In the last issue of Coverage Opinions I addressed United Specialty Ins. Co. v. Everest Construction, No. 18-45 (D. Utah Feb. 28, 2019), where the court held that a “Fall From Heights” exclusion did not apply to preclude coverage for a claim against a construction company, brought by a building inspector, who was seriously injured by an eighty-five pound package of roofing shingles that had been thrown, by an insured’s employee, off the roof of a building at a construction project.  The court agreed with the insured that the “Fall From Heights” exclusion did not apply because the bag of shingles did not “fall” off the roof, but, rather, it was thrown.

A case involving a “Fall From Heights” exclusion seems unique.  At least you would think.  Right?  Nope.  Less than two weeks later the “Fall From Heights” exclusion was back.  This time in Porch v. Preferred Contractors Ins. Co., RRG, No. 18-102 (D. Mont. Mar. 11, 2019).  One more “Fall From Heights” exclusion case and they’ll be calling this the “next asbestos.”  Law firms will start forming “Fall From Heights” exclusion practice groups.

Kelly Porch, a seller of roofing contracts, went on the roof of a residential building to show a foreman for Ochoa Construction how roofing materials should be applied.  While he was on the roof, an employee of Ochoa moved the ladder and placed it against a rain gutter.  As Mr. Porch was climbing down the ladder the rain gutter broke.  The ladder and Mr. Porch fell 10-15 feet and Mr. Porch was seriously injured.           

Suit was brought against Ochoa, which was insured under a CGL policy issued by Preferred Contractors Ins. Co., RRG.  PCIC disclaimed coverage.  Ochoa entered into with Porch a stipulated consent judgment and covenant not to execute.  A judgment was entered in favor of Porch for $4.7 million.  Ochoa assigned to Porch its rights under the PCIC policy.

At issue before the court was the applicability of the “Fall From Heights” exclusion in the PCIC policy, which provided as follows: “‘Bodily injury’ sustained by any person at the location of the incident, whether working or not, arising out of, resulting from, caused by, contributed to by, or in any way related to, in whole or in part, from a fall from heights. For purposes of this exclusion, a fall from heights shall include, but not be limited to, a fall from scaffolding, hoists, stays, ladders, slings, hangers, blocks, or any temporary or moveable platform where there is a height differential to the ground.”

The court rejected Mr. Porch’s argument, that the “Fall From Heights” exclusion did not apply, because he did not fall from the ladder, but, rather, with the ladder: “Under the plain language of the first sentence, Mr. Porch’s injuries were clearly excluded.  Regardless of whether Mr. Porch rode the ladder to the ground or was separated from the ladder during the fall, the underlying Complaint alleged Mr. Porch’s injuries resulted from a fall from a height of 10-15 feet.  As such, the allegations in the underlying Complaint unequivocally demonstrated Mr. Porch’s claim was excluded because his injuries ‘ar[ose] out of, result[ed] from, [were] caused by, contributed to by, or [were] in any way related to, in whole or in part, from a fall from heights.”

Further, the fact that Mr. Porch sustained an injury in a fall with a ladder, rather than in a fall from a ladder, was a “distinction without any discernable difference.”  “It would,” the court explained “distort the contractual language to create an ambiguity where none exists” if the policy were interpreted as “excluding coverage for a fall where the injured party loses contact with the ladder, but providing coverage if the injured party is able hang on to the ladder throughout the fall[.]”