*

The Honorable William O. Bertelsman, United States District Judge

for the Eastern District of Kentucky, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0068P (6th Cir.)

File Name: 04a0068p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

STANDARD CONSTRUCTION

CO., INC.,

Plaintiff-Appellee,

v.

MARYLAND CASUALTY CO.

and NORTHERN INSURANCE

CO. OF NEW YORK,

Defendants-Appellants.

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No. 02-6039

Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 01-02006—Diane K. Vescovo, Magistrate Judge.

Argued: December 11, 2003

Decided and Filed: March 4, 2004 

Before: ROGERS and COOK, Circuit Judges;

BERTELSMAN, District Judge.*

2 Standard Construction Co. v.

Maryland Casualty Co., et al.

No. 02-6039

_________________

COUNSEL

ARGUED: J. Robert Hall, MECKLER, BULGER &

TILSON, Chicago, Illinois, for Appellants. J. Brooke

Lathram, BURCH, PORTER & JOHNSON, Memphis,

Tennessee, for Appellee. ON BRIEF: J. Robert Hall,

Michael M. Marick, MECKLER, BULGER & TILSON,

Chicago, Illinois, for Appellants. J. Brooke Lathram,

BURCH, PORTER & JOHNSON, Memphis, Tennessee, for

Appellee.

BERTELSMAN, D. J., delivered the opinion of the court,

in which COOK, J., joined. ROGERS, J. (pp. 16-17),

delivered a separate concurring opinion.

_________________

OPINION

_________________

BERTELSMAN, District Judge. Defendants, Maryland

Casualty Company and Northern Insurance Company of New

York, appeal the district court’s judgment in favor of plaintiff,

Standard Construction Company. The district court ruled that

defendants owed plaintiff both a duty to defend and a duty to

indemnify under certain commercial general liability

insurance policies. For the reasons set forth, we AFFIRM the

district court’s judgment. 

Factual Background

Standard Construction Company is an asphalt paving

contractor. Maryland Casualty Company and Northern

Insurance Company of New York insured Standard from

January 1, 1990 through January 1, 1993, under three
No. 02-6039 Standard Construction Co. v.

Maryland Casualty Co., et al.

3

successive one-year commercial generalliability (“CGL”) and

umbrella policies, respectively.

In March 1990, Standard entered into a contract with the

State of Tennessee to perform paving and road work as part

of a road-widening project on Highway 64 near Arlington,

Tennessee. Under the contract, Standard was responsible for

the clearing and removal of certain debris, to be performed in

accord with specifications issued by the Tennessee

Department of Transportation. These specifications required

Standard to remove debris from the construction area; to take

ownership of the debris and dispose of it elsewhere; to secure

written permission from landowners prior to dumping the

debris on any private property; and to make reparations for

any damage to private or public property that might occur

during disposal.

Standard subcontracted this disposal work to Ronald S.

Terry Construction Company. Terry’s superintendent, Gene

A. Bobo, obtained written permission from six owners of the

property adjacent to Highway 64 to dump on their property

construction debris from the road-widening project. With

respect to a seventh property owner, the then 90-year old

Cassella Love, Bobo obtained a similar agreement signed by

Love’s daughter, Louise Poole, in Love’s name. 

Terry, believing that it had Love’s permission, proceeded

to dump construction debris, including trees, corrugated metal

pipes, concrete chunks with exposed steel, and asphalt, on

Love’s property. At that time, Love’s property, which was

zoned commercial, was the subject of condemnation

proceedings brought by the State in connection with the

widening project. William H. Fisher, an attorney representing

Love in the condemnation action, retained an engineer to

inspect Love’s property. The engineer opined that the debris

dumped on Love’s property rendered the land unsuitable for

development.

4 Standard Construction Co. v.

Maryland Casualty Co., et al.

No. 02-6039

After receiving the engineer’s report, Fisher wrote to

Standard by letter, dated May 22, 1992, demanding that the

company cease dumping on Love’s property, revoking any

authority Standard may have had for such dumping, and

requesting that Standard remove the debris. Fisher also stated

that Love suffered from senile dementia and that her ability

to enter into a binding contract was questionable.

