Morette Co. v. Southern-Owners Ins. Co.
Morette Co. v. Southern-Owners Ins. Co.
Opinion of the Court
*1179This matter is before the Court on two motions: (1) Morette Company, individually and for the benefit of BITCO National Insurance Company's Motion for Summary Judgment on Liability, ECF No. 31; and (2) Southern-Owners Insurance Company's Motion for Summary Judgment, ECF No. 46. The Court's rulings are set forth below.
I. Background
This consolidated action involves an insurance coverage dispute over the obligation, if any, of Southern-Owners Insurance Company ("Southern-Owners") to defend and indemnify various parties against state court claims for property damage due to allegedly defective work performed by two of its insureds, Etheridge Construction, Inc. ("Etheridge Construction") and Wallace Sprinkler & Supply, Inc. ("Wallace Sprinkler"), while serving as subcontractors for the construction of the Margaritaville Beach Hotel ("Margaritaville") in Pensacola Beach, Florida. The state court lawsuit and the federal court actions arise from the following undisputed facts.
In August 2008, Little Sabine, Inc. ("Sabine"), the developer and owner of Margaritaville, hired Morette Company, Inc. ("Morette") as general contractor for the Margaritaville project. Morette subcontracted various portions of the construction work to Etheridge Construction and Wallace Sprinkler. The terms of their respective subcontracts required each subcontractor to defend and indemnify Morette for all damages claims "occasioned by" the subcontractor's work and to reimburse Morette for all expenses incurred, including reasonable attorney's fees, as a result of such claims.
As per their subcontracts, both Etheridge Construction and Wallace Sprinkler obtained commercial general liability policies ("CGL policies") with blanket additional insured endorsements ("Endorsements") from Southern-Owners.
After the construction of Margaritaville was complete, Sabine retained an architect to inspect the finished project. The architect issued a report identifying a number of alleged defects purportedly resulting from improper design and construction of Margaritaville. Sabine then served a notice of claim on Morette, pursuant to Florida Statutes 558.004.
Morette determined that the allegedly defective work was performed by its subcontractors, Etheridge Construction and Wallace Sprinkler.
Since that time, two actions have been filed and consolidated for adjudication by this Court. First, on March 3, 2015, Southern-Owners filed an action for declaratory judgment for the purpose of determining its rights and obligations under the CGL policy issued by Southern-Owners to Wallace *1181Sprinkler.
II. Legal Standard
A district court applies the same legal standards when ruling on cross-motions for summary judgment as it does when only one party files a motion. Certain Underwriters at Lloyds, London Subscribing to Policy No. SA 10092-11581 v. Waveblast Watersports, Inc. ,
Summary judgment is appropriate where there are no genuine disputes of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56 ; see also Celotex Corp. v. Catrett ,
III. Discussion
Morette argues it is entitled to summary judgment because the allegations in the state court lawsuit triggered Southern-Owners' duty to defend and indemnify, which Southern-Owners has refused to do. Southern-Owners opposes Morette's motion and moves for summary judgment in its favor regarding the duty to defend and indemnify. More specifically, Southern-Owners asserts it had no duty to defend or indemnify Morette because the state court lawsuit did not allege "property damage" as defined in the CGL policies, and alternatively, the CGL policies' various exclusions operate to preclude coverage.
A. Duty to Defend
The question of whether Southern-Owners owes a defense to Morette or the other remaining defendants turns on whether the allegations in the state court lawsuit bring that action within the scope of the CGL policies' coverage. See Jones v. Florida Ins. Guar. Ass'n, Inc. ,
As an initial matter, the Court must resolve the parties' dispute over which documents may be used to determine whether Southern-Owners owed a duty to defend. Southern-Owners argues that only the terms of the CGL policies and the allegations contained within the four corners of the state court complaint may be considered. In response, Morette argues that the Court also should review the "Chapter 558 Notice of Defects" that it contends was incorporated by reference in the state court complaint, see ECF No. 42-1 ("Notice 1"), as well as a "revised Chapter 558 Notice of Defects" that was sent to Etheridge Construction and Southern-Owners *1183by Morette on November 11, 2013, see ECF No. 1-6 at 81-82. ("Notice 2").
