Driggers Engineering Services Inc. v. CNA Financial Corp.

113 F. Supp. 3d 1224, 2015 U.S. Dist. LEXIS 78559, 2015 WL 3770340
CourtDistrict Court, M.D. Florida
DecidedJune 17, 2015
DocketCase No. 8:14-cv-3155-T-30TBM
StatusPublished
Cited by1 cases

This text of 113 F. Supp. 3d 1224 (Driggers Engineering Services Inc. v. CNA Financial Corp.) is published on Counsel Stack Legal Research, covering District Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Driggers Engineering Services Inc. v. CNA Financial Corp., 113 F. Supp. 3d 1224, 2015 U.S. Dist. LEXIS 78559, 2015 WL 3770340 (M.D. Fla. 2015).

Opinion

ORDER

JAMES S. MOODY, JR., District Judge.

THIS CAUSE comes before the Court upon Valley Forge Insurance Company’s Motion' for Judgment on the Pleadings (Dkt. # 14)' and Plaintiffs Memorandum in Opposition (Dkt. # 18). Upon review and consideration, it is the Court’s conclusion that the Motion should be granted.

Background

I. Procedural History

On November 20, 2014, Driggers Engineering Services, Inc. (“Driggers”) filed this declaratory judgment action against Valley Forge Insurance Company (“Valley Forge”) in the Circuit Court of the Twelfth Judicial Circuit,- in and for Manatee County, Florida. On December 19,2014, Valley Forge filed its notice of removal of civil action and its answer, affirmative defenses and counterclaim for declaratory relief. On January 7, 2015, Driggers filed its answer and affirmative defenses to Valley Forge’s counterclaim. The pleadings are closed. Valley Forge now moves for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c).

Valley Forge issued a tailored commercial package policy number 2053853309 to Driggers, which includes commercial general liability coverage effective from August 10, 2007, through August 10, 2008, (the “Policy”). Driggers seeks insurance coverage under the Policy for two lawsuits filed against it alleging damage arising out of its allegedly defective or negligent roof test completed on or about April 5,2008, at The Dunes condominium building in St. Petersburg Beach, Florida.

II. The Underlying Lawsuits

Driggers is a defendant in the underlying lawsuits' styled American Home Assurance Co., as subrogee of Franz Hanning v. Driggers Engineering Services, Inc., et al., Case No. 09-15163-CI, pending in the Circuit Court of the Sixth Judicial Circuit in and for Pinellas County, Florida, Civil Division, (the “American Home Lawsuit”) and Franz Hanning and Kelly Hanning v. Driggers Engineering Services, Inc., et al., Case No. 12-3726-CI, pending in the Circuit Court of the Sixth Judicial Circuit in and for Pinellas County, Florida, (the “Hanning Lawsuit”) (collectively the “Underlying Lawsuits”). The Underlying Lawsuits allege that in April 2008, Drig-gers negligently conducted a roof flood test and other activities on The Dunes condominium building which resulted in damage to the Hannings’ condominium unit.

The American Home Lawsuit alleges that Driggers had a non-delegable duty to

[1227]*12271. Conduct a thorough pre roof test inspection and identify the unsealed lightning protection system.
2. Perform any work or tests on the roof in a safe manner, that would- not cause damage ’to any- of the condominiums; and
3. Monitor the condominium units while performing a test on the roof, to confirm that the units were not being damaged by the test.

The American Home Lawsuit alleges that Driggers breached these duties when it failed to:

1. Conduct a thorough pre roof test inspection and identify the unsealed lightning protection system.
2. Perform any .work or tests on the roof in a safe manner, that would not cause damage to any of the condominiums; and
3. Monitor the condominium units while performing a test on the roof, to confirm that the units were not being damaged by the test.

The American Home Lawsuit ultimately alleges that as- a result of the defective or negligent roof test performed by Driggers, the Hannings suffered extensive property damage. American Home paid insurance proceeds to the Hannings based on the terms of its insurance contract with them and seeks to recover those costs.

. The Hanning Lawsuit alleges that “Driggers owed a non-delegable duty to the [Hannings] to provide its work in full compliance with a professional standard, ... all applicable Building Codes and generally accepted construction practices, in accord with applicable designs, plans,- and specifications and the applicable governing authorities related thereto, and in accord with the flood testing procedures.” Drig-gers allegedly breached these duties by its:

(a) Negligent operation of a roof flood test of the condominium complex; and
(b) Negligent or improper inspection of the lightening [sic] suppression system prior to performing the sroof flood test; and
(c) Negligent supervision of the-installation and.work of contractors, subcontractors, and sub-subcontractors so as, to ensure adequate design, installation, and techniques to protect the HANNINGSP] Property from .water intrusion; and ,
(d) Negligent oversight of the roof flood test and inspection of units as required under the-testing guidelines; and,
(e) Failure, to follow the protocol described in the testing procedure; .and
(f) Improper performance of a roof flood test so as to allow water from a roof .flood test to drain into , the HAN-NINGS^] Property.

The Hanning Lawsuit alleges damages in the form of diminution of value of the condominium unit generally,; and. as a result of the stigma attached to reporting to future potential purchasers that the property suffered from water intrusion. These damages are not covered by their American Home policy and are specifically excluded from the settlement with American Hqme.

III. The Policy and its “Testing Exclusion” ' '

The Policy issued to Driggers covers
.... those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance, applies. [Valley Forge has] the right and duty to defend the insured against any “suit” seeking- those damages. However, [Valley Forge has] no duty to defend the insured against any “suit” seeking damages-for “bodily injury”'or [1228]*1228“property damage” to which this insurance does not apply....

The Policy defines “property damage” to mean:

a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that' caused it; or
b. Loss of use of tangible property that is not physically injured; All such loss of use shall' be deemed to occur at the time of the “occurrence” that caused it.

The Policy contains a Testing or Consulting Errors and Omissions Exclusion (the “Testing Exclusion”) which provides, in relevant part:

This insurance does not apply to- “bodily injury”, “property damage” or “personal and advertising injury” arising out of: 1. An error, omission, defect or deficiency in: ‘
a. Any test pérformed; or
b. An evaluation, a consultation or ad: vice given, by or on behalf of any insured; ...

Driggers submitted the Underlying Lawsuits, to Valley Forge to obtain defense coverage under the Policy.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Goldberg v. National Union Fire Insurance
143 F. Supp. 3d 1302 (S.D. Florida, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
113 F. Supp. 3d 1224, 2015 U.S. Dist. LEXIS 78559, 2015 WL 3770340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/driggers-engineering-services-inc-v-cna-financial-corp-flmd-2015.