Massachusetts exclusions j(5) and j(6) “that particular part.”

In E.H. Spencer & Co., LLC v. Essex Ins. Co., No. 09-P-1812 (Mass. Ct. App. April 8, 2011)(unpublished), insured Spencer was the general contractor for a residence.  During construction, the project suffered water penetration damage resulting from a window left open by a subcontractor and the puncture of a heating system pipe while Spencer was installing roof shingles.  Spencer sought coverage under its CGL policy issued by Essex.  Essex denied coverage and Spencer filed suit.  The trial court granted Essex’s motion for summary judgment.  The intermediate court of appeals affirmed, holding that, under Massachusetts law, all of the damages fell within exclusions j(5) and j(6).  Specifically, the court states that the two exclusions eliminate coverage for any damage to the insured’s work, here the entire residence, caused by the insured or its subcontractors during construction.   The court rejected Spencer’s argument that “that particular part” was limited to that part of the project on which work was being performed at the time the damage occurred, holding that the entire project constituted “that particular part.”

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