JSUB, INC. v. US Fire Ins. Co.

906 So. 2d 303
CourtDistrict Court of Appeal of Florida
DecidedMarch 18, 2005
Docket2D03-134
StatusPublished
Cited by24 cases

This text of 906 So. 2d 303 (JSUB, INC. v. US Fire Ins. Co.) 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
JSUB, INC. v. US Fire Ins. Co., 906 So. 2d 303 (Fla. Ct. App. 2005).

Opinion

906 So.2d 303 (2005)

J.S.U.B., INC., as partner of First Home Builders of Florida, a joint venture and Logue Enterprises, Inc., as partner of First Home Builders of Florida, a joint venture, Appellants,
v.
UNITED STATES FIRE INSURANCE COMPANY, a corporation, Appellee.

No. 2D03-134.

District Court of Appeal of Florida, Second District.

March 18, 2005.
Rehearing Denied June 23, 2005.

*304 Mark A. Boyle of Fink & Boyle, P.A., Fort Myers, for Appellants.

Joseph R. Miele and Ronald O. Armbrust of Adorno & Yoss, P.A., Ft. Lauderdale, for Appellee.

Harold R. Mardenborough, Jr. and Ginger L. Barry of McFarlain & Cassedy, P.A., Tallahassee, for Amicus Curiae Florida Home Builders Association, Inc.

David K. Miller and Bruce P. Anderson of Broad and Cassel, Tallahassee, for Amici Curiae Allstate Construction, Inc. and Brittania Homes, Inc.

SILBERMAN, Judge.

J.S.U.B., Inc., and LOGUE Enterprises, Inc., as partners of First Home Builders of Florida (the Builder) appeal a final declaratory judgment holding that insurance policies purchased from United States Fire Insurance Company (the Insurer) do not provide coverage for certain damage to homes constructed by the Builder. We conclude that the policies provide coverage and reverse.

BACKGROUND

The Builder was the general contractor on a series of homes built in Lee County, Florida. Subcontractors performed all work related to soil acquisition, compaction, and testing. After completion of construction, some homes suffered damage when the exterior walls moved or sank as a result of improper compaction of the soil, *305 improper testing of the soil compaction, poor soil or fill material, or a combination thereof. The damage included structural damage as well as damage to items placed in or affixed to the homes, such as wallpaper.

The Builder sought coverage for the damage under a commercial general liability (CGL) policy and renewal policy issued by the Insurer. The policies covered the period from April 24, 1999, through April 24, 2001. When the Insurer denied coverage, the Builder filed an action for declaratory relief, seeking a determination that the insurance policies provided coverage. The Insurer acknowledged that the policies provided coverage for damage to items that the homeowners added to the homes. However, it maintained that the policies did not cover damage to the Builder's own work or product that resulted from the Builder's or a subcontractor's faulty workmanship.

Following a nonjury trial, the trial court determined that the damage was the result of faulty workmanship caused by the subcontractors' use of poor soil, improper soil compaction, or improper testing and that the policies did not provide coverage for faulty workmanship. On that basis, the trial court entered judgment in favor of the Insurer.

POLICY PROVISIONS

The CGL policy and renewal policy (both bearing form number CG 00 01 07 98) contain the following identical, pertinent provisions:

SECTION I — COVERAGES
COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies....
. . . .
b. This insurance applies to "bodily injury" and "property damage" only if:
(1) The "bodily injury" or "property damage" is caused by an "occurrence" that takes place in the "coverage territory"; and
(2) The "bodily injury" or "property damage" occurs during the policy period.
. . . .
2. Exclusions
This insurance does not apply to:
. . . .
j. Damage To Property
"Property damage" to:
. . . .
(5) That particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the "property damage" arises out of those operations; or
(6) That particular part of any property that must be restored, repaired or replaced because "your work" was incorrectly performed on it.
. . . .
Paragraph (6) of this exclusion does not apply to "property damage" included in the "products-completed operations hazard".
....
1. Damage To Your Work
"Property damage" to "your work" arising out of it or any part of it and included in the "products-completed operations hazard".
*306 This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor.
m. Damage To Impaired Property Or Property Not Physically Injured
"Property damage" to "impaired property" or property that has not been physically injured, arising out of:
(1) A defect, deficiency, inadequacy or dangerous condition in "your product" or "your work"; or
(2) A delay or failure by you or anyone acting on your behalf to perform a contract or agreement in accordance with its terms.
This exclusion does not apply to the loss of use of other property arising out of sudden and accidental physical injury to "your product" or "your work" after it has been put to its intended use.
. . . .
SECTION V — DEFINITIONS
. . . .
8. "Impaired property" means tangible property, other than "your product" or "your work", that cannot be used or is less useful because:
a. It incorporates "your product" or "your work" that is known or thought to be defective, deficient, inadequate or dangerous; or
b. You have failed to fulfill the terms of a contract or agreement;
if such property can be restored to use by:
a. The repair, replacement, adjustment or removal of "your product" or "your work"; or
b. Your fulfilling the terms of the contract or agreement.
....
13. "Occurrence" means an accident, including continuous or repeated exposure to substantially the same general harmful conditions.
....
16. "Products-completed operations hazard":
a. Includes all "bodily injury" and "property damage" occurring away from premises you own or rent and arising out of "your product" or "your work" except:
....
(2) Work that has not yet been completed or abandoned....
....
17. "Property damage" means:
a. Physical injury to tangible property, including all resulting loss of use of that property....
....
20. "Your product" means:
a. Any goods or products, other than real property, manufactured, sold, handled, distributed or disposed of by:
(1) You;....
....
21. "Your work" means:
a.

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Bluebook (online)
906 So. 2d 303, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jsub-inc-v-us-fire-ins-co-fladistctapp-2005.