AETNA INSURANCE COMPANY, APPELLANT,
v.
STATE FARM FIRE & CASUALTY COMPANY, AS SUBROGEE OF LARRY B. ELMORE AND EVA H. ELMORE, HIS WIFE, APPELLEE
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Aetna Insurance appeals a summary judgment finding its liability policy covered a contractor's negligent fireplace installation that caused a fire after the policy expired. The court reverses because a genuine issue of material fact exists regarding whether the policy jacket—containing the definition of 'property damage' requiring occurrence during the policy period—was part of the insurance contract.
The trial court erred in granting summary judgment because there is a genuine issue of material fact regarding what documents constituted the insurance contract. If the policy jacket was part of the contract, there would be no coverage because the 'property damage' definition requires occurrence during the policy period; if not, there would be coverage.
[1] A genuine issue of material fact exists regarding which documents constitute an insurance contract when the policy jacket containing definitions and conditions was not in…
[2] Coverage under a liability insurance policy for property damage requires that the damage occur during the policy period, as defined within the policy's terms.
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Join FLexlaw to unlock all legal intelligence“There is a genuine issue of material fact as to what documents constituted the insurance contract between Aetna and the building contractor.”
Establishes that summary judgment was improper due to factual dispute about contract formation
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Join FLexlaw to unlock all legal intelligenceAetna issued a liability insurance policy to a building contractor. While the policy was in effect, the contractor built a house with a fireplace and …
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SHIVERS, Judge.
Appellant, Aetna Insurance Company, appeals from a final judgment in favor of appellee, State Farm Fire & Casualty Company, and asserts that the trial court erred in granting partial summary judgment on the issue of liability insurance coverage. We agree and remand.
Aetna issued a policy of liability insurance to a building contractor. While the policy was in effect, the contractor built a house including a fireplace and chimney. After the policy expired, the house was destroyed by a fire allegedly caused by the contractor’s negligent installation of the fireplace and chimney. State Farm was subrogated to the homeowner’s claim against the contractor after paying for the fire loss and brought suit against the contractor joining Aetna as the liability insurer. In response to a request for admission, Aetna admitted that the insurance forms attached to the request were a correct copy of the provisions of the liability insurance policy it had issued to the contractor.1 The policy jacket containing definitions and conditions was not attached.2 Prior to the hearing on appellee’s motion for summary judgment, Aetna filed with the court the policy jacket applicable to the year the policy was in effect. The trial court granted appellee’s motion finding that the policy does provide coverage to the insured contractor. There is a genuine issue of material fact as to what documents constituted the insurance contract between Aetna and the building contractor. If on remand the policy jacket is found to have been a part of the insurance contract, there would be no coverage under either the general liability provisions or completed operations provisions since the definition of “property damage” specifically requires occurrence during the policy period; see Travelers Insurance Company v. C.J. Gayfer’s & Co., 366 So. 2d 1199 (Fla. 1st DCA 1979); Bill Binko Chrysler-Plymouth v. Compass Insurance Co., 385 So. 2d 692 (Fla. 4th DCA 1980); Prieto v. Reserve Insurance Company, 340 So. 2d 1282 (Fla. 3d DCA 1977); but if not, there would be coverage.
REVERSED and REMANDED.
THOMPSON and ZEHMER, JJ., concur. . The liability portion of the policy reads in its material part as follows:
1. COVERAGE A — BODILY INJURY LIABILITY
COVERAGE B — PROPERTY DAMAGE LIABILITY
The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of A. bodily injury or B. property damage
to which this insurance applies, caused by an occurrence ....
. Property damage is defined in the jacket as follows:
“property damage” means (1) physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom, or (2) loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period;
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Discover Prop. & Cas. Ins. Co. v. Beach Cars OF W. Palm, Inc., 929 So. 2d 729 (Fla. 4th DCA 2006)…We cannot, under the guise of contract construction, supply language which the insurance company did not include. Finally, Appellant unsuccessfully attempts to deflect the clear implication of Aetna Insurance Co. v. State Farm Fire & Casualty Co., 457 So. 2d 512 (Fla. 1st DCA 1984). In Aetna, the court determined [*733] that a factual question existed as to whether language on a policy jacket was to be read as part of the insurance contract. The language on the jacket was significant because it defined “pro…
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United States Fid. & Guar. Co. v. Am. Fire & Indem. Co., 511 So. 2d 624 (Fla. 5th DCA 1987)…w, § 167, Subd. 8. . Gulf Ins. Co. v. Dolan, Fertig & Curtis, 433 So. 2d 512, 514 (Fla.1983). . See Bill Binko Chrysler-Plymouth, Inc. v. Compass Ins. Co., Inc., 385 So. 2d 692 (Fla. 4th DCA 1980); Aetna Ins. Co. v. State Farm Fire & Casualty Co., 457 So. 2d 512 (Fla. 1st DCA 1984) rev. denied, 462 So. 2d 1108 (Fla.1985); Prieto v. Reserve Ins. Co., 340 So. 2d 1282 (Fla. 3rd DCA 1977). . Travelers Ins. Co. v. C.J. Gayfer’s & Co., Inc., 366 So. 2d 1199 (Fla. 5th DCA 1979); New Amsterdam Casualty Co. v. Addi…
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Park Imaging, Inc. v. NMC Diagnostic Servs., Inc., 705 So. 2d 630 (Fla. 4th DCA 1998)…PER CURIAM. Affirmed. See Gulf Ins. Co. v. Dolan, Fertig and Curtis, 438 So. 2d 512 (Fla.1983); Aetna Ins. Co. v. State Farm Fire & Cas. Co., 457 So. 2d 512 (Fla. 1st DCA 1984), rev. denied, 462 So. 2d 1108 (Fla.1985); and Bill Binko Chrysler-Plymouth, Inc. v. Compass Ins. Co., 385 So. 2d 692 (Fla. 4th DCA 1980). STONE, C.J., and POLEN and FARMER, JJ., concur.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Travelers Ins. Co. v. C. J. Gayfer's & Co., Inc., 366 So. 2d 1199 (Fla. 1st DCA 1979)
- Prieto v. Reserve Ins. Co., 340 So. 2d 1282 (Fla. 3d DCA 1977)
- Bill Binko Chrysler-Plymouth, Inc. v. Compass Ins. Co., Inc., 385 So. 2d 692 (Fla. 4th DCA 1980)