Alaska Supreme Court Opinions made Available by Touch N' Go Systems and Bright Solutions

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website.
 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices.

Fejes, Jr. v. Alaska Insurance Company, Inc. (8/20/99) sp-5165


     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


SAMUEL F. FEJES, JR.,              )
                                   )    Supreme Court No. S-8372
             Appellant,            )
                                   )    Superior Court No.
     v.                            )    3AN-96-2675 CI
                                   )
ALASKA INSURANCE COMPANY, INC.,    )    O P I N I O N
AMERICAN INTERNATIONAL SURPLUS     )
INSURANCE LINES, INC., AMERICAN    )
INTERNATIONAL SPECIALITY LINES,    )
INC., AMERICAN INTERNATIONAL       )
GROUP, INC., and JOHN DOES I       )
through V, et al.,                 )
                                   )
             Appellees.            ) [No. 5165 - August 20, 1999]
___________________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                   Michael L. Wolverton, Judge.


          Appearances: Peter J. Maassen, Ingaldson
          Maassen, P.C., Anchorage, for Appellant. 
Charles M. Merriner, Pletcher, Weinig & Merriner, Anchorage, for
Appellees.


          Before:   Matthews, Chief Justice, Eastaugh,
Fabe, and Bryner, Justices. [Carpeneti, Justice, not
participating.]


          MATTHEWS, Chief Justice.



I.   INTRODUCTION
          A contractor was sued by a homeowner when an improperly
constructed curtain drain failed and caused a septic system to stop
functioning.  The system and the drain were constructed by a sub-

contractor.  The question presented is whether the contractor's
comprehensive general liability policy covered the suit.  The
superior court concluded that there was no coverage and granted
summary judgment to the insurer.  Viewing the facts in the light
most favorable to the contractor we conclude that the facts giving
rise to the suit are within the coverage of the policy.  We
therefore reverse.
II.  FACTS AND PROCEEDINGS
          In reviewing a grant of summary judgment we "must view
the facts in the light most favorable to the non-moving party."
[Fn. 1]  The following facts are stated from that perspective.
          Samuel Fejes was the sole shareholder and chief executive
officer of Becharof Corporation.  Alaska Insurance Company, Inc.,
(AIC) insured Becharof under a comprehensive general liability
policy with a broad form property damage liability endorsement. 
The policy covered Fejes as an additional insured.
           In 1985 and 1986 Becharof constructed a house on a lot
owned by Fejes and his business partner.  Becharof subcontracted
the installation of the on-site septic system for the house,
including a "curtain drain,"to Fejes Development, a company owned
by Fejes's brother, Chris, in which Fejes had no interest.  The
curtain drain was needed to prevent groundwater from invading the
septic system's leach field.
          In 1986 Becharof sold the house to Kathleen Reeves.  At
the time of the sale Becharof assured Reeves of the septic system's
fitness, and that it had been inspected and approved.  But the
curtain drain was improperly constructed; it became clogged with
silt and failed soon after the sale, destroying the septic system's
functionality.  The problems resulting from the failure went
unnoticed until Reeves attempted to sell her lot in 1993.  At that
point she was forced to replace the system with a large holding
tank.
          Reeves sued Fejes in May of 1993 for damages arising from
the failed septic system, asserting fraud and misrepresentation. 
In February 1995 Fejes tendered his defense to AIC.  AIC rejected
the tender and denied that it had a duty to defend Fejes,
contending that there was no coverage.  Fejes responded by
reminding AIC of its obligation to defend even if the face of the
complaint did not allege facts within policy coverage, so long as
AIC knew, or a reasonable investigation would uncover, underlying
facts which would bring the case within policy coverage.  Fejes
theorized that the curtain drain had failed, damaging the septic
system.  He claimed that this sequence of events was within the
policy's coverage.  AIC refused to defend.
          Fejes and Reeves then agreed to an abbreviated bench
trial.  The superior court found that the curtain drain had failed
due to a defect in the subcontractor's workmanship and had damaged
the septic system.  Although Fejes was not aware of this defect, he
was found liable for breach of warranty.  The court entered
judgment against Fejes for $104,148.23.  He incurred legal fees and
costs of $35,689.68 in defending the suit.
          Fejes then commenced the present action against AIC,
seeking indemnity for the judgment and payment of his legal
expenses.  The superior court granted AIC's cross-motion for
summary judgment, ruling that the policy did not cover the
allegations in Reeves's suit or the underlying facts known or
reasonably ascertainable by AIC.
          Fejes appeals.
III. STANDARD OF REVIEW
          "We review a grant of summary judgment de novo, applying
our independent judgment."[Fn. 2]  We will uphold summary judgment
"if no issues of material fact are in dispute and the moving party
is entitled to judgment as a matter of law."[Fn. 3] All reasonable
inferences of fact are drawn in favor of the nonmoving party. [Fn.
4]  The moving party bears the "initial burden of proving, through
admissible evidence, the absence of genuine factual disputes and
its entitlement to judgment."[Fn. 5]  If the moving party presents
a prima facie showing that it is entitled to judgment, the burden
shifts to the nonmoving party to show a "genuine issue for trial."
[Fn. 6]
IV.  DISCUSSION
     A.   Interpretation of Insurance Policies

