J.B.D. Construction, Inc. v. Mid-Continent Casualty Company , 571 F. App'x 918 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-10138
________________________
D.C. Docket No. 8:11-cv-00293-TGW
J.B.D. CONSTRUCTION, INC.,
a Florida corporation,
Plaintiff-Counter Defendant -Appellant,
versus
MID-CONTINENT CASUALTY COMPANY,
an Ohio Corporation,
Defendant-Counter Claimant - Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(July 11, 2014)
Before MARTIN and HILL, Circuit Judges, and FULLER, * District Judge.
FULLER, District Judge:
*
Honorable Mark E. Fuller, United States District Judge for the Middle District of Alabama,
sitting by designation.
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This case involves an insurance coverage dispute between Mid-Continent
Casualty Company (“MCC”) and its insured, J.B.D. Construction, Inc. (“J.B.D.”).
On cross-motions for summary judgment, the district court found that MCC had
neither a duty to defend nor a duty to indemnify J.B.D. in an underlying defective
construction suit brought by Sun City Center Community Association, Inc. (“Sun
City”). J.B.D. appeals the district court’s ruling, arguing that MCC breached its
contractual duty to defend by failing to appoint counsel and to pay investigative
fees and that MCC is also obligated to indemnify it for the value of its settlement
with Sun City. J.B.D. also requests that this Court remand the suit back to the
district court to determine which consequential damages, if any, it is entitled to as a
result of MCC’s breach of its duty of defense. After careful review, and with the
benefit of oral argument, we hold that MCC had a duty to defend J.B.D. against
Sun City in the underlying litigation and that MCC breached that duty by failing to
provide any semblance of a defense to J.B.D. We further hold that MCC did not
have a duty to indemnify J.B.D. for the value of J.B.D.’s settlement with MCC.
Accordingly, we AFFIRM IN PART and REVERSE IN PART and REMAND
the case back to the district court to determine whether and to what extend MCC’s
breach entitles J.B.D. to consequential damages.
I. FACTS AND PROCEDURAL BACKGROUND
1. Underlying Lawsuit
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On July 23, 2004, J.B.D. entered into a written contract with Sun City for the
construction of a fitness center. J.B.D. and Sun City agreed that the fitness center
would be constructed as an addition to an existing “Atrium” building. The existing
“Atrium” building would be physically joined with the fitness center at the
buildings’ roof lines. Under a series of pre-construction Change Orders, Sun City
agreed to purchase the pre-fabricated components of the fitness center, such as the
building shell, slab concrete, building block, and rubber flooring. J.B.D.’s
corporate representative acknowledged that the project included assembling the
fitness center and installing everything needed to make it a complete building, such
as air conditioning, electrical, and plumbing. The project did not include
furnishing or supplying fitness equipment. J.B.D., in its role as general contractor,
retained a number of subcontractors and material suppliers to install Sun City’s
Change Order components. J.B.D. also obtained a performance bond to cover their
contractual obligations as well as a conditional payment bond. Sun City purchased
and accepted delivery of the components, and J.B.D. began construction.
Construction was finished on January 18, 2007.
Beginning in the spring of 2007, Sun City and J.B.D. noticed damage caused
by water leaks in the fitness center’s roof, windows, and doors. This damage
included rusting steel, peeling paint, and blistering and discolored stucco. In
response, the parties took a series of steps to repair the damage and to eliminate the
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leaks. Despite those efforts, Sun City refused to release the final payment because
it believed the construction to be deficient. In October 2008, J.B.D. initiated a
lawsuit against Sun City in the Thirteenth Judicial Circuit in Hillsborough County,
Florida seeking full payment under the construction contract (hereinafter, “Sun
City Litigation”). Sun City then filed a three count Counterclaim against J.B.D. for
Breach of Contract (Count I), Breach of Section 553.84 Fla. Stat. (Count II); and
Negligence (Count III) (hereinafter, “Sun City Counterclaim”).
The Counterclaim alleged that J.B.D. breached its contractual obligations to
provide labor, services, and materials in a workmanlike manner. The
Counterclaim also alleged that J.B.D. breached its duty of care and that
construction defects and deficiencies by J.B.D. violated minimal building codes
and caused damage to the building. It further alleged that these defects and
deficiencies caused “damages to the interior of the property, other building
components and materials, and other, consequential and resulting damages” and
“damage to other property.”
