Amerisure Mutual Insurance Company v. Amelia Island Company

673 F.3d 1294, 2012 U.S. App. LEXIS 5412, 2012 WL 858411
CourtCourt of Appeals for the Eleventh Circuit
DecidedMarch 15, 2012
Docket10-10960
StatusPublished
Cited by16 cases

This text of 673 F.3d 1294 (Amerisure Mutual Insurance Company v. Amelia Island Company) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Amerisure Mutual Insurance Company v. Amelia Island Company, 673 F.3d 1294, 2012 U.S. App. LEXIS 5412, 2012 WL 858411 (11th Cir. 2012).

Opinions

TJOFLAT, Circuit Judge:

This insurance coverage dispute requires us to determine, under Florida law, what constitutes “property damage” under a post-1986 standard form commercial general liability (“CGL”) policy with products-completed operations hazard (“PCOH”) coverage. Specifically, we must decide whether such a policy issued to a general contractor provides coverage when a claim is made against the contractor for damage to the part of the completed project performed by a subcontractor, but not to any other project component, caused by a subcontractor’s defective work.

The district court, ruling on cross-motions for summary judgment, held that the damage at issue was not covered under the policy, granted the insurer’s motion, and entered a declaratory judgment for thé insurer.1 The insurer’s adversary now appeals. In light of Florida precedent addressing the scope of similar CGL policies, we conclude that the policy provides no coverage in this case. We therefore affirm the district court.2

I.

A.

1.

On April 17, 1997, the Amelia-Island Company (“Amelia”) entered into a contract with the Auchter Company (“Auchter”), a general contractor, for the construction of an inn and conference center (the “Inn”) on Amelia’s property in Nassau County,' Florida.3 Auchter entered into a subcontract agreement with Register Contracting Company (“Register”) to install the Inn’s roof. Amelia did not require Auchter to obtain a performance bond to cover Auchter’s contractual obligations.

The Inn would be constructed with a barrel tile roof. This roof was made from concrete, S-shaped tiles installed in an interlocking fashion and in overlapping rows. The tiles were to be installed by screwing them to the roofing substrate, which pro[1296]*1296vides the roofs water resistance. Each tile contains two screw holes and the installer must fasten one screw through each hole to prevent pivoting. Moreover, each screw must be fastened at a precise tightness: if the screw is too tight, the tile will crack; too loose and the tile can be unfastened or cracked by the upward force of the wind. The specific requirements of installation were to be according to the Florida Building Code, which dictated, in part, that the roof had to be resistant to 110 m.p.h. winds. Auchter hired Register to install the entire roof — including the roofing substrate system and the roofing tiles — at the Inn.

The contract gave Amelia the option to pay Auchter for some of the building materials used on, but not yet incorporated into, the project. These materials included the concrete roof tiles, which were delivered to and stored at the construction site before Register began installing them. On October 6, 1997, Auchter submitted a payment application to Amelia requesting payment for the Inn’s roof tiles stored on site. Amelia paid Auchter for the roof tiles on October 31, 1997, at which point Amelia took ownership of the tiles under the contract.4 During September and October 1997, Register installed the roofs substrate in preparation for installing the roof tiles. Register then began installing the roof tiles in November 1997, completing work on the Inn’s roof in January 1998.

Beginning in August 2002, the concrete tiles on the Inn’s roof began dislodging from the roof. Amelia contacted Auchter to make repairs. On two occasions — August 18, 2002, and April 4, 2003 — roofers conducted temporary repairs on the affected areas. During the 2004 hurricane season, however, Hurricanes Frances, Ivan, and Jeanne skirted the Amelia Island area, causing even more tiles to come off the roof. Some of these tiles hit other tiles on the roof, cracking them. Although the exact number of tiles lost during this time is unknown, Amelia’s counsel has suggested the number exceeds 25 percent. Amelia then contracted for additional temporary repairs to remedy the tile losses. Between 2002 and 2008, Amelia paid $78,007.56 to various contractors to rectify the roofs failure. In response to these expenses, Amelia contacted Auchter, arguing that Auchter was liable for the repairs. Auchter and Amelia were unable, however, to agree regarding the cause of the roofs failure.

In 2006, pursuant to the arbitration clause in Amelia’s contract with Auchter,5 Amelia filed a demand for arbitration. Amelia claimed that Auchter was liable to Amelia for over $2 million in damages for defectively installing the roof. Amelia alleged that Auchter breached its contractual and legal obligations to Amelia to perform its work in a good and workmanlike manner. Although Amelia asserted that [1297]*1297the failed roof was aesthetically deficient and dangerous to persons and property, Amelia did not allege that falling roof tiles damaged any other property or part of the project. Nor did Amelia allege that the loss of tiles had caused the roof to fail in such a way as to allow the elements to damage other components of the project. Amelia did allege, however, that it would suffer lost profits because the Inn would be unusable during the course of roof repairs.

Amerisure Mutual Insurance Company and Amerisure Insurance Company (“Amerisure”) had issued successive CGL and umbrella liability (“UL”) policies to Auchter for coverage between May 2002 and January 2006.6 Amerisure defended Auchter in the arbitration proceedings under a reservation of rights. On June 25, 2008, Amerisure filed a declaratory judgment action in the United States District Court for the Middle District of Florida seeking a declaration that Amelia’s claim against Auchter was not covered by the insurance policies Amerisure issued to Auchter. Specifically, Amerisure argued that Amelia’s claim against Auchter was not for “property damage” as required to trigger coverage under the policies. If the district court granted Amerisure’s requested relief, Amerisure would have no duty to indemnify or defend Auchter in its dispute with Amelia.

While the declaratory judgment action was pending, the arbitration between Amelia and Auchter took place. The arbitrator7 conducted a two-day hearing at which counsel for Amelia and Auchter made appearances.8 The arbitrator found Auchter liable to Amelia for $2,167,313.67 in damages for the defective installation of the roof, which constituted a breach of Auchter’s contract with Amelia. Specifically, the arbitrator found that

the requirement of compliance with the 110 mile an hour wind velocity was a condition of the contract and that the failure itself combined with other evidence such as missing screws and excessively loose tiles constitute [proof] by a preponderance of [the] evidence that the roof was not installed in accordance with contract requirements.

Appellees’ Br. app. 3, at 4 (citing Cmty. Television Sews., Inc. v. Dresser Indus., Inc., 586 F.2d 637 (8th Cir.1978)).

The amount of damages was supported, in part, by evidence that the entire roof had to be replaced. For one, the roof design did not permit inspection and replacement of;defectively installed tiles on an individual basis.

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Bluebook (online)
673 F.3d 1294, 2012 U.S. App. LEXIS 5412, 2012 WL 858411, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amerisure-mutual-insurance-company-v-amelia-island-company-ca11-2012.