          We interpret insurance policies in accordance with the
following precepts.  "[T]o the extent that there are no relevant
unresolved or controversial facts, '[t]he construction of an
insurance contract is a matter for the court.'"[Fn. 7]  A policy's
meaning is determined by examining "the language of the disputed
policy provisions, the language of other provisions in the policy,
. . . relevant extrinsic evidence, . . . [and] case law
interpreting similar provisions."[Fn. 8]  "[A]n insurance policy
may be considered a contract of adhesion and as such should be
construed so as to provide the coverage which a layman would
reasonably have expected, given his lay interpretation of the
policy language."[Fn. 9]  We therefore resolve ambiguities in the
meaning of insurance contracts against the insurer. [Fn. 10]
     B.   Duty to Defend 
          "An insurer's duty to defend and its obligation to
indemnify are separate and distinct contractual elements."[Fn. 11] 
The insurer's duty to defend is broader than its duty to provide
coverage. [Fn. 12]  The insurer may therefore be obligated to
defend even where it has no ultimate liability under the policy.
[Fn. 13]  "The duty to defend arises 'if the complaint on its face
alleges facts which, standing alone, give rise to a possible
finding of liability covered by the policy.'"[Fn. 14]  Even if the
complaint does not contain such allegations, the insurer has a duty
to defend if facts underlying the complaint are within, or
potentially within, the policy coverage and are known or reasonably
ascertainable by the insurer. [Fn. 15]
     C.   Was There an "Occurrence"?
          The comprehensive general liability policy provides
insurance against claims for property damage caused by an
"occurrence."  An "occurrence"is an accident which results in
property damage.  The policy explains that an accident can include
"repeated and continuous exposure to conditions"which results in
property damage that is "neither expected or intended from the
standpoint of the insured."  Finally, property damage entails
physical injury to or destruction of tangible property and may
include loss of use of tangible property which has not been
physically injured or destroyed.
          The trial court concluded that there was no occurrence. 
The court focused first on the complaint, finding that claims of
fraud and misrepresentation "are not claims for property damage"
and thus cannot fall within the meaning of the term "occurrence." 
The trial court also found that the judgment against Fejes for
breach of warranty was not a claim for property damage.  The court
then focused on whether there were underlying facts within or
potentially within policy coverage.  It concluded there were not
because there was not an accident:
          Plaintiff Fejes'[s] previous litigation did
not involve an "occurrence"causing property damage as defined in
the policy.  "Occurrence"requires an "accident"that results in
"property damage."  There was no "occurrence"on the property
purchased by Ms. Reeves.  The curtain drain failed, causing the
destruction of the septic system within one year after purchase. 
The septic system wasn't subject to an accident or repeated
exposure to conditions other than the normal, expected, and
intended use.  The failure of the subcontractor . . . to properly
install an on site septic system can hardly be called an occurrence
or an accident.

