[Cite as Westfield Ins. Co. v. Custom Agri Sys., Inc., 133 Ohio St.3d 476, 2012-Ohio-4712.] 

WESTFIELD INSURANCE COMPANY v. CUSTOM AGRI SYSTEMS, INC. 

[Cite as Westfield Ins. Co. v. Custom Agri Sys., Inc., 

133 Ohio St.3d 476, 2012-Ohio-4712.] 

Insurance—Claims for defective workmanship not covered by commercial general 

liability policy. 

(No. 2011-1486—Submitted April 4, 2012—Decided October 16, 2012.) 

CERTIFIED by the United States Court of Appeals 

for the Sixth Circuit, No. 11-3213. 

__________________ 

SYLLABUS OF THE COURT

Claims of defective construction or workmanship brought by a property owner are 

not claims for “property damage” caused by an “occurrence” under a 

commercial general liability policy. 

__________________ 

O’CONNOR, C.J. 

BACKGROUND

{¶ 1} This cause is here on the certification of state-law questions from 

the United States Court of Appeals for the Sixth Circuit. Thus the facts of this 

case are taken from the order of certification. 

{¶ 2} Younglove Construction, L.L.C., entered into a contract with PSD 

Development, L.L.C., for the construction of a feed-manufacturing plant in 

Sandusky, Ohio. When PSD withheld payment, Younglove brought this diversity 

suit against PSD and three other defendants, seeking damages for breach of 

contract and related causes of action. In its answer, PSD alleged that it had 

sustained damages as a result of defects in a steel grain bin. The bin had been 

constructed by respondent, Custom Agri Systems, Inc., as a subcontractor, and 
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Younglove filed a third-party complaint against Custom for contribution and 

indemnity. Custom filed similar third-party complaints against the subcontractors 

it had used to construct the bin and turned to its insurer, petitioner Westfield 

Insurance Company, to defend and indemnify it in the litigation. Westfield 

intervened in order to pursue a judgment declaring that it had no such duty under 

the terms of its commercial general liability (“CGL”) policy with Custom. 

{¶ 3} Custom was being sued under two general theories: defective 

construction and consequential damages resulting from the defective construction. 

Westfield argued that none of the claims against Custom sought compensation for 

“property damage” caused by an “occurrence” and therefore that none of the 

claims were covered under the CGL policy. In the alternative, Westfield argued 

that even if the claims were for property damage caused by an occurrence, they 

were removed from coverage by an exclusion in the policy. 

{¶ 4} Westfield and Custom filed cross-motions for summary judgment. 

The parties agreed that the case was governed by Ohio law, and the United States 

District Court for the Northern District of Ohio acknowledged that it was an open 

question under Ohio law whether defective-construction claims fall under the 

auspices of a CGL policy. Rather than decide the issue, the district court assumed 

that Custom’s policy covered defective construction and went on to find that the 

exclusion removed such claims from coverage. After reconsideration of an earlier 

order, the district court granted summary judgment for Westfield. Younglove 

Constr., L.L.C. v. PSD Dev., L.L.C., 767 F.Supp.2d 820 (N.D.Ohio 2011). 

{¶ 5} Custom appealed the summary judgment in favor of Westfield. 

Westfield moved to certify two questions of state law to this court. Custom did 

not oppose the motion. 

{¶ 6} In a divided decision, the Sixth Circuit determined that the 

question of whether defective construction or workmanship constitutes an 

“occurrence” within the meaning of a CGL policy in Ohio might be determinative 
January Term, 2012 

3

of the action in federal court. Furthermore, the Sixth Circuit found no controlling 

precedent on the issue in our decisions. For those reasons, the Sixth Circuit 

certified the following two questions of state law to this court pursuant to 

S.Ct.Prac.R. 18.1: 

(1) Are claims of defective construction/workmanship 

brought by a property owner claims for “property damage” caused 

by an “occurrence” under a commercial general liability policy? 

(2) If such claims are considered “property damage” caused 

by an “occurrence,” does the contractual liability exclusion in the 

commercial general liability policy preclude coverage for claims 

for defective construction/workmanship? 

