Pulte Home Corp. v. Fidelity & Guaranty Ins.

80 Va. Cir. 160, 2004 Va. Cir. LEXIS 381
CourtFairfax County Circuit Court
DecidedFebruary 6, 2004
DocketCase No. (Law) 210454
StatusPublished

This text of 80 Va. Cir. 160 (Pulte Home Corp. v. Fidelity & Guaranty Ins.) is published on Counsel Stack Legal Research, covering Fairfax County Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pulte Home Corp. v. Fidelity & Guaranty Ins., 80 Va. Cir. 160, 2004 Va. Cir. LEXIS 381 (Va. Super. Ct. 2004).

Opinion

BY JUDGE R. TERRENCE NEY

This matter came before the Court on December 12, 2003, pursuant to the parties’ cross Motions for Summary Judgment.

Plaintiff Pulte Home Corporation’s (“Pulte”) seeks Summary Judgment on its claim for reimbursement from Defendants Fidelity and Guaranty Insurance Company (“FGIC”) and St. Paul Fire & Marine Insurance Company (“St. Paul”) of its costs in defending and settling certain lawsuits filed against Pulte arising out of the installation of allegedly defective Exterior Insulation Finish Systems (“EIFS”) on newly built homes in Virginia and Maryland.

FGIC and St. Paul seek Partial Summary Judgment finding no duty on their part to indemnify Pulte for those portions of the settlements of the underlying lawsuits allocated to the repair and replacement of EIFS.

[161]*161 I Facts

In 1998 or 1999, fifteen lawsuits (the “Wheatland suits”) were brought against Pulte and one of its subcontractors, Coronado Corporation (“CSS”), by Fairfax County homebuyers alleging that their homes were improperly clad with EIFS. Pulte tendered the suits to FGIC, its liability insurance carrier. CSS purchased an insurance policy from FGIC (the “FGIC Insurance Contract”). The policy provided that, under certain circumstances, companies to which CSS had subcontracted work could be treated as additional insureds. Pulte concedes that it qualifies as an additional insured for liability arising out of CSS’s work. St. Paul is the successor in interest to FGIC. FGIC failed to respond to Pulte’s selection of counsel or otherwise provide Pulte a defense. Pulte contends that it advised St. Paul as to its preferred defense counsel, including his experience and hourly rates. Pulte further requested a response from St. Paul should it have any concerns. No concerns were communicated to Pulte. Pulte asserts it incurred a total of $1,350,293.17 in defending the Wheatland suits. The cases eventually settled.

On December 23, 2002, Pulte filed a Motion for Declaratory Judgment against FGIC and St. Paul seeking a declaration that the terms of its FGIC liability insurance policy, endorsed to include Pulte as an Additional Insured, obligated FGIC to reimburse Pulte for its defense, settlement, and loss-mitigation costs incurred in the underlying Wheatland suits.

Plaintiff seeks declaratory judgment for defense costs (Count I), indemnity (Count II), breach of contract (Count III), violations of the Virginia Unfair Claim Settlement Practices Act (Count IV), breach of implied covenant of good faith and fair dealing (Count V), and unjust enrichment (Count VI). Pulte contends that its defense costs totaled $1,260,785.27.

II Analysis

In Virginia, a trial court may enter summary judgment only if no material fact is genuinely in dispute. Rule 3:18 of the Rules of the Supreme Court of Virginia. In considering a motion for summary judgment, a trial court must adopt those inferences from the facts that are most favorable to the nonmoving party, unless the inferences are forced, strained, or contrary to reason. Dickerson v. Fatehi, 253 Va. 324, 484 S.E.2d 880 (1997). Summary judgment is appropriate only where the [162]*162record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove. Id.

A. Pulte’s Motion for Partial Summary Judgment Regarding Reimbursement for Past Defense Costs

Relying on FGIC and St. Paul’s responses to its Requests for Admissions, Pulte asserts that there is no fact in dispute regarding the duty to defend,1 and that FGIC and St. Paul have breached this duty by failing to reimburse Pulte in full2 for its out-of-pocket defense costs.

Pulte contends that, prior to seeking reimbursement for its defense costs, it provided information to FGIC and St. Paul on its preferred defense counsel. See supra. Pulte asserts it incurred a total of $1,350,293.17 in defending the Wheatland suits. Due to St. Paul’s alleged breach of the insurance contract, Pulte contends that St. Paul owes it $1,260,785.27, $1,350,293.17 minus the $89,507.90 paid in the Peckinpaugh suit. See supra.

FGIC and St. Paul do not dispute their duty to defend Pulte under the insurance policy. FGIC concedes that the issue of the existence of a duty to defend Pulte is moot, as FGIC previously admitted such a duty. See FGIC’s Responses to Requests for Admissions at ¶ 58. Rather, FGIC and St. Paul dispute the scope of the duty owed to Pulte.

Specifically, FGIC and St. Paul assert that Pulte’s attempt to have this Court decide on summary judgment (1) how much FGIC and St. Paul owe in defense costs; (2) what entity is entitled to recover those costs; and (3) whether FGIC and St. Paul must pay what they consider “patently unreasonable costs” is premature, as such matters are material disputed facts and cannot be decided as a matter of law.

In response, Pulte argues that FGIC and St. Paul are improperly limiting their defense coverage on the grounds that (1) “other” insurance [163]*163may apply to Pulte’s claim and (2) Pulte’s defense costs are “unreasonable.” With respect to the reasonableness of Pulte’s defense costs, Pulte asserts that FGIC and St. Paul have waived or are otherwise estopped from challenging the reasonableness of such costs by their failure to provide Pulte a defense or respond to Pulte’s selection of counsel.

1. Amount Owed in Defense Costs

Pulte is seeking reimbursement in the amount of $1,350,293.17, the amount allegedly incurred in defending the Wheatland suits.

In response, FGIC and St. Paul note that the amount that Pulte now seeks is significantly more than the $1,030,672.37 in invoices Pulte submitted to FGIC and St. Paul prior to this litigation. Pulte asserts that it submitted its defense costs to FGIC and St. Paul and directs the Court to its Amended Motion for Judgment, Exhibits C, H, and N as evidence that it incurred $1,350,293.17. See Pulte’ Motion for Partial Summary Judgment Regarding Reimbursement for Past Defense Costs. FGIC and St. Paul note, however, that nowhere in these exhibits is such an amount indicated and that the only amount of defense costs referenced in aforementioned exhibits is $68,380.48. See Exhibit C, attached to Pulte’s AMFJ.

Furthermore, FGIC and St. Paul note that Pulte’s demand is not consistent with the amount alleged in its Amended Motion for Judgment, $1,500,000 in defense costs. See Pulte’s Amended Mot. for J. at ¶ 59. Moreover, FGIC and St. Paul allege that they are unable to determine the total defense costs, as Pulte has failed to provide them with all of the defense bills and records, despite repeated requests made by FGIC and St. Paul. Plainly, the amounts are in dispute.

2. Other Entity Insurance Coverage

Similarly, FGIC and St. Paul argue that Pulte has failed to disclose those amounts it has allegedly recovered from its “other” insurance carriers. Specifically, FGIC and St.

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