In this case, the state court complaint expressly alleges that Notice 1 was provided to Morette, that the defects identified in Notice 1 were not resolved, and that the plaintiff suffered property damage "[a]s a result of the unresolved defects." See ECF No. 1-1 at 2. The state court lawsuit thus is premised in large part on the "unresolved defects" detailed in Notice 1, which makes the contents of Notice 1 central to the state court plaintiff's claims. Southern-Owners has not disputed the centrality or authenticity of Notice 1. Therefore, the Court finds that Notice 1 was incorporated by reference into the state court complaint and that its contents may be considered in determining whether Southern-Owners' duty to defend was triggered by the state court lawsuit. However, the Court finds that Notice 2 was not impliedly incorporated by reference in the state court complaint. The allegations of the state court complaint do not mention Notice 2 or its contents, either explicitly or implicitly. See ECF No. 1-1. Obviously, this is because the alleged construction defects described in Notice 2 did not materialize until over a year after the state court lawsuit was filed. See ECF No. 1-6 at 1. Facts developed by an insured after the underlying lawsuit commenced may not be considered in determining the insurer's duty to defend. See Gold Coast Marine ,
The Court next addresses whether the state court lawsuit involved "property damages" as defined in the CGL policies.
*1184In relevant part, the CGL policies provide that Southern-Owners will "defend the insured against any 'suit' seeking ... damages [because of 'bodily injury' or 'property damage' to which this insurance applies]." ECF No. 1-5 at 42. "Property damage" is defined in the CGL policies as "[p]hysical injury to tangible property, including all resulting loss of use of that property" or "[l]oss of use of tangible property that is not physically injured." Id. at 61. The policy specifically excludes from coverage damage to "[y]our work," see id. at 47, which is defined as "[w]ork or operations performed by you on your behalf" and "[m]aterials, parts or equipment furnished in connection with such work or operations,"Id. at 62, 62. Also specifically excluded from coverage is property damage to "your product," see id. at 47, which includes "[a]ny goods or products ... manufactured, sold, handled, distributed or disposed of by you," Id. at 62.
Reading these three standard CGL provisions together, Florida courts have consistently held that a claim for the cost of repairing or replacing the insured's defective construction work does not qualify as a claim for "property damage," whereas a claim for the costs of repairing independent damage caused by the insured's defective work is a claim for "property damage." See Auto-Owners Ins. Co. v. Pozzi Windows Co. ,
Applying these principles to this case, the Court finds that at least some of the allegations in the state court lawsuit fairly and potentially fall within the scope of the subject CGL policies. In particular, the state court lawsuit alleges, inter alia , that the "improper design and construction of floor pavers does not allow for proper drainage," see ECF No. 1-1 at 65, which resulted in clogging of the concrete floor drains, see ECF No. 42-1 at 4, and caused standing/ponded water throughout the concrete floor cavity underneath the pavers around the Margaritaville structure, see ECF No. 42-1 at 4-5. There are also allegations of staining and moisture intrusion into the building and its columns, as well as cracks to the concrete flooring and walls, caused by "[i]mproper joints and sealant of joints." See ECF Nos. 1-1 at 65, 42 at 23-25, 32, 42. Etheridge Construction was the subcontractor responsible for the floor pavers at Margaritaville, see ECF No. 1-2 at 56, and Wallace Sprinkler performed the joint and sealant work, see ECF No. 1-5 at 10. Neither Etheridge Construction nor Wallace Sprinkler designed or constructed the concrete floor drains, columns, walls, or flooring. See ECF Nos. 1-2 at 56, 1-5 at 10, 51 at 9-10.
*1185Thus, the allegations in the state court lawsuit do not solely encompass the cost of repairing or replacing the work of Etheridge Construction and Wallace Sprinkler. Instead, the state court lawsuit alleges additional, independent damage to the non-defective work product of other subcontractors, which was allegedly caused by the faulty workmanship of Etheridge Construction and Wallace Sprinkler. Because these allegations describe "property damage" under the CGL policies, the Court finds that the entire state court lawsuit fell within their coverage.
Even where allegations in a complaint fairly and potentially fall within the policy coverage, an insurer has no duty to defend where the complaint shows that a policy exclusion applies. State Farm Fire & Cas. Co. v. Tippett ,
First, the contractual liability exclusion has no relevance to this case. This exclusion precludes coverage for amounts "the insured is obligated to pay [as] damages by reason of the assumption of liability in a contract or agreement." ECF No. 1-5 at 94. Construing this provision according to its plain meaning, it is clear that the exclusion applies when the insured has assumed another person or entity's liability to a third-party. Both Etheridge Construction and Wallace Sprinkler assumed the obligation to provide non-defective work when they entered into their respective subcontracts with Morette, but neither of them contracted or agreed to assume any other party's liability. See Subcontracts, ECF No. 1-2 at 56-59, 1-5 at 10-13. Absent such an assumption of liability, the contractual liability exclusion does not apply.
The impaired property exclusion also does not preclude coverage.