{¶ 7} We agreed to answer both questions. Westfield Ins. Co. v. Custom 

Agri Sys., Inc., 130 Ohio St.3d 1415, 2011-Ohio-5605, 956 N.E.2d 307. 

ANALYSIS

First Certified State-Law Question 

{¶ 8} The underlying claim is one of defective construction of or 

workmanship on the steel grain bin by Custom. The present action is one of 

contract interpretation, as the issue is whether the claims of defective construction 

or workmanship against Custom fall within the insurance policy issued by 

Westfield. 

When confronted with an issue of contractual 

interpretation, the role of a court is to give effect to the intent of 

the parties to the agreement. Hamilton Ins. Serv., Inc. v. 

Nationwide Ins. Cos. (1999), 86 Ohio St.3d 270, 273, 714 N.E.2d 

898, citing Employers’ Liab. Assur. Corp. v. Roehm (1919), 99 
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Ohio St. 343, 124 N.E. 223, syllabus. See, also, Section 28, 

Article II, Ohio Constitution. We examine the insurance contract 

as a whole and presume that the intent of the parties is reflected in 

the language used in the policy. Kelly v. Med. Life Ins. Co. (1987), 

31 Ohio St.3d 130, 31 OBR 289, 509 N.E.2d 411, paragraph one of 

the syllabus. We look to the plain and ordinary meaning of the 

language used in the policy unless another meaning is clearly 

apparent from the contents of the policy. Alexander v. Buckeye 

Pipe Line Co. (1978), 53 Ohio St.2d 241, 7 O.O.3d 403, 374 

N.E.2d 146, paragraph two of the syllabus. When the language of 

a written contract is clear, a court may look no further than the 

writing itself to find the intent of the parties. Id. As a matter of 

law, a contract is unambiguous if it can be given a definite legal 

meaning. Gulf Ins. Co. v. Burns Motors, Inc. (Tex.2000), 22 

S.W.3d 417, 423. 

Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 

1256, ¶ 11. 

{¶ 9} The insurance policy here provides: 

COMMERCIAL GENERAL LIABILITY COVERAGE 

FORM 

* * * 

 SECTION I—COVERAGES 

COVERAGE A BODILY INJURY AND PROPERTY DAMAGE 

LIABILITY 

1. Insuring Agreement 
January Term, 2012 

5

 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 the insured against any “suit” seeking 

those damages. However, we will have no duty to defend the 

insured against any “suit” seeking damages for “bodily injury” or 

“property damage” to which this insurance does not apply. We 

may, at our discretion, investigate any “occurrence” and settle any 

claim or “suit” that may result. But: 

* * * 

 (2) Our right and duty to defend end when we have 

used up the applicable limit of insurance in the payment of 

judgments or settlements under Coverages A or B or medical 

expenses under Coverage C. 

 * * * 

 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;” 

 * * * 

SECTION V—DEFINITIONS 

 * * * 

3. “Bodily injury” means bodily injury, sickness or 

disease sustained by a person, including death resulting from any 

of these at any time. 

 * * * 
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13. “Occurrence” means an accident, including 

continuous or repeated exposure to substantially the same general 

harmful conditions. 

* * * 

17. “Property damage” means: 

 a. Physical injury to tangible property, including all 

resulting loss of use of that property. All such loss of use shall be 

deemed to occur at the time of the physical injury that caused it; or 

 b. Loss of use of tangible property that is not 

physically injured. All such loss of use shall be deemed to occur at 

the time of the “occurrence” that caused it. 

{¶ 10} CGL policies are 

not intended to protect business owners against every risk of 

operating a business. In particular, [these] policies * * * are not 

intended to insure “business risks” [see generally Franco, 

Insurance Coverage for Faulty Workmanship Claims under 

Commercial General Liability Policies, 30 Tort & Ins.L.J. 785 

(1994)]—risks that are the “ ‘normal, frequent, or predictable 

consequences of doing business, and which business management 

can and should control or manage.’ ” [Columbia Mut. Ins. Co. v. 