MCC had sold two Commercial General Liability (“CGL”) policies to J.B.D.
covering the timeframe relevant to this suit, December 2006 through December
2008 (“MCC Policy”). 1 On May 6, 2009, J.B.D. tendered the Sun City
Counterclaim to MCC for a defense and indemnification. On May 21, 2009, MCC
1
These policies are MID-CONTINENT CASUALTY COMPANY Policy Nos. GL669650
(12/15/06 through 12/15/07) and GL698630 (12/15/07 through 12/15/08).
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sent a Reservation of Rights letter informing J.B.D. that it was investigating
whether the MCC Policy covered any of Sun City’s claims. The letter also
identified and addressed various coverage exclusions MCC believed would affect
its obligation to defend or indemnify. On May 26, 2009 and June 1, 2009, J.B.D.’s
counsel followed up with MCC to determine whether MCC would be providing
J.B.D. with a defense. MCC represented that J.B.D.’s request was “in process” but
did not otherwise respond to J.B.D.
On July 15, 2009, after a series of investigations, J.B.D. agreed to settle Sun
City’s claims for $181,750.94, an amount less than Sun City’s pre-mediation
demand. J.B.D. funded the settlement from its own accounts on August 3, 2009.
Shortly thereafter, J.B.D. notified MCC of its settlement and requested
contribution and reimbursement under the MCC Policy for damages and legal costs
incurred as a result of litigating the Sun City Counterclaim. Approximately a year
later, on July 27, 2010, J.B.D. again contacted MCC, demanding reimbursement
and threatening to pursue legal remedies if MCC did not respond. On August 17,
2010, J.B.D. again contacted MCC to demand reimbursement and to state its
intention to sue if MCC did not reimburse it for settlement costs.
On October 12, 2010, MCC mailed J.B.D. a check for $5,717.77 to cover its
defense obligation under the MCC Policy. MCC determined it owed J.B.D.
$10,717.77 for attorney’s fees and costs minus the $5,000 policy deductible,
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covering the time J.B.D. tendered suit to MCC through the completion of the
settlement. In response, on October 28, 2010, J.B.D. sent MCC a letter insisting
that MCC owed it a full reimbursement of the $181,750.94 settlement value and
requesting confirmation that it could accept the $5,717.77 check as partial payment
of that amount. J.B.D. also indicated its intention to file a bad faith suit against
MCC if MCC did not submit the remaining balance by November 9, 2010. MCC
responded on November 29, 2010, stating that “it placed no restrictions with
regards to negotiation of the reimbursement check” but requested information
about the basis for J.B.D.’s claim. On December 30, 2010, J.B.D. again sent MCC
a letter re-iterating its belief that MCC owed it a full reimbursement under the
MCC Policy’s contractual duty to defend and duty to indemnify. J.B.D. also noted
that it filed a Civil Remedy Notice of Insurer Violations with the Florida Division
of Financial Services on September 10, 2010 2 and threatened to initiate suit if
MCC did not submit the full payment by January 10, 2010.
2. MCC Policy Provisions
As previously mentioned, MCC had issued two identical standard form
Insurance Services Office (“ISO”) CGL policies to J.B.D. covering the timeframe
relevant to this suit. The relevant policy language is as follows: “[MCC] will pay
2
The Civil Remedy Notice alleged violations of Fla. Statutes 629.954(1)(i)(3)(c),
626.9541(1)(i)(3)(e), 626.9541(1)(i)(3)(f), 626.9541(1)(i)(3)(g) and sought $181,750.94, $20,000
in attorney’s fees and costs, fees and costs to J.B.D.’s bonding company, compensation for hours
and repair work in excess of $15,000, and lost profits due to impairment of bonding capacity.
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those sums that the insured becomes legally obligated to pay as damages because
of . . . ‘property damage’ to which this insurance applies. . . . This insurance
applies to . . . ‘property damage’ only if . . . [t]he ‘property damage’ is caused by
an ‘occurrence’ that takes place in the ‘coverage territory’. . . .”
“‘Property damage’ means . . . ‘[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.’”
“An ‘occurrence’ means an accident, including continuous or repeated
exposure to substantially the same general harmful conditions.”
The policy also excludes coverage for the following:
j. Damage to Property
“Property damage” to:
....
(4) Personal property in the care, custody or control of the insured;
(5) that particular part of real property on which you or any contractors or
subcontractors working directly or indirectly on 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 or replaced
because “your work” was incorrectly performed on it.
....