          Fejes takes issue with this rationale.  Referring to the
policy definition of "occurrence,"he contends that the failure of
the curtain drain, "allowing ground water to percolate through and
destroy the septic system downslope, fits squarely within this
policy definition,"and that "[e]ven the flooding of the septic
system was a continuous or repeated exposure to conditions that
meets the definition."  Fejes contends that the normal meaning of
the term "accident"focuses not on the negligence of the actor but
on the result.  He argues:
          In the trial court's view, it may be no
"accident"that a mechanic fails to tighten the nuts on a wheel;
but that cannot mean there is no "accident"for purposes of
coverage when the wheel comes off on the highway.  It may be no
"accident"that a landlord fails to fix a broken step; but that
cannot mean there is no "accident"for purposes of coverage when a
tenant falls down the stairs.  It may be no "accident"that [the
subcontractor] failed to properly install the curtain drain; but
that cannot mean that the drain's subsequent collapse and the
destruction of the septic system did not constitute an "accident."

          AIC responds that claims for misrepresentation or deceit
do not arise out of "an accident."
          Fejes has the better of this argument.  The mere fact
that a complaint against a contractor is based on a theory of
misrepresentation or deceit does not mean that the facts underlying
the claim did not arise from an accident.  We have defined the term
"accident"as "anything that begins to be, that happens, or that is
a result which is not anticipated and is unforeseen and
unexpected."[Fn. 16]  From Fejes's standpoint, the failure of the
curtain drain was neither expected nor intended.  And the fact that
the drain failed by becoming infused with silt caused by "repeated
and continuous exposure to conditions"does not take the failure
out of the definition of "accident"under the policy.
          The trial court also concluded that Reeves's claims "are
not claims for property damage."  Fejes disagrees, noting that the
trial court accepted that the failure of the curtain drain caused
"the destruction of the septic system"and that the destruction of
the septic system easily falls within one of the policy definitions
of property damage, "destruction of tangible property."
          AIC counters that Reeves's claims are for "loss-of-
bargain damages"rather than for "destruction of tangible
property."  AIC also contends that the general coverage of
comprehensive general liability policies is liability protection
for damage to others, not for damage to the product or work of the
insured.  AIC argues that "[t]he coverage is for tort liability for
physical 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."
          On this point too we think Fejes is more persuasive.  The
flooding of the septic system fairly falls within the meaning of
the term "destruction of tangible property."  AIC's contention that
Reeves's claims were for loss-of-bargain damages does not mean that
those claims were not "because of"or resulting from property
damage, which is what the policy requires.  For reasons explained
later in this opinion, the argument that comprehensive general
liability policies do not cover damage to the work of the insured
is not wholly accurate with respect to policies containing a broad
form property damage liability coverage endorsement.  In any case,
such an argument could not overcome actual policy language.
          We conclude therefore that the court erred in ruling that
the facts underlying Reeves's complaint, construed favorably to
Fejes, did not involve an occurrence within the meaning of the
policy.
     D.   Is Coverage Excluded?
          The policy also contains numerous exclusions that remove
from coverage liability resulting under specified circumstances. 
Viewing the facts in the light most favorable to Fejes, we conclude
that none of the exclusions precludes coverage in the present case. 
          1.   Exclusion (m)
          The trial court found that coverage was excluded under
Exclusion (m).  The court quoted this exclusion as eliminating from
coverage "the failure of the named insured's products or work
performed by or on behalf of the named insured to meet the level of
performance, quality, fitness or durability warranted or
represented by the named insured."
          We disagree.  The full text of Exclusion (m) limits its
applicability "to loss of use of tangible property which has not
been physically injured or destroyed . . . ."  Since the septic
system was physically injured or destroyed and Reeves's claims were
not limited to loss of use, Exclusion (m) does not preclude AIC's
duty to defend.
          2.   The broad form property damage liability exclusions
          Exclusion (o) excludes coverage for "property damage to
work performed by or on behalf of the named insured arising out of
the work or any portion thereof, or out of materials, parts, or
equipment furnished in connection therewith."  But AIC's policy
also contains a broad form property damage liability coverage
endorsement, which replaces Exclusion (o) with Exclusions (A)(1)
through (A)(3).  The endorsement expands the insured's liability
coverage for property damage.    
               a.   Exclusion (A)(2)(d)(ii)-(iii)
          Exclusion (A)(2)(d)(ii)-(iii) eliminates coverage for
"that particular part of any property, not on premises owned by or
rented to the insured, . . . (ii) out of which any property damage
arises, or (iii) the restoration, repair or replacement of which
has been made or is necessary by reason of faulty workmanship
thereon by or on behalf of the insured."
          Fejes argues that "that particular part of any property
. . . out of which property damage arises"refers to the curtain
drain, since it was the failure of the curtain drain from which
subsequent damage arose.  Fejes claims that since Reeves did not
seek compensation for damage to the curtain drain, nor was it
restored, repaired or replaced, Exclusion (A)(2)(d)(ii)-(iii) does
not apply.  AIC counters that the holding tank system Reeves
installed instead of restoring the septic system and curtain drain
is effectively a repair of the defective system.
          We reject AIC's argument as an overly broad
interpretation of the exclusion.  Fejes's interpretation is reason-

