BILTMORE CONSTRUCTION CO., INC., AND CENTRAL-ALLIED ENTERPRISES, INC., A CONTINUING JOINT VENTURE, BY AND THROUGH BILTMORE CONSTRUCTION CO., INC., AND CENTRAL-ALLIED ENTERPRISES, INC., ITS COVENTURERS, APPELLANTS,
v.
OWNERS INSURANCE COMPANY AND AUTO-OWNERS INSURANCE COMPANY, APPELLEES

Fla. 2d DCA | 2003-03-21
No. 2D01-5770
STRINGER and COVINGTON, JJ., Concur.
842 So. 2d 947 Florida District Court of Appeal, Second District (2003) Positive Treatment
Cited by 30 cases

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Holding

An insurer has a duty to defend if the complaint alleges facts creating potential coverage under the policy, and all doubts must be resolved in favor of the insured.


Headnotes

[1] An insurer's duty to defend a complaint is determined solely by the allegations within the complaint filed by a third party against the insured.

[2] Doubts regarding the existence of an insurer's duty to defend must be resolved against the insurer and in favor of the insured.

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Facts & Procedural History

Biltmore, a general contractor, was sued by Bayshore for damages from defective construction, including water infiltration. Biltmore's insurer, Owners…

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Opinion of the Court
WHATLEY, Judge.

WHATLEY, Judge.

Biltmore Construction Company and Central-Allied Enterprises challenge a final summary judgment that determined Owners Insurance Company and Auto-Owners Insurance Company (Owners) were not obligated to defend against a claim brought by Bayshore Heights Associates. We reverse because the claims made in Bayshore’s complaint were potentially covered under the terms of the insurance policy issued by Owners.1

Biltmore Construction Company and Central-Allied Enterprises formed a joint venture (Biltmore) that constructed an assisted congregate living facility for Bay-shore. Biltmore is a general contractor and Owners was Biltmore’s general liability insurance carrier. The basic insuring agreement provides: “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’ seeking those damages.”

Bayshore filed a complaint against Bilt-more for damages arising from the construction of its facility. Biltmore informed Owners of the complaint, and Owners denied a duty to defend or indemnify Bilt-more for the claims made in Bayshore’s complaint. Thereafter, Biltmore filed a complaint against Owners seeking to recover fees and costs incurred in defending the Bayshore lawsuit. Biltmore alleged that Owners had a duty to defend Biltmore pursuant to the insurance contract.2

Competing motions for summary judgment were filed. After a hearing, the trial court granted Owners’ motion for summary judgment, finding that Owners did not have a duty to defend Biltmore based on the allegations in Bayshore’s original complaint.

We first note that the applicable standard of review is de novo as the interpretation of an insurance contract is a question of law. Auto-Owners Ins. Co. v. Marvin Dev. Corp., 805 So. 2d 888, 891 (Fla. 2d DCA 2001). An insurer’s duty to defend a complaint depends solely on the allegations in the complaint filed by a third party against the insured. Home Owners Warranty Corp. v. Hanover Ins. Co., 683 So. 2d 527, 528 (Fla. 3d DCA 1996).

On appeal, Biltmore argues that Owners was obligated to provide a defense for the second count in Bayshore’s complaint. Count two of the complaint alleged that Biltmore furnished and installed defective windows and that the windows, window sills, and exterior walls were improperly constructed, painted, and sealed, which permitted severe water infiltration. Bayshore further alleged that, as a result of the severe water infiltration, it suffered “damage in its business and property.”

Owners argues that the claim was not covered by the policy because it fell under the following policy exclusion:

j. “Property damage” to:

(6) That particular part of any property that must be restored, repaired or replaced because “your work” was incorrectly performed on it.

