The FC&S editors recently discussed an interesting issue: the meaning of “physical injury” in conjunction with a claim for property damage under the CGL form.
Property damage is defined in the CGL form as “physical injury to tangible property” or “loss of use of tangible property that is not physically injured.” There is usually no problem with the meaning of “tangible property”—but what is “physical injury”?
This issue arose with a question about whether a change in color is physical injury such that the CGL form includes it in the definition of property damage. The insured did some work on a customer's tile floor, and the tile later changed color. The customer, of course, wanted the tile repaired or replaced. Setting aside the issue of whether any exclusion applies, was there property damage as defined in this incident? Was there actual physical injury?
On the one hand, Black's Law Dictionary defines physical injury as “bodily harm or hurt; see also physical harm.” Physical harm is defined as “the physical impairment of the human body, or of land, or chattels.” And physical is defined as “material, substantive, having an objective existence.” Using this approach, a change in the color of the tile is not physical injury. Such a change does not alter the material substance of the tile. The weight, the feel, the reality of the tile has not changed.
On the other hand, the customer has suffered a change in his perception of the tile. He chose a particular color to fit his décor—and now that choice has been ruined through no fault of his own. The tile has to be removed and replaced in order for the customer/claimant to be put back (at least aesthetically) in the same position as he was prior to the work of the insured. In the customer/claimant's point of view, he has definitely suffered property damage. Moreover, some would argue that there has been a physical change in the tile merely because the outward appearance of the tile has changed.
I am of the opinion that a color change is not physical injury. I see a physical injury as something that actually affects an object materially; something that changes an object in its size or its function or its shape; something that affects the tangible properties of an object.
But if anyone has a counterargument, I would be glad to hear it. I might even change my opinion.