After attempting unsuccessfully to locate a copy of the first

Love agreement, Standard obtained a second dumping

agreement, signed either by Love or by Poole in Love’s name,

dated June 17, 1992. Handwritten on the agreement was the

notation: “agree to asp[halt] driveway + dump 2 loads of dirt

in front yard.” Thereafter, Standard paved Love’s driveway

and spread dirt on her land. 

On November 22, 1994, Love, by and through her

daughter, filed suit in Tennessee state court against Standard,

Terry, Bobo and the State of Tennessee. Love asserted

various claims for damage to her property, including a claim

for trespass. Standard tendered defense of the Love case to

Maryland and Northern, but the insurers denied coverage on

several different grounds. Following amendments to the Love

complaint, the insurers again refused to defend Standard.

Standard eventually settled the Love matter for approximately

$200,000.

On January 5, 2001, Standard filed the instant declaratory

judgment action alleging that the insurers breached their

duties to defend and indemnify Standard in connection with

the Love lawsuit. The parties consented to the jurisdiction of

United States Magistrate Judge Diane K. Vescovo, pursuant

to 28 U.S.C. § 636(c).

After discovery, the parties filed cross-motions for

summary judgment. By order, dated May 15, 2002,

Magistrate Judge Vescovo granted summary judgment in

Standard’s favor as to the duty to defend, ruling that property
No. 02-6039 Standard Construction Co. v.

Maryland Casualty Co., et al.

5

damage resulting from trespass would constitute a covered

claim under the applicable policies and that certain “business

risk” exclusions relied upon by the insurers were inapplicable

to claims by a stranger to the construction contract for

damages resulting from a trespass. Magistrate Judge Vescovo

denied the motions as to the duty to indemnify, however,

finding that there were genuine disputes of material fact as to

whether a contract was entered into between Love and

Standard (through Terry) so as to trigger the business risk

exclusions.

Magistrate Judge Vescovo conducted a bench trial on

June 17 and 18, 2002, after which she entered Findings of

Fact, Conclusions of Law, and a Judgment in Standard’s

favor. Specifically, Magistrate Judge Vescovo found that

Terry’s disposal of construction debris on Love’s property

constituted a trespass because, although Terry (and Standard)

believed it had Love’s permission to dump the debris, in

reality such consent was lacking because Love herself was

incompetent to enter into any agreement and because her

daughter, Poole, had neither actual nor implied authority to do

so on Love’s behalf. Thus, no contract between Love and

Standard ever existed, and Terry’s dumping on the property

was wrongful.

Magistrate Judge Vescovo also concluded that Standard

had acted reasonably in settling the Love case and that

Standard had not impaired the insurers’ subrogation rights.

The trial court awarded Standard $244,750 for its Love

defense costs; $200,000 for its settlement costs; and

$6,487.30 in pre-judgment interest.

The insurers now appeal the grant of partial summary

judgment to Standard on the issue of the duty to defend, the

denial of summary judgment on that issue to the insurers, and

the judgment in favor of Standard on the duty of

indemnification.

6 Standard Construction Co. v.

Maryland Casualty Co., et al.

No. 02-6039

1

The relevant terms in the Maryland and Northern policies are

identical.

Analysis

A. Standard of Review

We review the district court’s grant of summary judgment

de novo, employing the same legal standard applied by the

district court. Westfield Ins. Co. v. Tech Dry, Inc., 336 F.3d

503, 506 (6th Cir. 2003) (citation omitted). The same

standard applies where the district court denies summary

judgment based upon purely legal grounds. Id. The district

court’s findings of fact are reviewed under the clearly

erroneous standard. See Fed. R. Civ. P. 52(a).

B. Applicable Law

The district court held that Tennessee law was applicable,

and neither party contests this ruling. Throughout the opinion

and briefs, however, citations are made to authorities of many

jurisdictions, since the policy provisions and cases

interpreting them are reasonably uniform. We agree with this

approach.

C. Scope of Coverage

1. “Occurrence”

The insuring agreement of these policies1 states, in

pertinent part:

a. We will pay those sums that the insured becomes

legally obligated to pay as damages because of

“bodily injury” or “property damage” to which this

insurance applies. We will have the right and duty

to defend any “suit” seeking those damages. . . .
No. 02-6039 Standard Construction Co. v.

Maryland Casualty Co., et al.

7

b. This insurance applies to “bodily injury” and

“property damage” only if:

(1) The “bodily injury” or “property damage” is

caused by an “occurrence” that takes place in

the “coverage territory;” and

(2) The “bodily injury” or “property damage”

occurs during the policy period.