Schauf, 967 S.W.2d 74, 77 (Mo.1998), quoting James T. Hendrick 

and James P. Wiezel, The New Commercial General Liability 

Forms—An Introduction and Critique, Fedn. of Ins. & Corporate 

Counsel Quarterly 319, 322 (Summer 1986).] Courts generally 

conclude that the policies are intended to insure the risks of an 

insured causing damage to other persons and their property, but 
January Term, 2012 

7

that the policies are not intended to insure the risks of an insured 

causing damage to the insured’s own work. [Id.] In other words, 

the policies do not insure an insured’s work itself; rather, the 

policies generally insure consequential risks that stem from the 

insured’s work. 

Heile v. Herrmann, 136 Ohio App.3d 351, 353, 736 N.E.2d 566 (1st Dist.1999). 

See also ACUITY v. Burd & Smith Constr., Inc., 2006 ND 187, 721 N.W.2d 33, 

¶ 12 (holding that a claim of faulty workmanship that results in damage to 

property other than the work product is an accident and that “a CGL policy is not 

intended to insure business risks that are the normal, frequent, or predictable 

consequences of doing business and which businesses can control and manage. 

* * * A CGL policy does not insure the insured’s work itself; rather, it insures 

consequential damages that stem from that work. * * * As a result, a CGL policy 

may provide coverage for claims arising out of tort, breaches of contract, and 

statutory liabilities as long as the requisite accidental occurrence and property 

damage are present”); Century Indemn. Co. v. Golden Hills Builders, Inc., 348 

S.C. 559, 565-566, 561 S.E.2d 355 (2002) (holding that under a CGL policy, an 

insurer had no duty to defend its insured in an action resulting from faulty 

workmanship and that a CGL policy “ ‘is not intended to insure business risks, 

i.e., risks that are the normal, frequent, or predictable consequences of doing 

business, and which business management can and should control or manage.’ 

[Rowland H. Long, The Law of Liability Insurance] § 10.01[1]. Specifically, ‘the 

policies do not insure [an insured’s] work itself, but rather, they generally insure 

consequential risks that stem from that work.’ Id.”). 

{¶ 11} Here, all of the claims against which Westfield is being asked to 

defend and indemnify Custom relate to Custom’s work itself, i.e., the alleged 

defective construction of and workmanship on the steel grain bin. Although it is a 
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widely accepted principle that such claims are not covered by CGL policies, our 

inquiry cannot and must not end there. The issue we must decide is whether the 

CGL policy in the present case provides coverage to Custom for its alleged 

defective construction of and workmanship on the steel grain bin. Specifically, 

we must decide whether Custom’s alleged defective construction of and 

workmanship on the steel grain bin constitute property damage caused by an 

“occurrence.” 

{¶ 12} In the CGL policy here, the word “occurrence” is defined as “an 

accident, including continuous or repeated exposure to substantially the same 

general harmful conditions.” The word “accident,” however, is not defined in the 

CGL policy. Therefore, “accident” must be given its “natural and commonly 

accepted meaning.” Gomolka v. State Auto. Mut. Ins. Co., 70 Ohio St.2d 166, 

167-168, 436 N.E.2d 1347 (1982). 

{¶ 13} We have defined “accidental” as “unexpected, as well as 

unintended.” Hybud Equip. Corp. v. Sphere Drake Ins. Co., 64 Ohio St.3d 657, 

666, 597 N.E.2d 1096 (1992). In defining the ordinary meaning of “accident” in 

the context of a CGL policy that, too, did not include a definition of the word, our 

sister court in Kentucky held, “Inherent in the plain meaning of ‘accident’ is the 

doctrine of fortuity. Indeed, ‘[t]he fortuity principle is central to the notion of 

what constitutes insurance * * *.’ ” Cincinnati Ins. Co. v. Motorists Mut. Ins. Co., 

306 S.W.3d 69, 74 (Ky.2010), quoting Corpus Juris Secundum, Insurance, 

Section 1235 (2009). Similarly, the Eleventh District has held: 

“ ‘Insurance coverage is bottomed on the concept of 

fortuity. Applying this rule in the construction context, truly 

accidental property damage generally is covered because such 

claims and risks fit within the statistical abstract. Conversely, 

faulty workmanship claims generally are not covered, except for 
January Term, 2012 

9

their consequential damages, because they are not fortuitous. In 

short, contractors’ “business risks” are not covered by insurance, 

but derivative damages are. The key issues are whether the 

contractor controlled the process leading to the damages and 

whether the damages were anticipated. 