Paragraph (6) of this exclusion does not apply to “property damage”
included in the “products-completed operations hazard.”
....
l. Damage to Your Work
“Property damage” to “your work” arising out of it or any part of it and
included in the “products-completed operations hazard”. 3
3
This exclusion is known as the “your work” exclusion. See, e.g., Amerisure Mut. Ins. Co. v.
Auchter Co., 673 F.3d 1294 (11th Cir. 2012) (citing U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979
So. 2d 871, 879 (Fla. 2007). The MCC Policy originally contained what is commonly known as a
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The MCC Policy defines “your work” to mean “work or operations
performed by you or on your behalf; and . . . materials, parts, or equipment
furnished in connection with such work or operations.”
The MCC Policy also included Products-Completed Operations Hazard
(“PCOH”) coverage. Under the policy:
[PCOH] includes all “bodily injury” and “property damage” occurring away
from premises you own or rent and arising out of “your product” or “your
work” except:
(1) Products that are still in your physical possession; or
(2) Work that has not yet been completed or abandoned. However, “your
work” will not be deemed completed at the earliest of the following times:
(a) When all of the work called for in your contract has been
completed.
(b) When all of the work to be done at the job site has been
completed if your contract calls for work at more than one job site.
(c) When that part of the work done at a job site has been put to its
intended use by any person or organization other than another
contractor or subcontractor working on the same project.
Work that may need service, maintenance, correction, repair or replacement,
but which is otherwise complete, will be treated as completed.
3. Insurance Coverage Dispute
On January 11, 2011, J.B.D. sued MCC in Hillsborough County Circuit
Court. MCC subsequently removed the action to the Middle District of Florida on
February 11, 2011 on the basis of diversity jurisdiction. In its Second Amended
“subcontractor exception,” see id., stating that “[t]his exclusion does not apply if the damaged
work or the work out of which the damage arises was performed on your behalf by a
subcontractor.” However, it was eliminated by Endorsement CG 22 94 10 01.
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Complaint, J.B.D. brought damage claims against MCC based on MCC’s alleged
breach of its duty of defense, breach of its duty to indemnify, and for a declaration
of its rights under the MCC Policy. MCC answered, asserting various affirmative
defenses and a counterclaim for a declaration of no coverage. On April 13, 2012,
both parties filed cross-motions for summary judgment on all claims. The motions
disputed whether MCC owed J.B.D. a duty of defense or indemnification, whether
MCC breached either duty, and, if so, whether and to what extent J.B.D. was
entitled to consequential damages flowing from MCC’s breach.
On October 25, 2012, the district court entered an order denying J.B.D.’s
motion for summary judgment and granting in part and denying in part MCC’s
motion for summary judgment. The court reasoned that to the extent any of the
Sun City claims were for the costs to repair the defectively installed roof, doors
and windows, these costs were not “property damage” and therefore not covered
by the MCC Policy under Florida law. The district court then held that the scope
of J.B.D.’s “work” included construction of the entire fitness center. Therefore, to
the extent that any of the Sun City claims were for the costs to repair damage to the
other components of the fitness center caused by the defectively installed roof,
doors and windows, those costs fell under the “your work” exclusion and were not
covered by the MCC Policy. Accordingly, the district court held that J.B.D.’s
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coverage under the MCC Policy was limited only to claims for damage to non-
fitness center property caused by J.B.D. or its subcontractor’s construction defects.
Applying these coverage limits to the suit before it, the court held that MCC
did not have a duty to defend J.B.D. in the underlying Sun City Litigation because
“there [was] nothing on the face of the Counterclaim which indicate[d] damage to
property other than the Fitness Center itself.” 4 The court then held that MCC did
not have a duty to indemnify J.B.D. as a matter of law because J.B.D. had not
demonstrated the existence of actual damage to property other than the fitness
center itself, and, therefore, J.B.D. had not established it paid Sun City to settle
claims for any covered “property damage.” Judgment was entered in favor of
MCC on the duty to defend, duty to indemnify, and declaratory judgment claims
on December 11, 2012. J.B.D. filed its Notice of Appeal on January 8, 2013.