The policies further define “occurrence” as an “accident,

including continuous or repeated exposure to substantially the

same general harmful conditions.” The term “accident,”

however, is not defined. In addition, the policy excludes from

coverage “bodily injury” or “property damage” that is

“expected or intended from the standpoint of the insured.”

Appellants argue that there was no coverage under the

policies because Standard intended to dump the debris on

Love’s land. This situation, it asserts, does not fit the policy’s

definition of an “occurrence.”

The district court held that the dumping was an

“occurrence” or “accident” within the meaning of the policy

because, while the dumping was intentional, the fact that it

was done without permission, thus making it wrongful, was

not intended by the insured.

We agree with this conclusion. As pointed out by the trial

court, “if the resulting damages are unintended, the resulting

damage is accidental even though the original acts were

intentional.” (J.A. at 169) (Order) (quoting State Farm Fire

and Cas. Co. v. CTC Development Corp., 720 So.2d 1072,

1075 (Fla. 1998)).

A Supreme Court of Tennessee opinion relied upon by the

trial court is instructive. In Tennessee Farmers Mut. Ins. Co.

8 Standard Construction Co. v.

Maryland Casualty Co., et al.

No. 02-6039

v. Evans, 814 S.W.2d 49 (Tenn. 1991), the court, after noting

several approaches to this issue by various courts, held:

After carefully weighing the implications of the several

approaches discussed in the preceding paragraphs, this

Court is persuaded that the best approach, and the one

that should be adopted in Tennessee, is that followed by

a majority of the states that have had an opportunity to

construe the language involved in this case. That is, in

order to find that an intended or expected acts exclusion

applies, it must be established that the insured intended

the act and also intended or expected that injury would

result. These are separate and distinct inquiries because

many intentional acts produce unexpected results and

comprehensive liability insurance would be somewhat

pointless if protection were precluded if, for example, the

intent to cause harm was not an essential (and required)

showing. . . . The intent itself may be actual or inferred

from the nature of the act and the accompanying

reasonable foreseeability of harm. It is immaterial that

the actual harm was of a different character or magnitude

or nature than that intended. 

Id. at 55-56 (citation omitted) (italics in original). 

We reject appellants’ argument that Evans is “irrelevant”

because the court there was construing an exclusion rather

than a coverage term. As the trial court here noted, the

“expected or intended” language of the exclusion discussed in

Evans was historically part of the definition of “occurrence.”

Moreover, whether expressed as part of the definition of

“occurrence” or stated as a separate exclusion, the point is the

same.

Moreover, this court recently reached a similar conclusion

in a case where it had occasion to comment at length on the

meaning of “occurrence/accident” in liability policies. See

Westfield Ins. Co. v. Tech Dry, Inc., 336 F.3d 503 (6th Cir.
No. 02-6039 Standard Construction Co. v.

Maryland Casualty Co., et al.

9

2003) (applying Kentucky law). There, the insured, a carpetcleaning company, hired an individual as a carpet cleaner, but

it negligently failed to perform a background check on him.

Id. at 505. The individual subsequently gained entrance to a

customer’s home to clean her carpet and, using knowledge of

the premises gained in that endeavor, later broke into the

home and murdered the homeowner. Id. The homeowner’s

estate sued the insured carpet-cleaning company.

The insurance company argued that this scenario did not

constitute an “occurrence” under the policy because both the

hiring and murder were intentional. The policy at issue

defined “occurrence” exactly as the policies do here: as “an

accident, including continuous or repeated exposure to

substantially the same general harmful conditions.” Id.

This court rejected the insurance company’s argument.

First, we held that the term “accident” was not ambiguous,

observing that the ordinary meaning of that term is “an event

which . . . is unusual and not expected by the person to whom

it happens.” Id. at 507 (quoting Black’s Law Dictionary (5th

ed. 1979)). Further, we noted that an “accident is generally

understood as an unfortunate consequence which befalls an

actor through his inattention, carelessness or perhaps for no

explicable reason at all.” Id. (quoting Fryman v. Pilot Life

Ins. Co., 704 S.W.2d 205, 206 (Ky. 1986)). “The result is not

a product of desire and is perforce accidental.” Id.