“ ‘Coverage analysis largely turns on the damages sought. 

If the damages are for the insured’s own work, there is generally 

no coverage. If the damages are consequential and derive from the 

work the insured performed, coverage generally will lie. The 

underwriting intent is to exclude coverage for the contractor’s 

business risks, but provide coverage for unanticipated 

consequential damages.’ ” (Emphasis added.) [Indiana Ins. Co. v. 

Alloyd Insulation Co., 2d Dist. No. 18979, 2002-Ohio-3916] ¶ 27–

28, quoting Franco, Insurance Coverage for Faulty Workmanship 

Claims Under Commercial General Liability Policies (1994), 30 

Tort and Ins. L.J. 785, 785-787. 

JTO, Inc. v. State Auto Mut. Ins. Co., 194 Ohio App.3d 319, 2011-Ohio-1452, 956 

N.E.2d 328, ¶ 32–33 (11th Dist.). 

{¶ 14} We agree that claims for faulty workmanship, such as the one in 

the present case, are not fortuitous in the context of a CGL policy like the one 

here. In keeping with the spirit of fortuity that is fundamental to insurance 

coverage, we hold that the CGL policy does not provide coverage to Custom for 

its alleged defective construction of and workmanship on the steel grain bin. Our 

holding is consistent with the majority of Ohio courts that have denied coverage 

for this type of claim. The majority view is that claims of defective construction 

or workmanship are not claims for “property damage” caused by an “occurrence” 

under a CGL policy. E.g., Bogner Constr. Co. v. Field & Assocs., 5th Dist. No. 
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08-CA-11, 2009-Ohio-116, at ¶ 51 and 44 (holding that there was no coverage 

because “there was no ‘occurrence’ within the meaning of the policy” because 

“defective workmanship does not constitute an accident or an ‘occurrence’ under 

a Commercial General Liability policy”); Paramount Parks, Inc. v. Admiral Ins. 

Co., 12th Dist. No. CA2007-05-0666, 2008-Ohio-1351, at ¶ 25 (holding that “a 

CGL policy such as the one at issue here does not insure against claims for 

defective or negligent workmanship or construction because defective 

workmanship does not constitute an ‘accident,’ and therefore claims for defective 

or negligent workmanship do not constitute an occurrence under the policy”); 

Westfield Ins. Co. v. Coastal Group, Inc., 9th Dist. No. 05CA008664, 2006-Ohio153, at ¶ 9-10 (holding that a contractor’s delay in remedying deficiencies in its 

work is a claim for economic losses and “not an ‘accident’ and therefore, not an 

‘occurrence’ ”); Heile v. Herrmann, 136 Ohio App.3d 351, 353-354, 736 N.E.2d 

566 (1st Dist.1999) (holding that “courts in Ohio, as well as the majority of courts 

in jurisdictions throughout the country, have concluded that defective 

workmanship does not constitute an ‘occurrence’ in [CGL] policies” [footnotes 

omitted]). 

{¶ 15} In Bogner, the insurance policy at issue defined “occurrence” as 

“ ‘an accident, including continuous or repeated exposure to conditions, which 

results in bodily injury or property damage neither expected nor intended from the 

standpoint of the Insured.’ ” Bogner, 2009-Ohio-116, at ¶ 41. The Fifth 

Appellate District held: 

“[T]here is no coverage under a general comprehensive liability 

policy since defective workmanship does not constitute an 

‘accident’ and since, without an ‘accident,’ there can be no 

occurrence as such term is defined in the insurance policy. * * * 

“* * * 
January Term, 2012 

11

“Accordingly, since there was, therefore, no property 

damage caused by an ‘occurrence,’ which the general commercial 

liability insurance policy in this matter defines as an ‘accident,’ 

[the insured] was not entitled to coverage under such policy.” 