II. DISCUSSION
1. MCC Policy Coverage
The primary issues on appeal are whether MCC had a duty to defend and/or
a duty to indemnify J.B.D. under the MCC Policy in the underlying Sun City
4
It was undisputed that the defective installation qualified as an “occurrence” under the policy
and that this “occurrence” took place during a time period covered by the MCC Policy. The
district court also explicitly rejected MCC’s argument that their payment, and J.B.D.’s
acceptance, of the $5,717.77 check constituted an “accord and satisfaction” thereby eliminating
any liability with regard to the duty to defend claim. However, this issue was mooted by the
district court’s holding that MCC did not owe J.B.D. a duty of defense in the first place.
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Litigation. To resolve these disputes, we must first determine the scope of
coverage under the MCC Policy.
a. “Property damage” caused by an “occurrence”
The MCC Policy provides coverage for “property damage” caused by an
“occurrence.” The parties do not dispute that J.B.D.’s defective construction
qualifies as an occurrence. “Property damage” means “[p]hysical injury to
tangible property, including all resulting loss of use of that property.” The Florida
Supreme Court has been clear that the cost of removing or repairing defective work
does not qualify as a claim for “property damage.” See U.S. Fire Ins. Co. v.
J.S.U.B., Inc, 979 So. 2d 871 (Fla. 2007); Auto Owners Ins. Co. v. Pozzi Window
Co., 984 So. 2d 1241 (Fla. 2008). However, a claim for the costs of repairing
damage to other property caused by defective work does qualify as a claim for
“property damage.” See J.S.U.B., 979 So. 2d at 889 (“[T]here is a difference
between a claim for the costs of repairing or removing defective work, which is not
a claim for ‘property damage,’ and a claim for the costs of repairing damage
caused by defective work, which is a claim for ‘property damage.’”).
A recent decision by this Court, Amerisure Mutual Insurance Co. v. Auchter
Co., 673 F.3d 1284 (11th Cir. 2012), further limited the definition of covered
“property damage” in a standard CGL policy such as the one issued by MCC in
this case. In Auchter, Amelia Island Company (“Amelia”) entered into a contract
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with Auchter Company (“Auchter”), a general contractor, for the construction of
an inn and conference center on Amelia’s property. Id. at 1295. Auchter entered
into a subcontract with Register Contracting Company (“Register”) to construct the
inn’s roof. Id. Amelia purchased the individual tiles and then Register installed
them. After the roof was completed, several tiles became dislodged and caused
damage to other roof tiles. Id. at 1296. Amelia sued Auchter for the cost of
repairing the defectively installed roof. Id. Amelia did not allege that the
dislodged tiles had damaged any parts of the inn other than the roof itself. Id.
Auchter subsequently tendered the claim to its insurer, Amerisure Mutual
Insurance Company (“Amerisure”), and Amerisure brought a declaratory judgment
to determine coverage under the CGL Policy it had issued to Auchter. Id. at 1297.
This Court held that Amelia’s claim for the costs to repair the defective roof
were not claims for “property damage” because the defective installation of the
inn’s roof did not cause “physical injury to tangible property.” Id. at 1309. In
reaching its conclusion, the Court emphasized that Amelia’s claim was to replace
the defectively installed roof as a whole, not simply to replace or repair the various
tiles or other project components that had been damaged by the dislodged tiles. Id.
at 1307. The Court placed particular emphasis on the fact that, because of the
interlocking nature of roof tiles, Auchter’s defective workmanship would require a
refabrication of the entire roof and could not be repaired piecemeal. Id. at 1308.
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Thus, the relevant component for examining the scope of Auchter’s
subcontractor’s defective work was not the individually installed roofing tiles,
which the Court considered to be the raw materials from which the roof was made,
but instead was the entire roof itself. Id. Accordingly, the Court held that
Amelia’s claim was not for the costs to repair damage to other property, such as
the other tiles, caused by Auchter’s subcontractor’s defective work, which would
have been covered “property damage,” but was instead simply a claim for the cost
of replacing the subcontractor’s entire defective roof, and therefore was not
covered “property damage.” Id. at 1307 (citing J.S.U.B., 979 So. 2d at 890).
MCC argues that the holding in Auchter dictates that any claims for the costs
to repair damage to the fitness center or its components are not claims for
“property damage.” Because J.B.D. agreed to construct the entire fitness center,
and the project components are merely the raw materials used in construction, the
cost to repair any damage to the fitness center caused by the subcontractor’s
defective installation of the fitness center’s roof, doors, and windows are costs to
repair J.B.D.’s defective construction. Therefore, MCC argues that the policy
definition of “property damage” only includes claims for costs to repair damage to
property other than the fitness center itself and would not cover claims for costs to
repair damages to other components of the fitness center caused by J.B.D.’s or its
subcontractor’s defective work as a matter of law. J.B.D. asserts that the reasoning
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in Auchter does not apply in this case. Instead, J.B.D. agrees that Florida law
excludes coverage for the cost to repair or replace the defective construction itself,
but contends that damage to other components of the fitness center caused by the
defective construction qualifies as covered “property damage.”