In Westfield, the insured deliberately hired a person, but

that act had unforseen and unintended consequences due to

the insured’s negligence, thus bringing the event within the

definition of “occurrence” for purposes of its liability

insurance.

In the instant case, the insured deliberately dumped debris

on Love’s property, but that act too had unforeseen and

unintended consequences due to the insured’s negligence in

failing to secure a valid agreement from the property’s owner.

10 Standard Construction Co. v.

Maryland Casualty Co., et al.

No. 02-6039

We thus agree with the trial court that, as a matter of law, the

act falls within the definition of “occurrence.”

2. “PropertyDamage”/The “YourWork”Exclusion

Appellants also assign as error the district court’s holding

that the underlying Love action sought recovery for “property

damage” under these liability policies. As defined in the

policies, “property damage” means:

a. Physical injury to tangible property, including all

resulting loss of use of the property; or

b. Loss of use of tangible property that is not

physically injured.

The policies exclude coverage, however, for “property

damage” to “impaired property” arising out of a “defect,

deficiency, inadequacy or dangerous condition in ‘your

product’ or ‘your work.’” 

Appellants’ contention, as we understand it, is that because

Standard was performing work pursuant to a contract with the

State, the tort it committed against Love - - a stranger to that

contract - - is not covered either because it was caused merely

by faulty workmanship and/or because the injury arose out of

Standard’s “work.”

We agree with the district court’s resolution of this issue.

The trial court reasoned that, since Love was a third person,

not a party to Standard’s contract with the State, the damage

to her property from the wrongful dumping was not subject to

the exclusion for “your [the insured’s] work.”

This principle was derived from the decision of the

Supreme Court of Tennessee in Vernon Williams & Son

Constr., Inc. v. Continental Ins. Co., 591 S.W.2d 760 (Tenn.

1979). There, speaking of this type of coverage, the court

pointed out: “The coverage is for tort liability for physical
No. 02-6039 Standard Construction Co. v.

Maryland Casualty Co., et al.

11

2

The discussion of the general principle underlying business risk

exclusions, infra, is also pertinent to this subsection.

damages to others and not for contractual liability of the

insured for economic loss because the product or completed

work is not that for which the damaged person bargained.”

Id. at 764 (citation omitted) (emphasis added). 

Further, “it clearly appears that property damage claims of

third persons resulting from the insured’s breach of an

implied warranty are covered unless the claimed loss is

confined to the insured’s work or work product.” Id.

(emphasis added).

In the instant case, it is not the manner in which the

dumping was performed (the “work”) that is faulty or caused

damage, but rather that the dumping itself at the location in

question was unauthorized. Some damage to Love’s land

inevitably resulted. The damage was to the land, not to the

insured’s “work.” Therefore, there is coverage for “property

damage” and the “your work” exclusion does not apply.

Accord Standard Fire Ins. Co. v. Chester-O’Donley & Assoc.,

Inc., 972 S.W.2d 1, 10 (Tenn. App. 1998) (“The exclusion

does not apply if there is damage to property other than the

insured’s work.”) (discussing extensively the history of this

policy language and many other cases and texts); Weedo v.

Stone-E-Brick, Inc., 405 A.2d 788, 791-95 (N.J. 1979)

(extensive discussion).2

3. Exclusion 2j(5)

Appellants also assign as error the district court’s

conclusion that the exclusion found in section 2j(5) of the

policy does not apply to Standard’s claim. This exclusion

precludes coverage for property damage to:

12 Standard Construction Co. v.

Maryland Casualty Co., et al.

No. 02-6039

That particular part of real property on which you or any

contractors or subcontractors working directly or

indirectly on your behalf are performing operations, if

the “property damage” arises out of those operations.

As previously noted, at the conclusion of the

indemnification trial, the district court found as a fact that

there was no permission by Love for Terry to dump debris on

her land, and that Standard thus had no contract with her.

Therefore, it held that the dumping was a trespass. This

finding is not clearly erroneous.

The district court further held that Exclusion j(5) was not

applicable, since it was not intended to apply to claims by

third parties, but only to claims by the entity with which the

insured construction contractor had expressly contracted.

(J.A. at 19-22) (Findings of Fact and Conclusions of Law).

Thus, the district court further held that whether Love was a

third-party beneficiary of Standard’s construction contract

with the State was immaterial.