able:  the exclusion would exclude claims for the cost of repairing
or replacing the curtain drain, but not the cost of alternative
waste disposal systems made necessary by the failure of the curtain
drain.  
               b.   Exclusion (A)(3)
          Exclusion (A)(3) excludes "with respect to the completed
operations hazard . . . [coverage for] property damage to work
performed by the named insured arising out of such work or any
portion thereof, or out of such materials, parts or equipment
furnished in connection therewith."  Exclusion (A)(3) essentially
parallels Exclusion (o), but with an important difference:  it
deletes (o)'s exclusion of work performed "on behalf of a named
insured."  The effect of this deletion is to provide coverage as to
work performed for the named insured by subcontractors.  We so
concluded in Alaska Pacific Assurance Co. v. Collins. [Fn. 17]  
          Exclusion (A)(3) removes coverage as to property damage
or work performed by the named insured, but not by someone on
behalf of the named insured.  Since the property damage in this
case arose from the subcontractor's work, the exclusion does not
apply.    
          Insurance industry publications and case law support our
conclusion.  In Fireguard Sprinkler Systems, Inc. v. Scottsdale
Insurance Co., [Fn. 18] the Ninth Circuit concluded that the broad
form property damage endorsement, identical to that in the present
case, is "intended to cover losses caused by the work of
subcontractors."[Fn. 19]  The court supported its conclusion by
quoting from insurance industry publications.  It quoted a circular
prepared by the Insurance Services Office which promulgated the
form provisions at issue.  The circular notes that the broad form
exclusions are intended to "exclud[e] only damages caused by the
named insured to his own work.  Thus, . . . [t]he insured would
have coverage for damage to his work arising out of a
subcontractor's work [and] [t]he insured would have coverage for
damage to a subcontractor's work arising out of the subcontractor's
work."[Fn. 20] 
          The Ninth Circuit also quoted a National Underwriters
Association bulletin used by insurance agents and brokers to
interpret standard insurance policy provisions.  With respect to
the broad form endorsement, the excerpt stated:
                [T]he exclusion eliminates coverage for
property damage to work performed by the named insured if the
property damage arises out of the named insured's work or any
portion of it. 

