Stephens v. Mid-Continent Casualty Co.

915 F. Supp. 2d 1320, 2013 WL 85281, 2013 U.S. Dist. LEXIS 2111
CourtDistrict Court, S.D. Florida
DecidedJanuary 7, 2013
DocketCase No. 10-10110-CIV
StatusPublished
Cited by4 cases

This text of 915 F. Supp. 2d 1320 (Stephens v. Mid-Continent Casualty Co.) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stephens v. Mid-Continent Casualty Co., 915 F. Supp. 2d 1320, 2013 WL 85281, 2013 U.S. Dist. LEXIS 2111 (S.D. Fla. 2013).

Opinion

ORDER GRANTING SUMMARY JUDGMENT

JAMES LAWRENCE KING, District Judge.

THIS MATTER comes before the Court upon Plaintiffs Motion for Partial Summary Judgment (DE # 99), filed May 11, 2012, and Defendant’s Motion for Summary Judgment (DE # 101), also filed May 11, 2012. Therein, Plaintiff Jennifer A. Stephens, as personal representative of the Estate of Charles Eugene Becker and as Assignee of Anchorage Homes LLC, (“Plaintiff’ or “Stephens”), seeks judgment as a matter of law on the issues of wrongful refusal to defend and coverage, and Defendant Mid-Continent Casualty Company (“Defendant” or “Mid-Continent”) seeks summary judgment on all issues. [1322]*1322The Court is fully briefed on both Motions and proceeds with the benefit of oral argument.1 The Court grants summary judgment for the Defendant Mid-Continent Casualty Company.

I. Background

Plaintiff Stephens, as personal representative of the Estate of Charles Eugene Becker and as Assignee of Anchorage Homes, LLC, filed the instant action on December 8, 2010, alleging breach of contract against Defendant Mid-Continent Casualty Company. Defendant submitted a Motion to Dismiss (DE # 7) on January 25, 2011 and, upon the Court’s Order Denying the Motion to Dismiss (DE #59, filed Decembér 1, 2011), submitted its Answer and Affirmative Defenses on December 13, 2011 (DE # 62). Parties spent the next ten months in discovery and motion practice. On November 1, 2012, the Court heard oral argument from parties on the cross-motions for summary judgment. All discovery has been completed, and oral argument from each party on the issues contained in those motions has been held, it is therefore appropriate for the Court to rule on summary judgment. The following facts are uncontested. (See Joint Pretrial Stip. 5-6, DE # 182).

Jeffrey and Connie Kirkland wanted to have a modular home built on their property at 28572 Buccaneer Road, Little Torch Key, in Monroe County, Florida. On June 22, 2004, they applied for a county building permit. The County granted a permit on March 14, 2007, and on August 13, 2007, the Kirklands signed an Owner/Contractor Agreement with Anchorage Homes, LLC (“Anchorage”). The Kirk-lands paid Anchorage the deposit and all of the draws and progress payments included in the Owner/Contractor Agreement, and Anchorage in turn paid the subcontractors that worked on the project from the draws and progress payments. Jack Fritz2 was hired to set the modular home on the foundation, which he did with the help of a set crew. One of the people Fritz hired and paid, Charles Eugene Becker, died on June 7, 2008 after falling off a ladder during the course and scope of his work for Fritz on the Kirklands’ modular home project. At the time of Becker’s passing, Anchorage Homes held an insurance policy with Defendant Mid-Continent (Policy GL 711655, effective dates April 7, 2008 [1323]*1323through April 7, 2009). Plaintiff Stephens filed a wrongful death suit on November 25, 2008, against Anchorage Homes, Team Fritz, Inc., and the Kirklands, as personal representative of the decedent’s estate.3 Anchorage Homes provided the Complaint to its insurance agent on December 15, 2008, who in turn submitted the Complaint to Mid-Continent on December 17, 2008. (Joint Pretrial Stip. 5-6, DE # 182). In addition, the Court finds the following facts.

The aforementioned signed Owner/Contractor Agreement is printed on Anchorage Homes letterhead which includes, printed at the top of the page, the words “ANCHORAGE HOMES, LLC” and “General Contractor CGC1504438” above Anchorage Homes’ mailing address and contact numbers. (DE # 47-2 at 88). The agreement, between the Kirklands and Anchorage Homes, named Anchorage Homes as “the Contractor,” and the Kirk-lands as “the Owner.” (Owner/Contractor Agreement, DE # 47-2). The Agreement states that “Contractor is not responsible for time of completion for work being done by Owner or his agents,” (id) delineating the Owner’s agents from the Owner’s named Contractor, Anchorage Homes. It also includes a progress payment to be made to Anchorage for “Delivery and set of system built home.” Id. The Agreement further states the following, under Section VIII., “General Provisions”:

2. Contractor may at its discretion engage subcontractors to perform work hereunder. Contractor shall in all instances remain responsible for the proper completion of the contract. The Contractor shall supervise and direct all the work.
3. Contractor shall provide and pay for all labor, materials, equipment, tools, transportation, and other facilities and services necessary for the proper execution and completion of the work.
16. Owner agrees he shall not directly contact any subcontractors, including but not limited to, home manufacturer or suppliers hired by Contractor without the written consent of Contractor.
By execution of this agreement, I agree to have read and fully understand all of statements and implications of this document. I agree to abide by and follow the above conditions as listed in this agreement. (Id.)

At least three versions of the aforementioned Monroe County permit (# 04102997) showing identical dates and permit numbers but differing amounts of money under the Schedule of Fees have been filed on the record by parties in this case.4 (See DE # 22-2 at 6 (filed May 20, 2011)), DE # 44-3 at 19 (filed August 24, 2011), and DE # 99-1 at 2 (filed May 11, 2012). One version appears to have been signed by Mr. Kirkland, and states that no subcontractors have been assigned (DE # 99-1 at 2^4), whereas the other two [1324]*1324versions appear to be signed by Anchorage Homes principle William Liptak (DE #44-3 at 19 and DE #22-2 at 6). Furthermore, the third version (DE # 22-2 at 6) includes a handwritten note that appears to state “Paid co fee and added subcontractors.” (DE # 22-2 at 6).

The Monroe County 180-Day Extension Request Form dated January 2, 2008 (DE # 47-3 at 101, filed by Defendant) lists Jeffrey Kirkland on the line labeled “Owner Name” and displays Liptak’s signature on the line labeled “Owner/Contractor.” Defendant also filed a site plan submitted to the State of Florida Department of Health as part of an application for onsite sewage disposal system construction permit that appears to have been signed by Liptak with the letters “GC” written on the line designated for “Title.” (DE # 47-3 at 103). A conflicting document titled “Notice of Commencement,” dated March 14, 2007 and sworn by Jeffrey Kirkland before a notary, states only the word “Owner” in the area designated for “Contractor’s Information.” (DE # 99-1 at 62).

Regarding the relationship between Jack Fritz and Anchorage, Fritz testified in his deposition that he never entered a contract with Anchorage Homes. (Fritz Dep. 127:8-10, DE # 100-3). The evidence conflicts as to who hired Fritz.5 However, it was Anchorage that paid the subcontractors from the draws/progress payments delineated in the Owner/Contractor Agreement between Anchorage and the Kirklands (Joint Pretrial Stip. 5, DE # 182). Fritz also submitted his estimates for the work he was to perform to Anchorage.

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Bluebook (online)
915 F. Supp. 2d 1320, 2013 WL 85281, 2013 U.S. Dist. LEXIS 2111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stephens-v-mid-continent-casualty-co-flsd-2013.