Big Win for Contractors in Illinois Construction Defects Case

Legal
Published

The Illinois Supreme Court last week issued an opinion that was extremely favorable to the construction industry in Acuity v. M/I Homes of Chicago, LLC, a case involving commercial general liability (CGL) coverage for construction defects resulting in water damage to a townhome project.

The Supreme Court responded to the request of the appellate court to clarify the law on the existence of property damage or occurrence in Illinois. That request was supported by an amicus curiae brief sponsored by NAHB, the HBA of Illinois, Associated General Contractors of America, American Subcontractors Association and local chapters in Illinois.

For more than 20 years, courts in Illinois had interpreted the definitions of “property damage” and “occurrence” in the standard commercial general liability policy to deny coverage for property damage arising out of defective construction in the entire construction project itself. Those courts found coverage only in the unlikely event of damage to other real property, and perhaps to personal property of project owners.

This interpretation amounted to little, if any, coverage for insured Illinois contractors. Illinois has lagged behind numerous other jurisdictions in upholding coverage for unexpected and unintended property damage arising from faulty workmanship by the insured.

The Supreme Court of Illinois noted that such a narrow view of coverage is unsupported by the policy language, and it joined the majority of jurisdictions in holding that unexpected and unintended physical injury to tangible property arising out of defective work amounts to an occurrence of property damage under a CGL policy.

The court further opined that once an occurrence of property damage is found, resort must be had to the property damage exclusions within the policy to determine ultimate coverage, including exclusions relating to that particular part of property damage upon which work is being performed out of which the property damage arises; that particular part of real property that must be repaired or replace because of incorrect work by the insured; property damage to the insured’s work subsequent to completion (subject to an exception for work performed by the insured contractor’s subcontractors); or impaired property or property that has not been physically injured.

In doing so, the Court rejected the notion that property damage arising out of defective workmanship amounts to a an uninsurable “business risk,” the cost of which is to be borne by the insured contractor itself.

Aligning itself with the majority of jurisdictions, the Court concluded that uninsured business risks are to be sorted out through application of the property damage exclusions. In that regard, it remanded the case to the trial court to determine issues relating to applicability of those exclusions to the facts before it.

The home building industry had a good day before the Illinois Supreme Court. That success is the culmination of nearly 20 years of advocating before numerous state and federal courts throughout the United States on these issues through the filings of amicus curiae briefs. The brief in Acuity v. M/I Homes was primarily authored and filed by Patrick J. Wielinski of Cokinos Young, Dallas, Texas, joined by Clifford Shapiro of Chicago. Wielinski and his firm have participated in the filing of such briefs for many years.

Subscribe to NAHBNow

Log in or create account to subscribe to notifications of new posts.

Log in to subscribe

Latest from NAHBNow

Advocacy | Multifamily
Nov 06, 2026
Treasury Announces New Opportunity Zone Designations

The U.S. Department of the Treasury and the Internal Revenue Service have announced new Opportunity Zone designations for more than 6,500 communities nationwide, effective Jan. 1, 2027.

Membership Recruitment and Retention
Nov 05, 2026
The Value of Being One of NAHB's Top Recruiters

Member-to-member recruitment is essential for growing NAHB’s membership. Here are the perks members are being rewarded with for their efforts.

View all

Latest Economic News

Economics
Nov 06, 2026
Hiring Rebounds in October, but Residential Construction Employment Declines

The U.S. labor market rebounded in October, with nonfarm payroll employment increasing by 165,000 jobs and the unemployment rate declining to 4.1%. However, the improvement in overall employment contrasts with continued weakness in residential construction, where employment fell by 16,400 jobs, the largest monthly decline since March 2021.

Economics
Nov 05, 2026
Multifamily Developer Confidence Weakens in Third Quarter

New multifamily housing confidence weakened year-over-year in the third quarter, according to the Multifamily Market Survey (MMS) by the National Association of Home Builders (NAHB). The MMS produces two separate indices. The Multifamily Production Index (MPI) had a reading of 41, down five points year-over-year, while the Multifamily Occupancy Index (MOI) had a reading of 69, also down five points year-over-year.

Economics
Nov 04, 2026
Mortgage Applications Decline as Higher Rates Boost ARM Share

Mortgage application activity declined in October as the 30-year fixed mortgage rate rose sharply again. The Mortgage Bankers Association’s (MBA) Market Composite Index, a measure of total mortgage application volume, fell 14.1% month-over-month in October on a seasonally adjusted basis. Compared to a year ago, total mortgage applications were 39.8% lower.