               Thus, an insured has coverage for his
completed work when the damage arises out of work performed by
someone other than the named insured, such as a subcontractor
. . . .  The usual Completed Operations coverage (no Broad Form
Property Damage endorsement attached) flatly excludes property
damage to work performed by or on behalf of the named insured
arising out of the work.  Under the usual coverage, then, the
insured has no insurance whatsoever for damage to a subcontractor's
work or for damage to his own work resulting from a subcontractor's
work.  Therein lie the advantages of Broad Form Property Damage
coverage including Completed Operations.  Consequently, if an
insured does not anticipate using subcontractors, the value of
purchasing Broad Form Property Damage coverage with Completed
Operations is questionable, in view of the additional premium
required for it.[ [Fn. 21]]

          Other cases interpreting the broad form endorsement to
provide coverage for losses caused by the contractor's
subcontractors include Maryland Casualty Co. v. Reeder; [Fn. 22]
McKellar Development of Nevada, Inc. v. Northern Insurance Co.;
[Fn. 23] and Prudential-LMI Commercial Insurance Co. v. Reliance
Insurance Co. [Fn. 24] 
          3.   Exclusion (n) - Named Insured's Products
          Exclusion (n) eliminates coverage for "property damage to
the named insured's products arising out of such products."  The
"named insured's products"are "goods or products manufactured,
sold, handled or distributed by the named insured."  Fejes argues
that a completed building is not a product, while AIC argues that
it is.  Other courts are divided on this issue. [Fn. 25]
          We are of the view that a "product"under the policy does
not include a completed building.  Interpreting the term to include
a completed building would negate the intended coverage of the
broad form endorsement, which is meant to provide protection to
completed work when damage arises from the work of a subcontractor. 
          The National Underwriters Association bulletin mentioned
above in Fireguard Sprinklers System v. Scottsdale Insurance Co.
indicates that our reading of the product's exclusion is correct. 
As quoted in Maryland Casualty Co. v. Reeder the bulletin states:
               The editors have heard of instances in
which insurers have denied coverage . . . on the ground that the
policy exclusion of injury to the named insured's products (which
is not amended by the Broad Form endorsement) eliminates coverage
for any damage to the completed building, the completed building
being a "product"of the named insured.  In the opinion of the
editors, that reasoning ignores the distinction between the
"completed operations hazard"and "named insured's products"in the
policy definitions.  Moreover, that reasoning precludes any
possibility of recovery under the Completed Operations feature of
the Broad Form Endorsement, a feature for which the insured has
presumably paid an additional premium.[ [Fn. 26]]

          4.   Exclusion (l) - Alienated Premises
          Exclusion (l), the "alienated premises"exclusion,
removes from policy coverage liability for "property damage to
premises alienated by the named insured arising out of such
premises or any part thereof."
           Fejes argues that the named insured, Becharof, never
owned the premises and therefore never alienated them.  He argues
therefore that this exclusion does not apply.  He also contends
that the alienated premises exclusion is limited to cases where
premises were first occupied, rented or held for rental by the
insured and was not intended to apply to the completed operations
of a contractor like Becharof. [Fn. 27]
          In response AIC contends that Fejes owned and sold the
land on Becharof's behalf and thus, presumably, Becharof alienated
the premises because Fejes did so on its behalf.  AIC also argues
that in contrast to the cases relied on by Fejes, a number of cases
apply the alienated premises exclusion to situations where a
contractor buys land and builds on it for purposes of sale without
occupying the premises for its own purposes. [Fn. 28]
          We believe that the alienated premises exclusion should
be narrowly construed.  Otherwise, it would negate the coverage for
completed work provided by the broad form endorsement.  In this
respect we agree with the position taken by the Supreme Court of
Nevada in McKellar Development v. Northern Insurance Co. [Fn. 29] 
Quoting an industry publication, the Nevada court stated:
          This exclusion could severely limit coverage
granted under the [broad form] endorsement.  Consider the
contractor who constructs property such as office buildings,
houses, etc., retains title, and later sells that property.  This
is often the case with real estate developers.  Once the sale has
taken place, the contractor or developer would have no property
damage coverage for damage to the alienated premises even though he
has purchased . . . the proper [broad form] endorsement.  This
interpretation is outside the scope of intent of the policy, but it
has been taken on occasion by insurers.[ [Fn. 30]] 

