A Closer Look at the CGL, Part VII; The "Your Work" Exclusion, Part II

The previous post discussing the “your work” exclusion explained the CGL’s coverage exception for the physical work performed by or on behalf of the insured.  That exclusion also applies to the insured’s communications meant to assure a third party regarding the specific attributes or qualities of the insured’s work.

Here is the exact wording of the exclusion.

This insurance does not apply to property damage to your work arising out of it or any part of it.

“Your work” includes warranties or representations made at any time with respect to the fitness, quality, durability, performance or use of “your work.”

A “Warranty” is “an assurance by the seller of property that goods or property are as represented or will be as promised.”[1]  The verb “represent” means, “to describe as an embodiment of a specific quality.”[2]  Representation is a noun derived from the verb.[3]  Both nouns are categories of the broader statements made by a seller to a buyer that represent certain aspects of the goods sold.

This exclusion applies to five specific types of statements regarding goods:

1. Fitness means, “of a suitable quality, standard. or type.”[4]  Here, the seller promises that the good complies with certain specifications.[5]  
2. Quality has two applicable definitions.  The first is, “a distinguishing characteristic,”[6] where the seller identifies a certain feature that is likely key to the sale.  Quality also means, “a degree of excellence,”[7] which implies the good is somehow better than similar items.
3. Durability is defined as, “capable of withstanding wear and tear.”[8]  This adjective goes to the expected life of the good.
4. “Performance” is based on the verb “perform” which means, “work, function, to do something to a specified standard.”[9]  The suffix -ance has several definitions; here, it means, “denoting a quality or state.”[10]  Therefore, performance is, “the state of performing.”  A representation about a goods “performance” focuses on how that good will function and implies a minimum level of capability.
5. The American Heritage dictionary defines “use” as, “a purpose or way something is used.”[11]  Here, the insured is describing how a third party might implement the good.

The combined impact of these five adjectives is very broad and should cover all statements that the insured could potentially make about his “work.”

For a further discussion of the concepts involved, please see the Uniform Commercial Code's discussion on warranty.


[1] The American Heritage Dictionary, Second College Edition, © 1985, p. 1364

[2] Id at 1049

[3] The Concise Oxford English Dictionary, Second Edition, © 2004, p. 1511. The suffice -tion is used to make a noun from a verb. 

[4] Oxford, p. 537

[5] The American Heritage Dictionary observes that fitness means the good is “right or correct in view of the circumstances.”  p. 508

[6] Oxford, p. 1174

[7] Online Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/quality, last visited on March 3, 2019

[8] American Heritage, p. 430

[9] Oxford. p. 1064

[10] Oxford, p. 47

[11] American Heritage, p. 1331