Id. at ¶ 46–48, quoting Environmental Exploration Co. v. Bituminous Fire & 

Marine Ins., Co., Stark App. No. 1999CA00315, 2000 WL 1608908 at *6 (Oct. 

16, 2000). 

{¶ 16} Similarly, in Essex Ins. Co. v. Holder, 370 Ark. 465, 261 S.W.3d 

456 (2008), the Arkansas Supreme Court reached the same result. The issue was 

“whether defective construction or workmanship is an ‘accident’ and, therefore, 

an ‘occurrence’ within the meaning of commercial general liability insurance 

policies.” Id. at 457. In Essex, a couple had contracted with a builder to build a 

home. Before the home was completed, the couple sued the builder, seeking 

damages for breach of contract, breach of an express warranty, breach of implied 

warranties, and negligence. They alleged that they had suffered damages from the 

builder’s delays, employment of incompetent subcontractors, and defective or 

incomplete construction. The builder then demanded that Essex Insurance 

Company defend him in the action under his CGL policies. 

{¶ 17} Essex asserted that there was no coverage under any of the CGL 

policies for the alleged damages. The federal district court certified this question 

of Arkansas law to the Arkansas Supreme Court to decide. 

{¶ 18} The Arkansas court held that “the contractor’s obligation to repair 

or replace its subcontractor’s defective workmanship could not be deemed 

unexpected on the part of the contractor, and therefore, failed to constitute an 

‘event’ for which coverage existed under the policy.” Id. at 459, citing Nabholz 

Constr. Corp. v. St. Paul Fire & Marine Ins. Co., 354 F.Supp.2d 917, 921-922 

(E.D.Ark.2005). Therefore, the Arkansas Supreme Court held that “defective 
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workmanship standing alone—resulting in damages only to the work product 

itself—is not an occurrence under a CGL policy.” Id. And as the court pointed 

out, to protect itself from faulty performance by a subcontractor, a contractor can 

require the subcontractor to provide a performance bond. 

{¶ 19} Based on our review of the purpose of a CGL policy and of the 

majority view of our appellate courts that have addressed this issue and the view 

of our sister court in Arkansas, we hold that claims of defective construction or 

workmanship brought by a property owner are not claims for “property damage” 

caused by an “occurrence” under a commercial general liability policy such as the 

one in the present case. 

Second Certified State-Law Question

{¶ 20} Because we answered the first question in the negative, the second 

certified state-law question is moot. 

CONCLUSION

{¶ 21} We answer the first certified state-law question in the negative and 

hold that claims of defective construction or workmanship brought by a property 

owner are not claims for “property damage” caused by an “occurrence” under a 

commercial general liability policy. We do not reach the second certified statelaw question, as it is unnecessary to do so. 

So answered. 

LUNDBERG STRATTON, LANZINGER, CUPP, and MCGEE BROWN, JJ., 

concur. 

O’DONNELL, J., concurs in judgment only. 

PFEIFER, J., dissents. 

__________________ 

PFEIFER, J., dissenting. 

{¶ 22} I dissent, first, because I believe this court should not be answering 

this question at this time. The question the majority leaves unanswered is the 
January Term, 2012 

13

only question truly at issue in this case. Second, I dissent from the majority’s 

response to the first certified question of law. 

The Wrong Question 

{¶ 23} The district court determined that it did not have to answer the 

question of whether claims of defective construction/workmanship are claims 

created by an “occurrence” under a commercial general liability (“CGL”) policy. 

Instead, it answered the question it deemed dispositive—whether the policy’s 

contractual liability exclusion precluded coverage for claims for defective 

construction/workmanship in this case. Even at the trial level, Westfield 

Insurance Company sought certification to this court for a determination of the 

two issues it raises here, but the district court denied the motion. I agree with the 

dissenting judge of the court of appeals—Westfield’s revival of the motion to 

certify at the appellate level was an end run to evade abuse-of-discretion review 

of the district court’s denial of the motion for certification. As Judge McKeague 

wrote below, “the proper course would have been for Westfield to appeal the 

district court’s denial of the motion to certify.” 