Finally, the recall exclusion does not apply.
In sum, the Court concludes that the state court lawsuit alleged "property damage" that fairly and potentially fell within the coverage of Etheridge Construction and Wallace Sprinkler's CGL policies and that none of the policy exclusions invoked by Southern-Owners apply. Accordingly, the Court finds that Southern-Owners owed a duty to defend Morette against the entire state court lawsuit; therefore, Morette is entitled to summary judgment on this issue.
B. Breach of Contract
Having determined that Southern-Owners owed a duty to defend Morette against the claims alleged in the state court lawsuit, the Court next addresses the question of whether Southern-Owners breached that duty. An insurer's duty to defend arises from the language of the insurance contract and policy. See Allstate Ins. Co. v. RJT Enters., Inc. ,
In this case, the Court has already found that Southern-Owners had a contractual duty to defend Morette. It is undisputed that Morette repeatedly requested Southern-Owners provide it, as an additional insured, a defense against the claims alleged in the state court lawsuit. See ECF Nos. 1-4 at 199, 202; 1-5 at 4; ECF No. 1-6 at 84-89. However, Southern-Owners elected not to defend Morette. Southern-Owners did so "at its peril." See Caldwell ,
C. Duty to Indemnify
The Court next considers whether Southern-Owners has an indemnity obligation under the CGL policies.
In this case, the state court lawsuit settled in or around February 2016. See ECF No. 31-2 at 4, 6-17; see also Case No. 3:15cv077, ECF No. 115. The undisputed record evidence indicates that Southern-Owners, on behalf of Etheridge Construction and Wallace Sprinkler, paid approximately $60,000 to settle the state court claims. See ECF No. 31-2 at 4, 7, 12. There is no evidence, or even argument, that Morette paid, or became legally obligated to pay, any portion of the settlement amount. As Morette has not suffered a covered loss under the CGL policies, there is nothing for Southern Owners to indemnify. The Court thus finds that Southern-Owners *1188has no duty to indemnify Morette and that it is entitled to summary judgment on this issue.
Accordingly, it is ORDERED :
1. Morette's Motion for Summary Judgment on Liability, Case No. 3:16cv110/MCR/EMT, ECF No. 31, is GRANTED , as follows:
a. Morette's motion for summary judgment is GRANTED as to its request for a declaration in its favor regarding Southern-Owners' duty to defend. The Court DECLARES that Southern owed a duty to defend Morette against the claims alleged in the state court lawsuit, under the Additional Insured Endorsement provision of Etheridge Construction and Wallace Sprinkler's CGL policies.
b. Morette's motion for summary judgment is GRANTED with respect to liability only on its claims for breach of contract.
2. Southern-Owners' Motion for Summary Judgment, Case No. 3:15cv077/MCR/EMT, ECF No. 46, is GRANTED in part and DENIED in part, as follows:
a. Southern-Owners' motion for summary judgment is DENIED as to its request for a declaration that it owed no duty to defend Morette in the state court lawsuit, for the reasons stated in this Order.
b. Southern-Owners' motion for summary judgment is GRANTED as to its request for a declaration in its favor regarding its indemnity obligation. The Court DECLARES that Southern-Owners has no duty to indemnify Morette under Wallace Sprinkler's CGL policy, for the reasons stated in this Order.
3. In light of the Court's determination that Southern-Owners owed a duty to defend Morette against the state court lawsuit, it is appropriate to refer these cases to Magistrate Judge Gary R. Jones for a settlement conference, on the amount of damages, to be held within 45 days. If the parties reach an agreement, they must notify the Court and stipulate to voluntary dismissal of this action within 30 days of the mediation. If the parties cannot agree on the amount of damages, they must confer and file a joint report, within 30 days of the mediation, indicating whether the damages issue may be resolved through supplemental briefing or whether it should be set for trial.
4. Southern-Owners is directed to notify the Court as to how it intends to proceed with respect to the eight remaining defendants in Consolidated Case No. 3:15cv077/MCR/EMT, who have not been dismissed: Little Sabine, Inc., Etheridge Construction, All Stop Waterproofing, L.L.C., R.C. Aluminum Industries, Inc., Construction Plastering Company, Inc., Commercial Concrete Systems, Inc., Walker Painting, Inc., and Liberty Mutual Insurance Company. See First Amended Complaint, Case No. 3:16cv110, ECF No. 19. This notification is due within seven days of the date of this Order.
*1189DONE and ORDERED on this 19th day of September, 2017.
The parties agree that the relevant provisions of Etheridge Construction and Wallace Sprinkler's subcontracts are identical; therefore, the Court analyzes them together.
