Allegations of faulty workmanship may be covered by a general liablity policy

Insurer ordered to defend claim brought against insured  pursuant to general liability policy in respect of alleged negligent installation of kitchen cabinets.

California Kitchens & Bath Ltd. v. AXA Canada Inc., [2010] O.J. No. 4752, November 5, 2010, Ontario Superior Court of Justice, E. Frank J.

The applicant insured sought a declaration that the respondent insurer had a duty to defend the insured in an action brought against it in relation to the installation of kitchen cabinetry at the home of the plaintiff. The insured obtained a general liability policy of insurance with the insurer.

The pleadings alleged the plaintiff learned that because of the location in which the kitchen sink had been installed by the insured it would be necessary to reposition the sink and counter requiring that the entire kitchen be removed and replaced. The pleading alleged that the insured was negligent in failing to install the kitchen in compliance with the applicable safety codes and in employing sub-trades who had no knowledge of the applicable codes. Citing the Supreme Court of Canada’s decision in Progressive Homes, the court held that faulty workmanship is an accident when it causes property damage neither expected nor intended by the insured. Accordingly, the court found that the pleading sufficiently alleged an “occurrence” and there was nothing in the pleading to suggest that the damage was expected or intended. Accordingly, the court concluded that the insurer owed the insured a duty to defend.

This case was digested by Cameron B. Elder and edited by David W. Pilley of Harper Grey LLP.

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