Mississippi exclusions j(5) and j(6) “that particular part”

In Lafayete Ins. Co. v. Peerboom, No. 3:10cv336 (S.D. Miss. June 2, 2011), claimant homeowner Peerboom hired insured contractor Absolute to raise Peerboom’s house two feet to avoid future flooding.  While Absolute was raising the house, it fell, resulting in physical injury to the home.   Peerboom sued Absolute for negligence, breach of contract, and fraud, seeking damages for the destruction of the home.  Absolute’s CGL insurer Lafayette defended under a reservation of rights and filed a declaratory judgment action.  The federal district trial court granted Lafayette’s motion for summary judgment.  Applying Mississippi law, the court first states that the Peerboom complaint alleges the possibility that the property damage was caused by an “occurrence.”  The court then held that a duty to defend was eliminated by exclusions j(5) and j(6) applicable to “property damage” to

(5)     That particular part of real property on which [Absolute] or any contractors or subcontractors working directly on [Absolute’s] behalf are performing operations, if the “property damage” arises out of those operations; or

(6)     That particular part of any property that must be restored, repaired or replaced because “[Absolute’s] work” was incorrectly performed on it.

Here, it was undisputed that the “property damage” occurred while Absolute was still in the process of raising the house.  The court also rejected Absolute’s “that particular part” argument, holding that, although the area of Absolute’s work was limited to the foundation, because it was hired to raise the house, the entire house constituted “that particular part” on which Absolute was working.