United States District Court, M.D. Pennsylvania
MEMORANDUM OPINION AND ORDER
Matthew W. Brann United States District Judge.
the Court for disposition is Plaintiffs Griggs Road, L.P. and
Blaise Alexander's Motion to Remand Pursuant to 28 U.S.C.
§ 1447(c). For the following reasons, this Motion will
February 3, 2017, this insurance coverage dispute was brought
before the Court by Notice of Removal pursuant to diversity
jurisdiction under 28 U.S.C. § 1332 from the Court of
Common Pleas of Lycoming County. On February 15, 2017,
Defendant Selective Way Insurance Company of America
(“Defendant”) filed an Answer and Counterclaim.
The factual scenario underlying Plaintiffs Griggs Road, L.P.
and Blaise Alexander's (“Plaintiffs”) claims
involves a loss incurred on June 1, 2015 during the
construction of their residence (“Alexander
July 2013 to July 2014, a subcontractor poured NuDura
Insulated Concrete Form (ICF) walls to form the foundation
and walls of the Alexander Residence. In December 2014, another
subcontractor began installing stucco directly over the
exterior of the NuDura ICF walls, including all exposed lower
level exterior walls, all first floor exterior walls, all
exterior walls of the dormers/towers, and all exterior walls
of the chimneys. The stucco was affixed to the NuDura ICF
walls by the subcontractor with a layer of petroleum-based
tar paper followed by a layer of wire mesh.
this insulation, it was discovered in May 2015 that the
subcontractor had affixed the stucco in a way which damaged
the insulating properties of the NuDura ICF
walls. This damage to the walls would allow
weather elements to affect the interior of the
residence. The process of removing the improperly
applied stucco resulted in damage to the existing NuDura ICF
walls in excess of $1, 700, 000.00. In addition to the
foundation walls, the existing soffits on the Alexander
Residence were also damaged by the subcontractor's
improper installation of the stucco and subsequent efforts to
remediate the said installation.
about October 13, 2015, Plaintiffs notified Defendant
Selective Way, their insurer, of their claim for damage to
the existing foundation walls resulting from the remedial
action taken to correct the faulty installation of the
denied coverage by way of letter on November 18, 2015 citing
the operative policy's exclusion for defective
workmanship and faulty materials. On November 20, 2015,
Plaintiffs again wrote to Defendant citing specific policy
provisions and case law in support of their position that the
damages were covered by the policy. The relevant provisions
of that policy state:
We will pay for direct physical loss or damage to Covered
Property from any of the Covered Causes of Loss.
1. COVERED PROPERTY, as used in this Coverage Form means:
a. Buildings and structures while in the course of
construction, erection, or fabrication at the “job
site, ” including foundations of such buildings or
b. If intended to become a permanent part of the buildings
and structures at the "job site, " materials,
supplies, fixtures, machinery and equipment of any nature
. . .
3. COVERED CAUSE OF LOSS
Covered Cause of Loss means direct physical loss or damage to
Covered Property except those causes of loss or damage listed
in SECTION B. EXCLUSIONS.
. . .
. . .
3. We will not pay for loss or damage caused by or resulting
from any of the following. But if loss or damage by a Covered
Cause of Loss results, we will pay for the loss or damage
caused by the Covered Cause of Loss.
. . .
c. Faulty, inadequate or defective:
. . .
(2) Design, specifications, workmanship, repair,
construction, renovation, remodeling, ...