California courts have made similar observations. [Fn. 31]  In
Prudential-LMI, the court noted:
          Although "it was never intended to apply to
the completed operations  of a contractor"where units were
"construct[ed] for the purpose of resale,""it has been used in
conjunction with other 1973 CGL policy provisions to preclude
coverage for construction-related property damage claims that
probably should have fallen within the coverage intent of the
policy."[ [Fn. 32]] 

V.   CONCLUSION
          We conclude that the superior court erred in holding that
the facts underlying Reeves's claims were necessarily outside of
policy coverage.  The judgment is therefore REVERSED and this case
is REMANDED for further proceedings. 


                            FOOTNOTES


Footnote 1:

     Mathis v. Sauser, 942 P.2d 1117, 1120 (Alaska 1997) (citing
Willner's Fuel Distribs., Inc. v. Noreen, 882 P.2d 399, 403 n.7
(Alaska 1994)).


Footnote 2:

     Christensen v. NCH Corp., 956 P.2d 468, 474 (Alaska 1998)
(citations omitted).


Footnote 3:

     Jones v. Horace Mann Ins. Co., 937 P.2d 1360, 1361 (Alaska
1997) (citing Bishop v. Municipality of Anchorage, 899 P.2d 149,
153 (Alaska 1995)).


Footnote 4:

     See Alaska Rent-A-Car, Inc. v. Ford Motor Co., 526 P.2d 1136,
1139 (Alaska 1974). 


Footnote 5:

     Shade v. Co & Anglo Alaska Serv. Corp., 901 P.2d 434, 437
(Alaska 1995) (citations omitted).


Footnote 6:

     Id. (citing Alaska R. Civ. P. 56(c),(e)); Broderick v. King's
Way Assembly of God Church, 808 P.2d 1211, 1215 (Alaska 1991)).   


Footnote 7:

     Alaska Pacific Assurance Co. v. Collins, 794 P.2d 936, 942
(Alaska 1990) (quoting O'Neill Investigations, Inc. v. Illinois
Employers Ins. of Wausau, 636 P.2d 1170, 1173 (Alaska 1981)).


Footnote 8:

     Cox v. Progressive Cas. Ins. Co., 869 P.2d 467, 468 n.1
(Alaska 1994) (citations omitted). 


Footnote 9:

     INA Life Ins. Co. v. Brundin, 533 P.2d 236, 241 (Alaska 1975)
(citations omitted).


Footnote 10:

     See id.


Footnote 11:

     Sauer v. Home Indem. Co., 841 P.2d 176, 180 (Alaska 1992).


Footnote 12:

     See Smith v. Great American Ins. Co., 629 P.2d 543, 545-46
(Alaska 1981) (citing Afcan v. Mutual Fire, Marine and Inland Ins.
Co., 595 P.2d 638, 645 (Alaska 1979)).


Footnote 13:

     See Afcan, 595 P.2d at 645. 


Footnote 14:

     CHI of Alaska, Inc. v. Employers Reins. Corp., 844 P.2d 1113,
1115-16, n.5 (Alaska 1993) (citing Afcan, 595 P.2d at 645). 


Footnote 15:

     See id.; Continental Ins. Co. v. United States Fidelity &
Guar. Co., 528 P.2d 430, 434-35 (Alaska 1974).


Footnote 16:

     INA Life Ins. Co. v. Brundin, 533 P.2d 236, 242 n.23 (Alaska
1975) (quoting 10 Couch on Insurance sec. 41:6 (2d ed. 1962)).


Footnote 17:

     794 P.2d 936, 943 & n.7 (Alaska 1990).


Footnote 18:

     864 F.2d 648 (9th Cir. 1988).


Footnote 19:

     Id. at 650.


Footnote 20:

     Id. at 652.


Footnote 21:

     Id. at 652.


