design and the build of the project there wasn't anything outside of made americans grain as alleged to have caused this there simply isn't and for that reason we would suggest the homeowners association is the is the most current and complete up to date statement of of missouri law and it is one that is one that should guide the court in  i think the critical point in there is is that for some reason the insurer conceded that the insurer did not foresee injury or harm from its work so that's different from this case we very so it's different on its facts as well assurance company of of america versus security council also brought up there were no allegations of of breach of contract in that case whatsoever there are only allegations of negligence and again we had a situation where that contractor was not in control of the entire project that was a window installer who installed windows and of knowing our below he asked this question the policy term that is it possible to accidentally do shoddy work no not if you are in control of the entire project designing your building it you are in control of your work you may not want shoddy work you may not like it that you've done shoddy work but at the end of the day if i am involved in building the project from start to finish both design and build than that contractor cannot pure beach of contract cases we're talking about cases where we are only really focused on the workmanship of the insured where i think you should really drill down on and on these  cases and i think they're pretty consistent where there's a finding that the general contractor should be covered there was an occurrence you've often got something outside of the contractor occurring in addition to the fact that that's a demolition case and it did not appear that anyone alleged there had been shot in workmanship but an unexplained failure of all the charges to detonate  specific specifications and requirements that it was supposed to apply how do you respond mr per challenge he's attempt to distinguish you homeowners by as i understood his argument by saying that that case so i don't believe that there's any finding or conclusion in view that there were certain specified in standards or things of that nature that the contractor failed to live up to  shoddy work wants to find coverage of the policy and the court determines there isn't because that contractor that insured had control over that project from from the beginning to end of the project and  what i read to the court at the beginning is i think one of the critical findings is that because of that that ensured had the ability to control the outcome to correct deficiencies to correct problems of the project as it went along whereas i think in a lot of these other cases that that's not the case or there on the part of that the general contractor doesn't necessarily have direct control over over their performance the code case decided by this court there was a finding of recklessness other district court in that case  breach of contract covered so i don't think it has a real direct application to these facts in this case so what we're left dealing with here is looking at what missouri says is an accident an enormous early law that is the negligence claims that are alleged and the counter claims are based on the same identical acts in fact as a breach of contract law and you know again the very same things that are alleged  argue to the court hears is most important is sort of where i started and that is with respect to the fact that an american had control of this project it controlled the design it controlled the building it controlled its ability to  fix or repair or somehow remedy the defects that are alleged in the counterclaim which are very specific the facts and very specific violations of the contract that is the only way to read the counterclaim and that's what we're looking at here is is what is alleged doesn't fall within the sort of coverage and under missouri law which requires an occurrence to be an accident and in view of the case law that holds contractors who are in control joe shepard yes strangely enough i think the answer to your question is yes it is possible to accidentally do shoddy work because this court has recognized in the missouri courts have recognized that negligence of an insured can be and is an occurrence under missouri law all of the cases that both of us discuss are poor workmanship cases they can't begin and there the analysis just can't stop there the issue i think this court has to wrestle with is when is the claim against a contractor really a negligence claim or really a contract claim and st i would say that the missouri courts most definitely are heading toward an end and applied to forsee ability test is one of the ways to decide that and the supreme court said as latest tw thirteen this court has addressed the question of whether particular events are quote accidents quote under liability insurance policies the key question in such cases is whether the insured foresaw or expected the injury or damages that  home depot case if world for southwest rd to twenty the d r sherry case it is a defective workmanship case the liability policy there like every liability policy only kicked in if the insured was legally obligated to pay the damages in that case the contractor when presented with the complaints of the homeowner bought the house repurchase the house from the homeowner and the contractor quote introduced evidence showing that the home inadvertently was constructed on soil that was air those i would say establish the standard of care that applied to air the standard he should have followed when he was designing and when he was building