ARTICLE
13 September 2019

Court Finds That "Care, Custody Or Control" Exclusion Did Not Negate Coverage For General Contractor Who Shared Jobsite Supervision

SM
Sheppard Mullin Richter & Hampton

Contributor

Sheppard Mullin is a full service Global 100 firm with over 1,000 attorneys in 16 offices located in the United States, Europe and Asia. Since 1927, companies have turned to Sheppard Mullin to handle corporate and technology matters, high stakes litigation and complex financial transactions. In the US, the firm’s clients include more than half of the Fortune 100.
McMillin Homes Constr., Inc. v. National Fire & Marine Ins. Co., 35 Cal.App.5th 1042 (2019); Fourth Appellate District Court of Appeal, Division One, Case No. D074219 (June 5, 2019).
United States Insurance

McMillin Homes Constr., Inc. v. National Fire & Marine Ins. Co., 35 Cal.App.5th 1042 (2019); Fourth Appellate District Court of Appeal, Division One, Case No. D074219 (June 5, 2019).

McMillin Homes Construction, Inc. ("McMillin") was the developer and general contractor of a residential community project in Chula Vista. McMillin hired Martin Roofing Company, Inc. ("Martin") as the project's roofing subcontractor. In connection with the project, National Fire and Marine Insurance Company ("National Fire") issued a commercial general liability policy to Martin. The policy named McMillin as an additional insured. Under a "care, custody or control" exclusion ("CCC exclusion"), damage to property in McMillin's "care, custody or control" was excluded.

When homeowners brought an underlying construction defect lawsuit arising from alleged roofing defects, McMillin tendered its defense to National Fire. National Fire denied coverage based on the CCC exclusion. McMillin then sued for breach of the duty to defend. Following a bench trial, the trial court held that the CCC exclusion negated a duty to defend.

On appeal, the Court relied on Home Indem. Co. v. Leo L. Davis, Inc., 79 Cal.App.3d 863, 872 (1978) to find that the CCC exclusion applied only where control over the damaged property was "exclusive or complete." Because Martin was responsible for controlling its jobsite, and McMillin oversaw the project as a whole, both of them shared control over the roofing work. As a result, the Court of Appeal concluded that the CCC exclusion did not apply, and thus, National Fire owed a defense to McMillin.

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.

Mondaq uses cookies on this website. By using our website you agree to our use of cookies as set out in our Privacy Policy.

Learn More