Defining the boundaries between common law and special legislation is always delicate. It has created intense debates in construction for several years. If the Court of Cassation could have clearly tended to expand the builders’ area of responsibility and the associated statutory insurance (ten-year liability insurance and workers’ compensation insurance), the year 2024 is marked by a return to a certain orthodoxy through better respect for the legal boundaries of the special area of construction law. Indeed, we cannot comment on this judgment without mentioning the connection it has with the one delivered on March 21 (Civ. 3)e, 21 March 2024, No. 22-18,694 FS-BR, Dalloz actuality, 5 April 2024, obs G. Casu; D.2024.640 ; RDI 2024, p. 184, note C. Charbonneau ). In this judgment, the Court of Cassation abandoned its highly contested jurisprudence after accepting the application of ten years of liability for work that does not fall under the classification of work under Article 1792 of the Civil Code. Returning to the original outline, it again conceded that the damage affecting the work leading to the installation of separable equipment in an existing building could not come under the classification of work and therefore must be covered by general liability.
It is in this perspective that the present judgment falls, which this time with regard to construction insurance excludes the use of 10-year liability insurance for the repair of damages arising from new work, since the conditions expressly required by the legislator in article L. 243. – 1-1, II, in the insurance code is not fulfilled.
In this case the question was whether the damage to the framework of an existing building, not the subject of the work, could be covered by the 10-year liability insurance of the builder who had installed a new tile roof.
It is appropriate to point out first of all that the applicability of a ten-year liability was not discussed here. Changing the roofing of a building leads to the completion of construction work in a certain way, as long as the new roofing relates to the essential functions of the building (encased-structure-covered).
There is also no doubt that the damages that would affect this new coverage would fall under ten years’ liability if the requisite seriousness were proven. It would still be certain that the manufacturer’s compulsory insurance would then apply.
On the other hand, coverage for damage to existing parts of the building…