The Superior Court’s recent decision in Indalex v. National Union Fire Insurance Co. of Pittsburgh, 83 A.3d 418, 2013 Pa.Super. 311, diverged significantly from the expected result given recent trends in the case law. With its decision to reverse the trial court, the Superior Court provided a workaround to expand coverage with the right facts and strategic planning.
For years, Pennsylvania courts have routinely enforced the “your work” exclusion in commercial general liability policies. The gist-of-the-action doctrine has also been used to preclude claimants from converting standard breach of contract complaints into tort claims that trigger insurance coverage. Then, the case of Kvaerner Metals Division of Kvaerner U.S. v. Commercial Union Insurance, 908 A.2d 888, 589 Pa. 317 (2006),narrowed coverage further in the construction context by constraining the definition of “occurrence.” The reach of Kvaerner and the tide of shrinking coverage for companies involved in the construction industry, however, seems to have been stemmed by the decision in Indalex.
Framing Indalex
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