is number one was there an occurrence under a policy so no mercial general liability policy in the number two whether exclusion day the impaired property exclusion applies it just a little bit it's a little dance because the fair property exclusion on which the insurance company bear the burden of proof incorporates several definitions and then has a lot of undefined terms that is the definition of property damages included which itself has its own definition your honor in this case contractors to drop the project turner had obtained a q khan tractor control insurance program was false that insurance program is a liability program liability insurance which is supposed to provide liability insurance for all the various contractors who subscribe or role in this case the sub contractor my clients novel foundation he was one of those rolling members so they were provided liability insurance in this case by national union was actually two levels insurance the one we're dealing with now is national union the primary layer of insurance was what was already taken care of that is they exceeded their their forty their their my limits so what happened in this case your honor big a holes and when they are too big and all the site could no longer provide lateral support what happened once the adjoining properties collapsed into the holes the site was eventually closed down because of the damage to potential further damage to the adjoining property owners and question is in this case what's covered by the why build insurance policy the adjoining property owner shoot everybody the insurance companies the liability turner settled back claim for three million dollars everybody agrees that under this policy new jersey law plus now becomes significant because new jersey law has a good long this issue turner then settled paid five million dollars to settle that case under new jersey and ask about a component of turner's damages i can understand why the developer would have delayed damages associated with this with this problem but what were the general so turner construction had general conditions that is they had to pay all their workers and pay all through the construction site so they had a year's worth of additional on site they paid taxes they paid insurance premiums policy and the new jersey supreme court said whoa whoa not so fast look at the language of the policy in they said look the definition of occurrence is is triggered by an x and x and in some you know or seen and the new jersey supreme court in point said even if you intended to do the work if the consequences were unforeseen it's an accident it's an occurrence and the judge trial judge got that right this is an occurrence  a stray is looking at the actual language of the impair property exclusion itself now we look at the impaired property solution it's a pretty complex exclusion what the burden of proof on the exclusion is on national and your honor it is just flat out wrong the cypress point case expressed really help your honor that you find a the court said quote just like the definition of the term occurrence the definition of property damage in the c jail policies those not different differentiate between damage to the contractor's work and damage to other property the court went on to find a faulty workmanship or defective work that has damaged the otherwise non defective completed project has caused physical injury to damage property that's important because the st prong of the impair property where the court ruled was prayer is quote impaired property solution this insurance does not apply to property damage that's the definition to failed to be able to provide lateral support to the other properties around but how does an injured we're on it before any holes were dug the property was fine the neighboring property provided lateral support w our brief both cases in maryland and in new jersey maryland where the projects located that require an owner to provide lateral support to their joining property and in this case the site provided that until the holes were augured into the the perimeter of the site during one hundred and sixty holes all over and all the way around the site and when those holes there were too big water tables too high in those holes collapsed and when those holes polanski simplistic  rt i can see where there is damage to the site to the adjoining property because there's lateral support for them but i'm having difficulty understanding what the damage is to the spray property that going to be built how was similar case happened there an american girl construction was done on a warehouse the property was improperly filled on to the warehouse in the warehouse began the shop and the question was well when the owner sued the contractor in the house was on that sure that's correct your honor so the damage was to that project same thing happens here your honor except we now have the the site can't support adjoining prop is the brown part of your see what us understand you're on but i it is it's found throughout the briefs and throughout the argument and so your honor we've made this argument i understand that they say i haven't but your honor if we look at the joint appendix of those citations you'll see me sanctus right  find what those injury main injury mean may be means made less use so this project or this this property was made less useful onesies hold literally were never not able to walk lateral support to the adjoining properties the next place to court made in error your honor was then focused on impaired crops and that is the insurance doesn't apply to property damage to your parent property arising out of a de ect or deficiency inadequacy in your product let me just jump right to it and point time's running the definition of impaired property so he states an impaired property means tangible property other than your proxy so now would be something other than  container both of those cases focus on that wrong that is if we remove the work that was the fact can the property be restored to its prior use and fibro it was a vaccine the vaccines chickens kept  replaced nothing's been done to hasn't been changed one iota from a factual point of view your honor it just doesn't trigger this bill and the reason it doesn't trigger it is because it wasn't the product that was the problem the problem to back up take a step back and start at the start because it's important here that the judgment is not only the right result but the right result for the right reason because you don't even get to sleep unless you st find that there is based policy in the touchstone for coverage under current space policy is an accident and what that means is that the damage has to be untrue unanticipated from the perspective of the insured correctly and the project it doesn't provide a functional support of the excavation system it knows that the project is probably going to get shot down while it has to its work shooting ensuring is sort of like shot they're probably going to be shut down and there's probably going to be consequential damages associated with that so these types of damage that same bridge and turner occur if they're not wanted or hoped for  you say every contract goes to a project knowing that if they don't do their work the project is not the mean things they do in the process of completing it can be an excellent sole because of their things aren't and cypress point is a case to illustrate this point there the court said it's rd party property damage that is accidental in nature now the rd party debt property damage the only rd party damage that occurred here was to the neighboring project is going to get shut down all your work has to be corrected and that the owner and the general contractor are going to incur certain economic losses as a result of that that's