OHIO CASUALTY INSURANCE COMPANY, APPELLANT,
v.
RAFAEL SANTOS, SR., D/B/A SANTOS LAWN SERVICE, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Ohio Casualty Insurance Company appealed a trial court judgment finding that Santos was entitled to insurance coverage for damage caused when he mistakenly felled a client's tree instead of topping it. The appellate court reversed, holding that the insurance policy's exclusions for defective work performed by the insured barred coverage for this business risk.
The court held that Ohio Casualty was not obligated to provide coverage because policy exclusions (n) and (o) explicitly exclude coverage for property damage arising out of work performed by or on behalf of the insured. The defective work constituted an uninsured business risk that should be borne by the contractor who performed the work.
[1] An insurance policy exclusion for property damage to work performed by the insured arising out of such work applies to defective work performed by the insured.
[2] The risk that a contractor will perform defective work or furnish inadequate materials is a business risk not covered by insurance.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The risk intended to be insured is the possibility that the goods, products or work of the insured, once relinquished or completed, will cause bodily injury or damage to property other than to the product or completed work itself, and for which the insured may be found lia-ble.”
Establishes the intended scope of coverage under the policy—protection against third-party damage from completed work, not defective work itself.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceRafael Santos, Sr., owner of Santos Tree Service, received instructions through his son to top a java plum tree for customer Jeanne Atkins. Due to a c…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Care, Custody, Or Control Exclusion cases and more on FLexlaw
RYDER, Chief Judge.
Ohio Casualty Insurance Company, insurer of Rafael Santos, Sr., d/b/a Santos Lawn Service, appeals a trial court judgment that Santos was entitled to insurance coverage when he mistakenly felled a thirty-foot java plum tree. We reverse.
The facts are not in dispute. Mrs. Jeanne Atkins contacted by telephone Santos Tree Service and told Rafael Santos, Jr. that she wanted her java plum tree topped “way down.” Mr. Santos, Jr. relayed her instructions to his father, Rafael Santos, Sr., who spoke no English. The lines of communication broke down somewhere and Mr. Santos, Sr. understood that Mrs. Atkins wanted the tree cut all the way down, which he did. Ultimately, Santos filed a declaratory action against his business insurer, Ohio Casualty, to determine whether he or the insurer was responsible for the cost of replacing Mrs. Atkins’ tree.
The insurance policy in question contains the following exclusions:
This insurance does not apply ...
(n) to property damage to the named insured’s products arising out of such products or any part of such products.
(o) to property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection thereof.
These identical provisions have been construed to exclude coverage for the defective work done by the insured. LaMarche v. Shelby Mutual Insurance Co., 390 So. 2d 325 (Fla.1980). As the court stated in Commercial Union Insurance Co. v. R.H. Barto Co., 440 So. 2d 383 (Fla. 4th DCA 1983),
“The risk intended to be insured is the possibility that the goods, products or work of the insured, once relinquished or completed, will cause bodily injury or damage to property other than to the product or completed work itself, and for which the insured may be found liable....” (quoting Weedo v. Stone-E-Brick, Inc., 81 N.J. 233, 405 A. 2d 788 (1979)).
... [T]he risk a contractor takes that he will do defective work or furnish inadequate material is a business risk not insured against.
440 So. 2d at 386.
Therefore, Santos’ defective work in cutting down the plum tree was an uninsured business risk. Santos as the person doing the work was in the best position to guard against the risk that his work would be defective.
Appellant Ohio Casualty also argues that an exclusion for damage to “property in the care, custody or control of the insured” applies. Because of our determination that exclusions (n) and (o) discussed above control, it is not necessary to decide this question. We note, however, that the custody, care and control of the tree remained with the owner and not with the contractor hired to trim the tree.
The judgment of the trial court is reversed with instructions to enter judgment for Ohio Casualty Insurance Company.
Reversed and remanded with instructions.
SCHEB and DANAHY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Hawk Termite & Pest Control, Inc. v. OLD Republic Ins. Co., 596 So. 2d 96 (Fla. 3d DCA 1992)…bia Chem. Corp. v. U.S. Fid. & Guar. Co., 212 So. 2d 884 (Fla. 1st DCA 1968). The customer’s claim of negligence was simply a claim of poor workmanship, clearly not covered under the terms of the insurance contract. See Ohio Cas. Ins. Co. v. Santos, 465 So. 2d 672 (Fla. 2d DCA 1985) (Risk that employee of tree service would erroneously cut down tree, rather than topping it, was an uninsured business risk not covered by business insurance policy since loss was due to defective work and tree service was in best…
-
Henry Angelo & Sons, Inc. v. Ins. Co. OF N. Am., 498 So. 2d 640 (Fla. 3d DCA 1986)…PER CURIAM. Affirmed. See La Marche v. The Shelby Mutual Insurance Co., 390 So. 2d 325 (Fla.1980); Ohio Casualty Insurance Co. v. Santos, 465 So. 2d 672 (Fla. 2d DCA 1985); Centex Home Corporation v. Prestressed Systems, Inc., 444 So. 2d 66 (Fla. 3d DCA 1984); Tucker Construction Company v. Michigan Mutual Insurance Company, 423 So. 2d 525 (Fla. 5th DCA 1982); Bor-Son Building Corporation v. Employe…
Authorities Cited
- LaMARCHE v. The Shelby Mut. Ins. Co. & Clearwater Prestige Homes, Inc., 390 So. 2d 325 (Fla. 1980)
- Commercial Union Ins. Co. v. The R.H. Barto Co., 440 So. 2d 383 (Fla. 4th DCA 1983)