Because, as explained below, determining the scope of the policy definition
of “property damage” would not change J.B.D.’s coverage under the MCC Policy,
we decline to decide whether to extend the holding in Auchter to the facts of this
case. Instead, we hold that the costs to repair defective construction are not
covered “property damage,” see J.S.U.B., Inc, 979 So. 2d at 87; Pozzi Window
Co., 984 So. 2d at 1241, and turns to the policy’s “your work” exclusion to hold
that any claims against J.B.D. for the cost to repair damage to the fitness center
arising from J.B.D.’s or its subcontractor’s defective work are not covered by the
MCC Policy.
b. “Your work” Exclusion
Exclusion (l), otherwise known as the “your work” exclusion, states that
insurance does not apply to “property damage” to “your work” arising out of it or
any part of it and included in the “products-completed operations hazard.” The
MCC Policy defines “your work” to mean “work or operations performed by you
or on your behalf; and . . . materials, parts, or equipment furnished in connection
with such work or operations.” The Products-Completed Operations Hazard is
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defined to include “all ‘bodily injury’ and ‘property damage occurring away from
premises you own or rent and arising out of ‘your product’ or ‘your work.’” The
Products-Completed Operations Hazard includes a number of exceptions, none of
which are relevant to this case. The parties do not dispute that the “your work”
exclusion applies nor do they dispute that it is enforceable.
Originally, the MCC Policy also included a subcontractor exception to the
“your work” exclusion, which stated that the “your work” exclusion did “not apply
if the damaged work or the work out of which the damage arises was performed on
your behalf by a subcontractor.” As originally written, therefore, the MCC Policy
covered claims for damage to J.B.D.’s “work” arising from the faulty construction
of J.B.D.’s subcontractors. However, this exception was eliminated by
Endorsement CG 22 94 101 01. By eliminating the subcontractor’s exception, the
MCC Policy no longer covered any claims for damage to J.B.D.’s “work” arising
from work performed by J.B.D.’s subcontractors. Cf. J.S.U.B., 979 So. 2d at 887
(holding that an identical “your work” exclusion in a post-1986 CGL policy
excluded coverage for damage caused by the contractor’s defective work and that
the contractor would not have been covered by the policy absent the subcontractor
exception).
Because J.B.D. undertook the construction of the entire fitness center, we
agree with the district court’s finding that J.B.D.’s “work,” for the purpose of
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applying the “your work” exclusion, included “construction of the health center
building with related and appurtenant improvements to an existing structure.”
Therefore, the “your work” exclusion, absent the subcontractor’s exception, bars
coverage for damages to the completed fitness center or its components (J.B.D.’s
“work”) arising from J.B.D. or its subcontractor’s defective construction. See e.g.,
Auchter, 673 F.3d at 1310 (explaining that the “your work” exclusion, absent a
subcontractor’s exception, would eliminate a contractor’s coverage for damage to a
completed project where a subcontractor’s faulty workmanship on one part of the
project caused damage to another part of the project).
Reading the “your work” exclusion in conjunction with the settled policy
definition of “property damage,” we find that the MCC Policy does not cover
claims against J.B.D. for the cost to repair or replace any damage to the completed
fitness center or its components, either based on the repair or removal of the
defective construction itself, or based on the repair of any damage arising out
J.B.D.’s or its subcontractor’s defective construction. Having determined the
scope of J.B.D.’s coverage under the MCC Policy, we now turn to whether MCC
had a duty to defend J.B.D. and, if so, whether MCC breached that duty.
