Dacon Corporation was the general contractor on the construction of Beverly Hospital, owned by Northeast Hospital Corporation (NHC).
The first floor of the hospital consisted of three layers: a bottom vapor barrier, a concrete slab, and a top layer of tile or carpet. Subcontractor Lampasona Concrete Corporation installed the concrete slab. Other subcontractors installed the other two layers.
NHC sued Dacon, alleging property damage to the finished first floor. Dacon filed a third-party complaint against Lampasona. It alleged that Lampasona made multiple errors in installing the concrete slab, including puncturing the vapor barrier, which allowed moisture to pass through into the concrete slab, and improperly mixing fiber reinforcement into the concrete, which contributed to moisture wicking to the surface.
Lampasona sought coverage from its general liability insurer, All America Insurance Company. All America asserted that five builder’s risk exclusions excluded coverage.
In All America Ins. Co. v. Lampasona Concrete Corp., 95 Mass. App. Ct. 79 (2019), the Massachusetts Appeals Court held that the trial court judge had erred in granting summary judgment to All America. It focused its analysis on exclusion j(6), which excludes damages to “that particular part of any property that must be restored, repaired or replaced because ‘your work’ was incorrectly performed on it.” The court held that exclusion did not apply because the damage was to the vapor barrier and top layer of the floor, not to the concrete slab installed by Lampasona.