{¶ 24} Custom Agri Systems appealed the district court’s determinative 

ruling on the policy exclusion, but Westfield again sought certification to this 

court—this time from the court of appeals—on the broader issue of whether 

defective workmanship constitutes an “occurrence” under a CGL policy. The 

district court had concluded that it was unnecessary to even meet that question, 

and as Judge McKeague noted, “there is absolutely no reason to certify the first 

question at this stage of the litigation.” If the appellate court first overruled the 

district court on the contractual exclusion issue, it might then become appropriate 

for the panel, or the district court on remand, to certify the question to this court. 

Until then, Judge McKeague wrote, the circuit court “should not be in the 

business of certifying questions that need not be resolved.” 
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{¶ 25} The first certified question is a big question, and an open question, 

which Westfield really wants answered. But its desire to resolve an issue that 

must arise with its policyholders fairly often does not create in this court an 

obligation to answer it in this case. This is not “Dear Abby.” 

The Wrong Answer 

{¶ 26} I also dissent from the majority’s response to the first certified 

question, “Are claims of defective construction/workmanship brought by a 

property owner claims for ‘property damage’ created by an ‘occurrence’ under a 

commercial general liability policy?” The majority answers in the negative. I 

would answer that if the defective construction is accidental, it constitutes an 

“occurrence” under a CGL policy. “[A] strong recent trend in the case law 

interprets the term ‘occurrence’ to encompass unanticipated damage to 

nondefective property resulting from poor workmanship.” Greystone Constr., Inc. 

v. Natl. Fire & Marine Ins. Co., 661 F.3d 1272, 1282 (10th Cir.2011). That is not 

to say that an exclusion in the policy might not relieve the insurer of the duty to 

provide coverage. 

{¶ 27} The majority holding is too broad for the facts of this case. 

Determining that defective workmanship cannot result in a covered occurrence 

under a CGL policy forecloses too many other potential cases. The question 

posed by the federal court concerns the initial grant of coverage; it does not relate 

to any possible exclusions. In Zanco, Inc. v. Michigan Mut. Ins. Co., 11 Ohio 

St.3d 114, 464 N.E.2d 513 (1984), this court faced a similar CGL policy and a 

similar set of facts. In Zanco, condominium owners alleged that the contractor, 

Zanco, breached its duty to construct the condominiums in a workmanlike 

manner, thereby causing defects in the structure. Zanco did not deny the defects, 

but rather claimed that the fault lay with its suppliers, who allegedly furnished 

Zanco with defective materials. Zanco sought coverage under its CGL insurance 

contract. The court looked to the entire contract to determine the issue. The court 
January Term, 2012 

15

did not expressly rule on the issue of whether the damage to the condominiums 

was “property damage” caused by an “occurrence,” but did indicate support for 

the idea that at that threshold level, there was coverage but that the policy 

exclusions were ultimately determinative: 

Zanco maintains, and the court of appeals agreed, that the 

counterclaim alleged “property damage” caused by an 

“occurrence” as those terms are defined in the policies. Although a 

perfectly credible argument can be made that the allegations in the 

Pinecrest counterclaim were within these initial provisions for 

coverage, the insurance contracts must be examined in their 

entirety to determine if there are any applicable exceptions to their 

coverage. A careful review of the exclusions contained in the 

policies reveals that Michigan Mutual owed no duty to defend 

under these facts. 

(Footnote omitted.) Id. at 115-116. 

{¶ 28} Again, the question we are answering does not consider 

exclusions—it deals with the initial grant of coverage. Under the policy at issue, 

the insurance covers “ ‘property damage’ * * * caused by an ‘occurrence’ that 

takes place in the ‘coverage territory.’ ” The policy defines an “occurrence” as 

“an accident, including continuous or repeated exposure to substantially the same 

general harmful conditions.” The key question is whether defective workmanship 

can be considered accidental. Given this court’s definition of “accidental,” I 

would hold that the initial grant of coverage would apply in certain instances of 

defective workmanship, those in which the damage was not intentional. 