2. Duty to Defend
We will first address whether the district court erred in holding that MCC
had no duty to defend J.B.D. against Sun City in the underlying litigation. Because
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we find that MCC did have a duty to defend J.B.D., we will then turn to whether
MCC breached its duty.
a. Duty to Defend
The district court accurately recited Florida substantive law governing an
insurer’s duty to defend its insured against legal action in an underlying lawsuit. In
Florida, whether an insurer has a duty to defend depends solely on the allegations
in the complaint and the terms of the insurance policy. See, e.g., Nat’l Union Fire
Ins. Co. v. Lenox Liquors, Inc., 358 So. 2d 533, 536 (Fla. 1977). An insurer has a
duty to defend the entire suit when the complaint alleges “facts that fairly and
potentially bring the suit within policy coverage.” Jones v. Fla. Ins. Guar. Ass’n,
908 So. 2d 435, 442–43 (Fla. 2005). “The duty to defend is of greater breadth than
the insurer’s duty to indemnify, and the insurer must defend even if the allegations
in the complaint are factually incorrect or meritless.” See Jones, 908 So. 2d at 443
(citations omitted). Any doubts regarding the duty to defend are resolved in favor
of the insured. Id.
Even if the facts in the complaint potentially bring the suit within policy
coverage, an insurer may avoid the duty to defend if an exclusion applies to the
face of the complaint. See Keen v. Fla. Sheriffs’ Self-Insurance, 692 So. 2d 1021,
1024 (Fla. 4th DCA 2007). Any doubts regarding the application of an exclusion
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are resolved in favor of the insured. See Deni Assocs. of Fla. v. State Farm Fire &
Cas. Ins. Co., 711 So. 2d 1135, 1138 (Fla. 1998).
The parties agreed at oral argument that MCC had a duty to defend J.B.D.
against claims by Sun City in the underlying litigation. We also agree. For the
reasons given in Part 1a-b supra, the MCC Policy, at the very least, fairly and
potentially covered any claims for damage to property other than the completed
fitness center caused by J.B.D.’s or its subcontractor’s defective work. Count II of
the Sun City Counterclaim, which is the statutory civil action for violations of the
Florida Building Code, unequivocally states a claim for “damage to other
property” caused by J.B.D.’s alleged building code violations. This reference to
“other property” potentially included damage to non-fitness center property such as
the adjacent Atrium building to which the fitness center was being connected or
damage to other equipment, such as exercise machines, which may have been
moved into the building post-construction. Count III of the Counterclaim, the
negligence claim, also references “damages to the interior of the property, other
building components and materials,” and thus potentially includes allegations of
damage to the same non-project property. Accordingly, these allegations of
damage to property other than the fitness center caused by J.B.D.’s or its
subcontractor’s defective work potentially came within MCC Policy coverage and,
therefore, triggered MCC’s duty to defend J.B.D. in the entire suit. See Colony
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Ins. Co. v. Barnes, 410 F. Supp. 2d 1137, 1139 (N.D. Fla. 2005) (“If a complaint
alleges any claim that, if proven, might come within the insurer’s indemnity
obligation, the insurer must defend the entire action.”). Thus, we reverse the
district court’s decision to deny J.B.D.’s motion for summary judgment on this
issue and grant summary judgment in favor of J.B.D.
b. Breach of the Duty to Defend
Having determined that MCC had a duty to defend J.B.D against Sun City,
we now turn to the question of whether MCC breached this duty.
It is undisputed that J.B.D. tendered the Sun City Counterclaim to MCC for
defense and indemnification on May 6, 2009. On May 21, 2009 MCC sent J.B.D.
a Reservation of Rights letter notifying J.B.D. that it was investigating the claim.
At no point after sending this letter did MCC retain counsel or otherwise assist in
defending for J.B.D.
On July 15, 2009, acting on advice from its own retained counsel, J.B.D.
agreed to settle all claims in the Sun City Counterclaim for $181,750.94. J.B.D.
subsequently notified MCC of the settlement and again requested indemnification.
Over a year later, MCC mailed J.B.D. a check for $5,717.77 to reimburse J.B.D.’s
counsel for his services from the time of tender until the completion of the
settlement. This check represented the value of J.B.D.’s attorney’s fees and
expenses accrued from the date of tender up until the date of settlement less the
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$5,000 contractual deductible. J.B.D. responded by sending a letter to MCC
demanding full reimbursement of the settlement value and notifying MCC of its
intention to treat the check as a partial payment of that amount.
The record is clear that MCC elected not to defend J.B.D. against Sun City
in the underlying litigation from the time J.B.D. tendered the suit through the
settlement date. This failure to appoint counsel is a clear breach of MCC’s duty to
defend. MCC argues, however, that its payment of the $5,717.77 check acted as an
“accord and satisfaction,” therefore curing the breach. Despite finding that MCC
did not owe J.B.D. a duty to defend, the district court nonetheless ruled, as a matter
of law, that this payment was not an “accord and satisfaction.” We agree.
