Westchester Modular Homes of Fairfield County, Inc. v. Arbella Protection Ins. Co.

Syllabus

The plaintiff insured appealed to this court from the summary judgment rendered in favor of the defendant insurance company, claiming that the trial court improperly concluded that the defendant had no duty to defend the plaintiff against a counterclaim filed by third-party homeown- ers in an action arising out of a contract for the construction of a modular home. During construction, disputes arose between the plaintiff and the homeowners, and the homeowners ultimately terminated their contract with the plaintiff. The plaintiff filed a mechanic's lien on the property and commenced an action to foreclose on the lien. The home- owners filed a counterclaim, alleging that the plaintiff had breached the construction contract in various ways, including by performing work that was substandard, unreasonable, and unworkmanlike. Several months later, the homeowners disclosed M, a licensed architect and professional engineer, as an expert witness. During M's deposition by the plaintiff's attorney, M testified that the windows in the home were not installed with pan flashing, which was a building code violation and would allow water to leak down between the window and the siding and rot the wall. He further testified that the repairs required to correct the issue would cost the homeowners a considerable amount of money. Three weeks after M's deposition, the attorney for the homeowners sent the plaintiff's attorney an email informing the plaintiff that M had further investigated the issues about which he had testified and concluded that the windows were installed with pan flashing but that it was not installed correctly, which, along with other allegedly defective work by the plain- tiff, would result in water condensation and eventually water damage to the roof if the issues were not remedied. The plaintiff filed a claim for coverage under a commercial general liability policy issued to it by the defendant. The plaintiff also submitted to the defendant documents from the under