American Fire & Casualty Co. v. Roller

860 N.E.2d 1275, 2007 WL 416375
CourtIndiana Court of Appeals
DecidedFebruary 8, 2007
DocketNo. 29A05-0511-CV-681
StatusPublished

This text of 860 N.E.2d 1275 (American Fire & Casualty Co. v. Roller) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Fire & Casualty Co. v. Roller, 860 N.E.2d 1275, 2007 WL 416375 (Ind. Ct. App. 2007).

Opinions

OPINION

MATHIAS, Judge.

American Fire & Casualty Company (“American Fire”) appeals from the Hamilton Superior Court’s denial of partial summary judgment in a suit brought by Thomas and Christina Roller (“the Rollers”) against Direction in Design, Inc. (“DDI”). American Fire raises a single issue: whether the trial court erred in denying it partial summary judgment on the issue of whether coverage for claims for repair and replacement of faulty workmanship existed under the commercial general liability (“CGL”) policy it issued to DDI. Concluding that the trial court properly denied summary judgment, we affirm and remand for proceedings consistent with this opinion.

Facts and Procedural History2

DDI is a general contractor in the business of designing and building custom homes. From October 7, 2000 to October 7, 2002, American Fire provided liability insurance coverage to DDI under CGL policy number BKA (01) 52 51 39 87 (“the Policy”). In 1999, the Rollers contracted with DDI to design and build a house in Carmel for a quoted price of $1,153,575. DDI supervised or performed all of the construction work on the house. Shortly after moving into their new home in October 2000, the Rollers noticed a bathroom dormer window leaking and water running down the drywall. The Rollers continued to experience water intrusion in multiple rooms of their home and notified DDI of the leaks.

Initially, the leaks were treated as “punch list” items, and DDI sent a subcontractor to the home to caulk around the windows. However, DDLs efforts to remedy the problem were unsuccessful. Later, the Rollers discovered that the home had developed a mold problem. The Rollers eventually sought the opinion of a home inspection firm, which concluded that the water, intrusion was caused by defec[1277]*1277tive windows and doors, a subcontractor’s failure to install flashings below the windows and a weather-resistant barrier behind the brick veneer, and other problems with the home’s masonry.

By March of 2002, DDI had notified American Fire of the problems with the Rollers’ home. On March 28, 2002, American Fire sent DDI a reservation of rights letter, advising that it would not indemnify DDI on the Rollers’ damages. On December 17, 2002, the Rollers filed a complaint against DDI in Hamilton Superior Court, alleging that DDI’s faulty workmanship in constructing their home caused extensive property damage. DDI denied the Rollers’ allegations and filed a third-party complaint against two suppliers and two subcontractors involved in the home’s construction. In addition, DDI requested insurance coverage, including a defense and indemnity, from American Fire under the Policy.

American Fire issued a second reservation of rights letter on January 21, 2003, asserting that DDI had failed to timely notify it of the Rollers’ claims. American Fire provided DDI with defense counsel, and attorney Kevin C. Tyra (“Attorney Tyra”) entered an appearance on DDI’s behalf on January 31, 2003. Then, in February 2003, American Fire filed a declaratory judgment action in federal district court, contending that the Policy did not create a duty for it to defend or indemnify DDI on the Rollers’ complaint.

On August 25, 2003, the Rollers amended their complaint in state court, adding American Fire as a defendant and requesting a declaratory judgment of coverage. American Fire moved to dismiss the state court action against it, arguing among other things that combining the coverage and declaratory actions would present Attorney Tyra “with an untenable conflict of interest.” Appellant’s App. p. 238. The trial court denied the motion. On December 29, 2003, on the Rollers’ motion, the federal district court entered an order of abstention and dismissed American Fire’s declaratory judgment action.

On September 13, 2004, American Fire moved for summary judgment on the declaratory judgment action in state court. In its motion, American Fire asserted three grounds entitling it to summary judgment. First, American Fire claimed that it owed no coverage to DDI because of DDI’s failure to timely notify it of the events leading to the Rollers’ lawsuit. In the alternative, American Fire requested partial summary judgment on the basis that it owed no indemnity coverage for economic losses arising out of DDI’s faulty workmanship. Finally, American Fire also requested partial summary judgment on the issue of whether it owed liability coverage for any claims resulting from a deck collapse that occurred on May 6, 2003.

In turn, DDI and the Rollers each filed a response and cross-motion for summary judgment. In their motions, DDI and the Rollers both argued that American Fire’s bad faith actions in investigating the Rollers’ claims and defending DDI should es-top it from asserting a coverage defense. Specifically, the Appellees contended that American Fire delayed in notifying DDI of the coverage issue, that it failed to notify potentially liable subcontractors, that it “conducted its purported defense of [DDI] on the cheap, postponing needed but expensive steps in the defense,” that it refused to hire a construction expert, and that it provided an inadequate defense by employing an attorney operating under “a crushing conflict of interest.” Appellant’s App. pp. 805,1026.

On July 7, 2005, the trial court issued an order denying American Fire summary judgment on the issue of liability insurance coverage to DDI. In doing so, the trial [1278]*1278court expressly found that “there is a question of fact as to whether American Fire received late notice of any potential claims presented by the Rollers and whether American Fire was prejudiced as a result of that late notice.” Appellant’s App. p. 20. The trial court then granted summary judgment to American Fire on the issue of liability coverage for claims arising from the deck collapse, finding that the collapse occurred after the Policy lapsed.

On the same date and by way of two separate orders, the trial court denied both DDI’s and the Rollers’ cross-motions for summary judgment. American Fire requested that the trial court certify its order denying it partial summary judgment for interlocutory appeal under Indiana Appellate Rule 14(B). Over objections from both the Rollers and DDI, the trial court certified the order. Thereafter, this court accepted jurisdiction.

American Fire now appeals the trial court’s denial of summary judgment on the issue of whether it owed liability insurance coverage under the Policy to DDI on the Rollers’ claims.

Standard of Review

When reviewing a grant or denial of summary judgment our well-settled standard of review is the same as it is for the trial court: whether there is a genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law. Summary judgment should be granted only if the evidence sanctioned by Indiana Trial Rule 56(C) shows that there is no genuine issue of material fact and the moving party deserves judgment as a matter of law. All evidence must be construed in favor of the opposing party, and all doubts as to the existence of a material issue must be resolved against the moving party.

Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 973 (Ind.2005) (citations omitted).

I. Coverage Under the Policy

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Bluebook (online)
860 N.E.2d 1275, 2007 WL 416375, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-fire-casualty-co-v-roller-indctapp-2007.