Morette Co. v. Southern-Owners Ins. Co.

301 F. Supp. 3d 1175
CourtDistrict Court, N.D. Florida
DecidedSeptember 19, 2017
DocketCase No. 3:16cv110/MCR/EMT; Case No. 3:15cv077/MCR/EMT
StatusPublished
Cited by3 cases

This text of 301 F. Supp. 3d 1175 (Morette Co. v. Southern-Owners Ins. Co.) is published on Counsel Stack Legal Research, covering District Court, N.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Morette Co. v. Southern-Owners Ins. Co., 301 F. Supp. 3d 1175 (N.D. Fla. 2017).

Opinion

M. CASEY RODGERS, CHIEF UNITED STATES DISTRICT JUDGE

*1179This matter is before the Court on two motions: (1) Morette Company, individually and for the benefit of BITCO National Insurance Company's Motion for Summary Judgment on Liability, ECF No. 31; and (2) Southern-Owners Insurance Company's Motion for Summary Judgment, ECF No. 46. The Court's rulings are set forth below.

I. Background

This consolidated action involves an insurance coverage dispute over the obligation, if any, of Southern-Owners Insurance Company ("Southern-Owners") to defend and indemnify various parties against state court claims for property damage due to allegedly defective work performed by two of its insureds, Etheridge Construction, Inc. ("Etheridge Construction") and Wallace Sprinkler & Supply, Inc. ("Wallace Sprinkler"), while serving as subcontractors for the construction of the Margaritaville Beach Hotel ("Margaritaville") in Pensacola Beach, Florida. The state court lawsuit and the federal court actions arise from the following undisputed facts.

In August 2008, Little Sabine, Inc. ("Sabine"), the developer and owner of Margaritaville, hired Morette Company, Inc. ("Morette") as general contractor for the Margaritaville project. Morette subcontracted various portions of the construction work to Etheridge Construction and Wallace Sprinkler. The terms of their respective subcontracts required each subcontractor to defend and indemnify Morette for all damages claims "occasioned by" the subcontractor's work and to reimburse Morette for all expenses incurred, including reasonable attorney's fees, as a result of such claims.1 See ECF No. 1-5 at 12. The subcontracts also required each subcontractor to maintain liability insurance naming Morette as an additional insured. See id.

As per their subcontracts, both Etheridge Construction and Wallace Sprinkler obtained commercial general liability policies ("CGL policies") with blanket additional insured endorsements ("Endorsements") from Southern-Owners.2 The Endorsements provide that "[a] person or organization is an Additional Insured, only with respect to liability arising out of 'your work' for that Additional Insured by or for you ... [i]f required in a written contract or agreement." ECF No. 1-4 at 189. The CGL policies define "your work" as "(1) [w]ork or operations performed by you or on your behalf; and (2) [m]aterials, parts or equipment furnished *1180in connection with such work or operations." ECF No. 1-5 at 62. The Endorsements also specify that the "insurance is primary for the Additional Insured, but only with respect to liability arising out of 'your work' for that Additional Insured by or for you. Other insurance available to the Additional Insured will apply as excess insurance and not contribute as primary insurance to the insurance provided by" Southern-Owners. See ECF 1-4 at 189. The parties agree that Morette is an additional insured under the CGL policies pursuant to the subcontracts and the Endorsements.

After the construction of Margaritaville was complete, Sabine retained an architect to inspect the finished project. The architect issued a report identifying a number of alleged defects purportedly resulting from improper design and construction of Margaritaville. Sabine then served a notice of claim on Morette, pursuant to Florida Statutes 558.004.3 The notice of claim advised Morette of the discovery of the purportedly defective work set forth in the architect's report and provided Morette an opportunity to inspect and cure the defects. When Sabine and Morette were unable to informally resolve the problems identified in the notice, Sabine filed a lawsuit against Morette in the Circuit Court for Escambia County, Florida (the "state court lawsuit"), alleging breach of contract, breach of implied warranty, violation of Florida building code, and negligence for numerous unresolved construction and design defects that caused damage to the hotel property. See ECF No. 1-1 at 2, 4.

Morette determined that the allegedly defective work was performed by its subcontractors, Etheridge Construction and Wallace Sprinkler.4 Thereafter, Morette sent multiple letters to Etheridge Construction, Wallace Sprinkler, and their insurer, Southern-Owners, invoking its rights as an additional insured under the CGL policies and demanding defense and indemnification for the claims in the state court lawsuit. Southern-Owners declined to provide coverage. Morette, represented by attorneys provided by its own liability insurer, BITCO National Insurance Company ("BITCO"), defended against the state court lawsuit and also asserted third-party claims against Etheridge Construction, Wallace Sprinkler, and other subcontractors, seeking to recover from them any amounts for which Morette might be held liable. The state court lawsuit subsequently settled, but Morette reserved its right to seek defense and indemnity from Southern-Owners.

Since that time, two actions have been filed and consolidated for adjudication by this Court. First, on March 3, 2015, Southern-Owners filed an action for declaratory judgment for the purpose of determining its rights and obligations under the CGL policy issued by Southern-Owners to Wallace *1181Sprinkler.5 See Case No. 3:15cv077/MCR/EMT, ECF No. 1. In the operative complaint, Southern-Owners seeks a declaration that it had no duty to defend or indemnify Sabine, Morette, or various other entities against the claims alleged in the state court lawsuit.6 See Case No. 3:16cv110, ECF No. 19. Second, on March 14, 2016, Morette filed a separate action against Southern-Owners, seeking a declaration that both Etheridge Construction and Wallace Sprinkler's CGL policies obligated Southern-Owners to defend and indemnify Morette in the state court lawsuit and alleging breach of contract based on Southern-Owners refusal to provide the requisite defense. See id. , ECF No. 1. The parties have filed and briefed cross-motions for summary judgment on the same legal issue-whether Southern-Owners owes a duty to defend and indemnify Morette for the claims alleged in the state court lawsuit.

II. Legal Standard

A district court applies the same legal standards when ruling on cross-motions for summary judgment as it does when only one party files a motion. Certain Underwriters at Lloyds, London Subscribing to Policy No. SA 10092-11581 v. Waveblast Watersports, Inc. , 80 F.Supp.3d 1311, 1316 (S.D. Fla. 2015). "Cross-motions may, however, be probative of the absence of a factual dispute where they reflect general agreement by the parties as to the controlling legal theories and material facts." Id. (citing United States v. Oakley , 744 F.2d 1553, 1555-56 (11th Cir. 1984) ).

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301 F. Supp. 3d 1175, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morette-co-v-southern-owners-ins-co-flnd-2017.