{¶ 29} This court’s definition of “accidental” is broad, covering 

unexpected, unintentional happenings: 
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In Hybud Equip. Corp. v. Sphere Drake Ins. Co. (1992), 64 Ohio 

St.3d 657, 666, 597 N.E.2d 1096, we stated that “[i]n its common, 

ordinary use, the word ‘accidental’ means unexpected, as well as 

unintended.” (Emphasis added.) We similarly recognized in 

Gearing v. Nationwide Ins. Co. (1996), 76 Ohio St.3d 34, 38, 665 

N.E.2d 1115, that “inherent in a policy’s definition of ‘occurrence’ 

is the concept of an incident of an accidental, as opposed to an 

intentional, nature.” (Emphasis altered.) Furthermore, in Rothman 

v. Metro. Cas. Ins. Co. (1938), 134 Ohio St. 241, 247, 12 O.O. 50, 

16 N.E.2d 417, this court acknowledged that “ ‘accident,’ as the 

term is ordinarily used, is a more comprehensive term than 

‘negligence,’ and in its common signification means an unexpected 

happening without intention or design.” Id. at 247, 12 O.O. 50, 16 

N.E.2d 417, citing Commonwealth Cas. Co. v. Headers (1928), 

118 Ohio St. 429, 161 N.E. 278. Thus, we held in Rothman that 

absent contrary language in a policy, “if the injury was not 

intentionally caused, then it was accidentally suffered.” Id. at 246, 

12 O.O. 50, 16 N.E.2d 417. 

Safeco Ins. Co. of Am. v. White, 122 Ohio St.3d 562, 2009-Ohio-3718, 913 

N.E.2d 426, ¶ 21. 

{¶ 30} Our first-level analysis should thus focus upon whether the 

defective workmanship was intentionally caused. In Sheehan Constr. Co., Inc. v. 

Continental Cas. Co., 935 N.E.2d 160, 170 (Ind.2010), modified on rehearing,

938 N.E.2d 685 (Ind.2010), the Supreme Court of Indiana established that intent 

is the key to determining whether a construction defect is accidental: 
January Term, 2012 

17

Implicit in the meaning of “accident” is the lack of intentionality. 

* * * The question presented is whether faulty workmanship is an 

accident within the meaning of a standard CGL policy. In our 

view the answer depends on the facts of the case. For example, 

faulty workmanship that is intentional from the viewpoint of the 

insured cannot be an “accident” or an “occurrence.” See Lamar 

Homes [Inc. v. Mid-Continent Cas. Co.,] 242 S.W.3d [1] at 8–9 

[(Tex.2007)]. On the other hand if the faulty workmanship is 

“unexpected” and “without intention or design” and thus not 

foreseeable from the viewpoint of the insured, then it is an accident 

within the meaning of a CGL policy. 

{¶ 31} A deliberate act—such as performing construction work—can 

have accidental consequences. “[A] deliberate act, performed negligently, is an 

accident if the effect is not the intended or expected result; that is, the result 

would have been different had the deliberate act been performed correctly.” 

Lamar Homes, Inc. v. Mid-Continent Cas. Co., 242 S.W.3d 1, 8 (Tex.2007). 

{¶ 32} The majority relies on an Arkansas case and some Ohio appellate 

cases that seem to say that defective workmanship that results in damage only to 

the work product itself cannot constitute an occurrence. But the character of the 

damage is immaterial in regard to the threshold question of whether faulty 

construction is an occurrence: “The CGL policy * * * does not define an 

‘occurrence’ in terms of the ownership or character of the property damaged by 

the act or event. Rather, the policy asks whether the injury was intended or 

fortuitous, that is, whether the injury was an accident.” Id. Cases that focus on the 

type of damage resulting from faulty construction do not truly address the issue of 

whether there has been an “occurrence”: 
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The reasoning found in these cases simultaneously fails to 

evaluate the policy as a whole and collapses what should be a 

separate and specific analysis of the policy exclusions into the 

coverage grant analysis of the term “occurrence.” By focusing on 

the kind of property damage alleged to determine whether there 

has been an “occurrence,” these decisions improperly apply the 

policy exclusions to determine whether there has been an 

“occurrence.” 