not what say for example the auger the  ok so yes the damage shouldn't joining copies is accidental damage the project site itself is not accidental i remember that one act of altered workmanship can result in disparate damages this is why we always have to pursed and ridges between covered in uncovered damages or we don't parse accident or because you don't parse x about accident the definition here is accident that causes property damage neither it's not expected to intended from the standpoint of insured so you have to look at the type of property damage clay changed your view of what's actually if it's if we're still talking about the project itself no you get to the same result because you have to remember what's this is what the insurer risk is under a  policy is the risk that the project site itself the project itself and everybody working on the project is going to cause damage to rd parties outside projects people outside what is not covered under wraps of policy is damage to the project itself caused by people working on the project inside the project that is boundary what that what those type of damages are covered under for example like builders r that can occur a project site and there are different products insurance products to cover each of these risks the wrap up policy doesn't cover every single type of risk that a contractor subcontractor faces in doing its work on the project so that's why you know that's that's where the boundary is drawn and that's what we see in the cypress point case where the court said the damage the risk coverage is liability to rd parties there aren't any rd parties involved in want to assume that there is some quantum of cover damage then exclusion would apply to be a total art coverage and one thing i want to mention up front and i would like to correct for the missing pression i think i on the property not physically injured so didn't raise that prong of the exclusion in its original summary judgment motion before the court they focused only on impaired property and then at the hearing of the summary judgment ensuring agreement that there was loss of use property damage and he said hey the loss of use here is the project site the site that is not physically injured and that's at page two hundred and sixty nine dollars of the joint in their summary judgment motion where they admitted the site was not physically injured and they were admitting it for purposes of training agreement now they can't just switch it up and say well for purposes exclusion no i want to take the opposite position in fact they prevailed on that position before the district court who said who adopted that position and said yeah it's loss of use of the site the site is not physically injured so now that they prevail on that decision how can you now reverse that position and say no no just kidding it wasn't really physically injured at all so what the only thing that has pointed you to show physical injury is its own work that's not their party property damage that's not damage to the site that's just its own work that's that is that's not something that their whole skating and caused damage to the projects that's their own work that can assume based on that this this contract that we're talking about that the site itself is the property damage then it can't be damage to schnabel's own work that constitutes physical injury the physical in order to physical well it depends i mean there's st party insurance but here we're talking about rd party insurance but their party policy is never ever ever going to cost going to cover the damage to the insurance on work that's why they get a performance plan that's why they anything that i do o party liability they said the purpose of a c d o policy in occurrence faced policy is to protect businesses against liability to rd parties that is so it doesn't say it exactly in the way they said it and surely it would have been easier if th had right but the use of things like accident liability imposed by law and the years of judicial opinions constrain policies in this manner shows this is a rd party liability that's why you need to get fined and that's why you need to get builders is if the insurance back work is incorporated to a larger structure and needs to be fixed and there during the giant down time the larger structure can't be used the owner occurs losses then that is the type of  completely wrong because there's faith in that they're saying because that's well that's not adjustment that's not repair that something totally you know the original goal in the original contract was to provide a functional support the excavation didn't do that so you know what under their contract with turner they had to do do over i'm sure from turner's perspective they didn't say well try your best and if you don't succeed that will be fine with us we'll pay you again no the end goal was always the same wasn't a new project it was simply being forced to do what should have been done in the st place that knew that's not supplemental that's repair that's a just and in fact it for the support of excavation system became functional and all those adjustments righted laterals toward the county permitting department lifted the stop work order logic went on the project was completed that is and it's asking for which is the combined eight million dollars settlement value of bridge and turner there not only can break even on that money they're actually going to make a more than seven million dollars profit off their own work that's not district court reached the only fair which is that you don't get a phone as for doing that work and respectfully this court should find the same for these reasons we asked the court affirm the judgment thank you thank you that is they paid for this live building so they anticipated that if something unforeseen happened an accident occurred that they would be covered that they would tender a defense if a claim was made against them which they did they figured their insurance x number one number two the damage can occur to the actual project it doesn't have to be rd party damage that is when holes were drilled into a piece of property owned by bain and which is under contract to turner construction and those holes cause damage to that property so that it cannot sustain lateral support to the adjoining property and in banbridge makes a claim or bainbridge the owner makes claims that you damage my property and term makes a claim and says you damage the property that we're working on those claims were tendered the national union we paid for national unity to defend us and indemnified and they have an obligation to do so we all agreed in this case the attorneys that new jersey law applies to new jersey log brings the cypress point it going just fibro animal hospital the progeny of cypress point in those cases say look if there is an issue as to whether this project damage time that's not there instead what they put in this is separation of insurance for them and said if any claim is made we're going to look at just you are insured independently of whether you're insured and somebody else is injured the separation of five million dollars turner's out of pocket three million dollars when they settle those become the damages lawyers are not collusive and there's no indication anywhere in the record that this will somehow believes these were real claims that were really settled at a is much of what's in the policy novel didn't have to prove anything that is this is an exclusion national union bears the burden of proof and she's right these are two alternative was either property that was not  physically image we think it has been physically damaged or impaired proc and it can't be impaired property because it can't be restored to use by repair or remove and can't and it's not