Academic journal article Journal of Risk and Insurance

South Carolina Finds No "Property Damage" Alleged in Homeowners' Claims of Injury to Home Value Due to Defendants Building on Contaminated Land

Academic journal article Journal of Risk and Insurance

South Carolina Finds No "Property Damage" Alleged in Homeowners' Claims of Injury to Home Value Due to Defendants Building on Contaminated Land

Article excerpt

Auto-Owners Ins. Co. v. Carl Brazell Builders, Inc., 356 S.C. 156, 588 S.E. 112 (S.C. 2003)

The Auto-Owners Ins. Co. v. Carl Brazell Builders, Inc. arose when homeowners sued, claiming that developers and contractors associated with an upscale residential neighborhood knowingly built homes on land contaminated by hazardous waste and intentionally concealed this from the homeowners, resulting in damage to them. The homeowners purportedly lost property value because their homes were worth significantly less once the problems of the tainted underlying land came to light. Insurers for the builder defendants defended the litigation but also filed a federal court action for a declaratory judgment of no potential for coverage on the ground that the complaint against the builders did not sufficiently allege "physical" injury to "tangible" property.

The South Carolina federal district court certified to the state Supreme Court a number of questions, including one asking whether the CGL policies in question required a defense where the claims are "economic in nature and based solely on the diminution in value" of the homes. The South Carolina Supreme Court answered a unanimous "no" to this question (and therefore declined to answer the other three certified questions). The Court found that the allegations were of intangible financial loss due to decreased market value did not constitute physical injury to tangible property and hence were not "property damage" within the meaning of the CGL policy. …

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