Footnote 22:

     270 Cal. Rptr. 719 (Cal. App. 1990).


Footnote 23:

     837 P.2d 858 (Nev. 1992).


Footnote 24:

     27 Cal. Rptr. 2d 841 (Cal. App. 1994).  But see Knutson
Constr. Co. v. St. Paul Fire & Marine Ins. Co., 396 N.W.2d 229,
234-38 (Minn. 1986) (holding losses caused by subcontractor's
faulty work not covered under broad form endorsement). 


Footnote 25:

     Cases holding that a completed building is a builder's product
include Indiana Ins. Co. v. DeZutti, 408 N.E.2d 1275, 1279-80 (Ind.
1980); Commerce Ins. Co. v. Betty Caplette Builders, Inc., 647
N.E.2d 1211, 1213 (Mass. 1995) (citing cases); Knutson Constr. Co.
v. St. Paul Fire & Marine Ins. Co., 396 N.W.2d 229, 236 (Minn.
1986); Gene & Harvey Builders, Inc. v. Pennsylvania Mfrs. Ass'n
Ins. Co., 517 A.2d 910, 912-13 (Pa. 1986); Federated Serv. Ins. Co.
v. R.E.W., Inc., 770 P.2d 654, 655, 657 (Wash. App. 1989).  Cases
holding that a completed building is not a builder's product
include Reeder, 270 Cal. Rptr. at 728; Stratton & Co. v. Argonaut
Ins. Co., 469 S.E.2d 545, 547-48 (Ga. App. 1996); Mid-United
Contractors, Inc. v. Providence Lloyds Ins. Co., 754 S.W.2d 824,
826 (Tex. App. 1988).


Footnote 26:

     270 Cal. Rptr. at 728 (emphasis removed).


Footnote 27:

     Fejes relies on Prudential-LMI Commercial Ins. Co. v. Reliance
Ins. Co., 27 Cal. Rptr. 2d 841, 843 (Cal. App. 1994), and Maryland
Cas. Co. v. Reeder, 270 Cal. Rptr. 719 (Cal. App. 1990).


Footnote 28:

     AIC relies on American States Ins. Co. v. Hanson Indus., 873
F. Supp. 17, 23-24 (S.D. Tex. 1995); Reliance Ins. Co. v. Povia-
Ballantine Corp., 738 F. Supp. 523, 525 (S.D. Ga. 1990), aff'd, 927
F.2d 614 (11th Cir. 1991); Borden, Inc. v. Affiliated FM Ins. Co.,
682 F. Supp. 927, 930-31 (S.D. Ohio 1987), aff'd, 865 F.2d 1267
(6th Cir. 1989); Taylor-Morly-Simon, Inc. v. Michigan Mut. Ins.
Co., 645 F. Supp. 596, 600 (E.D. Mo. 1986), aff'd, 822 F.2d 1093
(8th Cir. 1987); Rieder v. Cherokee Ins. Co., 635 F. Supp. 699, 702
(E.D. Pa. 1986), aff'd, 813 F.2d 398 (3d Cir. 1987);  Gary L. Shaw
Builders, Inc. v. State Auto. Mut. Ins. Co., 355 S.E.2d 130, 135
(Ga. App. 1987); Transamerica Ins. Servs. v. Kopko, 570 N.E.2d
1283, 1284-85 (Ind. 1991).


Footnote 29:

     837 P.2d 858, 860-61 (Nev. 1992).


Footnote 30:

     McKellar, 837 P.2d at 860-61 n.4 (quoting J. Gibson, Broad
Form Property Damage Coverage: Analysis, Application and
Alternatives 12-15 (Intl. Risk Mgt. Inst., Inc. 2d ed. 1982)).


Footnote 31:

     Maryland Cas. Co. v. Reeder, 270 Cal. Rptr. at 729-30;
Prudential-LMI Commercial Ins. Co. v. Reliance Ins. Co., 27 Cal.
Rptr. 2d at 844.


Footnote 32:

     Prudential-LMI, 27 Cal. Rptr. 2d at 844 (quoting Wielinski &
Gibson, Broad Form Property Damage Coverage (3d ed. 1992) at 99
(internal citations omitted)).