Auto-Owners Ins. Co. v. Pozzi Window Co.

984 So. 2d 1241, 33 Fla. L. Weekly Supp. 392, 2008 Fla. LEXIS 1067, 2008 WL 2369244
CourtSupreme Court of Florida
DecidedJune 12, 2008
DocketSC06-779
StatusPublished
Cited by38 cases

This text of 984 So. 2d 1241 (Auto-Owners Ins. Co. v. Pozzi Window Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Auto-Owners Ins. Co. v. Pozzi Window Co., 984 So. 2d 1241, 33 Fla. L. Weekly Supp. 392, 2008 Fla. LEXIS 1067, 2008 WL 2369244 (Fla. 2008).

Opinion

984 So.2d 1241 (2008)

AUTO-OWNERS INSURANCE COMPANY, Appellant,
v.
POZZI WINDOW COMPANY, et al., Appellees.

No. SC06-779.

Supreme Court of Florida.

June 12, 2008.

*1242 Denise V. Powers, Coral Gables, FL, for Appellant.

Edmund M. Kneisel and Richard E. Dolder of Kilpatrick Stockton, LLP, Atlanta, GA, for Appellees.

Ronald L. Kammer and Sina Bahadoran of Hinshaw and Culbertson, LLP, Miami, FL, on behalf of Mid-Continent Casualty Company; David K. Miller and Ginger L. Barry of Broad and Cassel, Tallahassee, FL, Keith Hetrick, Florida Home Builders Association, Tallahassee, FL, R. Hugh Lumpkin and Michael F. Huber of Ver Ploeg and Lumpkin, P.A., Miami, FL, on behalf of Florida Home Builders Association, National Association of Home Builders, Arvida/JMB Partners, L.P., Arvida Managers, Inc., Arvida/JMB Management, L.P., and Mercedes Home Corporation; Warren H. Husband of Metz, Husband, and Daughton, P.A., Tallahassee, FL, and Patrick J. Wielinski of Cokinos, Bosien, and Young, P.C., Arlington, TX, on behalf of Associated General Contractors of America, Florida A.G.C. Council, Inc., the Associated General Contractors of Greater Florida, Inc., South Florida Chapter of the Associated General Contractors, Florida East Coast Chapter of the Associated General Contractors of America, Inc., American Subcontractors Association, Inc., and American Subcontractors of Florida, Inc.; and Mark A. Boyle, Sr. of Fink and Boyle, P.A., Fort Myers, FL, on behalf of FHBF Partners, LLP, Aubuchon Homes, Inc., Camden Development, Inc., and Keenan, Hopkins, Schmidt and Stowell Contractors, Inc., As Amici Curiae.

*1243 PARIENTE, J.

The United States Court of Appeals for the Eleventh Circuit has certified the following question of Florida law that is determinative of a cause pending in that court and for which there appears to be no controlling precedent:

DOES A STANDARD FORM [COMMERCIAL] GENERAL LIABILITY POLICY WITH PRODUCT[S] COMPLETED OPERATIONS HAZARD COVERAGE, SUCH AS THE POLICIES DESCRIBED HERE, ISSUED TO A GENERAL CONTRACTOR, COVER THE GENERAL CONTRACTOR'S LIABILITY TO A THIRD PARTY FOR THE COSTS OF REPAIR OR REPLACEMENT OF DEFECTIVE WORK BY ITS SUBCONTRACTOR?

Pozzi Window Co. v. Auto-Owners Ins. Co., 446 F.3d 1178, 1188 (11th Cir.2006). We have jurisdiction. See art. V, § 3(b)(6), Fla. Const.

When the Eleventh Circuit certified the question, it did not have the benefit of our decision in United States Fire Insurance Co. v. J.S.U.B., Inc., 979 So.2d 871 (Fla. 2007), in which we held that a subcontractor's defective work can constitute an "occurrence" under a post-1986 standard form commercial general liability policy. In this case, the defective work relates to the repair or replacement of custom windows in a home. However, in its opinion, the Eleventh Circuit used the terms "defective installation" and "defective windows" interchangeably, even though the terms are not interchangeable for purposes of determining whether there is insurance coverage based on our decision in J.S.U.B. In fact, as we will explain more fully below, there is a critical distinction for purposes of insurance coverage depending on whether the "defective work" refers only to the defective installation of the custom windows or whether the windows themselves were also defective. Therefore, the answer to the certified question is dependent on this ultimate determination, which we are not in a position to make.

