Nautilus Insurance v. Board of Directors of Regal Lofts Condominium Ass'n

764 F.3d 726, 2014 U.S. App. LEXIS 16250, 2014 WL 4100701
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 21, 2014
Docket12-1821
StatusPublished
Cited by18 cases

This text of 764 F.3d 726 (Nautilus Insurance v. Board of Directors of Regal Lofts Condominium Ass'n) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nautilus Insurance v. Board of Directors of Regal Lofts Condominium Ass'n, 764 F.3d 726, 2014 U.S. App. LEXIS 16250, 2014 WL 4100701 (7th Cir. 2014).

Opinion

TINDER, Circuit Judge.

A condominium board, Regal Lofts Condominium Association, appeals the grant of summary judgment in a declaratory judgment action filed by Nautilus Insurance Company. The condominium board argues that water damage to individual units, *728 the product of poor construction by the developer, should be covered by policies issued to the developer by the Nautilus. We review the policy language in question and find that the developer’s shoddy workmanship, of which the condominium board complains, was not covered by the developer’s Nautilus policies; that the insurance company did not unduly delay in pursuing this declaratory suit; and that the alleged damage to residents’ personal property occurred after the portions of the building in question were excluded from the scope of coverage.

I

In 1998, a group of individuals and corporations formed a limited liability company, 1735 W. Diversey, LLC (“Developer”), to renovate a vacant building in Chicago. (Among those who formed the Developer were individuals Ronald Shipka, Sr., Ronald Shipka, Jr., and John Shipka, who were also named as insureds in the Developer’s various insurance policies. Because the fates of the individuals in this matter run with that of the company, we’ll refer to all insureds collectively as the Developer.)

As was evident from the Developer’s name, it intended to convert a vacant building located at 1735 West Diversey Parkway into a condominium called the Regal Lofts. It did so, gutting completely the five-story building and refitting it with residential units. In connection with this renovation, the Developer purchased two Commercial Lines Policies from Nautilus Insurance Company. The first policy covered the period from June 1998 through June 1999, and the second, June 1999 to June 2000. These policies’ scope of coverage takes center stage in the present litigation.

A

The two insurance policies in question, identical for all purposes of this litigation, cover bodily injury and property damage liability under the following provisions:

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. We will have the right and duty to defend any “suit” seek those damages. We may at our discretion investigate any “occurrence” and settle any claim or “suit” that may result....
b. This insurance applies to “bodily injury” and “property damages” only if:
(1) The “bodily injury” or “property damage” is caused by an “occurrence” ...; and
(2) The “bodily injury” or “property damage” occurs during the policy period.
“Property Damage” encompasses
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.

An “occurrence” is defined in the policies as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” Neither policy defines what constitutes an “accident.”

The policies contain three exclusions that are relevant to this matter. First, the *729 policies exclude property damage to “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.” Another exclusion takes out of the scope of coverage property damage to “that particular part of any property that must be restored, repaired or replaced because ‘your work’ was incorrectly performed on it.” Lastly, both policies contain an endorsement entitled “Exclusion— Products-Completed Operations Hazard.” As the name may suggest, this endorsement provides that “[t]his insurance does not apply to ‘bodily injury’ or ‘property damage’ included within the ‘products-completed operations hazard,’ ” a term that is structured slightly differently in the two policies, despite reflecting identical content. Both policies define that the exclusion encompasses “all ‘bodily injury’ and ‘property damage’ occurring away from premises you own or rent and arising out of ‘your product’ or ‘your work’ except: (1) Products that are still in your physical possession; or (2) Work that has not yet been completed or abandoned.” Relatedly, the policies provide that

“Your work” will be deemed completed at the earliest of the following times:

(1) When all of the work called for in your contract has been completed,
(2) When all of the work to be done at the site has been completed if your contract calls for work at more than one site, or
(3) When that part of the work done at a job site has been put to its intended use by any person or organization other than another contractor or subcontractor working on the same project.

In addition, the policies state that “[w]ork that may need service, maintenance, correction, repair or replacement, but which is otherwise complete, will be treated as completed.”

B

The construction of Regal Lofts was completed in 2000. The Regal Lofts Condominium Association (“the Board”) was formed to govern the common areas of the building, and on July 27, 2000, the Developer transferred control of the condo association to an elected board of individual unit owners, though it still owned eleven units. As early as May 2000, however, one homeowner was aware of water damage issues in the building. In November 2000, another homeowner complained that water had been leaking into his unit — whenever it rained — for at least two months. In 2005, the Board hired a building consulting firm to survey the building and investigate the cause of the leakage. The firm noted that the exterior brick masonry walls were not fully waterproofed, as evidenced by water leakage, buildup of efflorescence in the interior surfaces of the brick walls, and spalling (breaks and cracks) in some of the walls. The consulting firm concluded that the deteriorated conditions had likely developed over many years, even prior to the condominium conversion, but that the present water penetration was the result of inadequate restoration of the walls to a water-tight, serviceable condition.

Thus began a cascading series of litigation. In January 2008, the Board sued the Developer in Illinois state court on behalf of the individual homeowners. (We will call this the “underlying action” or the “state court action.”) The six-count complaint alleged, inter alia, that the Developer had failed to properly construct the exterior walls and that the structural defects required rebuilding or repair.

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Cite This Page — Counsel Stack

Bluebook (online)
764 F.3d 726, 2014 U.S. App. LEXIS 16250, 2014 WL 4100701, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nautilus-insurance-v-board-of-directors-of-regal-lofts-condominium-assn-ca7-2014.