Fontainebleau Hotel Corp. v. United Filigree Corp.

298 So. 2d 455, 1974 Fla. App. LEXIS 8899
CourtDistrict Court of Appeal of Florida
DecidedJune 18, 1974
Docket73-1013
StatusPublished
Cited by34 cases

This text of 298 So. 2d 455 (Fontainebleau Hotel Corp. v. United Filigree Corp.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fontainebleau Hotel Corp. v. United Filigree Corp., 298 So. 2d 455, 1974 Fla. App. LEXIS 8899 (Fla. Ct. App. 1974).

Opinion

298 So.2d 455 (1974)

FONTAINEBLEAU HOTEL CORP. et al., Appellants,
v.
UNITED FILIGREE CORPORATION, and Royal Indemnity Company, et al., Appellees.

No. 73-1013.

District Court of Appeal of Florida, Third District.

June 18, 1974.
Rehearing Denied August 27, 1974.

*456 Sibley, Giblin, Levenson & Ward and Allan M. Glaser, Miami Beach, for appellants.

Wicker, Smith, Pyszka, Blomquist & Davant, Miami, for appellees.

Before CARROLL and HENDRY, JJ., and GOBBIE, EVELYN, Associate Judge.

GOBBIE, Associate Judge.

This appeal stems from a non-jury finding of no coverage under an insurance policy for loss caused by a partial collapse of a construction project due to premature removal of the shoring.

The appellant, Ben Novack, d/b/a Sorrento Hotel, had contracted with the Ritchie Concrete Corporation to do the concrete work on the additional east and west wings of the hotel. Pursuant to appellant's request, Ritchie submitted a Certificate of Insurance showing it was insured by Royal Indemnity Company for $200,000 under a Comprehensive General Liability Insurance policy.

On Friday, December 5, 1969 at 4:30 P.M., the west wing of the project collapsed, affecting part of the lobby and the second, third and fourth floors of the West wing. This was due to the premature removal of shoring by Ritchie's employees. Fortunately, no one was injured as Ritchie's employees and other subcontractors had gone home for the weekend.

In a suit against him filed by a lienor (later settled and not involved in this appeal), Ben Novack, d/b/a Sorrento Hotel, counterclaimed, bringing in Ritchie and Royal Indemnity. A non-jury trial was held between Novack and Ritchie after Royal Indemnity denied coverage and was granted a separate trial. The Trial Judge awarded Novack damages against Ritchie in the sum of $489,351, representing $256,623 for loss of use of the hotel property and $232,728 for out-of-pocket expenses. The Court found that the damages were caused by Ritchie's employees performing their duties in a negligent and unworkmanlike manner, in violation of the implied warranties in the contract between Ritchie and Novack.

Trial was held before the same Judge on the issue of coverage and Final Judgment was entered on July 16, 1973 against Ben Novack d/b/a Sorrento Hotel. Although Fontainebleau Hotel Corporation was a party in the action resulting in coverage denial, and thus a technical appellant in this appeal, it is unnecessary to refer to Fontainebleau since the $489,351 damage *457 judgment was in favor of Ben Novack alone.

ROYAL INDEMNITY claims the exclusions in its policy eliminated coverage for the loss.

The company agreed to pay all sums that Ritchie would become legally obligated to pay as damages because of: —

"Coverage B. Property damage caused by an occurrence ..."

We are concerned with four main exclusions. As set forth in the policy: —

"Exclusions
This insurance does not apply:
1. (a) to liability assumed by the insured under any contract or agreement except an incidental contract; but this exclusion does not apply to . .. a warranty that work performed by or on behalf of the named insured will be done in a workmanlike manner; (Emphasis supplied)
2. (m) to property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith;"
3. There followed in the policy a BROAD FORM PROPERTY DAMAGE COVERAGE. This exclusion read: ____
"(i) to property damage
"(d) that particular part of any property not on premises owned by or rented to the insured.
(i) upon which operations are being performed by or on behalf of the insured at the time of the property damage arising out of such operations, or
(ii) out of which any property damage arises, or
(iii) the restoration, repair, or replacement of which has been made or is necessary by reason of faulty workmanship thereon by or, on behalf of the insured ...
4. The fourth exclusion concerned Explosion, Collapse and Underground damage and provided: ____
"A. Exclusions
... it is agreed that this insurance does not apply to property damage included within:
(1) ...
(2) the collapse hazard in connection with operations identified below by a classification code number which includes the symbol "c".
(3) ...
B. Definitions
When used in reference to this insurance (including endorsements forming a part of this policy) ...
Collapse hazard includes "structural property damage" as defined herein and property damage to any other property at any time resulting therefrom. `Structural property damage' means the collapse of or structural injury to any building or structure due to (1) ... (2) moving, shoring, underpinning, raising or demolition of any building or structure or removal or rebuilding of any structural support thereof ..."
Pursuant to this exclusion, the following code classifications containing the symbol "c" are applicable:
"3451 XC Underpinning Buildings or Structures — including incidental shoring, removal or rebuilding of walls, foundations, columns or piers.
3451 XC Building Raising or Moving — including incidental shoring, removal or rebuilding of walls, foundations, columns, or piers."

*458 The appellant argues that there is ambiguilty among the four exclusions (a), (m) the BROAD FORM PROPERTY ENDORSEMENT, and the Collapse Hazard Endorsement; and further that the Collapse Hazard Endorsement is inapplicable.

Appellee contends that the language in the policy is clear and unambiguous and the Court may not make a new contract for the parties under the guise of construction. Haenal v. United States Fidelity & Guaranty Co. (Fla. 1956), 88 So.2d 888, 890. Appellee further claims there is no ambiguity among the Exclusions and that 2(d)(i)(ii) and (iii) would apply; that not only the property worked on by the insured was not covered but due to the Collapse Hazard Endorsement, any other property that collapsed was not covered. (Emphasis supplied)

We disagree with Appellee and find ambiguity and repugnancy among Exclusions (a), (m) and the Broad Form Endorsement. We further find that the Collapse Hazard Endorsement is inapplicable.

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Bluebook (online)
298 So. 2d 455, 1974 Fla. App. LEXIS 8899, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fontainebleau-hotel-corp-v-united-filigree-corp-fladistctapp-1974.