UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LORDS LANDING VILLAGE
CONDOMINIUM COUNCIL OF UNIT
OWNERS,
Plaintiff-Appellee,
                                                                   No. 98-1639
v.

CONTINENTAL INSURANCE COMPANY,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-94-3377-PJM)

Argued: June 10, 1999

Decided: September 13, 1999

Before WIDENER, NIEMEYER, and TRAXLER,
Circuit Judges.

_________________________________________________________________

Reversed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Jeffrey Roger Schmieler, SAUNDERS & SCHMIELER,
Silver Spring, Maryland, for Appellant. Kevin Thornton, KAPLAN &
KAPLAN, P.A., Baltimore, Maryland, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The issue presented by this appeal is whether a standard compre-
hensive general liability ("CGL") insurance policy provides a condo-
minium developer coverage for the costs of repairing faulty
workmanship performed by the developer's subcontractors. We hold
that the policy does not provide such coverage and therefore reverse
the judgment of the district court finding coverage.

In May 1994, the Council of Unit Owners at Lords Landing Village
Condominium complex ("Unit Owners") sued the developer of the
complex, Wellington Homes, for faulty workmanship, including, inter
alia, failure to prime wood before painting, causing the wood to rot.
The faulty work had been performed for Wellington Homes by sub-
contractors. Following a trial, the jury returned a verdict in favor of
the Unit Owners and against Wellington Homes in the amount of $1.1
million, based on breaches of express and implied warranties and vio-
lations of the Maryland Consumer Protection Act.

When the Unit Owners were unable to collect the $1.1 million
judgment from Wellington Homes, they brought this action directly
against Wellington Homes' insurer, Continental Insurance Company,
which had issued a CGL insurance policy to Wellington Homes. That
policy, which was an industry standard CGL policy, provided cover-
age for sums that Wellington Homes became legally obligated to pay
because of "property damage" caused by an"occurrence." The policy
defined the term "occurrence" to be "an accident, including continu-
ous or repeated exposure to substantially the same general harmful
conditions."

Relying on the Maryland Court of Appeals' recent decision in
Sheets v. Brethren Mut. Ins. Co., 679 A.2d 540 (1996) (holding that
the proper standard for determining whether a negligent act is an "ac-

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cident" under a CGL policy is subjective -- whether the damage was
unforeseen or unexpected by the insured), the district court concluded
that the CGL policy Continental Insurance issued to Wellington
Homes covered the damages caused by the subcontractors' faulty
workmanship because the faulty workmanship amounted to an "oc-
currence" as defined by the policy. The court concluded that such
damages were neither intended nor expected by Wellington Homes
and that, therefore, under the subjective standard in Sheets, such dam-
ages were caused by an "accident" as defined by the policy.

On appeal, Continental Insurance argues that Sheets does not apply
because the damages in Sheets resulted from negligent misrepresenta-
tion, whereas the loss here resulted from faulty workmanship amount-
ing to a breach of warranty and violation of the state Consumer
Protection Act. Relying on the post-Sheets decision in Lerner Corp.
v. Assurance Co. of America, 707 A.2d 906 (Md. App. 1998), which
interpreted Sheets in a context more closely analogous to that before
us, Continental Insurance argues that the repair and replacement costs
for the faulty workmanship are economic losses resulting from failure
to satisfy a contractual bargain and thus are not losses covered by the
CGL policy. It argues that CGL policies are not intended as surety
bonds that insure contractual obligations and that to order Continental
Insurance to pay for the repairs would convert its policy into a perfor-
mance bond, which was never intended by the parties. We agree.

In Sheets, the court was simply concerned that an objective stan-
dard for defining the term "accident" in a CGL policy, rather than a
subjective standard, would create an anomalous situation where insur-
ance policies would cover only damages for which an insured would
never be legally liable under general principles of tort law -- those
damages that are not objectively foreseeable. Thus, although the court
expressly disapproved those cases relying on an objective viewpoint
test for defining "accident," it neither implied nor expressed any
intention to undermine or fundamentally alter the established general
nature of CGL policies and the risks that they were meant to cover.
See, e.g., Woodfin Equities Corp. v. Harford Mut. Ins. Co., 678 A.2d
116, 128 (Md. App. 1996) (stating that "CGL policy coverage com-
pensates for physical damage to the property of others, and not for an
insured's contractual liability because the product or completed work
supplied by the insured is not that for which the damaged third party

                    3
bargained" (citation omitted)), overruled on procedural grounds by
687 A.2d 652 (Md. 1997); Century I Joint Venture v. United States
Fidelity & Guar. Co., 493 A.2d 370, 375 (Md. App. 1985) (explain-
ing that in a CGL policy "[t]he risk intended to be insured is the pos-
sibility that the goods, products or work of the insured, once
relinquished or completed, will cause bodily injury or damage to
property other than to the product or completed work itself . . ."
(internal quotation marks and citation omitted)); see also Robert
Franco, Insurance Coverage for Faulty Workmanship Claims Under
Commercial General Liability Policies, 30 Tort & Ins. L.J. 785, 785-
87 (1995) (observing that because poor performance is merely a cost
of doing business, it falls outside the scope of CGL coverage, which
"does not serve as a performance bond, nor does it serve as a warranty
of goods and services"). Thus, a CGL policy compensates for tort lia-
bility for damage to the property of others and not for the insured's
contractual liability. If the court in Sheets had intended to effect a rev-
olution in the generally accepted understanding of CGL policies, it
surely would have been more explicit than simply holding that the test
for defining accident is a subjective one, as opposed to an objective
one.

We believe that the proper interpretation of Sheets is revealed by
the Maryland Court of Special Appeals' subsequent decision in
Lerner, which interpreted Sheets. In Lerner, the court considered
losses occasioned by faulty workmanship and concluded that such
losses were not the result of an "accident" as used in the CGL policy.
The court observed:

          In determining if there is a covered accident, the Sheets
          analysis directs our attention to the nature of the damages --
          do they represent an expected or foreseen event? If the dam-
          ages suffered relate to the satisfaction of the contractual bar-
          gain, it follows that they are not unforeseen. In other words,
          and in the context of this case, it should not be unexpected
          and unforeseen that, if the Building delivered does not meet
          the contract requirements of the sale, the purchaser will be
          entitled to correction of the defect. This, we believe, would
          be the expectation and understanding of the reasonably pru-
          dent lay purchaser of a CGL policy. On the other hand, if
          the defect causes unrelated and unexpected personal injury

                     4
          or property damage to something other than the defective
          object itself, the resulting damages, subject to the terms of
          the applicable policy, may be covered.

Lerner, 707 A.2d at 912.

Likewise, in this case, we conclude that the losses claimed from the
failure of Wellington Homes' subcontractors to use primer paint, as
contractually obligated, and to carry out other similar obligations
were not "unexpected or unforeseen." Because the breach of a duty
to perform construction work properly is not an"accident," as covered
by a CGL policy, Continental Insurance owes Wellington Homes no
coverage. See id.; United States Fire Ins. Co. v. Milton Co., 35 F.
Supp.2d 83 (D.D.C. 1998) (interpreting Sheets and holding that "oc-
currence" as used in CGL policy does not cover the normal, expected
consequences of poor workmanship).

For the foregoing reasons, we reverse the judgment of the district
court.

REVERSED

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