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Multiple lawsuits erupt in homeowner's insurance fiasco
By Bob Bruss
February 15, 2006
Cynthia and Daniel Davis built their own home. Upon completion of the home, they obtained a homeowner's insurance policy. They lived in the house about nine months before selling it to Rick and Kristin Engebretsen.
After the home sale, the Davises bought another home, cancelled their old homeowner's insurance policy, and bought a new homeowner's policy from the same insurer.
Approximately three years after the Engebretsens purchased their home, they sued the Davises and their professional home inspection company.
The buyers alleged negligence, fraud, and breach of contract for failure to disclose improper construction and design that created latent (hidden) defects for improper drainage, soil preparation and landscaping, resulting in mold growing under the home and contaminating the air.
The Engebretsens alleged personal injury from the high concentrations of fungi, including sinus and respiratory infections. The home sellers tendered defense of the lawsuit to their homeowner's insurance company under both policies.
But the homeowner's insurance company denied coverage and defense of the lawsuit. The Davises then sued their insurer, alleging breach of contract and breach of the covenant of good faith and fair dealing for failure to defend the lawsuit.
The insurance company replied the homeowner's policy does not provide coverage for occurrences such as accidents or events during the policy period that do not result in bodily injury or property damage until after the policy expired.
If you were the judge would you rule the Davises' homeowner's insurance policies provide coverage for this type of loss?
The judge said no!
"Read as a whole, the policy arising out of the sale exclusion provides that after real property is sold or transferred, claims for bodily injury or property damage resulting from certain known or unknown defects in the real property are not covered," the judge explained.
"We cannot envision how the act of selling or transferring property could ever 'cause' property damage. Thus, although the policy exclusion is not a model of clarity, its intent is clear and unambiguous," the judge emphasized.
There is no homeowner's insurance policy coverage available to home sellers whose buyers discover undisclosed property defects after the property is sold, he continued. The Davises' homeowner's insurance company had no duty to defend this lawsuit for allegedly undisclosed defects since there was no potential for policy coverage, the judge ruled.
Based on the California Court of Appeal decision in Davis v. Farmers Insurance Group, 134 Cal.App.4th 100.