FACTS AND PROCEDURAL HISTORY

Coral Construction of South Florida, Inc., and Coral's president James J. Irby ("Builder") constructed a multimillion dollar house in Coconut Grove, Florida. The house included windows that were individually purchased by Mr. Perez ("Homeowner") from International Windows & Doors, Inc. ("Retailer"), manufactured by Pozzi Window Company ("Pozzi") and installed by a subcontractor, Brian Scott Builders, Inc. ("Subcontractor"). After moving into the house, the owner complained of water leakage around the windows. The Homeowner filed suit against Pozzi, the Retailer, the Builder, and the Subcontractor.

According to the Homeowner's complaint, the Builder urged him to purchase the Pozzi-manufactured windows from the Retailer, which in turn hired the Subcontractor to perform the installation. The Homeowner asserted that the windows were shipped directly to his residence, that he paid the Retailer directly for the windows, and that the windows "were defectively and deficiently designed and manufactured, and were installed improperly into [his] home." Pozzi filed a cross-claim against the Subcontractor alleging that the damages to the home were caused by the defective installation and not a result of any defect in the windows themselves.

Pozzi entered into a settlement with the Homeowner, agreeing to "remedy the defective *1244 installation of the windows."[1] Thereafter, Pozzi also settled with the Builder, and as the Builder's assignee, filed a lawsuit against the Builder's insurer, Auto-Owners Insurance Company ("Auto-Owners").

In its complaint, Pozzi alleged that Auto-Owners breached its insurance contract by denying coverage, acted in bad faith, and that Pozzi, as assignee of the Builder, was entitled to fees and costs incurred by the Builder in prosecuting this action. Pozzi claimed that the Homeowner purchased the windows and that the Subcontractor, under the supervision of the Builder, negligently installed the windows.[2] Pozzi also contended that the negligently installed windows leaked,

causing substantial water damage to the surrounding plaster and wood of the walls, floors, and ceiling of the Perez residence, as well as damage to the windows themselves. The damage caused by negligent installation and resulting water intrusion rendered the Pozzi windows unfit for use in the residence, requiring their replacement.

In its answer, Auto-Owners admitted that the Homeowner purchased the windows from the Retailer and that the Subcontractor alone installed the windows; however, Auto-Owners specifically denied Pozzi's allegations as to the defectiveness of the installation and that the installation caused damage to the windows themselves, which required their replacement. Auto-Owners also filed a counterclaim seeking a determination that it had no duty to defend the Builder and that there was no coverage for the claims asserted because defective work performed by the Subcontractor was excluded under the policies.

Pursuant to the policies, Auto-Owners had paid the Homeowner for personal property damage caused by the leaking windows, but refused to provide coverage for the cost of repair or replacement of the windows. The insurance policies that Auto-Owners had issued the Builder were two identical commercial general liability (CGL) policies. The policies provided coverage for the "sums that the insured becomes legally obligated to pay as damages because of `bodily injury' or `property damage'" caused by an "occurrence" within the "coverage territory" during the policy period. As defined in the policies, an "occurrence" is "an accident, including continuous or repeated exposure to substantially the same general harmful conditions," and "property damage" includes "[p]hysical injury to tangible property, including all resulting loss of use of that property." The policies also contain "products-completed operations hazard" coverage that

[i]ncludes all "bodily injury" and "property damage" occurring away from premises you own or rent and arising out of "your product" or "your work" except:
. . .

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Bluebook (online)
984 So. 2d 1241, 33 Fla. L. Weekly Supp. 392, 2008 Fla. LEXIS 1067, 2008 WL 2369244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/auto-owners-ins-co-v-pozzi-window-co-fla-2008.