TRAVELERS INDEMNITY COMPANY, APPELLANT,
v.
MILGEN DEVELOPMENT, INC., APPELLEE

Fla. 3d DCA | 1974-05-28
Nos. 73-1341, 73-1520
Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
297 So. 2d 845 Florida District Court of Appeal, Third District (1974) Positive Treatment
Cited by 15 cases

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Holding

The court held that the insurance policy covered the loss of materials stolen during a burglary, as the property was incidental to construction and the vacancy exclusion did not apply to a building still under construction.


Headnotes

[1] An insurance policy's "building under construction" endorsement can provide coverage for materials, equipment, and supplies incidental to the construction of a building,…

[2] A "vacancy" exclusion in an insurance policy may not apply when a building is still under construction, as the purpose of the "building under construction" endorsement is…

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Facts & Procedural History

Plaintiff's apartment buildings under construction were insured by defendant. During a burglary, various building materials and fixtures stored on-sit…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Defendant-appellant seeks review of a judgment awarding plaintiff $1,644.63 plus costs and attorneys’ fees in this action for declaratory judgment.

The undisputed facts are as follows: Plaintiff-appellee, Milgen Development, Inc., was engaged in the construction of apartment buildings and was insured under an apartment owners-builders risk policy issued by the defendant-appellant, the Travelers Indemnity Company.

Attached thereto was a building under construction endorsement which provides in part: “The Travelers (Package Policies) “Building Under Construction Endorsement “(Applicable to Section 1) “Amending Policy No. ND 8936233 “(. . . .) “Purpose of Use When Completed “APTS “(. . . .) “DESCRIPTION OF PROPERTY INSURED “Coverage A — Insurance under this endorsement applies to : “(a) the building described in the declarations of this endorsement, while in the course of construction, including foundations, additions, attachments, and all permanent fixtures, belonging to and constituting a part of such building: “(b) temporary structures, materials, equipment, and supplies incidental to the construction of such building; and “(c) builders’ machinery, tools, and equipment, owned by the Insured or for which the Insured is legally liable; all while on the premises of such building or zvithin 100 feet thereof. [Emphasis supplied] “(Continued on Page 2) “ND 140 “(. . . .) “EXCLUSIONS “The Travelers shall not be liable under this endorsement: “(a) for loss by theft, except burglary of property which is an integral part of a building at the time of loss; * íjí í}í # * ifc ‡ iK ^ * “SPECIAL PROVISIONS APPLICABLE TO SECTION 1 “The Standard Form attached to the policy is amended as indicated below. “(. . . .) “2.

Perils Insured Against: Under the sub-section ‘Perils Insured Against’, the following peril is added: “10.

Burglary, including damage to an insured building and to insured property therein by burglary or attempted thereat, but excluding loss if such building had been vacant beyond a period of 30 consecutive days immediately preceding the loss.” On May 30, 1971, while the above policy was in effect, one of the buildings still under construction was burglarized and the following items, which were stored in packing cartons in an apartment then being used for storage, were removed: 22 range hoods, 16 chandeliers, 27 fluorescent lights and ten pairs of drapes.

In addition, several window frames were damaged and two fire extinguishers were stolen during the course of the unauthorized entry.

Defendant insurer denied coverage because of certain exclusions in the policy, to wit: (1) excluding coverage for property not an integral part of a building, and (2) excluding loss if a building had been vacant beyond a period of 30 consecutive days.

Thereupon, plaintiff filed the instant action for a declaratory judgment.

After a non-jury trial, the court awarded judgment in favor of plaintiff in the sum of $1,644.63 and, thereafter, awarded plaintiff-appellee $30 in costs and $750 in attorneys’ fees.

Defendant insurer appeals therefrom.

Defendant-appellant contends the court erred in holding that the insurance policy covered the loss of property, all of which was in a building which had been vacant beyond a period of 30 consecutive days immediately preceding the loss, and some of which was not affixed to the building at the time of the loss, when the insurance policy expressly provided that such losses were not covered.

We cannot agree.

Like other contracts, contracts of insurance should receive a construction that is practical and reasonable as well as just.

If one interpretation, viewed with the other provisions of the contract and its general object and scope, would lead to an absurd conclusion, that interpretation must be abandoned and one more consistent with reason and probability adopted. 18 Fla. Jur. Insurance § 404 (1971).

Reviewing the subject insurance contract in light of the above principles, we find appellant’s argument, that the building was vacant for a period in excess of 30 consecutive days and thus coverage under the policy is excluded thereby, to be an unreasonable interpretation thereunder as the building itself still was under construction at the time of the burglary and the special endorsement attached to the insurance policy was for the express purpose of providing insurance for such loss while the subject buildings were under construction.

Clearly this vacancy argument is without merit under the instant circumstance.

We next turned our consideration to appellant insurer’s contention that the property removed such as range hoods, chandeliers, fluorescent lights, etc. was not affixed to the building and thus excluded from coverage by virtue of that provision of the insurance policy which excludes therefrom liability for property which is not an integral part of the building, Upon a close reading of the building under construction endorsement, we find that the description of property insured specifically covers material, equipment and supplies incidental to the construction of the building such as the items listed above.

Accordingly, the judgments herein appealed are hereby affirmed.

Affirmed.


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Citator

Cited By

  • …Pomona Park and support our interpretation of the policy. A reasonable interpretation of a contract is preferred to an unreasonable one. James v. Gulf Life Insurance Co., 66 So. 2d 62 (Fla.1953); Travelers Indemnity Co. v. Milgen Development, Inc., 297 So. 2d 845 (Fla.3d DCA 1974). And in the belief that the parties intended their agreement to be valid, a contract ought not be readily interpreted as ineffective. Corbin on Contracts, Section 546 (1960); Foster v. Jones, 349 So. 2d 795 (Fla.2d DCA 1977). Under…
  • …tuations if we interpret the pollution exclusion clause as it is written because none of those facts are before us. Suffice it to say that insurance policies will not be construed to reach an absurd result. Travelers Indem. Co. v. Milgen Dev., Inc., 297 So. 2d 845 (Fla. 3d DCA 1974), dismissed, 303 So. 2d 334 (Fla.1974). Applying the unambiguous language of the pollution exclusion clause to the facts of these two cases, it is clear that the incidents at issue were excluded from coverage under the respective i…
  • …a' premium therefor, being entitled to general liability insurance coverage despite the fact that the school’s application for insurance only requested liability coverage for its trustees and personnel. See Travelers Indem. Co. v. Milgen Dev. Inc., 297 So. 2d 845 (Fla. 3d DCA), cause dismissed, 303 So. 2d 334 (1974) (if one interpretation of an insurance policy, viewed with other provisions of the policy and its general object and scope, would lead to an absurd conclusion, that interpretation must be abandon…

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