Low, Ball & Lynch’s
WEEKLY LAW RESUME
December
1, 2005 Issue By: Ray Coates
Coverage – Homeowner’s Policy -
Exclusions
Cynthia Davis, et al. v. Farmers
Insurance Group
Court of Appeal, Fourth District
(November 18, 2025)
Homeowner’s policies typically do not cover claims arising out of the
failure to disclose defects that existed in property at the time of sale.
This case reaffirms that view, based upon a specific exclusion.
Cynthia and Daniel Davis purchased a course of construction policy from Fire
Insurance Exchange for a home they were building. After completion of the
home, the policy converted into a homeowner’s policy. The Davises sold
the property to Rick and Kristin Engebretsen. Thereafter, the policy was
cancelled.
Three years later, the Engebretsens sued the Davises for failing to disclose
construction defects in the home, which the Davises knew or should have known
at the time of the sale, but failed to inform the Engebretsens. Damage to
the property and injury to the Engebretsens was alleged, including personal
injuries from high concentration of fungi, which resulted in medical
attention.
The Davises tendered the underlying action to Fire Insurance Exchange.
Fire Insurance Exchange denied the request for defense or indemnity. The
Davises then filed a complaint for breach of contract and breach of the implied
covenant of good faith and fair dealing. The Davises filed a motion for
summary adjudication, asking the Court to conclude that Fire Insurance Exchange
owed a duty to defend the underlying action, and that Fire Insurance Exchange
had breached that duty. Fire Insurance Exchange moved for summary
judgment, arguing that there was no potential for coverage. The trial
court denied the Davises’ motion and granted Fire Insurance Exchange’s
motion. The Davises appealed.
The Court of Appeal affirmed. The policy provided coverage for bodily
injury or property damage resulting from an occurrence. The policy defined
“occurrence” as an accident which resulted in bodily injury or property damage
during the policy period. The Court held that, since the complaint
alleged injuries that occurred after the policy had been cancelled and after
the sale of the property, there was no allegation of bodily injury or property
damage during the term of the policy.
In addition, the policy contained an exclusion for bodily injury or property
damage arising out of the sale or transfer of real property, including known or
unknown property or structural defects. The Davises attempted to argue
that the complaint alleged negligent construction, and thus the claim was not
excluded. The Court of Appeal rejected that interpretation, and stated
that after real property was sold, claims for bodily injury or property damage
resulting from known or unknown defects in the property were not covered.
Here the claim was for damages that arose after the sale of the property.
The exclusion therefore encompassed the very type of claims alleged.
Because the exclusion precluded coverage as a matter of law, Fire Insurance
Exchange had no duty to defend or indemnify the Davises, and the trial court
properly granted the summary judgment. The judgment was, therefore,
affirmed.
COMMENT
This case is consistent with prior appellate court decisions in this
area. The decision is unique, in that it interprets an exclusion that is
not common in most homeowner’s policies.
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