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

Economics

Mar 26, 2026

How Old is Today's Housing Stock?

New home construction faces headwinds such as rising material costs, a persistent labor shortage, and elevated interest rates. These challenges have contributed to an insufficient supply of new construction, making the nation’s owner-occupied housing stock significantly older over time.

Leading Suppliers Council | Codes and Standards

Mar 25, 2026

New Electrical Code Change for Kitchen Islands: What Builders Need to Know

For some jurisdictions, the recent revisions to the 2023 National Electrical Code (NEC), specifically Section 210.52(C), change how receptacles can be installed in kitchen islands and peninsulas. But builders, designers, and electricians can consider alternative ways to provide power to kitchen islands.

View all

Latest Economic News

Economics

Mar 26, 2026

State/Local Property Tax Revenue Rises Past $210 Billion in the Fourth Quarter

Property tax revenue collected by state and local governments rose for the ninth consecutive quarter according to the Census Bureau’s quarterly summary of state and local tax revenue.

Economics

Mar 25, 2026

Age of Housing Stock by State

According to the latest data from the 2024 American Community Survey (ACS), the median age of owner-occupied homes has reached 42 years old. The age of the housing stock is an important remodeling market indicator.

Economics

Mar 24, 2026

Almost Half of the Owner-Occupied Homes Built Before 1980

Around 47% of the U.S. housing stock was built in the 1980s and earlier. The median age of owner-occupied homes climbed to 42 years old in 2024, up from 31 in 2005 according to the latest data from the American Community Survey.