The Impaired Property Exclusion
April 2010
Claims involving faulty work or defective
products often introduce complex commercial general liability (CGL) coverage
issues, particularly if the claim alleges only damage to property.
by Craig
F. Stanovich
Austin
& Stanovich Risk Managers, LLC
Whether the claim is for "property damage" that is caused by an "occurrence"
must usually be confronted before consideration
is given to application of any CGL policy exclusions. The markedly different
interpretations and construction given by the courts to the terms "occurrence"
and "property damage" is rather startling. These larger coverage issues may
divert attention from an exclusion that is routinely cited but often misunderstood—exclusion
m. of the CGL policy, sometimes referred to as the "impaired property" exclusion.
Property Damage
In the battles over what constitutes property damage, it seems there is a
tendency to ignore the actual CGL definition of "property damage." The fact
is the definition has two parts, both presumably to be given equal weight. Most
seem to know there must be physical injury
to tangible property—but this is only the first part of the definition. Loss
of use of tangible property that has not been physically
injured is the second part of the definition.
In other words, within the CGL insuring agreement is a promise to pay damages
for claims because tangible property can't be used [loss of use]—even if the
property that can't be used has not suffered any
scratch, dent, injury, harm, destruction or other physical damage. It is only
through the lens of the second definition of property damage—loss of use of
tangible property that has not been physically injured—does the need and purpose
of the impaired property exclusion come into focus.
Impaired Property Exclusion
Unlike the eccentric uncle at the family wedding, impaired in this context
means something a little different. In fact, "impaired property" is a defined
term in the CGL policy. In overly simplistic terms, impaired property is someone
else's property that cannot be used because your work or your product, which
has been incorporated into that property, is inadequate or defective.
Here is a highly technical explanation of the general intent of exclusion
m.:
My stuff doesn't work because your stuff, which I incorporated as a component
part of my stuff, doesn't work. If your stuff worked, then my stuff would
work. If you replaced your stuff, my stuff would work just fine. So I am
suing you because I have lost money as my stuff doesn't work—but the only
reason my stuff doesn't work is because your stuff is junk.
I know this may be a little esoteric, but bear with me. My stuff is the impaired
property—it has not been damaged. Yet, the claim I am making against you—loss
of use of my stuff (my stuff is tangible property)—fits within the second part
of the CGL definition of property damage. Absent an exclusion, you would have
coverage1 in your CGL policy (to the extent you
are legally liable) for the loss of use claim that I have made against you.
It is the intent, however, of exclusion m. to eliminate coverage for just this
type of claim.
First Illustration: Your Product2
Let's say that my stuff consists of scanners that I sell to retail stores
that use my product to scan the UPC of items sold. Your stuff [your product]
is the printed circuit boards that I incorporate into my scanners. Although
we have tested the scanners, once they are put to use by the stores that purchased
my scanners, the scanners simply fail to operate. It is determined that your
printed circuit boards are defective. Among other things, I sue you for my
loss of use of the nonoperational scanners.
Further, as my scanners are tangible property, your CGL insurer concedes that
my claim does qualify as property damage (remember part two of the definition).
However, my scanners are impaired property—my scanners don't operate because
your printed circuit board [your product] was incorporated into my scanner
and your product was defective. For the
sake of our illustration, let's further assume that replacing your printed circuit
board restores my scanner to its full function and that your printed circuit
board didn't damage itself in any way; it just didn't work. In other words,
your printed circuit board did not cause any physical injury to itself or any
portion of my scanner.
Although you may be liable to me for my loss-of-use claim for my scanners,
and in this instance, my claim is for property damage, your CGL insurer will
properly deny coverage based on exclusion m.
Second Illustration: Your Work3
You are the excavation subcontractor engaged to prepare the site for construction
of a college. Part of the scope of your work is to properly compact the soils
in order for the foundation to receive adequate support.
You finished the job, but when the general contractor began putting in concrete
footings for the foundation, it is discovered that compaction was insufficient,
requiring the owner to incur expenses to again compact the soil, this time by
the general contractor. The owner of the project brings claim against you, the
subcontractor, alleging negligence in the compaction process, and is seeking
recovery of costs, including loss-of-use claims because the college did not
open as scheduled and the delayed opening resulted in the owner's substantial
loss of revenue.
As the lost revenue costs are the result of "impaired property," which in
this situation is the construction site for the school that cannot be used because
your work [the site compaction] was inadequate, and could have been remedied
by again compacting the soil, exclusion m. eliminates coverage for your liability
to the owner for the loss of revenue.
Third Illustration: Delay in Performing Your Work
Change the second illustration. Instead of improperly compacting the soil,
you as the subcontractor were behind schedule in compacting the soil. In other
words, you performed the job perfectly, but 2 months later than your contract
required. The result to the owner is the same—loss of revenue from delayed opening
of the college. In this third illustration, you have no CGL coverage as exclusion
m. applied to the owner's claim against you for loss of revenue not because
your work was inadequate or defective, but instead because of your delay in
performing the contract.
