United States: Would Rot Damage Occur In A Garage If No One Were Around To See It? Yes, Judges Rule

Last Updated: April 21 2015
Article by Harry J. Moren

For centuries, the question whether an event even occurs before you know about it has perplexed philosophers. And judges. The U.S. Court of Appeals for the Eleventh Circuit last week came to a common-sense conclusion.

When developers or contractors are sued for defective construction, there's often confusion over which insurance policy provides coverage. Commercial General Liability (CGL) policies cover property damage that "occurs" during the policy period, but this begs the key question – when is the damage deemed to "occur"? Is it when the work was done? Or when the property was damaged? Or when the damage was discovered?

The California Supreme Court decided this issue 20 years ago in its landmark decision Montrose Chemical Corp. v. Admiral Ins. Co. The Court looked to the plain language of the insurance policy and held that CGL policies are triggered if the property suffered any injury or damage during the policy period. So where defective construction causes cracking in concrete foundations, for example, a CGL insurer should cover the claim if cracking occurred during its policy period.

Last week, the Eleventh Circuit revisited these issues to decide the trigger of coverage under Florida law. In its April 7 decision in Carithers v. Mid-Continent Casualty Company, the court found that the insurer had a duty to defend and indemnify a homebuilder against a lawsuit by homeowners alleging defective workmanship.

The case arose out of facts typical of construction defect claims. The homebuilder, Cronk Duch Miller & Associates, had built a home in 2005 for Hugh and Katherine Carithers. The Carithers sued the builder several years later, alleging that shoddy work by the subcontractors had resulted in a faulty electrical system, damage to tile and exterior bricks, and a leaky balcony that caused wood rot in the garage. According to the homeowners, the damage could not have been discovered until 2010.

The builder sought coverage under four CGL policies it purchased from Mid-Continent for the period from March 2005 through October 2008. Mid-Continent denied coverage on the grounds that the damage was discovered after its policies expired. Left without insurance, the builder settled with the homeowners and assigned to them its right to collect the settlement amount from Mid-Continent.

The homeowners' subsequent coverage lawsuit against Mid-Continent hinged on the issue of trigger of coverage. The homeowners asserted an "injury-in-fact" trigger, whereby property damage is deemed to "occur" when the injury or damage takes place. They argued that the damage took place in 2005 and fell within the Mid‑Continent policy period. But Mid-Continent argued for a "manifestation" trigger, under which the damage is deemed to occur when it is discovered or manifests itself. Since the damage was not discovered until 2010—two years after its policies expired—Mid-Continent argued that it had no coverage obligations.

The Eleventh Circuit rejected the insurer's argument and ruled that the "injury-in-fact" trigger applied to the standard CGL policy language used in Mid-Continent's policies. The Eleventh Circuit relied on the express language of the insurance policy—just as the California Supreme Court did in Montrose. Under the plain terms of the policy, Mid-Continent promised to cover claims if the property damage "occurs during the policy period." "Property damage" was defined as "physical injury to tangible property." The policy also defined "occurrence" to mean "an accident, including continuous or repeated exposure to substantially the same general harmful conditions."

Putting these terms together, the Eleventh Circuit stated a simple rule: "Property damage occurs when the damage happens, not when the damage is discovered or discoverable." Since the damage to the Carithers' home had occurred in 2005, while the first Mid-Continent Casualty policy was still in effect, the court held that the insurer had a duty to defend and indemnify its policyholder.

In reaching this decision, the court accepted the trial court's finding that the damage happened in 2005. But it's not always easy in construction defect cases to determine exactly when damage has taken place. And complications arise when ongoing property damage remains latent and is not discovered for several years.

That was the situation facing the California Supreme Court in Montrose, which involved property damaged by the disposal of toxic chemicals over 35 years. The California Court applied the same policy language noted above—in particular the provision that defined an "occurrence" to mean "continuous or repeated exposure" to the same harmful condition. The Court concluded that this language could mean only one thing: in cases where there is progressive deterioration of property over several years, the damage has occurred continuouslyand therefore coverage is triggered under each and every insurance policy in effect during that period.

Over the last 20 years, the "continuous trigger" rule announced in Montrose has expanded the amount of insurance coverage available in California to pay for "long-tail" injury claims against developers, contractors, and a host of other businesses. It remains to be seen whether courts in Florida will give policyholders in that state the benefit of a similar rule.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
21 Nov 2018, Seminar, New York, United States

“Big data” is changing our economy. It has allowed Amazon, Google, Facebook and many others to redesign traditional business models and to create new or improved products and services with greater utility for consumers and often at very little cost.

24 Nov 2018, Speaking Engagement, New York, United States

Each year, the New York Region of IFA hosts a panel and reception at the NYU Law School. This year’s panel will include a discussion of the TCJA international provisions.

27 Nov 2018, Speaking Engagement, New York, United States

Employment Managing Associates, Alexandra Stathpoulos and Alexandra Heifetz are presenting at the University of California, Berkeley School of Law’s FORM+FUND Series.

Similar Articles
Relevancy Powered by MondaqAI
Lewis Brisbois Bisgaard & Smith LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Lewis Brisbois Bisgaard & Smith LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions