A federal appeals court reversed a lower court Tuesday and held an insurer must defend a roofing manufacturer in litigation in which the company’s roof membrane system allegedly caused additional damage to a Bronx high school.
The litigation stems from an underlying lawsuit filed by the New York Archdiocese and other plaintiffs against parties including Dallas-based Siplast Inc., which had sold a roof membrane system to a Bronx high school in 2012, according to the ruling by the 5th U.S. Circuit Court of Appeals in New Orleans in Siplast Inc. v. Employers Mutual Casualty Company. Siplast provided a 20-year guarantee for the work, the ruling said.
In November 2016, water damage occurred in ceiling tiles throughout the high school after a rainstorm. A consultant said remediation and replacement would cost about $5 million. The plaintiffs then filed suit against Siplast.
After Des Moines-based Employers Mutual Casualty refused to defend it in the litigation, Siplast filed suit against the insurer in U.S. District Court in Dallas, charging breach of contract.
The district court granted EMCC’s motion for summary judgment, holding that a “Your Product/Your Work Exclusion” in its commercial general liability coverage applied.
A three-judge appeals court panel overturned the ruling. The claims “that are at issue in this case can largely be reduced to a single question: does the Underlying Complaint contain allegations of damage to property other than Siplast’s roof membrane as part of the cause of action against Siplast? Liberally construed, it does,” said the ruling,
“The factual allegations raised by the complaint repeatedly point to damage to property other than Siplast’s roof membrane system,” the ruling said, in holding the exclusion does not apply, overturning the lower court and remanding the case for further proceedings.
Siplast attorney Steven J. Pudell, a managing shareholder with Anderson Kill P.C. in Newark, New Jersey, said in a statement, “We are pleased that the 5th Circuit recognized that under Texas law the duty to defend must be construed broadly and plainly extended to this suit seeking damages against Siplast.”
Insurer attorneys did not respond to a request for comment.
In November, a federal appeals court reversed a lower court and ruled in favor of a Great American Insurance Group unit in a dispute with Employers Mutual Casualty over excess coverage in a wrongful death suit.