Impaired Property versus Property Not Physically Injured
While exclusion m. may often be referred to as the "impaired property" exclusion,
the exclusion actually applies more broadly—in some instances to property that
is not impaired property.
Fourth Illustration: Property Not Physically Injured4
You are an application software manufacturer and have released the latest
version of your software that is installed in laptops and desktop computers
everywhere. After installation, it is discovered there is a "bug" in your software.
The "bug" corrupts the computer's operating system, rendering the laptops and
desktops unusable. You are sued by numerous purchasers for damages resulting
from the "bug"; one of the allegations is loss of use of the laptops and desktops.
Clearly, the laptops and desktops are tangible property. In addition, the
courts have determined your software has not done
physical injury to the computers. In its
decision, the court observed:
By analogy, when the combination to a combination lock is forgotten or changed,
the lock becomes useless, but the lock is not physically damaged. With the
retrieval or resetting of the combination—the idea—the lock can be used
again. This loss or alteration of the combination may be a useful metaphor
for damage to software and data in a computer. With damage to software,
whether it be by reconfiguration or loss of instructions, the computer may
become inoperable. But the hardware is not
damaged. The switches continue to function to receive instructions
and the data and information developed on the computer can still be preserved
on the hard drive.
While the loss of the idea represented by the configuration of the computer
switches or the combination for the lock might amount to damage,
such damage is damage to intangible property.
It is not damage to the physical components of the computer or the lock,
i.e., to those components that have "physical substance apparent to the
senses." [Emphasis added]
America Online, Inc. v. St. Paul Mercury Ins. Co.,
347 F.3d 89 (4th Cir. 2003) at 96.
In sum, the claim against you is not for physical injury to tangible property
caused by your software; it is for the loss of use of tangible property that
has not been physically injured—loss of use of the laptops and desktops.
However, when your CGL insurer denies coverage based on the "impaired property"
exclusion, you quickly point out that the definition of impaired property only
applies if such property [the laptops and desktops] can be restored to use by
removal or replacement of your product—the software. And since your software
corrupted the operating system, simply removing or replacing your software will
not restore the laptops and desktops to operation. In short, you contend that
the laptops and desktops are not "impaired property."
You are a bit suspicious and more than a little surprised when your insurer
agrees—the laptops and desktops are not considered
impaired property. Does that mean exclusion m. does not apply? Unfortunately,
the answer to that question is "no."
A closer reading of exclusion m. reveals that it applies not only to "impaired
property," but also to property that is not physically injured, provided the
loss of use results from your defective product5—your
software. Exclusion m. applies in this instance even if the loss of use
is for property that is not impaired property
as the exclusion encompasses any property that is not physically injured if
the property damage results from your defective product.
Exclusion M.—The Exception
There is an exception to exclusion m. that applies when your product or work
abruptly damages itself after the property
into which your work or product has been incorporated has been put to its intended
use. Using our initial very technical explanation, my stuff doesn't work because
your stuff broke apart once my customers started using my stuff.
Fifth Illustration: Exception to Exclusion M.
Go back to the first illustration, the one about the scanners. While the
scanners were impaired property, let's change the facts a bit. An engineering
report offered this analysis of why your printed circuit boards failed:
We also observed separation in random areas between internal copper foil
layers and the plated copper barrel. This condition was present only after
thermal stressing ... Testing also indicates that interconnect separation
has likely contributed to or caused open circuits.... It is common for product
to pass visual and electrical screening testing, only to develop intermittent
and/or open circuits in the field.
In our case, the court then concluded from the engineering report that the
nature of the physical damage described in the report to your printed circuit
board, separation only upon thermal stressing, strongly suggests the damage
may have occurred suddenly.6
If your printed circuit boards abruptly came apart once the scanners were
being used, the exception to exclusion m. applies, and you would have coverage
in your CGL for my claim against you—my damages arising of the loss of use of
my scanners.
Conclusion
According to the U.S. District Court for the Northern District of Georgia,
Florida courts have outlined three rules regarding the applicability of exclusions
such as Exclusion m.
The first rule is that if the complaint fails to allege injury to other
property, and merely alleges economic loss resulting from injury to [or
failure of] the product itself, the exclusion applies, thus precluding coverage.
The second rule is that if the complaint alleges or otherwise establishes
damage to other property, the exclusion will not apply.
The third rule is that the exclusion does not apply to situations arising
from a sudden and accidental injury to the product which results in economic
loss.
Pinkerton & Laws, Inc. v. Royal Ins. Co. of Am. and
Md. Cas. Co., 227 F. Supp. 2d 1348 (at 1354).
While these three rules of thumb may not be very descriptive, such rules
are a good starting point in determining when exclusion m. of the CGL policy
applies.
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