Blaine Construction Corporation, Plaintiff-Appellant/cross-Appellee v. Insurance Company of North America, Defendant-Appellee/cross-Appellant

BOGGS, J. (pp. 354-360), delivered a separate dissenting opinion.

OPINION

DAVID A. NELSON, Circuit Judge.

This is a diversity case in which, on cross motions for summary judgment, the district court dismissed a claim asserted against an insurance company under a builder’s all-risk property damage policy. The claimant, a construction contractor, sought to hold the insurance company liable for the cost of replacing ceiling insulation ruined by water that had condensed within the insulation cavity after a subcontractor failed to install a vapor barrier properly.

Two affirmative defenses were set…