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Debutant Geregistreerd op: 09 Jul 2020 Berichten: 3

That type jotaro hat of policy's function is to provide to the owner the promise that the contractors would have funds to rebuild in case of loss and to the contractors the protection against the crippling cost of starting afresh in such an event, without resort to litigation in case of negligence by anyone connected with the construction. Given the special nature of builders' risk policies, the judicial pronouncements on the commercial necessity for inclusiveness, and the language of this policy, I am of the opinion that the trial judge reached the right conclusion when he found that contractors and subcontractors were unnamed insureds by necessary implication. Even though the sub-contractor in this case had a contractual responsibility to obtain builder's risk insurance, and failed to do so, it was still found to be an insured under the owner's builder's risk policy which did not specifically include sub-contractors.

While it is quite obvious that it is generally desirable to have the risk borne (and therefore premiums paid for comprehensive coverage of all involved in a project) by the most appropriate party to achieve the overall benefits mentioned just above (ed. premium costs and avoiding litigation confusion) this benefit cannot in itself change the interpretation which ladies hats for weddings would otherwise be given to a contract of insurance. In that case, the unnamed subcontractor supplied steel beams to a housing project and one of its workers started a fire. The trial judge ignored the Commonwealth Construction line of reasoning and focused on the fact that the beams damaged in the fire constituted other property, which would be covered by the policy.

Damage here occurred to an integral military hat part of the very property that was subject to the faulty design. Is the design error the failure to design a stable bridge, or can there be "design" in stages, or aspects, which is capable of being plucked out of the overall concept, as the plaintiff contends? With all due respect to the arguments advanced on behalf of the plaintiff, it appears abundantly clear to me that "design" encompasses the totality of the superstructure and that each and every part of the superstructure was integral to the whole, and what, in fact, overturned into the Elbow River was the whole structure. The "design" was, in my view, fundamental to the whole, and when the design was in error the whole of the superstructure was doomed to fail, and did indeed fail.

The exception to the navy hat exclusion is damage "resulting from" the faulty workmanship. That is a reference to something different than the cost of repairing the faulty work. The Court of Appeal found that an "error" may include a "mistake in judgment or incorrect belief as to the existence of matters of fact." The engineer knew of the possible dangers of construction on certain soil types and had made the assumption, without conducting tests, that such soil was not present despite indications that it could be present. The Court found the design to be "flawed" because it was based on the consultant's assumption that the sub-stratum of the fill was on colluvium, and that assumption was found to be a "mistake in judgment" based on "incorrect belief as to the existence of matters of fact".

The Court said that even though the consultant may not have been negligent, that was not a question which it was necessary to decide, as it was still an "error in design" within the meaning of the policy. The insured's engineer, by assuming that the fill substratum rested on soil that would not slip, made such an error. The insured tried to argue that all permanent repair costs not associated with the cost to recontruct the sliver fill itself are recoverable as "damage resulting". The insurer argued that the reason for the error in design exclusion is to avoid the policy becoming a warranty of the soundness of the insured's project designs. An all risk policy is only intended to cover fortuitous events and risks. To interpret the clause to encompass the cost of repairing that which has been designed, would render the exclusion meaningless.

Damage resulting from error in design must refer to something different than the cost of repairing the very thing that has been designed. The insured appealed on a variety of issues, next hats including that the design exclusion was not applicable to resultant damage. The insured argued that the property containing the defect was the trackage, and not the cars. If this was so, then the insured would get coverage for the physical damage to the cars and some of the business interruption claim. The trial judge had granted coverage for other property of the mall which the car hit. In both Queensland Ry. and Simcoe & Erie the Courts held that no elements of negligence or blameworthiness were necessary to entitle the

insurer to invoke the exclusion clauses there under consideration.