We agree with these conclusions. Appellants cite Vinsant

Elec. Contractors v. Aetna Cas. & Surety Co., 530 S.W.2d 76

(Tenn. 1975), and Standard Fire Ins. Co. v. ChesterO’Donley & Assoc., Inc., 972 S.W.2d 1 (Tenn. App. 1998).

Neither of these cases, however, is of help to the insurers

because neither involved a third party. Rather, both were

actions by the owner with whom the insured construction

company had contracted.

The Tennessee court describes general liability policies as

follows:

General liability policies are not “all-risk” policies. . . .

They provide an insured with indemnification for

damages up to policy limits for which the insured

becomes liable as a result of tort liability to a third

party. . . . The risk insured by these policies is the
No. 02-6039 Standard Construction Co. v.

Maryland Casualty Co., et al.

13

possibility that the insured’s product or work will cause

bodily injury or damage to property other than the work

itself for which the insured may be found liable.

Standard Fire, 972 S.W.2d at 6-7 (citations omitted)

(emphasis added).

The Standard Fire court further cites with approval an

article by Peter J. Neeson and Phillip J. Meyer entitled “The

Comprehensive General Liability Policy and Its Business

Risk Exclusions: An Overview.” Id. at 7 n. 8. There, the

learned authors state:

The Business Risk exclusions do not purport to bar

coverage for personal injuries or for physical injury to

other property which are caused by the insured’s product

or work.

Peter J. Neeson & Phillip J. Meyer, The Comprehensive

General Liability Policy and Its Business Risk Exclusions: An

Overview, 79-80, reprinted in Reference Handbook on the

Comprehensive General Liability Policy (American Bar

Ass’n 1995). 

We agree with these observations and also with the authors’

application of these principles to construction projects:

In every construction project, the owner and contractor

incur risks or exposure to loss. Some of these risks can

be shifted to insurers -- others cannot. The owner has the

risk that the contractor will fail to properly perform his

contractual obligations. This risk can be shifted by the

owner either securing, or requiring the contractor to

provide, a performance bond. The owner likewise has

the risk the project may be destroyed by fire, explosion

or the like during construction. The contractor may have

a similar risk. Either or both may shift that risk to an

insurer by acquiring a builder’s risk policy. Again, such

14 Standard Construction Co. v.

Maryland Casualty Co., et al.

No. 02-6039

losses are generally beyond the effective control of either

the contractor or owner . . . [The] risk of third party

personal injury or property damage claim[s] due to

defective workmanship or materials may be shifted by the

contractor purchasing a comprehensive general liability

insurance policy. . . . However, in addition to and apart

from those risks, the contractor likewise has a contractual

business risk that he may be liable to the owner resulting

from failure to properly complete the building project

itself in a manner so as to not cause damage to it. This

risk is one the general contractor effectively controls and

one which the insurer does not assume because it has no

effective control over those risks and cannot establish

predictable and affordable insurance rates.

Id. at 81-82 (quoting Knutson Constr. Co. v. St. Paul Fire and

Marine Ins. Co., 396 N.W.2d 229, 234 (Minn. 1986))

(emphasis added).

Thus:

When read together, these [business risk] provisions

exclude coverage when there has been no physical injury

to tangible property other than the insured’s work.

Standard Fire, 972 S.W.2d at 12 (emphasis added). 

In other words, there is coverage where there has been

physical injury to tangible property that is not the insured’s

work. As we have pointed out earlier in this opinion, we

agree with the district court’s view that Love’s tangible real

property is not the insured’s “work,” and that it was

physically damaged by having the construction debris from

the road-widening project dumped on it. Therefore, this

exclusion does not apply. See Thommes v. Milwaukee Mut.

Ins. Co., 622 N.W.2d 155, 159-60 (Minn. App. 2001)

(holding that j(5) exclusion did not bar coverage for claim

against insured by third party arising out of insured’s damage
No. 02-6039 Standard Construction Co. v.

Maryland Casualty Co., et al.

15

to third party’s property), aff’d, 641 N.W.2d 877 (Minn.

2002). Cf. Dewitt Constr. Inc. v. Charter Oak Fire Ins. Co.,

307 F.3d 1127, 1134-35 (9th Cir. 2002) (holding that j(5)

exclusion did not bar coverage for damage to subcontractors’

work because damage did not arise from insured’s performing

operations on subcontractors’ work). 

