United States District Court, D. New Hampshire
Fletch's Sandblasting and Painting, Inc.
Colony Insurance Company Opinion No. 2017 DNH 097
MEMORANDUM AND ORDER
Barbadoro United States District Judge
Sandblasting and Painting, Inc., seeks a determination in
this declaratory judgment action that it is entitled to
coverage under a commercial general liability insurance
policy issued by Colony Insurance Company. Colony has filed a
motion for summary judgment arguing that Fletch's cannot
claim coverage for what amounts to a claim of defective
The Insurance Policy
sold Fletch's a standard-form commercial general
liability (“CGL”) insurance policy. See
Doc. No. 16-3 [hereinafter “Ex. B”]. The policy
provides in pertinent part that Colony “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.” Ex. B at 16, § I(1)(a). Coverage is
available under the policy, however, only if the
“bodily injury” or “property damage”
is caused by an “occurrence.” See Ex. B
at 16, § I(1)(b)(1). An “occurrence” is
defined as “an accident, including continuous or
repeated exposure to substantially the same general harmful
conditions.” Ex. B at 29, § V(13). The policy also
contains an exclusion for “property damage” to
“[t]hat particular part of any property that must be
restored, repaired or replaced because ‘your work'
was incorrectly performed on it.” Ex. B at 17, 19-20,
§ I(2)(j)(6). “Your work” includes
“[w]ork or operations performed by you or on your
behalf.” Ex. B. at 31, § V(22)(a)(1).
The Underlying Action
seeks a defense and indemnification with respect to a
complaint filed against it by Thick Tech Systems, Inc., in
the United States District Court for the District of Maine.
See Amended Complaint, Thick Tech Systems, Inc.
v. Methuen Construction Co., No. 2:15-cv-00076-DBH (D.
Me. June 3, 2015); see also Doc. No. 16-2
[hereinafter “Ex. A”] (copy of Maine complaint).
The complaint alleges that the United States Navy hired
Methuen Construction Company as a general contractor to make
repairs at the Portsmouth Naval Shipyard. Ex. A at 2-3.
subcontracted with Fletch's to “strip, repair,
prime and finish [certain structures] with an intumescent
fireproofing product known as Albi Clad 800.” Ex. A at
3. Fletch's, in turn, subcontracted with Thick Tech to
apply the fireproofing material, while Fletch's remained
responsible for preparing (e.g., repairing and priming) the
structures' surfaces beforehand. Ex. A at 3.
allegedly performed the surface preparation work
“negligent[ly], ” “in an unworkmanlike
manner, ” and “[not] in accordance with the job
specifications.” Ex. A at 4. As a result, when Thick
Tech later applied the fireproofing material, it failed to
adhere. Ex. A at 4. “Fletch's [then] induced [Thick
Tech] to expend and commit further time and resources needed
to correct defects caused by [Fletch's] poor workmanship
by promising [Thick Tech] that it would be paid for the
additional work and supplies furnished . . . .” Ex. A
at 4. But “Fletch's had no intention of paying,
” and after Thick Tech “devote[d] significant
additional time and resources [to] performing corrective work
made necessary due to Fletch's failure of performance,
” Fletch's failed to pay Thick Tech in full. Ex. A
Tech has sued Fletch's for breach of contract, quantum
meruit, fraudulent inducement, and a claim “sounding in
negligence.” See Ex. A at 5-8. Only the
negligence claim is relevant here. That claim asserts that
“[a]s a contractor responsible for completing all
surface preparation work . . . Fletch's owed [Thick Tech]
a duty to complete said work in a competent manner.”
Ex. A at 7. Fletch's was allegedly negligent because it
“failed to properly prepare the surfaces, ”
“failed to follow the job specifications, ”
“made misrepresentations to [Thick Tech] concerning the
adequacy and compatibility of the products Fletch's
applied to [the] surfaces, ” and “failed to
adequately protect the work while in progress from weather
elements.” Ex. A at 7.
STANDARD OF REVIEW
judgment is appropriate when the record reveals “no
genuine dispute as to any material fact and [that] the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The evidence in the record must be
considered in the light most favorable to the nonmoving
party, drawing all reasonable inferences in its favor.
See Navarro v. Pfizer Corp., 261 F.3d 90, 94 (1st
seeking summary judgment must first identify the absence of
any genuine dispute of material fact. See Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). A material fact
“has the potential to change the outcome of the
suit.” See Borges ex rel. S.M.B.W. v.
Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010). If the
moving party satisfies this burden, the nonmoving party must
then “produce evidence on which a reasonable finder of
fact, under the appropriate proof burden, could base a
verdict for it; if that party cannot produce such evidence,
the motion must be granted.” See Ayala-Gerena v.
Bristol Myers-Squibb Co., 95 F.3d 86, 94 (1st Cir.
1996); see also Celotex, 477 U.S. at 322-24.