Q

Our client's building is insured on a BOP special form. The building has two levels.

Recently, the insured was on the roof on the higher level. He was painting that portion of the roof, using a broom to apply the paint. During this operation, some paint splashed onto the lower roof.

We turned the claim for the paint damage in to the insurer. They have denied the loss, based on the negligent work exclusion. The adjuster told us that the insured was guilty of negligent work while painting the upper roof.

We do not think that this exclusion applies and would like your opinion.

Pennsylvania Subscriber

A

This exclusion does not apply—and was never meant to apply—to such a situation. A covered cause of loss, the spilling of the paint onto the roof,  has intervened.

What the negligent work exclusion was meant to reach is this: say that the insured, while inspecting his building, noticed that something was not constructed properly. He could not then turn to his insurer and expect it to fix the building. Without this exclusion, it is possible that the insurer would have to fix the building, based on the negligent work of the builder.

The BOP special form is an open perils policy and the loss is not excluded.