In Western National Mutual Insurance Company v. Gateway, Gateway was involved in building some grain elevators that failed.  Gateway claimed the failure was due in part at least to work of its subcontractor.  Western filed a declaratory judgment action, claiming there was no coverage under the policy because of the “your work” exclusion,  the “professional services” exclusion, and the “impaired property” exclusion.

Summary judgment on the “your work” exclusion is premature when underlying liability has not been determined and Gateway has disputed whether it was solely responsible for the ultimate cause of the damages claimed by Dakota Mill or whether the work of B & B or BMS could have caused some of the damage.

Whether engineering caused the damages was in dispute, so summary judgment was premature on the “professional services” exclusion.  Disputed facts also precluded summary judgment on the impaired property exclusion.

The insurance company relied on an expert report from the underlying action.  The propriety of introducing the report through an attorney affidavit was questioned by the Court, as it was not clear it was based on personal knowledge as required.