D. Other Issues

The insurers also claim that the district court erred in

holding that they were not prejudiced by a delay in notice.

We find no error in this conclusion.

Appellants further challenge the district court’s ruling that,

by refusing to defend Standard against the underlying action

by Love, appellants waived any right to control the

settlement. We believe, however, that the district court’s

ruling on this issue was correct. See, e.g., Esicorp, Inc. v.

Liberty Mut. Ins. Co., 193 F.3d 966, 970 (8th Cir. 1999)

(noting that by refusing to defend, the insurer gives up its

contractual right to control defense, and insured may

negotiate reasonable settlement); Cambridge Mut. Fire Ins.

Co., 692 A.2d 1388, 1391-92 (Me. 1997) (similar); Sentinel

Ins. Co., Ltd. v. First Ins. Co. of Hawai’i, 875 P.2d 894, 913

(Haw. 1994) (by breaching duty to defend, insurer forfeits any

right to control defense costs and strategy; insured is then

entitled to negotiate reasonable settlement).

For the foregoing reasons, the district court’s judgment is

affirmed.

16 Standard Construction Co. v.

Maryland Casualty Co., et al.

No. 02-6039

____________________

CONCURRENCE

____________________

ROGERS, Circuit Judge, concurring. I concur in the

majority opinion. I write separately to explain why, in my

view, the seemingly applicable “j(5)” exclusion does not

apply in the circumstances of this case. 

The insurance policies in this case, in the “j(5)” exclusion,

exclude coverage for “property damage” to 

That particular part of real property on which you or any

contractors or subcontractors working directly or

indirectly on your behalf are performing operations, if

the “property damage” arises out of those operations. 

Notably, the policies do not define “performing operations”

or “operations.”

Two canons of constructions are crucial to my resolution of

this issue. First, the insurer bears the burden of showing that

an exception applies. Interstate Life & Acc. Ins. Co. v.

Gammons, 408 S.W.2d 397, 399 (Tenn. Ct. App. 1966).

Second, ambiguous insurance contracts, and, in particular,

ambiguous language limiting coverage, are construed in favor

of the insured. American Justice Ins. Reciprocal v.

Hutchinson, 15 S.W.3d 811, 815 (Tenn. 2000);Interstate Life

& Acc. Ins. Co., 408 S.W.2d at 399. 

The insurers argue that the j(5) exclusion applies because,

under Standard’s contract with the State of Tennessee,

Standard was required to dispose of construction debris. As

explained in the majority opinion, Standard entered into a

contract with the State of Tennessee to perform paving and

road widening work as part of a state project to widen

Highway 64 from two to five lanes. In the contract, Standard
No. 02-6039 Standard Construction Co. v.

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17

agreed to “clear and grub” vegetation and debris, to remove

“structures and obstructions,” and to dispose of this material

“outside the limits of view from the project.” Regarding the

“clearing and grubbing,” Standard was required to “make all

necessary arrangements with property owners for obtaining

suitable disposal locations,” and the cost involved was

“included in the unit price bid for other items of

construction.” Regarding the removal of “structures and

obstructions,” the contract provided that, “[i]f the material is

disposed of on private property, [Standard] shall secure

written permission from the property owner.” 

While in my view the question is close, the term

“operations” is ambiguous in that it is not clear whether

Standard was “performing operations” on Ms. Love’s

property when it dumped debris there. It is true that Standard

was required under the contract to dispose of construction

debris and to obtain permission from any property owners on

whose property Standard chose to dispose of the debris.

However, Standard was not obligated to dispose of the debris

in any particular fashion—Standard owned the debris once it

was removed and could dispose of it in a number of ways. It

was not necessary for Standard to dump debris on Ms. Love’s

property in order to fulfill its contract to widen the highway.

The requirement that Standard obtain permission before it

dumped debris on private land simply served to shield the

State of Tennessee from liability to third parties. As the

district court found, “work on Ms. Love’s property was an

additional duty or task that Standard was to undertake through

additional contracts with adjacent landowners.” Or as

Standard argues, it was “hired” to widen a road—not to

perform work on Ms. Love’s land. 

Thus, given that the canons of construction favor coverage,

and that, as explained in the majority opinion, coverage in the

present case coincides with the underlying purpose of CGL

insurance, the district court properly concluded that the j(5)

exclusion does not apply.