An “accord and satisfaction results as a matter of law when an offerree
accepts payment which is tendered only on the express condition that its receipt is
to be deemed a complete satisfaction of a disputed claim.” See Hannah v. James A.
Ryder Corp., 380 So. 2d 507, 609–10 (Fla. 3rd DCA 1980) (citations omitted).
J.B.D. did not accept payment on the express condition that its receipt would be a
complete satisfaction of the lingering duty of defense dispute. Correspondences
between the parties make clear that J.B.D. intended to treat the check as partial
payment of the $181,750.94 settlement value J.B.D. believed MCC owed it.
Accordingly, we affirm the district court’s denial of MCC’s motion for summary
judgment on the accord and satisfaction issue and hold that MCC breached its
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contractual duty to defend under the MCC Policy as a matter of law by failing to
provide J.B.D with counsel or otherwise defend J.B.D. against the Sun City
Counterclaim. We remand the case to the district court for the sole purpose of
determining whether, and to what extent, J.B.D. is entitled to damages, including
consequential damages, as a result of MCC’s breach of its duty to defend J.B.D.
from the time of tender through date of settlement.5
3. Duty to Indemnify
We now turn to whether MCC had an indemnity obligation under the MCC
Policy. An insurer’s duty to indemnify is narrower than the duty to defend and
must be determined by analyzing the policy coverage in light of the actual facts in
the underlying case. State Farm Fire and Cas. Co. v. CTC Dev. Corp., 720 So. 2d
1072, 1077 (Fla. 1988). The duty to indemnify is dependent upon the entry of a
final judgment, settlement, or a final resolution of the underlying claims. See
Northland Cas. Co. v. HBE Corp., 160 F. Supp. 2d 1348, 1360 (M.D. Fla. 2001).
If the insured cannot demonstrate that it suffered a loss under the policy, the
insurer has no duty to indemnify. Id.
As discussed in Part 1a-b supra, the MCC Policy does not provide coverage
for the costs to repair or replace J.B.D.’s or its subcontractor’s defective
construction under the policy definition of “property damage” or for the costs to
5
Included in this inquiry is determination of whether the $5,000 policy deductible applies to
J.B.D.’s potential recovery, an issue the parties dispute before this Court.
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repair damage to the completed 6 fitness center or its components arising from
J.B.D.’s or its subcontractor’s defective construction under the “your work”
exclusion. Accordingly, the MCC Policy only covers claims for damage to
property other than the completed fitness center caused by the defective installation
of the doors, windows, and roof. The MCC Policy provides indemnification for
“the sums that the insured becomes legally obligated to pay as damages because of
. . . property damage to which this insurance applies.” Thus, MCC is only
obligated to indemnify J.B.D. for any sum J.B.D. paid Sun City to settle claims for
the costs of repairing damage to property other than the completed fitness center.
Applying the policy coverage to the “actual facts in the underlying case,” we
cannot find evidence of damage to property other than the completed fitness center
or its components. The Sun City Counterclaim included a claim for breach of
contract, a statutory claim for failing to comply with Florida building codes, and a
negligence claim. Among other damages, the three claims sought costs to repair
any defective construction, costs to repair damage to the fitness center caused by
the alleged construction defects, and damage to other property. J.B.D. and Sun
City agreed to settle all claims in the underlying Counterclaim on July 15, 2009,
for $181,750.94. Based on Sun City’s pre-mediation damages/costs breakdown,
6
It is undisputed that the fitness center was completed in January, 2007 and that therefore
coverage for the alleged property damage would fall within the “products completed operations
hazard.”