(Emphasis sic; footnote omitted.) Clifford J. Shapiro, Point/Counterpoint: 

Inadvertent Construction Defects Are an "Occurrence" under CGL Policies, 22 

Construction Lawyer 13, 17 (Spring 2002). 

{¶ 33} The better-reasoned Ohio appellate cases recognize that a CGL 

policy is not the equivalent of a performance bond but also recognize that 

the rationale for [that] proposition is not that the allegations of negligent 

construction or design practices do not fall within the broad coverage for 

property damage caused by an occurrence, but that * * * the damages 

resulting from such practices are usually excluded from coverage by the 

standard exclusions found in such policies. 

Erie Ins. Exchange v. Colony Dev. Corp., 136 Ohio App.3d 406, 414, 736 N.E.2d 

941 (1999). In Erie Ins. Exchange v. Colony Dev. Corp., 136 Ohio App.3d 419, 

422, 736 N.E.2d 950 (2000), fn. 1, the court pointed out the illogic of basing a 

determination of whether a defect is an occurrence on what property was 

damaged: 
January Term, 2012 

19

 The logical basis for the distinction between damage to the 

work itself (not caused by an occurrence) and damage to collateral 

property (caused by an occurrence) is less than clear. Both types 

of property damage are caused by the same thing—negligent or 

defective work. One type of damage is no more accidental than 

the other. * * * [T]he basis for the distinction is not found in the 

definition of occurrence but by application of the standard “work 

performed” and “work product” exclusions found in a 

[c]ommercial general liability insurance policy. 

{¶ 34} As pointed out by the court in Lee Builders, Inc. v. Farm Bur. Mut. 

Ins. Co., 281 Kan. 844, 856, 137 P.3d 486 (2006), exclusions for work product 

and work performed exist because the initial broad grant of coverage for 

occurrences includes damage caused by accidental defective workmanship: 

 “A court need only ask why the CGL policy includes an 

exclusion for property damage to the insured’s own work and that 

of its subcontractors to understand that it would be nonsensical for 

the policy to include such a provision if this kind of property 

damage could never be caused by an ‘occurrence’ in the first place. 

A court need only ask why the CGL policy specifically includes an 

express exception to the ‘your work’ exclusion for property 

damage arising out of the work of a subcontractor to understand 

that this kind of property damage must be included in the broad 

scope of the term ‘occurrence’ in the coverage grant, and that the 

coverage determination for this kind of property damage must be 

made based on the construction-specific policy exclusions.” 

(Emphasis added.) 
SUPREME COURT OF OHIO

20

Id., quoting Clifford J. Shapiro, The Good, the Bad, and the Ugly: New State 

Supreme Court Decisions Address Whether an Inadvertent Construction Defect Is 

an “Occurrence” under CGL Policies, 25 Constr. Law. 9, 12 (Summer 2005). 

{¶ 35} If coverage were inappropriate in this case, it would be by 

operation of the policy’s exclusions, “not because a loss actionable only in 

contract can never be the result of an ‘occurrence’ within the meaning of the 

CGL's initial grant of coverage. This distinction is sometimes overlooked, and 

has resulted in some regrettably overbroad generalizations about CGL policies 

* * *.” Am. Family Mut. Ins. Co. v. Am. Girl, Inc., 268 Wis.2d 16, 2004 WI 2, 

673 N.W.2d 65, ¶ 39. 

Conclusion 

{¶ 36} The majority in this case makes an overbroad generalization about 

CGL policies in Ohio. Answering a question it should not even be answering, the 

majority misinterprets the contract and misapplies Ohio law, leaving us on the 

wrong side of the divide of states that have considered this question. 

Accordingly, I dissent. 

__________________ 

 Davis & Young and Richard M. Garner, for petitioner. 

______________________