The parties agree that the relevant provisions of Etheridge Construction and Wallace Sprinkler's CGL policies are substantively identical; therefore, the Court will analyze the scope of their coverage together.
Florida Statutes 558.004 provides, in relevant part, that:
(1)(a) In actions brought alleging a construction defect [arising from work performed under a contract], the claimant shall, at least 60 days before filing any action ... serve ... written notice of claim ... on the person with whom the claimant contracted.
(b) The notice of claim must describe in reasonable detail the nature of each alleged construction defect and, if known, the damage or loss resulting from the defect.
Etheridge Construction subcontracted to "furnish all labor and materials and perform all work necessary to complete" a number of specific and discrete construction tasks, including metal stud and arch framing, drywalling, sheathing, sealant and finishing work. See ECF No. 1-5 at 10-11. Wallace Sprinkler subcontracted to "furnish all labor and materials and perform all work necessary to complete" the landscaping, irrigation, and paver work for the Margaritaville project. See ECF No. 31-1 at 15.
After receiving notice that the state court lawsuit had been resolved, the Court dismissed Southern-Owners' original action without prejudice. See Case No. 3:15cv077, ECF No. 120. On August 15, 2016, Southern-Owners filed a First Amended Complaint against the same defendants and seeking the same declaratory relief sought in its original complaint. See
Southern-Owners brought suit against thirteen defendants: Morette, Sabine, Wallace Sprinkler, Etheridge Construction, All Stop Waterproofing, L.L.C., R.C. Aluminum Industries, Inc., Construction Plastering Company, Inc., Commercial Concrete Systems, Inc., Walker Painting, Inc., Jones Flooring, Inc., Sto Corporation, Liberty Mutual Insurance Company, and Western Surety Company. See Case No. 3:15cv077/MCR/EMT, ECF No. 122. The docket reflects that, of this group, four defendants have been dismissed without prejudice: Wallace Sprinkler, Jones Flooring, Inc., Sto Corporation, Western Surety Company. See ECF Nos. 30, 36, 37.
"[T]he law of the state where an insurance contract [wa]s executed is the law that governs the rights and liabilities of the parties in determining an issue of insurance coverage." Rando v. Gov't Employees Ins. Co. ,
Notice 1 is comprised of a letter, dated May 5, 2011, to Morette from Sabine's attorney and the accompanying General Deficiency Report. See ECF No. 42-1. Notice 2 is a two-page letter from Morette's attorney to Etheridge Construction, which was copied to Southern-Owners and several other recipients. See ECF No. 1-6 at 81-82.
This exclusion is titled, in full, "Damage To Impaired Property Or Property Not Physically Injured." See ECF No. 1-5 at 47.
This exclusion is titled, in full, "Recall Of Products, Work Or Impaired Property." See ECF No. 1-5 at 47.
The CGL policies define "impaired property" as:
[T]angible property, other than "your product" or "your work," that cannot be used or is less useful because it:
a. It incorporates "your product" or "your work" that is known or thought to be defective, deficient, inadequate or dangerous; or
b. You have failed to fulfill the terms of a contract or agreement
if such property can be restored to use by:
a. The repair, replacement, adjustment or removal of "your product" or "your work"; or
b. Your fulfilling the terms of the contract or agreement.
See ECF No. 1-5 at 109.
The recall exclusion provides that the CGL policy does not apply to:
Damages claimed for any loss, cost or expense incurred by you or others for the loss of use, withdrawal, recall, inspection, repair, replacement, adjustment, removal or disposal of
(1) "Your product";
(2) "Your work"; or
(3) "Impaired property"
if such product, work or property is withdrawn or recalled from the market or from use by any person or organization because of a known or suspected defect, deficiency, inadequacy or dangerous condition in it.
See ECF No. 1-5 at 47.
Morette moved for summary judgment as to liability only on the breach of contract claim and, in its briefing, indicated that it would address damages at a later date.
In its Reply brief, Morette explicitly abandoned its claim for indemnity. See ECF No. 42 at 15. Nonetheless, because Southern-Owners moved for summary judgment on its request for a declaration that it owes no duty to indemnify, the Court finds it appropriate to address the issue of indemnification.
The Court expresses no opinion on whether Southern-Owners would have owed a duty to indemnify if Morette had suffered a covered loss under the CGL policies.
Reference
- Full Case Name
- MORETTE COMPANY, individually and for the use and benefit of BITCO National Insurance Company v. SOUTHERN-OWNERS INSURANCE COMPANY, Southern-Owners Insurance Company v. Morette Company, Inc.
- Cited By
- 3 cases
- Status
- Published