Jeff City Industries was the general contractor for a sewer system improvement project in Branson, Missouri. Bituminous Cas. Corp. v. United HRB Gen. Contractors, Inc., 2011 U.S. Dist. LEXIS 145666 (W.D. Mo. Dec. 19, 2011). Branson sued Jeff City, alleging breach of the construction contract for the project. The claims included improperly bedded sewer piping, improper aligning portions of trenching for the sewer piping, improper service line connections to the sewer piping, etc. Further, Ozark Mountain Consultants, a subcontractor of Jeff City and a third-party defendant in the underlying action, brought a cross claim against Jeff City for negligent misrepresentation as to whether Jeff City procured insurance.

   Bituminous sought a declaratory judgment that it had no duty to defend because Branson's claims against Jeff City did not constitute "occurrences." Moreover, Ozark Mountain's claims did not allege "bodily injury" or "property damage."

   The court first determined that Branson's petition in the underlying case only alleged contractual claims. Accordingly, there was no "accident" or "occurrence" triggering Bituminous' policy.

   Turning to Ozark Mountain's cross claim, the court agreed that negligent misrepresentation could be an "occurrence" under a CGL policy. Here, however, the cross claim did not allege physical damages such as flooding or loss of use, but only asserted costs incurred in defending and prosecuting legal actions. Because Ozark Mountain's petition did not allege "bodily injury" or "property damage," Bituminous had no duty to defend.