Owners argues that there is nothing in the complaint to indicate that the “property” that was damaged was anything other than the property requiring repair due to faulty construction. See La-Marche v. Shelby Mut. Ins. Co., 390 So. 2d 325, 326 (Fla.1980) (“[T]he purpose of this comprehensive liability insurance coverage is to provide protection for personal injury or for property damage caused by the completed product, but not for the replacement and repair of that product.”). We reject this argument because an insurance company must defend if “the complaint alleges facts that create potential coverage under the policy....” Grissom v. Commercial Union Ins. Co., 610 So. 2d 1299, 1307 (Fla. 1st DCA 1992). “All doubts as to whether a duty to defend exists in a particular case must be resolved against the insurer and in favor of the insured.” Id. Here, the allegation that there was damage due to severe water infiltration could obviously include damage to property other than the improperly constructed windows and exterior walls, as it could include damage to carpeting and drywall. Therefore, there was potential coverage under the policy, and Owners had a duty to defend the claim.

Additionally, there is an exception to paragraph six of the exclusions, which provides that the exclusion does not apply to a completed product. Owners argues that this exception does not apply to create coverage here because there was no allegation in Bayshore’s complaint that the defective work caused damage to a completed project. We disagree. The complaint specifically reads, “[Sjince the date of substantial completion, plaintiff has experienced severe water infiltration problems at the project through and around the windows and through the exterior elas-tomeric coating and stucco.” Therefore, as the complaint alleged damage to a completed product, the exception to the exclusion applied, and Owners was obligated under the insurance agreement to provide a defense to count two of Bayshore’s complaint. Thereafter, if it were learned during discovery that there was no coverage under the policy, Owners could have moved to withdraw. Accordingly, we reverse and remand this cause for further proceedings consistent with this opinion.

Reversed.

STRINGER and COVINGTON, JJ., Concur. . The insurance agreement at issue provides broad form products/completed operations coverage.

. Subsequently, Bayshore served an amendment to the complaint against Biltmore, and Owners acknowledged liability for the claims of Bayshore and settled those claims. However, Owners continued to refuse to pay Bilt-more the fees and costs incurred before Owners acknowledged liability for Bayshore’s claims.


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Citator

Cited By (16 total)

  • Jones v. Fla. Ins. Guar. Ass'n, Inc., 908 So. 2d 435 (Fla. 2005)
    …, Inc., 358 So. 2d 533, 535 (Fla.1977). The duty to defend must be determined from the allegations in the complaint. See, e.g., Nat. Union Fire Ins. Co. v. Lenox Liquors, Inc., 358 So. 2d 533, 535 (Fla.1977); Biltmore Constr. Co. v. Owners Ins. Co., 842 So. 2d 947, 949 (Fla. 2d DCA 2003); McCreary v. Fla. Residential Prop. & Cas. Joint Underwriting Ass’n, 758 So. 2d 692, 695 (Fla. 4th DCA 1999); Baron Oil Co. v. Natiomuide Mut. Fire Ins. Co., 470 So. 2d 810, 813 (Fla. 1st DCA 1985). The duty to defend is of…
  • Gen. Star Indem. Co. v. W. Fla. Vill. INN, Inc., 874 So. 2d 26 (Fla. 2d DCA 2004)
    …cision. The Law Our review calls for interpretation of the Multiple Deductible Form1 and the deductible provision of the Building and Personal Property Coverage Form.2 The standard of review is de novo. See Biltmore Constr. Co. v. Owners Ins. Co., 842 So. 2d 947, 949 (Fla. 2d DCA), review dismissed, 846 So. 2d 1148 (Fla.2003); Auto-Owners Ins. Co. v. Marvin Dev. Co., 805 So. 2d 888, 891 (Fla. 2d DCA 2001). The facts determined in the voluntary trial resolution pro1 ceeding are not subject to appeal. See § 4…
  • J.S.U.B., Inc. v. United States Fire Ins. Co., 906 So. 2d 303 (Fla. 2d DCA 2005)
    …n of an insurance contract is a question of law, and our review of the trial court’s interpretation of the subject policies is de novo. Jones v. Utica Mut. Ins. Co., 463 So. 2d 1153, 1157 (Fla.1985); Bilt- [*307] more Constr. Co. v. Owners Ins. Co., 842 So. 2d 947, 949 (Fla. 2d DCA 2003); Vollmer v. Key Fin. Corp., 810 So. 2d 966, 968 (Fla. 2d DCA 2002). We are required to construe an insurance policy in accordance with its plain language. Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So. 2d 161, 165 (Fla…

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