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the settlement value was for estimated remediation costs, actual repair costs,
engineering invoices, and legal fees and costs. Nothing on the record suggests that
the settlement, including the estimated remediation costs, were to repair physical
damage to property other than the fitness center itself, and, therefore the district
court did not err in holding that MCC did not owe J.B.D. a duty to indemnify it for
the value of the Sun City settlement. 7
J.B.D. argues that the settlement value reflected compensation for costs to
repair property other than the completed fitness center. J.B.D. directs the Court to
engineering reports documenting water intrusion points at certain transition areas
between the completed fitness center and the pre-existing Atrium building, and
argues that the settlement agreement was based partially on estimates of the costs
to repair this damage. Because this damage was not to the completed fitness
center, J.B.D. contends it is covered “property damage” not excluded by the “your
work” exclusion and, at the least, creates a fact issue as to whether the settlement
triggered MCC’s duty to indemnify. We cannot agree. While J.B.D. is correct that
damage to property other than the completed fitness center would be covered by
the MCC Policy, we find no evidence of such damage. The engineering reports
7
Under Florida law, J.B.D. has the burden of allocating the settlement amount between covered
and uncovered claims and the inability to do so precludes recovery. See, e.g., Am. Cas. Co. of
Reading Pa. v. Health Care Indemn., Inc., 613 F. Supp. 2d 1310, 1320 (M.D. Fla. 2009). Thus,
even if J.B.D. could establish that some portion of the settlement value was for claims to repair
damage covered under the MCC Policy, J.B.D.’s claims would mostly likely fail because it could
not allocate what portion was for covered property damage and what portion was not.
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J.B.D. directs the Court to vaguely speak of water intrusion points, not water
damage. Absent evidence of actual damage to the Atrium building, the
engineering reports themselves are insufficient to create a genuine dispute that
J.B.D.’s work caused damage to some property other than the fitness center. 8
Finally, although J.B.D. concedes that the “your work” exclusion is
enforceable, it contends that MCC has not carried its burden of establishing that
the physical evidence of damage to the completed fitness center was caused by
J.B.D. or its subcontractor’s “work” rather than from manufacturing defects or
design flaws. See Auto Owners Ins. Co. v. Travelers Cas. & Sur. Co., 227 F.
Supp. 2d 1248, 1258 (M.D. Fla. 2002) (noting that the insurer bears the burden of
establishing that an exclusion applies if defending on the ground of non-coverage).
J.B.D.’s argument misreads the plain language of the “your work” exclusion. The
“your work” exclusion does not exclude coverage for damage “caused” by J.B.D.
8
J.B.D. also argues that the remediation estimate is based on the approximate cost of arresting
ongoing water intrusion which, if left uncorrected, would eventually result in damage to covered,
non-project property thus triggering MCC’s indemnity obligation. J.B.D. contends these
mitigation costs should qualify for coverage under the MCC Policy. See Leebov v. United States
Fidelity and Guar. Co., 401 Pa. 477 (Pa. 1960). While the costs to repair J.B.D.’s defective
construction certainly did mitigate potential future damage, it can hardly be said they should
qualify for coverage as “mitigation costs.” See Rolyn Companies, Inc. v. R & J Sales of Texas,
Inc., 671 F. Supp. 2d 1314, 137 (S.D. Fla. 2009) (finding that repairs to conform buildings to
their original specifications, thus making the buildings “like new,” could not be covered
“mitigation costs”). To accept J.B.D.’s argument would defeat the distinction between covered
and uncovered “property damage” that is well-settled under Florida law. Because the cost to
repair defective work, which is expressly not covered, will almost always also mitigate potential
damage to other property, which is covered, an uncovered claim for costs to repair defective
work would instantly be transformed into a covered claim for “mitigation costs.” Absent some
unique circumstances, none of which we can find here, we refuse to adopt this rule.
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or its subcontractor’s work but instead excludes coverage for damage that “arises”
from J.B.D.’s or its subcontractor’s work. The term “arise” is broader than the
word “cause,” see Taurus Holdings, Inc. v. USF & G Co., 913 So. 2d 528, 539–40
(Fla. 2005), and it is undisputed that the damage “arose” from J.B.D.’s or its
subcontractor’s work. Therefore, MCC has carried its burden of establishing, as a
matter of law, that the “your work” exclusion applies and therefore that the
settlement payment did not trigger MCC’s duty to indemnify.
Accordingly, analyzing the policy in light of the facts in the underlying case,
we find no evidence of damage to property other than the completed fitness center
and therefore uphold the district court’s determination that MCC does not have a
duty to indemnify J.B.D as a matter of law. Because the settlement value was not
covered by the MCC Policy, MCC also did not have a duty to indemnify J.B.D. for
any legal fees and costs included in the settlement. See Assurance Co. of Am. v.
Lucas Waterproofing, Inc., 581 F. Supp. 2d 1201 (S.D. Fla. 2008).
III. CONCLUSION
For the reasons discussed above, we REVERSE the district court’s grant of
summary judgment to MCC on the issue of MCC’s duty to defend and REMAND
for a determination of consequential damages consistent with this opinion. We
otherwise AFFIRM the district court’s holdings.
25