A Roof Of A Different Color Is Not "Property Damage"
Q: When is a claim for damage to property not "property damage"?
A. When it doesn't involve physical injury to or loss of use of tangible property?
So says the Vermont Supreme Court in a recent coverage dispute arising out of a building contractor's failure to use cedar shingles of the right color and quality in the construction of the plaintiff's home. The court ruled in Down Under Masonry, Inc. v. Peerless Insurance Company that the contractor's liability insurer had no duty to defend inasmuch as the use of white cedar shingles instead of red cedar shingles as contracted for (as all fans of shingles know, red cedar is much the superior product) had not caused any physical injury to the plaintiff's home or caused him to lose the use of it. The court concluded that it would not "find coverage for aesthetic damage under a CGL policy that does not explicitly provide for it."
