Canal Indemnity Company v. Margaretville of NSB, Inc.

562 F. App'x 959
CourtCourt of Appeals for the Eleventh Circuit
DecidedApril 15, 2014
Docket13-13541
StatusUnpublished
Cited by9 cases

This text of 562 F. App'x 959 (Canal Indemnity Company v. Margaretville of NSB, Inc.) 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
Canal Indemnity Company v. Margaretville of NSB, Inc., 562 F. App'x 959 (11th Cir. 2014).

Opinion

PER CURIAM:

Margaretville of NSB, Inc.; Margaret Jan Walker, Trustee; and Margaret Jan Walker Trust (Walker Defendants) appeal the district court’s grant of summary judgment and declaratory judgment in favor of Canal Indemnity Company (Canal). The Walker Defendants contend the district court erred in granting summary judgment and declaratory judgment because Canal has a duty to defend Bad Lands Excavating (Bad Lands) in an underlying state court lawsuit. After review, 1 we reverse and remand.

. I. BACKGROUND

A. The Policy

Canal issued a policy of Commercial General Liability Insurance to Bad Lands, with effective dates from August 23, 2006 through August 23, 2007. The policy contains a Special Exclusion Endorsement, which contains the following classification limitation provision:

This insurance applies to bodily injury, property damage, personal injury, advertising injury or medical expense arising out of only those operations which are classified and shown on the Commercial General Liability Coverage Declarations, its endorsements, and supplements.

(quotations omitted). The policy’s Declarations, in turn, refer to the following op *961 eration classification: “Grading of Land— INCL. Borrowing, Filling or Back Filling.” The policy does not provide a definition or explanation of the terms “grading of land,” “borrowing,” “filling,” or “back filling.”

B. The Project

Trovillion Construction and Development hired Bad Lands to perform labor at a construction site on the beach in New Smyrna Beach, Florida, where an eight-story condominium called “The Wave” was being developed. Bad Lands’ owner, Lloyd Seheffler, testified he was initially directed to clear a four-foot path for a chain link fence and a silt fence. Later, Seheffler did excavation work for the foundation of the building. As the equipment operator, he was “just there to move the dirt from the site to the back of the truck and let the truck go down the road.”

While excavating the foundation of the building and filling the trucks with the excavated soil, Seheffler realized his digging was creating a risk of harm to the adjacent Walker property. In September 2006, Seheffler installed sheet piling along the property line between The Wave project and the Walker property to prevent his work from undermining the foundation of the adjacent Walker property. The sheet piles Seheffler placed in the ground along the Walker property line were between 19 and 20 feet in length. Seheffler installed the sheet piling using an excavator with a vibrating pile driver attached. The total length of the barrier wall of sheet piling Seheffler installed was approximately 140 to 150 lineal feet, driven to a depth of approximately 18 to 19 feet. The barrier wall of sheet pilings was installed approximately five to eight feet from the property line separating The Wave construction site from the Walker property.

C. The Underlying Case

The Walker Defendants sued Bad Lands, and others, in Florida state court. Bad Lands was sued in negligence for “installing sheet pilings so as to cause damage to [the Walker Defendants’] property,” and more generally for breaching its duty “not to engage in activities which would cause damage to [the Walker Defendants’] property.”

II. DISCUSSION

Under Florida law, “an insurer’s duty to defend its insured against a legal action arises when the complaint alleges facts that -fairly and potentially bring the suit within policy coverage.” Jones v. Fla. Ins. Guar. Ass’n, Inc., 908 So.2d 435, 443-44 (Fla.2005). Thus, the issue presented is whether the allegations against Bad Lands in the underlying case fall within Canal’s policy coverage. The allegations against Bad Lands include damage from the action of “installing sheet pilings” and breaching its duty “not to engage in activities which would cause damage.”

The construction of an insurance policy is a question of law. Wash. Nat’l Ins. Corp. v. Ruderman, 117 So.3d 943, 948 (Fla.2013). “Policy language is considered to be ambiguous if the language is susceptible to more than one reasonable interpretation, one providing coverage and the other limiting coverage.” Id. (quotations and alterations omitted). In construing an insurance contract, a court “should read each policy as a whole, endeavoring to give every provision its full meaning and operative effect.” Id. (quotations omitted). “[A]ny ambiguity which remains after reading each policy as a whole and endeavoring to give every provision its full meaning and operative effect must be liberally construed in favor of coverage and strictly against the insurer.” Id. at 949-50. Where “one reasonable interpretation of *962 the policy provisions would provide coverage, that is the construction which must be adopted.” Id. at 950. Further, “insurance contracts are construed according to their plain meaning.” Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So.2d 528, 582 (Fla.2005).

We conclude the language in the policy is ambiguous as to whether Bad Lands’ actions of “installing sheet piling” and “en-gag[ing] in activities which would cause damage” are covered. The policy states that it applies to injuries or damages “arising out of only those operations which are classified and shown on the Commercial General Liability Coverage Declarations, its endorsements, and supplements,” and the Declaration covers “Grading of Land— INCL. Borrowing, Filling or Back Filling.” Thus, the plain language of the insurance contract states it covers damages arising out of grading of land, including borrowing, filling, or back filling, but it does not define those terms.

The district court began its analysis by noting that courts may consult dictionaries in order to ascertain the plain meaning of words in a contract to determine if an ambiguity exists. See Garcia v. Fed. Ins. Co., 969 So.2d 288, 291-92 (Fla.2007). The court then defined “grade,” but failed to define “borrowing,” “filling,” or “back filling.”

The Dictionary of Architecture and Construction defines grading as “[t]he action of excavating or filling or a combination thereof.” Dictionary of Architecture & Construction 469 (4th ed.2005). The same dictionary defines “borrow” as “[m]a-terial taken from one location for use as fill elsewhere.” Id. at 127. “Fill” is defined as “[s]oil, crushed stone, or waste materials, used to raise an existing grade or as a man-made deposit,” or, alternatively “[t]he depth or the volume of such material so added.” Id. at 397. “Backfill” is defined as “[s]oil which is replaced in an area that has been excavated previously.” Id. at 74.

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562 F. App'x 959, Counsel Stack Legal Research, https://law.counselstack.com/opinion/canal-indemnity-company-v-margaretville-of-nsb-inc-ca11-2014.